[Federal Register Volume 77, Number 234 (Wednesday, December 5, 2012)]
[Proposed Rules]
[Pages 72287-72290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29400]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0814; FRL-9757-8]


Approval and Promulgation of Implementation Plans; Florida; 
110(a)(2)(D)(i)(II) Infrastructure Requirement 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 in part, and disapprove in part, 
the State Implementation Plan (SIP) submissions, submitted by the State 
of Florida, through the Florida Department of Environmental Protection 
(DEP) on April 18, 2008, and September 23, 2009. This proposal 
addresses the Clean Air Act (CAA) requirements pertaining to prevention 
of significant deterioration (PSD) for the 1997 annual and 2006 24-hour 
fine particulate matter (PM2.5) National Ambient Air Quality 
Standards (NAAQS) infrastructure SIPs. The CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. EPA is proposing to approve 
in part, and disapprove in part the submission for Florida, that 
relates to adequate provisions prohibiting emissions that interfere 
with any other state's required measures to prevent significant 
deterioration of its air quality. All other applicable infrastructure 
requirements for the 1997 annual and 2006 24-hour PM2.5 
NAAQS associated with Florida are being addressed in separate 
rulemakings.

DATES: Written comments must be received on or before January 4, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0814, 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-2012-0814,'' Regulatory Development Section,

[[Page 72288]]

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-
2012-0814. 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 
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].

Table of Contents

I. Background
II. What are states required to address under sections 110(a)(2)(D)?
III. What is EPA's analysis of how Florida addressed element 
(D)(i)(II) related to PSD?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 38652), 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, and 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 submission was 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. Florida was among other states 
that did not receive findings of failure to submit because they 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

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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 submittals addressing the applicable 
requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section 
110(a)(2)(C) nonattainment area requirements and section 
110(a)(2)(D)(i) visibility requirements. The rulemaking proposed 
through today's action is consistent with the terms of this consent 
decree.
    Today's action is proposing to approve in part, and disapprove in 
part, Florida's infrastructure submission for the 1997 annual and 2006 
24-hour PM2.5 NAAQS addressing CAA section 110(a)(2)(D(i) as 
it relates to adequate provisions prohibiting emissions that interfere 
with any other state's required measures to prevent significant 
deterioration of its air quality (referred to as ``prong 3''). EPA has 
taken previous action on Florida's infrastructure submission for the 
1997 and 2006 PM2.5 NAAQS for sections 110(a)(2)(A)-(F), 
(H), (J)-(M), including other requirements of section 110(a)(2)(D)(i) 
in separate actions from today's rulemaking.

II. What are states required to address under sections 110(a)(2)(D)?

    Section 110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Specifically, section 110(a)(2)(D)(i) has four 
components that require SIPs to include provisions prohibiting any 
source or other type of emissions activity in one state from: (1) 
Contributing significantly to nonattainment maintenance of the NAAQS in 
another state, and (2) interfering with maintenance of the NAAQS in 
another state (collectively referred to as 110(a)(2)(D)(i)(I)); or 
interfering with measures required to (3) prevent significant 
deterioration of air quality in another state (prong 3), or (4) protect 
visibility in another state (collectively referred to as 
110(a)(2)(D)(i)(II)). Section 110(a)(2)(D)(ii) requires SIPs to include 
provisions insuring compliance with sections 115 and 126 of the Act, 
relating to interstate and international pollution abatement.
    In previous actions, EPA has already taken action to address 
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(ii) for Florida's infrastructure 
submissions for the 1997 annual and 2006 24-hour PM2.5 
NAAQS. Today's proposed rulemaking relates only to requirements related 
to prong 3 of 110(a)(2)(D)(i). More information on this requirement and 
EPA's rationale for today's proposal approving in part, and 
disapproving in part, this requirement for purposes of the 1997 annual 
and 2006 24-hour PM2.5 NAAQS is provided below.

III. What is EPA's analysis of how Florida addressed element (D)(i)(II) 
related to PSD?

    EPA's 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'' provided guidance on addressing the infrastructure 
requirements required under sections 110(a)(1) and 110(a)(2) of the CAA 
with respect to the 2006 24-hour PM2.5 NAAQS. The 2009 
Guidance describes that a state's PSD permitting program is the primary 
measure that such state must include in its SIP to prevent significant 
deterioration of air quality in accordance with prong 3 of section 
110(a)(2)(D)(i). As described below, EPA has preliminarily determined 
that portions of Florida's infrastructure submissions are consistent 
with the 2009 Guidance, when considered in conjunction with the State's 
PSD program, and that a portion of the submissions is not.
    At present, there are four regulations that are required to be 
adopted into the SIP to meet PSD-related infrastructure requirements. 
See Sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) 
of the CAA. These regulations are: (1) ``Final Rule To Implement the 8-
Hour Ozone National Ambient Air Quality Standard--Phase 2; Final Rule'' 
(November 29, 2005, 70 FR 71612) (hereafter referred to as the ``Phase 
II Rule''); (2) ``Implementation of the New Source Review Program for 
Particulate Matter Less Than 2.5 Micrometers; Final Rule'' (May 16, 
2008, 73 FR 28321) (hereafter referred to as the ``NSR PM2.5 
Rule''); (3) ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule'' (June 3, 2010, 75 FR 31514) 
(hereafter referred to as the ``GHG Tailoring Rule''); and, (4) ``Final 
Rule on the Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant monitoring 
Concentration (SMC); Final Rule'' (October 20, 2010, 75 FR 64864) 
(hereafter referred to as ``PM2.5 PSD Increment-SILs-SMC 
Rule (only as it relates to PM2.5 Increments)''). Specific 
details on the PSD requirements of these regulations can be found the 
respective final rules, however, a brief summary of each rule is 
provided below.
    First, as part of the framework to implement the 1997 8-hour ozone 
NAAQS, EPA promulgated an implementation rule in two phases.\1\ The 
Phase II Rule is relevant to today's action. This rule, among other 
changes, revised the PSD regulations to recognize nitrogen oxide 
(NOX) as an ozone precursor.
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    \1\ EPA promulgated the Phase I Rule on April 30, 2004 entitled 
``Final Rule To Implement the 8-Hour Ozone National Ambient Air 
Quality Standard--Phase 1.'' See 69 FR 23951.
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    Second, the NSR PM2.5 Rule revised the NSR program to 
establish the framework for implementing preconstruction permit review 
for the PM2.5 NAAQS in both attainment areas and 
nonattainment areas. The PSD requirements included: (1) A provision 
that NSR permits address directly emitted PM2.5 and 
precursor pollutants; (2) a requirement establishing significant 
emission rates for direct PM2.5 and precursor pollutants 
(including sulfur dioxide (SO2) and NOX); (3) 
exceptions to the grandfathering policy for permits being reviewed 
under the PM10 surrogate program; and, (4) a revision that 
states account for gases that condense to form particles (condensables) 
in PM2.5 and PM10 emission limits in PSD permits.
    Third, in the GHG Tailoring Rule, EPA tailored the applicability 
criteria that determine which GHG emission sources become subject to 
the PSD program of the CAA. See 75 FR 31514.
    Lastly, the PM2.5 PSD Increment-SILs-SMC Rule (only as 
it relates to PM2.5 increments) provided additional 
regulatory requirements under the PSD program regarding the 
implementation of the PM2.5 NAAQS for NSR by specifically 
establishing PM2.5 increments pursuant to section 166(a) of 
the CAA to prevent significant deterioration of air quality in areas 
meeting the NAAQS.
    The PSD requirements promulgated in the aforementioned regulations 
establish the framework for a comprehensive SIP PSD program which EPA 
has determined are necessary to comply with prong 3 of 110(a)(2)(D)(i). 
The following provides a listing of relevant EPA approvals for Florida 
SIP revisions to address PSD requirements.
    1. EPA's approval of Florida's PSD/NSR regulations which address 
the Ozone Implementation NSR Update requirements was published in the 
Federal Register on June 15, 2012 (77 FR 35862).
    2. EPA's approval of Florida's NSR PM2.5 Rule was 
published in the Federal

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Register on September 19, 2012 (77 FR 58027).
    3. EPA's approval of Florida's PSD/PM2.5 approving 
PM2.5 increments was published in the Federal Register on 
September 19, 2012 (77 FR 58027).
    These three approval actions demonstrate that Florida's SIP-
approved PSD program meets three of the four required regulatory 
elements necessary to satisfy prong 3 of section 110(a)(2)(D)(i).
    With respect to the fourth necessary regulatory element--the GHG 
Tailoring Rule--Florida did not submit a SIP revision to adopt the 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to PSD permitting 
requirements for their GHG emissions as promulgated in the GHG 
Tailoring Rule. Therefore, Florida's federally-approved SIP contained 
errors that resulted in its failure to address, or provide adequate 
legal authority for, the implementation of a GHG PSD program in 
Florida. In the GHG SIP Call,\2\ EPA determined that the State of 
Florida's SIP was substantially inadequate to achieve CAA requirements 
because its existing PSD program does not apply to GHG-emitting 
sources. This rule finalized a SIP call for 15 state and local 
permitting authorities including Florida. EPA explained that if a 
state, identified in the SIP call, failed to submit the required 
corrective SIP revision by the applicable deadline, EPA would 
promulgate a FIP under CAA section 110(c)(1)(A) for that state to 
govern PSD permitting for GHG. On December 30, 2010, EPA promulgated a 
FIP \3\ because Florida failed to submit, by its December 22, 2010, 
deadline, the corrective SIP revision to apply its PSD program to 
sources of GHG consistent with the thresholds described in the GHG 
Tailoring rule. The FIP ensured that a permitting authority (i.e., EPA) 
would be available to issue preconstruction PSD permits to GHG-emitting 
sources in the State of Florida. EPA took these actions through interim 
final rulemaking, effective upon publication, to ensure the 
availability of a permitting authority--EPA--in Florida for GHG-
emitting sources when they became subject to PSD on January 2, 2011.
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    \2\ Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call, Final Rule, 75 FR 77698 (December 13, 2010).
    \3\ Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan--Final Rule, 
75 FR 82246 (December 30, 2010).
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    The Florida SIP currently does not provide adequate legal authority 
to address the GHG PSD permitting requirements at or above the levels 
of emissions set forth in the GHG Tailoring Rule, or at other 
appropriate levels. As a result, EPA has preliminarily determined that 
the Florida SIP does not satisfy a portions of section 110(a)(2)(D)(i) 
prong 3 for the 1997 and 2006 PM2.5 infrastructure 
requirements. Therefore, EPA is proposing disapproval of FDEP's 
submission for prong 3 of section 110(a)(2)(D)(i) as it relates relate 
to GHG PSD permitting requirements. EPA's proposed disapproval of this 
element does not result in any further obligation on the part of 
Florida, because EPA has already promulgated a FIP for the Florida PSD 
program to address permitting GHG at or above the GHG Tailoring Rule 
thresholds (76 FR 25178). Thus, today's proposed action to approve in 
part, and disapprove in part, FDEP's submission for prong 3 of section 
110(a)(2)(D)(i), once final, will not require any further action by 
either FDEP or EPA.

IV. Proposed Action

    As described above, EPA is proposing to approve in part, and 
disapprove in part, the SIP revision for Florida to incorporate 
provisions into the State's implementation plan to address prong 3 of 
section 110(a)(2)(D)(i) of the CAA for both the 1997 annual and 2006 
24-hour PM2.5 NAAQS. Specifically, EPA is proposing to 
approve the State's prong 3 of section 110(a)(2)(D)(i) submissions as 
they relate to the ``Phase II Rule,'' the ``NSR PM2.5 
Rule,'' and the ``PM2.5 PSD Increment-SILs-SMC Rule (only as 
it relates to PM2.5 increments)'' because they are 
consistent with section 110 of the CAA. EPA also is proposing to 
disapprove Florida's submissions for the portion of the section 
110(a)(2)(D)(i) prong 3 requirements related to the regulation of GHG 
emissions.

V. 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, 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: November 21, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-29400 Filed 12-4-12; 8:45 am]
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