[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Proposed Rules]
[Pages 34906-34915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14244]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0382; FRL-9686-2]


Approval and Promulgation of Implementation Plans; Florida; 
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 
Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plans 
(SIPs), submitted by the State of Florida, through the Florida 
Department of Environmental Protection (FDEP), as demonstrating that 
the State meets the requirements of sections 110(a)(1) and (2) of the 
Clean Air Act (CAA or the Act) for the 1997 annual and 2006 24-hour 
fine particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). Section 110(a) of the CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by the EPA, which is commonly 
referred to as an ``infrastructure'' SIP. Florida certified that the 
Florida SIP contains provisions that ensure the 1997 annual and 2006 
24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in Florida (hereafter referred to as ``infrastructure 
submission''). EPA is proposing to determine that Florida's 
infrastructure submissions, provided to EPA on April 18, 2008, and on 
September 23, 2009, addressed all the required infrastructure elements 
for the 1997 annual and 2006 24-hour PM2.5 NAAQS. As 
discussed further below, final action to approve elements 110(a)(2)(C), 
(E)(ii), and (J) is contingent upon the Agency first taking final 
action on submitted SIP revisions associated with these elements. Final 
action on those SIP revisions will be addressed in a separate action.

DATES: Written comments must be received on or before July 12, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0382, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0382,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0382. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information

[[Page 34907]]

claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
through www.regulations.gov or email, information that you consider to 
be CBI or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at 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 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how Florida addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 36852), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. By statute, SIPs meeting the requirements of sections 
110(a)(1) and (2) are to be submitted by states within three years 
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and 
(2) require states to address basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
to EPA no later than July 2000 for the 1997 annual PM2.5 
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5 
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 annual 
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent 
decree with Earthjustice which required EPA, among other things, to 
complete a Federal Register notice announcing EPA's determinations 
pursuant to section 110(k)(1)(B) as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency received from each state for the 1997 
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS'' 
making a finding that each state had submitted or failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (See 
73 FR 62902). For those states that did receive findings, the findings 
of failure to submit for all or a portion of a state's implementation 
plan established a 24-month deadline for EPA to promulgate a Federal 
Implementation Plan (FIP) to address the outstanding SIP elements 
unless, prior to that time, the affected states submitted, and EPA 
approved, the required SIPs.
    The findings that all or portions of a state's submission are 
complete established a 12-month deadline for EPA to take action upon 
the complete SIP elements in accordance with section 110(k). Florida's 
infrastructure submissions were received by EPA on April 18, 2008, for 
the 1997 annual PM2.5 NAAQS and on September 23, 2009, for 
the 2006 24-hour PM2.5 NAAQS. The submissions were 
determined to be complete on October 18, 2008, and March 23, 2010, 
respectively. Florida was among other states that did not receive 
findings of failure to submit because it had provided a complete 
submission to EPA to address the infrastructure elements for the 1997 
PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint related to EPA's failure to take action on the SIP 
submittal related to the ``infrastructure'' requirements for the 2006 
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a 
consent decree with WildEarth Guardians and Sierra Club which required 
EPA, among other things, to complete a Federal Register notice of the 
Agency's final action either approving, disapproving, or approving in 
part and disapproving in part the Florida 2006 24-hour PM2.5 
NAAQS Infrastructure SIP submittal addressing the applicable 
requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section 
110(a)(2)(C) the nonattainment area requirements and section 
110(a)(2)(D)(i) interstate transport requirements, by September 30, 
2012.
    Today's action is proposing to approve Florida's infrastructure 
submission for the 1997 annual and 2006 24-hour PM2.5 NAAQS 
for sections

[[Page 34908]]

110(a)(2)(A)-(H), (J)-(M), except for section 110(a)(2)(C) 
nonattainment area requirements and section 110(a)(2)(D)(i) interstate 
transport requirements. EPA notes that final action to approve elements 
110(a)(2)(C), (E)(ii), and (J) is contingent upon the Agency first 
taking final action on submitted SIP revisions associated with each of 
these elements. Final action on those SIP revisions will be addressed 
in separate actions.
    Today's action is not approving any specific rule, but rather 
proposing that Florida's already approved SIP meets certain CAA 
requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, some states may need to adopt language specific 
to the PM2.5 NAAQS to ensure that they have adequate SIP 
provisions to implement the PM2.5 NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below\1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' and September 
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I), but does provide detail on how Florida's SIP 
addresses 110(a)(2)(C).
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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.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006 
PM2.5 NAAQS. Interstate transport requirements were 
formerly addressed by Florida consistent with the Clean Air 
Interstate Rule (CAIR). On December 23, 2008, CAIR was remanded by 
the DC Circuit Court of Appeals, without vacatur, back to EPA. See 
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this 
remand, EPA took final action to approve Florida SIP revision, which 
was submitted to comply with CAIR. See 72 FR 58016 (October 12, 
2007). In so doing, Florida CAIR SIP revision addressed the 
interstate transport provisions in section 110(a)(2)(D)(i) for the 
1997 and 2006 PM2.5 NAAQS. In response to the remand of 
CAIR, EPA has recently finalized a new rule to address the 
interstate transport of nitrogen oxides and sulfur oxides in the 
eastern United States. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule''). That rule was recently stayed by the DC Circuit 
Court of Appeals. EPA's action on element 110(a)(2)(D)(i) will be 
addressed in a separate action.
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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,'' and 
the September 25, 2009, memorandum entitled ``Guidance on SIP 
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine 
Particle (PM2.5) National Ambient Air Quality 
Standards,'' but as mentioned above is not relevant to today's 
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\5\ Those Commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction (SSM) at sources, that may be contrary to the 
CAA and EPA's policies addressing such excess emissions; and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (director's 
discretion). EPA notes that there are two other substantive issues for 
which EPA likewise stated in other proposals that it would address 
separately: (i) Existing provisions for minor source new source review 
(NSR) programs that may be inconsistent with the requirements of the 
CAA and EPA's regulations that pertain to such programs (minor source 
NSR''\); and (ii) existing provisions for Prevention of Significant 
Deterioration (PSD) programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR 
Reform). In light of the comments, EPA believes that its statements in 
various proposed actions on infrastructure SIPs with respect to these 
four individual issues should be explained in greater depth. It is 
important to emphasize that EPA is taking the same position with 
respect to these four substantive issues in this action on the 
infrastructure SIPs

[[Page 34909]]

for the 1997 and 2006 PM2.5 NAAQS from Florida.
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    \5\ See Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational and to provide general notice of 
the potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a re-approval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
re-approval of any existing provisions that relate to these four 
substantive issues. EPA is reiterating that position in this action on 
the infrastructure SIP for Florida.
    Unfortunately, the Commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, NSR permitting program 
submissions required to address the requirements of part D, and a host 
of other specific types of SIP submissions that address other specific 
matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\6\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See ``Rule To 
Reduce Interstate Transport of Fine Particulate Matter and Ozone 
(Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25162 (May 12, 
2005) (defining, among other things, the phrase ``contribute 
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\8\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\9\ This illustrates that EPA

[[Page 34910]]

may conclude that subdividing the applicable requirements of section 
110(a)(2) into separate SIP actions may sometimes be appropriate for a 
given NAAQS where a specific substantive action is necessitated, beyond 
a mere submission addressing basic structural aspects of the state's 
implementation plans. Finally, EPA notes that not every element of 
section 110(a)(2) would be relevant, or as relevant, or relevant in the 
same way, for each new or revised NAAQS and the attendant 
infrastructure SIP submission for that NAAQS. For example, the 
monitoring requirements that might be necessary for purposes of section 
110(a)(2)(B) for one NAAQS could be very different than what might be 
necessary for a different pollutant. Thus, the content of an 
infrastructure SIP submission to meet this element from a state might 
be very different for an entirely new NAAQS, versus a minor revision to 
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See ``Guidance for State Implementation 
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under 
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division OAQPS, to Regional Air Division 
Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \12\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \13\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \14\ However, for the one exception to that general 
assumption (i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS), EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
state would work with its corresponding EPA regional office to refine 
the scope of a state's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the state's implementation plans for the NAAQS in 
question.
---------------------------------------------------------------------------

    \11\ See ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007 
Guidance nor the 2009 Guidance explicitly referred to the SSM, 
director's discretion, minor source NSR, or NSR Reform issues as among 
specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 
2009 Guidance, however, EPA did not indicate to states that it intended 
to interpret these provisions as requiring a substantive submission to 
address these specific issues in existing SIP provisions in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's proposals for other states 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from

[[Page 34911]]

the pending infrastructure SIP actions. The same holds true for this 
action on the infrastructure SIPs for Florida.
---------------------------------------------------------------------------

    \15\ See ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\16\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\17\ Significantly, EPA's 
determination that an action on the infrastructure SIP is not the 
appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action at a 
later time. For example, although it may not be appropriate to require 
a state to eliminate all existing inappropriate director's discretion 
provisions in the course of acting on the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\18\
---------------------------------------------------------------------------

    \16\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641 
(June 27, 1997) (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 2010) (proposed 
disapproval of director's discretion provisions); 76 FR 4540 
(January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how Florida Addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Florida's infrastructure submission addresses the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Florida's infrastructure submissions provide an overview of the 
provisions of Florida's Air Pollution Control Requirements relevant to 
air quality control regulations. There are several regulations within 
Florida's SIP relevant to air quality control regulations which include 
enforceable emission limitations and other control measures. Chapters 
62-204, Air Pollution Control Provisions; 62-210, Stationary Sources--
General Requirements; and 62-296, Stationary Sources--Emissions 
Standards, establish emission limits and address the required control 
measures, means and techniques for compliance with the PM2.5 
NAAQS respectively. EPA has made the preliminary determination that the 
provisions contained in these chapters and Florida's practices are 
adequate to protect the PM2.5 annual and 24-hour NAAQS in 
the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in the future. In the 
meantime, EPA encourages any state having deficient SSM provisions to 
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: 
Chapters 62-204, Air Pollution Control Provisions, 62-210, Stationary 
Sources--General Requirements, 62-212, Stationary Sources--
Preconstruction Review, 62-296, Stationary Sources--Emissions 
Standards, and 62-297, Stationary Sources--Emissions Monitoring of the 
Florida SIP, along with the Florida Network Description and Ambient Air 
Monitoring Network Plan, provide for an ambient air quality monitoring 
system in the State. Annually, EPA approves the ambient air monitoring 
network plan for the state agencies. In May 2011 Florida submitted its 
plan to EPA. On October 17, 2011, EPA approved Florida's monitoring 
network plan. Florida's approved monitoring network plan can be 
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-
0382. EPA has made the preliminary determination that Florida's SIP and 
practices are adequate for the ambient air quality monitoring and data 
systems related to the 1997 annual and 2006 24-hour PM2.5 
NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: Florida's authority to 
regulate new and modified sources to assist in the protection of air 
quality in

[[Page 34912]]

nonattainment, attainment or unclassifiable areas is established in 
Chapters 62-210, Stationary Sources--General Requirements, and 62-212, 
Stationary Sources--Preconstruction Review, Deterioration, of the 
Florida SIP. Florida's regulations describe the permit requirements for 
new major sources or major modifications of existing sources and set 
the permitting requirements in areas classified as attainment or 
unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the CAA. The 
regulations are designed to prevent sources in areas attaining the 
NAAQS at the time of designations from causing any significant 
deterioration in air quality. Additionally, on March 15, 2012, Florida 
submitted a SIP revision to its NSR/PSD and Nonattainment New Source 
Review (NNSR) programs. Florida's March 15, 2012, SIP revision 
incorporates NSR provisions for fine particulate matter (also known as 
PM2.5) as amended in EPA's 2008 NSR PM2.5 
Implementation Rule (hereafter referred to as the ``NSR 
PM2.5 Rule'') into the Florida SIP. In the March 15, 2012, 
SIP revision, Florida includes revisions to rules that address the 
infrastructure requirements (C) and (J). EPA is proposing approval of 
Florida's March 15, 2012, submission in a rulemaking separate from 
today's action.
    In this action, EPA is proposing to approve Florida's 
infrastructure SIP for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the State's existing minor NSR program itself to the extent 
that it is inconsistent with EPA's regulations governing this program. 
EPA believes that a number of states may have minor NSR provisions that 
are contrary to the existing EPA regulations for this program. EPA 
intends to work with states to reconcile state minor NSR programs with 
EPA's regulatory provisions for the program. The statutory requirements 
of section 110(a)(2)(C) provide for considerable flexibility in 
designing minor NSR programs, and EPA believes it may be time to 
revisit the regulatory requirements for this program to give the states 
an appropriate level of flexibility to design a program that meets 
their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    EPA has made the preliminary determination that Florida's SIP and 
practices are adequate for program enforcement of control measures 
including review of proposed new sources related to the 1997 annual and 
2006 24-hour PM2.5 NAAQS. Final action to approve this 
element, however, is contingent upon the Agency first taking final 
action to approve Florida's March 15, 2012, PM2.5 NSR 
Update. As discussed above, such action the March 15, 2012, submission 
will occur in a separate rulemaking.
    4. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: Chapter 62-210, Stationary Sources--General Requirements of 
Florida's SIP, outlines how Florida will notify neighboring states of 
potential impacts from new or modified sources. Florida does not have 
any pending obligation under sections 115 and 126 of the CAA. EPA has 
made the preliminary determination that Florida's SIP and practices are 
adequate for insuring compliance with the applicable requirements 
relating to interstate and international pollution abatement for the 
1997 annual and 2006 24-hour PM2.5 NAAQS.
    5. 110(a)(2)(E) Adequate resources: Section 110(a)(2)(E) requires 
that each implementation plan provide (i) necessary assurances that the 
State will have adequate personnel, funding, and authority under state 
law to carry out its implementation plan, (ii) that the State comply 
with the requirements respecting State Boards pursuant to section 128 
of the Act, and (iii) necessary assurances that, where the State has 
relied on a local or regional government, agency, or instrumentality 
for the implementation of any plan provision, the State has 
responsibility for ensuring adequate implementation of such plan 
provisions. EPA is proposing to approve Florida's SIP as meeting the 
requirements of sub-elements 110(a)(2)(E)(i) and (iii). EPA is also 
proposing to approve sub-element 110(a)(2)(E)(ii) (regarding state 
boards), however, final approval of this sub-element is contingent upon 
the Agency first taking final action to approve proposed revisions the 
Florida's SIP related to this sub-element. See 77 FR 29581. EPA's 
rationale for today's proposals respecting each sub-element is 
described in turn below.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), Florida's submissions note that FDEP is 
responsible for promulgating rules and regulations for the NAAQS, 
emissions standards general policies, a system of permits, fee 
schedules for the review of plans, and other planning needs. As 
evidence of the adequacy of FDEP's resources with respect to sub-
elements (i) and (iii), EPA submitted a letter to Florida on March 13, 
2012, outlining the 105 grant commitments and current status of these 
commitments for fiscal year 2011. The letter EPA submitted to Florida 
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0382. Annually, states update these grant commitments based on 
current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. Florida satisfactorily met all 
commitments agreed to in the Air Planning Agreement for fiscal year 
2011, therefore Florida's grants were finalized and closed out. EPA has 
made the preliminary determination that Florida has adequate resources 
for implementation of the 1997 annual and 2006 24-hour PM2.5 
NAAQS. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are 
met when EPA performs a completeness determination for each SIP 
submittal. This determination ensures that each submittal provides 
evidence that adequate personnel, funding, and legal authority under 
state law has been use to carry out the state's implementation plan and 
related issues. Florida's authority is included in all prehearings and 
final SIP submittal packages for approval by EPA. EPA has made the 
preliminary determination that Florida has adequate resources for 
implementation of the 1997 annual and 2006 24-hour PM2.5 
NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that: (1) The majority of 
members of any state board or body which approves permits or 
enforcement orders represent the public interest and do not derive any 
significant portion of their income from persons subject to permitting 
or enforcement orders under the CAA; and (2) any potential conflicts of 
interest by such board or body, or head of an executive agency with 
similar powers be adequately disclosed. For purposes of section 
128(a)(1), Florida has no boards or bodies with authority over air 
pollution permits or enforcement actions. Such matters are instead 
handled by an appointed Secretary. Appeals of final administrative 
orders and permits are available only through the judicial appellate 
process described at Florida Statute 120.68. As such, a ``board or 
body'' is not responsible for approving permits or enforcement orders 
in Florida, and the requirements of section 128(a)(1) are not 
applicable.
    Regarding section 128(a)(2) (also made applicable to the 
infrastructure

[[Page 34913]]

SIP pursuant to section 110(a)(2)(E)(ii)), on April 19, 2012, Florida 
submitted Florida Statutes112.3143(4) and 112.3144 for incorporation 
into the SIP. In a separate action, EPA has proposed approval of this 
revision to the Florida SIP. See 77 FR 29581. EPA is today proposing 
that this revision, once finalized, will be sufficient to satisfy the 
110(a)(2)(E)(ii) conflict of interest provisions applicable to the head 
of FDEP and all public officers within the Department. Final approval 
of today's proposed rule is contingent upon the Agency first taking 
final action to approve a final SIP revision consistent with the April 
19, 2012, SIP revision.
    6. 110(a)(2)(F) Stationary source monitoring system: Florida's 
infrastructure submission describes how the State establishes 
requirements for emissions compliance testing and utilizes emissions 
sampling and analysis. It further describes how the State ensures the 
quality of its data through observing emissions and monitoring 
operations. Florida DEP uses these data to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with emission regulations and additional EPA requirements. These 
requirements are provided in Florida SIP Chapters 62-210, Stationary 
Sources--General Requirements; 62-212, Stationary Sources--
Preconstruction Review; 62-296, Stationary Sources--Emissions 
Standards; and 62-297, Stationary Sources--Emissions Monitoring.
    Additionally, Florida is required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory System 
(EIS). States report emissions data for the six criteria pollutants and 
the precursors that form them--NOX, sulfur dioxide, ammonia, 
lead, carbon monoxide, particulate matter, and volatile organic 
compounds (VOCs). Many states also voluntarily report emissions of 
hazardous air pollutants. Florida made its latest update to the NEI on 
November 22, 2011. EPA compiles the emissions data, supplementing it 
where necessary, and releases it to the general public through the Web 
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the 
preliminary determination that Florida's SIP and practices are adequate 
for the stationary source monitoring systems related to the 1997 annual 
and 2006 24-hour PM2.5 NAAQS.
    7. 110(a)(2)(G) Emergency power: Section 110(a)(2)(G) requires 
states to provide for authority to address activities causing imminent 
and substantial endangerment to public health, including contingency 
plans to implement the emergency episode provisions in their SIPs. On 
September 25, 2009, EPA released the guidance entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particulate (PM2.5) National Ambient Air Quality 
Standards (NAAQS).'' This guidance clarified that ``to address the 
section 110(a)(2)(G) element, states with air quality control regions 
identified as either Priority I, IA, or Priority II by the `Prevention 
of Air Pollution Emergency Episodes' rule at 40 CFR 51.150, must 
develop emergency episode contingency plans.'' EPA's September 25, 
2009, guidance also states that ``until the Agency finalized changes to 
the emergency episode regulation to establish for PM2.5 
specific levels for classifying areas as Priority I, IA, or II for 
PM2.5, and to establish a significant harm level (SHL)* * 
*,'' it recommends that states with a 24-Hour PM2.5 
concentration above 140 [mu]g/m\3\ (using the most recent three years 
of data) develop an emergency episode plan. For states where this level 
has not been exceeded, the state can certify that it has appropriate 
general emergency powers to address PM2.5 related episodes, 
and that no specific emergency episode plans are needed at this time. 
On September 19, 2009, FDEP submitted a letter to EPA verifying that it 
is a Class III Priority Area and is exempt from adopting emergency 
episode plan for PM2.5. On September 23, 2009, FDEP 
submitted certification that its SIP adequately addressed the section 
110(a)(2)(G) requirements for the 2006 PM2.5 NAAQS. Florida 
had not previously public noticed its certification submissions with 
regard to 110(a)(2)(G) for the PM2.5 NAAQS, so on May 20, 
2011, Florida provided public notice for this element.
    EPA has reviewed Florida's April 18, 2008, and September 23, 2009, 
certifications and has determined that the ambient air quality 
monitoring data from 2006 to 2011 for Florida did not exceed 140 [mu]g/
m\3\. The PM2.5 levels have consistently remained below this 
level (140 [mu]g/m\3\). As a result, EPA is proposing to approve 
Florida's infrastructure submissions for the 1997 and 2006 
PM2.5 NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: FDEP is responsible for 
adopting air quality rules and revising SIPs as needed to attain or 
maintain the NAAQS in Florida. FDEP has the ability and authority to 
respond to calls for SIP revisions, and has provided a number of SIP 
revisions over the years for implementation of the NAAQS. Florida does 
not have any nonattainment areas for the 1997 annual or 2006 24-hour 
PM2.5 standard, but has made an infrastructure submission 
for these standards, which is the subject of this rulemaking. EPA has 
made the preliminary determination that Florida's SIP and practices 
adequately demonstrate a commitment to provide future SIP revisions 
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when 
necessary.
    9. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: Chapters 62-204, Air Pollution Control Provisions, and 62-
212, Stationary Sources--Preconstruction Review, of the Florida SIP, as 
well as Florida's Regional Haze Implementation Plan (which allows for 
consultation between appropriate state, local, and tribal air pollution 
control agencies as well as the corresponding Federal Land Managers), 
provide for consultation with government officials whose jurisdictions 
might be affected by SIP development activities. Florida adopted state-
wide consultation procedures for the implementation of transportation 
conformity. These consultation procedures include the development of 
mobile inventories for SIPs. Implementation of transportation 
conformity, as outlined in the consultation procedures, requires FDEP 
to consult with federal, state and local transportation and air quality 
agency officials on the development of motor vehicle emissions budgets. 
EPA approved Florida's consultation procedures on August 11, 2003 as 
part of the approval of the State's transportation conformity rule (See 
68 FR 47468). EPA has made the preliminary determination that Florida's 
SIP and practices adequately demonstrate consultation with government 
officials related to the 1997 annual and 2006 24-hour PM2.5 
NAAQS when necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: 
FDEP has public notice mechanisms in place to notify the public of 
pollutant

[[Page 34914]]

forecasting, including an air quality monitoring Web site providing 
fine particulate alerts, http://www.dep.state.fl.us/air/air_quality/countyaqi.htm. Florida Statutes, 403.131, Injunctive relief, remedies 
and 120.569 Decisions which affect substantial interests (subsection 
(2)(n) relating to emergency orders), provide authority for the State 
to seek injunctive relief to prevent irreparable damage to air quality. 
In addition Chapter 62-256.300, Prohibitions, of the Florida SIP 
includes provisions to monitor air pollution episodes for ozone and 
particulate matter. EPA has made the preliminary determination that 
Florida's SIP and practices adequately demonstrate the State's ability 
to provide public notification related to the 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: Florida 
demonstrates its authority to regulate new and modified sources of PM 
to assist in the protection of air quality in Florida. Chapters 62-210, 
Stationary Sources--General Requirements, Section 200--Definitions, and 
62-212, Stationary Sources--Preconstruction Review, Section 400--
Prevention of Significant Deterioration, of Florida's SIP provide the 
permitting requirements for new major sources or major modifications of 
existing sources in areas classified as attainment or unclassifiable 
under section 107(d)(1)(A)(ii) or (iii) of the CAA. These provisions 
are designed to prevent significant deterioration in air quality in 
areas that are in attainment of the NAAQS at the time of designations. 
As with infrastructure element 110(a)(2)(C), infrastructure element 
110(a)(2)(J) also requires compliance with applicable provisions of the 
PSD program described in part C of the Act. Accordingly, the pending 
EPA action on the March 15, 2012, SIP revision (NSR Revisions), is a 
prerequisite to today's proposed action to approve the State's 
infrastructure element 110(a)(2)(J). See the discussion for element 
110(a)(2)(C) above for a description of the pending revision to the 
Florida SIP. The March 15, 2012, SIP revision addresses requisite 
requirements of infrastructure element 110(a)(2)(J) (PSD and visibility 
protection), therefore, today's action to propose approval of 
infrastructure SIP element 110(a)(2)(J) (PSD and visibility protection) 
is contingent upon EPA taking final action to approve the March 15, 
2012, SIP revision into the Florida SIP.
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS, however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM2.5 NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. EPA has made the preliminary determination that Florida's SIP and 
practices adequately demonstrate the State's ability to implement PSD 
programs and to provide for visibility protection related to the 1997 
annual and 2006 24-hour PM2.5 NAAQS when necessary. As 
discussed above, final approval of this element is contingent upon the 
Agency first taking final action to approve Florida's March 15, 2012, 
PM2.5 NSR Update.
    12. 110(a)(2)(K) Air quality and modeling/data: Chapter 62-204.800, 
Federal Regulations Adopted by Reference, of the Florida SIP 
incorporates by reference 40 CFR 52.21(l), which specifies that air 
modeling be conducted in accordance with 40 CFR part 51, Appendix W 
``Guideline on Air Quality Models.'' This regulation demonstrates that 
Florida has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 1997 annual and 
2006 24-hour PM2.5 NAAQS. Additionally, Florida supports a 
regional effort to coordinate the development of emissions inventories 
and conduct regional modeling for several NAAQS, including the 1997 
annual and 2006 24-hour PM2.5 NAAQS, for the Southeastern 
states. Taken as a whole, Florida's air quality regulations demonstrate 
that FDEP has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 1997 annual and 
2006 24-hour PM2.5 NAAQS. EPA has made the preliminary 
determination that Florida's SIP and practices adequately demonstrate 
the State's ability to provide for air quality and modeling, along with 
analysis of the associated data, related to the 1997 annual and 2006 
24-hour PM2.5 NAAQS when necessary.
    13. 110(a)(2)(L) Permitting fees: Florida addresses the review of 
construction permits as previously discussed in 110(a)(2)(C). 
Permitting fees in Florida are collected through the State's federally-
approved title V fees program, according to State Statute 
403.087(6)(a), Permit Fees. EPA has made the preliminary determination 
that Florida's SIP and practices adequately provide for permitting fees 
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when 
necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local 
entities: Chapter 62-204, Air Pollution Control Provisions, of the 
Florida SIP requires that SIPs be submitted in accordance with 40 CFR 
part 51, subpart F, for permitting purposes. Florida statute 
403.061(21) authorizes FDEP to ``[a]dvise, consult, cooperate and enter 
into agreements with other agencies of the state, the Federal 
Government, other states, interstate agencies, groups, political 
subdivisions, and industries affected by the provisions of this act, 
rules, or policies of the department.'' Furthermore, FDEP has 
demonstrated consultation with, and participation by, affected local 
entities through its work with local political subdivisions during the 
developing of its Transportation Conformity SIP and Regional Haze 
Implementation Plan. EPA has made the preliminary determination that 
Florida's SIP and practices adequately demonstrate consultation with 
affected local entities related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.

V. Proposed Action

    As described above, FDEP has addressed the required elements of the 
CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 
2007, and September 25, 2009, guidance to ensure that the 1997 annual 
and 2006 24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in Florida. EPA is proposing to approve Florida's 
infrastructure submissions, provided to EPA on April 18, 2008, and on 
September 23, 2009, with the exception of section 110(a)(2)(E)(ii) 
which will be addressed in a separate action. EPA is proposing to 
determine that Florida's infrastructure submission, provided to EPA on 
April 18, 2008, addressed all the required infrastructure elements for 
the 1997 annual PM2.5 NAAQS and on September 23, 2009, 
addressed all the required infrastructure elements for the 2006 24-hour 
PM2.5 NAAQS. Final approval of this rule is contingent upon 
the Agency first taking final action to approve Florida's March 15, 
2012, PM2.5 NSR Update submission \19\ and May 18, 2012 
proposed rule to approve Florida's

[[Page 34915]]

April 19, 2012, submission addressing section 110(a)(2)(E)(ii).
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    \19\ As noted above, EPA has yet to propose action on the March 
15, 2012, PM2.5 NSR Update submission. Such proposed 
action will occur in a separate rulemaking.
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VI. Statutory and Executive Order Reviews

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

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

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-14244 Filed 6-11-12; 8:45 am]
BILLING CODE 6560-50-P