[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47094-47103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17055]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0507; FRL-9949-30-Region 4]


Air Plan Approval; Florida; Infrastructure Requirements for the 
2010 Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State Implementation Plan (SIP) submission, submitted by 
the State of Florida, through the Florida Department of Environmental 
Protection (FDEP), on January 22, 2013, for inclusion into the Florida 
SIP. This proposal pertains to the infrastructure requirements of the 
Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide 
(NO2) national ambient air quality standard (NAAQS). The CAA 
requires that each state adopt and submit a SIP for the implementation, 
maintenance and enforcement of each NAAQS promulgated by EPA, which is 
commonly referred to as an ``infrastructure SIP submission.'' FDEP 
certified that the Florida SIP contains provisions that ensure the 2010 
1-hour NO2 NAAQS is implemented, enforced, and maintained in 
Florida. With the exception of provisions pertaining to the ambient air 
quality monitoring and data system, prevention of significant 
deterioration (PSD) permitting and interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states, EPA is proposing to find that Florida's 
infrastructure SIP submission, provided to EPA on January 22, 2013, 
satisfies certain required infrastructure elements for the 2010 1-hour 
NO2 NAAQS.

DATES: Written comments must be received on or before August 19, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0507 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be

[[Page 47095]]

edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Mr. Wong can be reached via electronic mail at 
[email protected] or via telephone at (404) 562-8726.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS. Section 110(a)(2) requires states to address 
basic SIP requirements, including emissions inventories, monitoring, 
and modeling to assure attainment and maintenance of the NAAQS. States 
were required to submit such SIPs for the 2010 1-hour NO2 
NAAQS to EPA no later than January 22, 2013.\1\
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    \1\ In these infrastructure SIP submissions States generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``Florida Administrative Code'' or ``F.A.C.'' 
indicates that the cited regulation has been approved into Florida's 
federally-approved SIP. The term ``Florida statute'' or ``F.S.'' 
indicates cited Florida state statutes, which are not a part of the 
SIP unless otherwise indicated.
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    In this action, EPA is proposing to approve Florida's 
infrastructure SIP submission for the applicable requirements of the 
2010 1-hour NO2 NAAQS, with the exception of the ambient air 
quality monitoring and data system requirements of section 
110(a)(2)(B), the PSD permitting requirements for major sources of 
sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate 
transport provisions pertaining to the contribution to nonattainment or 
interference with maintenance in other states of prongs 1 and 2 of 
section 110(a)(2)(D)(i). On March 18, 2015, EPA approved Florida's 
January 22, 2013 infrastructure SIP submission regarding the PSD 
permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See 
80 FR 14019. Therefore, EPA is not proposing any action today 
pertaining to sections 110(a)(2)(C), prong 3 of D(i), and (J). 
Additionally, EPA is not proposing action related to the ambient air 
quality monitoring and data system of section 110(a)(2)(B) and prongs 1 
and 2 of section 110(a)(2)(D)(i). EPA will act on these provisions in a 
separate action. For the aspects of Florida's submittal proposed for 
approval today, EPA notes that the Agency is not approving any specific 
rule, but rather proposing that Florida's already approved SIP meets 
certain CAA requirements.

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

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2010 1-hour NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
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 and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and (2).'' \2\

    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection

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 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

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

    EPA is acting upon the SIP submission from Florida that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 NO2 NAAQS. The requirement for states to make a 
SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon EPA's taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore

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could be different. For example, the monitoring requirements that a 
state might need to meet in its infrastructure SIP submission for 
purposes of section 110(a)(2)(B) could be very different for different 
pollutants because the content and scope of a state's infrastructure 
SIP submission to meet this element might be very different for an 
entirely new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
GHGs. By contrast, structural PSD program requirements do not include 
provisions that are not required under EPA's regulations at 40 CFR 
51.166 but are merely available as an option for the state, such as the 
option to provide grandfathering of complete permit applications with 
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter 
optional provisions are types of provisions EPA considers irrelevant in 
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, inter alia, the requirement 
that states have a program to regulate minor new sources. Thus, EPA 
evaluates whether the state has an EPA-approved minor new source review 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review

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

    Below is a discussion of the Florida submission organized by each 
of the sub-elements found in sections 110(a)(1) and (2).
    1. 110(a)(2)(A) Emission limits and other control measures: Section 
110(a)(2)(A) requires that each implementation plan include enforceable 
emission limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables for 
compliance, as may be necessary or appropriate to meet the applicable 
requirements. There are several regulations within Florida 
Administrative Code (F.A.C.) relevant to air quality control 
regulations which include enforceable emission limitations and other 
control measures. Chapters 62-204, F.A.C., Air Pollution Control 
Provisions; 62-210, F.A.C., Stationary Sources--General Requirements; 
62-212, F.A.C., Stationary Sources--Preconstruction Review; 62-296, 
F.A.C., Stationary Sources--Emissions Standards; and 62-297, F.A.C., 
Stationary Sources--Emissions Monitoring, establish emission limits for 
NO2 and address the

[[Page 47099]]

required control measures, means and techniques for compliance with the 
2010 1-hour NO2 NAAQS respectively. Additionally, the 
following sections of the Florida Statutes provide FDEP the authority 
to conduct certain actions in support of this infrastructure element. 
Section 403.061(9), Florida Statutes, authorizes FDEP to ``[a]dopt a 
comprehensive program for the prevention, control, and abatement of 
pollution of the air . . . of the state,'' and section 403.8055, 
Florida Statutes, authorizes FDEP to ``[a]dopt rules substantively 
identical to regulations adopted in the Federal Register by the United 
States Environmental Protection Agency pursuant to federal law . . .''
    EPA has made the preliminary determination that the provisions 
contained in these chapters satisfy section 110(a)(2)(A) for the 2010 
1-hour NO2 NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during start 
up, shut down, and malfunction (SSM) 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 is addressing such 
state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove 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: With 
respect to Florida's infrastructure SIP submission related to the 
ambient air quality monitoring and data system, EPA is not proposing 
any action today regarding these requirements and instead will act on 
this portion of the submission in a separate action.
    3. 110(a)(2)(C) Programs for enforcement of control measures and 
for construction or modification of stationary sources: This element 
consists of three sub-elements; enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources; and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). As discussed further below, in this action EPA is only 
proposing to approve the enforcement and the regulation of minor 
sources and minor modifications aspects of Florida's section 
110(a)(2)(C) infrastructure SIP submission.
    Enforcement: Florida cites to Section 403.061(6), Florida Statutes, 
which requires FDEP to ``[e]xercise general supervision of the 
administration and enforcement of the laws, rules, and regulations 
pertaining to air and water pollution.'' Section 403.121, Florida 
Statutes, authorizes FDEP to seek judicial and administrative remedies, 
including civil penalties, injunctive relief, and criminal prosecution 
for violations of any FDEP rule or permit. These provisions provide 
FDEP with authority for enforcement of NO2 emission limits 
and control measures.
    Preconstruction PSD Permitting for Major Sources: With respect to 
Florida's January 22, 2013, infrastructure SIP submission related to 
the preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA took final action to approve these provisions 
for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 
14019.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions of the 2010 1-hour 
NO2 NAAQS. FDEP's SIP-approved rule Chapters 62-204, F.A.C., 
Air Pollution Control Provisions, 62-210, F.A.C., Stationary Sources--
General Requirements, 62-212, F.A.C., Stationary Sources--
Preconstruction Review apply to minor sources and minor modifications 
as well as major stationary sources and modifications.
    EPA has made the preliminary determination that Florida's SIP is 
adequate for program enforcement of control measures and regulation of 
minor sources and modifications related to the 2010 1-hour 
NO2 NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate pollution transport: 
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state interfering 
with measures required to prevent significant deterioration of air 
quality in another state (``prong 3''), or to protect visibility in 
another state (``prong 4'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because Florida's 2010 1-hour NO2 NAAQS infrastructure 
submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to Florida's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took 
final action to approve Florida's January 22, 2013, infrastructure SIP 
submission regarding prong 3 of D(i) for the 2010 1-hour NO2 
NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--prong 4: Section 110(a)(2)(D)(i)(II) requires 
that the SIP contain adequate provisions to protect visibility in other 
states. In its submittal, Florida cited to EPA's proposed approval of 
the State's regional haze SIP, which EPA fully approved.\19\ Federal 
regulations require that a state's regional haze SIP contain a long-
term strategy to address regional haze visibility impairment in each 
Class I area within the state and each Class I area outside the state 
that may be affected by emissions from the state.\20\ A state 
participating in a regional planning process, such as Florida, must 
include all measures needed to achieve its apportionment of emissions 
reduction obligations agreed upon through that

[[Page 47100]]

process.\21\ EPA's approval of Florida's regional haze SIP therefore 
ensures that emissions from Florida are not interfering with measures 
to protect visibility in other states, satisfying the requirements of 
prong 4 of section 110(a)(2)(D)(i)(II) for the 2010 1-hour 
NO2 NAAQS.\22\ Thus, EPA has made the preliminary 
determination that Florida's infrastructure SIP submission for the 2010 
1-hour NO2 NAAQS meets the requirements of prong 4 of 
section 110(a)(2)(D)(i)(II).
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    \19\ See 77 FR 71111 (November 29, 2012); 78 FR 53250 (August 
29, 2013).
    \20\ See 40 CFR 51.308(d).
    \21\ See, e.g., 40 CFR 51.308(d)(3)(ii). Florida participated in 
the Visibility Improvement State and Tribal Association of the 
Southeast regional planning organization, a collaborative effort of 
state governments, tribal governments, and various Federal agencies 
established to initiate and coordinate activities associated with 
the management of regional haze, visibility, and other air quality 
issues in the Southeastern United States. Member state and tribal 
governments included: Alabama, Florida, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina, Tennessee, Virginia, 
West Virginia, and the Eastern Band of the Cherokee Indians.
    \22\ See EPA's September 13, 2013, guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' at 
pp. 32-35, available at: http://www.epa.gov/air/urbanair/sipstatus/infrastructure.html; see also memorandum from William T. Harnett, 
Director, Air Quality Policy Division, Office of Air Quality 
Planning and Standards, to Regional Air Division Directors, entitled 
``Guidance on SIP Elements Required Under Sections 110(1)(1) and (2) 
for the 2006 24-Hour Fine Particle (PM2.5) National 
Ambient Air Quality Standards (NAAQS) (September 25, 2009) at pp. 5-
6, available at: http://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.
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    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
Chapters 62-204, F.A.C., Air Pollution Control Provisions ; 62-210, 
F.A.C., Stationary Sources--General Requirements, and 62-212, F.A.C., 
Stationary Sources--Preconstruction Review of the Florida SIP outlines 
how Florida will notify neighboring states of potential impacts from 
new or modified sources. EPA is unaware of any pending obligations for 
the State of Florida pursuant to sections 115 or 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 
2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate resources and authority, conflict of 
interest, and oversight of local governments and regional agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide (i) 
necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality 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 section 110(a)(2)(E). 
EPA's rationale for today's proposal respecting each requirement of 
section 110(a)(2)(E) is described in turn below.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), FDEP's infrastructure submission 
demonstrates that FDEP is responsible for promulgating rules and 
regulations for the NAAQS, emissions standards, general policies, a 
system of permits, and fee schedules for the review of plans, and other 
planning needs. Section 403.061(2), Florida Statutes, authorizes FDEP 
to ``[h]ire only such employees as may be necessary to effectuate the 
responsibilities of the department.'' Section 403.061(4), Florida 
Statutes, authorizes FDEP to ``[s]ecure necessary scientific, 
technical, research, administrative, and operational services by 
interagency agreement, by contract, or otherwise.'' Section 
403.061(35), Florida Statutes, authorizes FDEP to exercise the duties, 
powers, and responsibilities required of the state under the federal 
CAA. Section 403.182, Florida Statutes, authorizes FDEP to approve 
local pollution control programs, and provides for the State air 
pollution control program administered by FDEP to supersede a local 
program if FDEP determines that an approved local program is inadequate 
and the locality fails to take the necessary corrective actions. 
Section 320.03(6), Florida Statutes, authorizes FDEP to establish an 
Air Pollution Control Trust Fund and use a $1 fee on every motor 
vehicle license registration sold in the State for air pollution 
control purposes. As evidence of the adequacy of FDEP's resources, EPA 
submitted a letter to Florida on April 19, 2016, outlining section 105 
grant commitments and the current status of these commitments for 
fiscal year 2015. The letter EPA submitted to Florida can be accessed 
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0507. 
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 2013, therefore Florida's 
grants were finalized. EPA has made the preliminary determination that 
Florida has adequate resources and authority for implementation of the 
2010 1-hour NO2 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that the SIP provide: (1) 
The majority of members of the state board or body which approves 
permits or enforcement orders represent the public interest and do not 
derive any significant portion of their income from persons subject to 
permitting or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by such board or body, or the head of an 
executive agency with similar powers be adequately disclosed.
    For purposes of section 128(a)(1), Florida has no boards or bodies 
with authority over air pollution permits or enforcement actions. Such 
matters are instead handled by an appointed Secretary. Appeals of final 
administrative orders and permits are available only through the 
judicial appellate process described at Florida Statute 120.68, F.S., 
Judicial review. 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), on July 30, 2012, EPA approved Florida 
statutes into the SIP to comply with section 128 respecting state 
boards. See 77 FR 44485. Specifically, the following provisions of 
Florida Statutes, 112.3143(4), F.S., Voting conflicts and 112.3144, 
F.S, Full and public disclosure of financial interests were 
incorporated into the SIP to satisfy the conflict of interest 
provisions applicable to the head of FDEP and all public officers 
within the Department. EPA has made the preliminary determination that 
the State has adequately addressed the requirements of section 
128(a)(2), and accordingly has met the requirements of section 
110(a)(2)(E)(ii) with respect to infrastructure SIP requirements.
    Therefore, EPA is proposing to approve Florida's infrastructure SIP 
submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), 
(ii) and (iii).
    7. 110(a)(2)(F) Stationary source monitoring and reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i)

[[Page 47101]]

the installation, maintenance, and replacement of equipment, and the 
implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. FDEP's infrastructure SIP 
submission describes the establishment of requirements for compliance 
testing by emissions sampling and analysis, and for emissions and 
operation monitoring to ensure the quality of data in the State. The 
Florida infrastructure SIP submission also describes how the major 
source and minor source emission inventory programs collect emission 
data throughout the State and ensure the quality of such data. Florida 
meets these requirements through Chapters 62-204, 62-210, 62-212, 62-
296, and 62-297, F.A.C., which require emissions monitoring and 
reporting for activities that contribute to NO2 
concentrations in the air, including requirements for the installation, 
calibration, maintenance, and operation of equipment for continuously 
monitoring or recording emissions, or provide authority for FDEP to 
establish such emissions monitoring and reporting requirements through 
SIP-approved permits and require reporting of NO2 emissions.
    The following sections of the Florida Statutes provide FDEP the 
authority to conduct certain actions in support of this infrastructure 
element. Section 403.061(13) authorizes FDEP to ``[r]equire persons 
engaged in operations which may result in pollution to file reports 
which may contain . . . any other such information as the department 
shall prescribe . . .''. Section 403.8055 authorizes FDEP to ``[a]dopt 
rules substantively identical to regulations adopted in the Federal 
Register by the United States Environmental Protection Agency pursuant 
to federal law. . . .''
    Section 90.401, Florida Statutes, defines relevant evidence as 
evidence tending to prove or disprove a material fact. Section 90.402, 
Florida Statutes, states that all relevant evidence is admissible 
except as provided by law. EPA is unaware of any provision preventing 
the use of credible evidence in the Florida SIP.\23\
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    \23\ ``Credible Evidence'' makes allowances for owners and/or 
operators to utilize ``any credible evidence or information 
relevant'' to demonstrate compliance with applicable requirements if 
the appropriate performance or compliance test had been performed, 
for the purpose of submitting compliance certification and can be 
used to establish whether or not an owner or operator has violated 
or is in violation of any rule or standard.
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    Additionally, Florida is required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Florida made its latest update to the NEI on 
November 5, 2014. 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 2010 1-hour 
NO2 NAAQS. Accordingly, EPA is proposing to approve 
Florida's infrastructure SIP submission with respect to section 
110(a)(2)(F).
    8. 110(a)(2)(G) Emergency powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. Florida's 
infrastructure SIP submission identifies air pollution emergency 
episodes and preplanned abatement strategies as outlined in Florida 
Statutes 403.131, Injunctive relief, remedies, and 120.569(2)(n), 
Decisions which affect substantial interests. Section 403.131 
authorizes FDEP to enforce compliance with any rule, regulation or 
permit, order, to enjoin any violation specified in Section 403.061(1) 
or Florida Statutes. Section 403.061(1) authorizes injunctive relief to 
prevent irreparable injury to the air, waters, and property, including 
animal, plant, and aquatic life, of the State and to protect human 
health, safety, and welfare caused or threatened by any violation. 
Section 120.569(2)(n) authorizes FDEP to issue emergency orders to 
address immediate dangers to public health, safety or welfare. These 
statutes were submitted for inclusion into the SIP to satisfy the 
requirements of section 110(a)(2)(G) of the CAA and were approved by 
EPA on July 30, 2012. See 77 FR 44485. EPA has made the preliminary 
determination that Florida's SIP and practices are adequate for 
emergency powers related to the 2010 1-hour NO2 NAAQS.
    9. 110(a)(2)(H) SIP revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan (i) as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. FDEP is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in Florida. Florida Statutes subsection 403.061(35) grants FDEP 
the broad authority to implement the CAA; also, subsection 403.061(9), 
F.S., authorizes FDEP to adopt a comprehensive program for the 
prevention, control, and abatement of pollution of the air . . . of the 
state, and from time to time review and modify such programs as 
necessary. 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 2010 1-hour NO2 NAAQS but has 
made an infrastructure submission for this standard, 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 2010 1-hour NO2 
NAAQS when necessary.
    10. 110(a)(2)(J) Consultation with government officials, public 
notification, and PSD and visibility protection: EPA is proposing to 
approve Florida's infrastructure SIP submission for the 2010 1-hour 
NO2 NAAQS with respect to the general requirement in section 
110(a)(2)(J) to include a program in the SIP that provides for meeting 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127; and visibility protection 
requirements of

[[Page 47102]]

part C of the Act. With respect to Florida's infrastructure SIP 
submission related to the preconstruction PSD permitting requirements 
of section 110(a)(2)(J), EPA took final action to approve Florida's 
January 22, 2013, 2010 1-hour NO2 NAAQS infrastructure SIP 
for theses requirements on March 18, 2015. See 80 FR 14019. EPA's 
rationale for its proposed action regarding applicable consultation 
requirements of section 121, the public notification requirements of 
section 127, and visibility protection requirements is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. Chapters 
62-204, F.A.C., Air Pollution Control Provisions, 62-210, F.A.C., 
Stationary Sources--General Requirements and 62-212, F.A.C., Stationary 
Sources--Preconstruction Review, 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 FLMs), 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. 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 for the SIP. EPA has made the preliminary 
determination that Florida's SIP and practices adequately demonstrate 
consultation with government officials related to the 2010 1-hour 
NO2 NAAQS when necessary.
    Public notification (127 public notification): Section 403.061(21), 
Florida Statutes authorizes FDEP to advise, consult cooperate, and 
enter into agreements with other entities affected by the provisions of 
this act, rules, or policies of the department. Section 403.061(20) 
Florida Statues authorizes FDEP to collect and disseminate information 
relating to pollution. FDEP has public notice mechanisms in place to 
notify the public of NO2 and other pollutant forecasting, 
including an air quality monitoring Web site providing alerts, http://www.dep.state.fl.us/air/air_quality/countyaqi.htm. 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 2010 NO2 NAAQS when necessary.
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. 
FDEP referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under Part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so FDEP does 
not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that the visibility protection element of 
section 110(a)(2)(J) is approvable and that Florida does not need to 
rely on its regional haze program for this element.
    11. 110(a)(2)(K) Air quality modeling and submission of modeling 
data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. Chapter 62-204.800, F.A.C., Federal 
Regulations Adopted by Reference, 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.'' 
Chapters 62-210 and 62-212 require use of EPA approved modeling related 
to NO2 concentrations in ambient air. Florida Statute 
403.061(13) authorizes FDEP to require persons to file reports which 
may contain information used for modeling and 403.061(18) authorizes 
FDEP to encourage and conduct studies related to pollution. FDEP has 
the technical capability to conduct or review all air quality modeling 
associated with the NSR program and SIP related modeling, except photo 
chemical grid modeling which is contracted out. Additionally, Florida 
supports a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for NOX, which 
includes NO2. Taken as a whole, Florida's air quality 
regulations and statutes demonstrate that FDEP has the authority to 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 1-hour NO2 NAAQS. EPA has made 
the preliminary determination that Florida's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
modeling, along with analysis of the associated data, related to the 
2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: This element necessitates that 
the SIP require the owner or operator of each major stationary source 
to pay to the permitting authority, as a condition of any permit 
required under the CAA, a fee sufficient to cover (i) the reasonable 
costs of reviewing and acting upon any application for such a permit, 
and (ii) if the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under title V.
    Funding for review of PSD and NNSR permits comes from a processing 
fee, submitted by permit applicants, required by paragraph 
403.087(6)(a) of the Florida Statute.
    These regulations demonstrate that Florida has the authority to 
provide FDEP ensures this is sufficient for the reasonable cost of 
reviewing and acting upon PSD and NNSR permits. Additionally, Florida 
has a fully approved title V operating permit program at Chapter 62-
213.300 F.A.C.\24\ that covers the cost of implementation and 
enforcement of PSD and NNSR permits after they have been issued. EPA 
has made the preliminary determination that Florida's SIP and practices 
adequately provide for permitting fees related to the 2010 
NO2 NAAQS, when necessary. Accordingly, EPA is proposing to 
approve Florida's infrastructure SIP submission with respect to section 
110(a)(2)(L).
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    \24\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation and participation by affected local 
entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. Florida statute 403.061(21) authorizes FDEP to 
``[a]dvise, consult, cooperate and enter into agreements with other 
agencies of

[[Page 47103]]

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 2010 1-hour 
NO2 NAAQS when necessary.

V. Proposed Action

    With the exception of the elements related to the ambient air 
quality monitoring and data system of section 110(a)(2)(B), the PSD 
permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of D(i), and (J), and the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of prongs 1 and 2 of section 
110(a)(2)(D)(i), EPA is proposing to approve Florida's January 22, 
2013, SIP submission to incorporate provisions into the Florida SIP to 
address infrastructure requirements for the 2010 1-hour NO2 
NAAQS. EPA is proposing to approve portions of Florida's infrastructure 
submission for the 2010 1-hour NO2 NAAQS because this 
submission is consistent with section 110 of the CAA.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17055 Filed 7-19-16; 8:45 am]
 BILLING CODE 6560-50-P