[Federal Register Volume 85, Number 66 (Monday, April 6, 2020)]
[Rules and Regulations]
[Pages 19089-19093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06585]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2019-0148; FRL-10007-04-Region 4]


Air Quality Plans; Florida; Infrastructure Requirements for the 
2015 8-Hour Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
portions of the State Implementation Plan (SIP) submission provided by 
the State of Florida, through the Florida Department of Environmental 
Protection (FDEP), through a letter dated September 18, 2018. This 
submission pertains to the infrastructure requirements of the Clean Air 
Act (CAA or Act) for the 2015 8-hour ozone national ambient air quality 
standards (NAAQS). Whenever EPA promulgates a new or revised NAAQS, the 
CAA requires that each state adopt and submit a SIP submission to 
establish that the state's implementation plan meets infrastructure 
requirements for the implementation, maintenance, and enforcement of 
each such NAAQS. FDEP made the required SIP submission to assure that 
the Florida SIP contains provisions that ensure the 2015 8-hour ozone 
NAAQS is implemented, enforced, and maintained in Florida. EPA has in 
this action determined that Florida's infrastructure SIP submission 
satisfies certain required infrastructure elements for the 2015 8-hour 
ozone NAAQS.

DATES: This rule is effective May 6, 2020.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2019-0148. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information may not be publicly available, i.e., 
Confidential Business Information 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 through www.regulations.gov or in hard 
copy at the Air Regulatory Management Section, Air Planning and 
Implementation Branch, Air and Radiation 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 a.m. to 4:30 p.m., excluding 
Federal holidays.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 1, 2015 (80 FR 65292, October 26, 2015), EPA promulgated 
revised primary and secondary NAAQS for ozone revising the 8-hour ozone 
NAAQS from 0.075 parts per million to a new more protective level of 
0.070 ppm. Pursuant to section 110(a)(1) of the CAA, states are 
required to make a

[[Page 19090]]

SIP submission meeting the applicable requirements of section 110(a)(2) 
within three years after promulgation of a new or revised NAAQS or 
within such shorter period as EPA may prescribe. Section 110(a)(2) 
requires states to address basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' EPA required states to submit these 
infrastructure SIP submissions for the 2015 8-hour ozone NAAQS to EPA 
no later than October 1, 2018.\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).
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    This action is approving portions of Florida's September 18, 2018 
\2\ ozone infrastructure SIP submission for the applicable requirements 
of the 2015 8-hour ozone NAAQS. EPA is not acting on the interstate 
transport requirements of section 110(a)(2)(D)(i)(I) related to 
attainment and maintenance of the NAAQS. EPA will consider these 
requirements for Florida for the 2015 8-hour ozone NAAQS separately.
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    \2\ The September 18, 2018, SIP submission provided by FDEP was 
received by EPA on September 26, 2018.
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    In a notice of proposed rulemaking (NPRM) published on December 17, 
2019 (84 FR 68863), EPA proposed to approve portions of Florida's SIP 
submission dated September 18, 2018, intended to address the applicable 
infrastructure SIP requirements for the 2015 8-hour ozone NAAQS. The 
NPRM provides additional detail regarding the background and rationale 
for EPA's action.

II. Response to Comments

    EPA received one comment seeking clarification and one set of 
adverse comments which are summarized and responded to below. The full 
set of comments are in the docket for this final rule.
    Comment 1: A Commenter notes that EPA may have misidentified a 
website in the NPRM and seeks a clarification.
    Response 1: EPA agrees with the Commenter. In the December 17, 
2019, NPRM, EPA noted that Florida is required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI) pursuant 
to subpart A to 40 CFR part 51--``Air Emissions Reporting Rule.'' The 
NEI is EPA's central repository for air emissions data and Florida made 
its latest update to the NEI on December 17, 2014. EPA compiles the 
emissions data, supplementing it where necessary, and releases it to 
the general public through the website. In the December 17, 2019 (84 FR 
68868), NPRM, EPA indicated the website was http://www.epa.gov/ttn/chief/eiinformation.html. However, as identified by the Commenter, the 
correct website is https://www.epa.gov/air-emissions-inventories.
    Comment 2: A Commenter asserts that EPA cannot approve Florida's 
infrastructure SIP submission as demonstrating compliance with the 
CAA's interstate transport requirements in 110(a)(2)(D)(i)(II) with 
respect to interference with prevention of significant deterioration 
(PSD) and visibility programs for any other state because Florida's 
September 18, 2018, SIP submission did not address the interstate 
transport requirements of section 110(a)(2)(D)(i)(II). By way of 
background, CAA section 110(a)(2)(D)(i) contains two subsections: 
(D)(i)(I) and (D)(i)(II) that a state must address in infrastructure 
SIP submissions. Each of these subsections has two subparts resulting 
in four distinct components, commonly referred to by EPA as ``prongs.'' 
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 from 
interfering with measures required for PSD of air quality in another 
state (``prong 3''), or to protect visibility in another state (``prong 
4'').
    The Commenter asserts that Florida did not address section 
110(a)(2)(D)(i)(II) for PSD and visibility in the September 18, 2018, 
SIP submission because the State does not ``even mention the words 
`Prong 3' or `Prong 4.' '' As further evidence that the SIP submission 
does not address these requirements, the Commenter points to the fact 
that the State sent an email to EPA on November 13, 2019, to confirm 
that the State did intend the submission to meet those substantive 
requirements. The Commenter contends that ``EPA cannot act on email 
messages from states and pretend they are official SIP submissions from 
the states'' and that no state public notice was advertised on Prongs 3 
or 4. As to the substance of the November 13, 2019 email, the Commenter 
claims that the State wrongly attempts to suggest that prong 3 and 4 
are met by pointing to the prong 1 discussion in the September 18, 
2018, SIP submission, and points to prior court cases pertaining to 
interstate transport that indicate EPA is required to give independent 
analysis to each prong of the interstate transport provisions of 
section 110(a)(2)(D). The Commenter also suggests that EPA has 
additional correspondence with the State related to the State's 
November 13, 2019, clarification email that should be included in the 
docket for the rulemaking.
    Response 2: EPA disagrees with the Commenter's assertion that 
Florida did not address section 110(a)(2)(D)(i)(II) in its September 
18, 2018, infrastructure SIP submission. In its September 13, 2013 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' (2013 Guidance), 
EPA explains that a state may meet 110(a)(2)(D)(i)(II) (prong 3) by 
establishing in its infrastructure SIP submission that new major 
sources and major modifications are already subject to a comprehensive 
EPA-approved PSD permitting program.\3\ EPA also notes in the 2013 
Guidance that sources in nonattainment areas are not subject to PSD 
permitting and that states may rely on an existing EPA-approved 
nonattainment new source review (NNSR) program with respect to sources 
located in nonattainment areas.\4\ For the visibility component of 
110(a)(2)(D)(i)(II) (prong 4), EPA provides in the 2013 Guidance that 
states may meet this requirement by establishing in its infrastructure 
SIP submission that it already has an EPA-approved regional haze SIP 
that fully meets the requirements of 40 CFR 51.308.\5\
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    \3\ 2013 Guidance, p. 31.
    \4\ 2013 Guidance, pp. 31-32.
    \5\ 2013 Guidance, p. 33.
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    EPA's analysis of Florida's September 18, 2018, infrastructure SIP 
submission focused on whether the State provided relevant information 
to establish that Florida's existing SIP adequately prohibits emissions 
activities within the State that will ``interfere with measures 
required to be included in the applicable implementation plan for any 
other State . . . to prevent significant deterioration of air quality 
or to protect visibility,'' consistent with the requirements of CAA 
section 110(a)(2)(D)(i)(II). Based on Florida's transmittal letter for 
the September 18,

[[Page 19091]]

2018, SIP submission, and the actual content of the September 18, 2018, 
SIP submission, EPA believes Florida satisfied these requirements. In 
its September 18, 2018, transmittal letter, Florida states that the 
submission ``addresses each [emphasis added] of the CAA infrastructure 
elements for the 2015 Revised National Ambient Air Quality Standards 
(NAAQS) for Ozone (O3).'' The State did not identify any 
sections it did not intend to address and further explained the 
provisions that it did intend to address in the introduction section of 
the September 18, 2018, SIP submission: ``[FDEP] Hereby confirms that 
the requirements of sections 110(a)(1) and the infrastructure elements 
required by sections 110(a)(2)(A) through (M) of the CAA are adequately 
addressed in Florida's existing approved SIP with respect to the 
implementation of the 2015 revised NAAQS.'' Moreover, on page 5 of the 
SIP submission, the State properly describes the requirements of CAA 
section 110(a)(2)(D)(i) to include the provisions of subparagraph (II) 
requiring states to prohibit emissions activity from the State from 
``interfering with any other state's required plan under Part C of the 
CAA for prevention of significant deterioration and protection of 
visibility.'' Thus, though broadly worded in some cases, there are 
several indications in the September 18, 2018, SIP submission that the 
State intended the submission to address all of the applicable 
requirements of CAA section 110(a)(2), including the prong 3 and prong 
4 requirements.
    While EPA acknowledges that the September 18, 2018, SIP submission 
did not use the terms ``prong 3'' or ``prong 4'' to describe the 
requirements the State was addressing in the SIP submission, these are 
not statutory terms but rather EPA-developed shorthand for the two 
requirements in CAA section 110(a)(2)(D)(i)(II). Thus, EPA disagrees 
that it is a deficiency for the State not to include these specific 
terms in its SIP submission nor is the absence of these terms an 
indication that the State failed to perform the necessary analysis of 
these statutory requirements. Consistent with the 2013 Guidance 
regarding how a state may address the prong 3 requirements,\6\ the SIP 
submission confirms on both pages 5 and 7 of the section 
110(a)(2)(D)(i) analysis that the State has both PSD and NNSR 
permitting programs already in its existing SIP. In particular, the 
State notes on those pages that the approved SIP requires ``any new 
major source or major modification to undergo PSD or NNSR permitting 
and thereby demonstrate that it will not cause or contribute to a 
violation of any NAAQS or PSD increment in Florida or any other state'' 
(emphasis added). This language from the SIP submission is consistent 
with the language of CAA section 110(a)(2)(D)(i)(II) requiring that a 
state's plan demonstrate that emissions from the state will not 
interfere with another state's PSD permitting plan, as the PSD 
requirements are specifically concerned with ensuring that the 
construction of new or modified major sources will not lead to new 
violations of the NAAQS or increments. See CAA section 165(a)(3).
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    \6\ 2013 Guidance, pp. 30-32.
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    Similarly, the SIP submission is consistent with the 2013 Guidance 
regarding how a state may address the prong 4 requirements because the 
SIP revision explains at page 5 that Florida has a fully-approved 
regional haze SIP.\7\ The State further explained on the same page 
that: ``This plan ensures that Florida will not interfere with 
visibility protection in other states.'' That statement is clearly in 
reference to the language describing the prong 4 requirements in 
110(a)(2)(D)(i)(II).
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    \7\ 2013 Guidance, pp. 32-35.
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    EPA agrees with the Commenter that it would have been clearer if 
the State had provided sections in its September 18, 2018, SIP 
submission explicitly labeled ``prong 3'' and ``prong 4,'' or otherwise 
demarcated its analysis of these specific requirements in the same 
manner as the sections entitled ``prong 1'' and ``prong 2,'' but EPA 
does not agree that the exclusion of the terms ``prong 3'' and ``prongs 
4'' in the submission means that the State did not in fact make a 
submission that addresses the interstate transport requirements with 
respect to the PSD and visibility prongs for the 2015 8-hour ozone 
NAAQS.
    EPA also agrees with the Commenter that each of the four prongs of 
section 110(a)(2)(D)(i) are separate requirements that states and EPA 
must address, and that there are prior court decisions that confirm 
this basic point. EPA disagrees, however, that the State has failed to 
address prong 3 and 4 in the September 18, 2018, SIP submission, or 
that EPA has failed to evaluate the submission with respect to these 
prongs. EPA and the State have provided independent analysis for prongs 
3 and 4, as discussed above. Florida's SIP submission satisfies the 
prong 3 requirements based on its SIP-approved PSD and NNSR permit 
programs, which require analysis and control of emissions that may 
impact another state's compliance with its own PSD requirements and 
satisfies the prong 4 requirements based on the State's fully-approved 
regional haze SIP. Not providing individual headings for each 
requirement of 110(a)(2)(D)(i) or prong within the submission does not 
support Commenter's assertion that the State or EPA failed to address 
each of these prongs independently.
    EPA also disagrees with the Commenter's assertion that, by 
proposing to approve the September 18, 2018, SIP revision, EPA is 
inappropriately relying on the November 13, 2019, email from Florida 
instead of requiring a supplemental SIP submission. As previously 
acknowledged, EPA agrees that the SIP submission could have been 
clearer with respect to the infrastructure SIP requirements that the 
State was addressing, but the content of that SIP submission in fact 
did substantively address the requirements of section 
110(a)(2)(D)(i)(II). In an abundance of caution, however, EPA requested 
confirmation of that fact from the State to include in the docket 
during EPA's public comment period for the proposed approval of 
Florida's September 18, 2018, SIP submission. The email merely 
confirmed Florida's intent regarding its September 18, 2018, SIP 
submission and did not provide new information regarding the Florida 
SIP or include new analysis to demonstrate that the Florida SIP meets 
the requirements of 110(a)(2)(D)(i)(II).
    Additionally, the Commenter does not provide support for its 
contention that ``no state public notice was advertised on Prongs 3 and 
4.'' EPA has re-examined the notice that the State provided concerning 
the content of the SIP submission. The State's September 18, 2018, 
revision that underwent public notice clearly stated that it addressed 
``each [emphasis added] of the CAA infrastructure elements for the 2015 
Revised National Ambient Air Quality Standards (NAAQS) for Ozone 
(O3),'' and did not exclude any infrastructure SIP 
requirements. EPA does not agree that use of the specific terms prong 3 
or prong 4 was necessary for public notice purposes, given the broad 
statement concerning the subject matter of the proposed SIP submission 
and given the actual substantive content of that proposed SIP 
submission.
    Finally, the Commenter asserted that EPA has ``emails, records, and 
correspondence (including meeting minutes/notes)'' related to Florida's 
September 18, 2018, SIP submission, and in particular, related to the 
interstate transport requirements for PSD and visibility, that it did 
not include in the rulemaking docket. In response to the comment, EPA 
has

[[Page 19092]]

reviewed the docket and confirmed that it contains the appropriate 
documents necessary to reflect the basis for the agency's proposed and 
final action on the SIP submission. The relevant EPA staff have checked 
their individual files and have confirmed that they do not have any 
additional documents that should be included in the docket for this 
rulemaking. EPA notes that agency staff have regular communications 
with the states concerning SIP submissions and air quality planning 
generally. Such communications between a state and EPA are part of the 
normal SIP process.

III. Final Action

    With the exception of interstate transport provisions pertaining to 
contribution to nonattainment or interference with maintenance in other 
states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA is approving 
Florida's infrastructure submission provided on September 18, 2018, for 
the 2015 8-hour ozone NAAQS. EPA is approving Florida's infrastructure 
SIP submission for certain elements for the 2015 8-hour ozone NAAQS 
because the submission is consistent with section 110 of the CAA for 
those elements.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
would not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 (Public Law 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 5, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

 List of Subjects in 40 CFR Part 52

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

    Dated: March 13, 2020.
Mary S. Walker,
Regional Administrator, Region 4.

    Title 40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart K--Florida

0
2. Section 52.520(e) is amended by adding the entry ``110(a)(1) and (2) 
Infrastructure Requirements for the 2015 8-Hour Ozone NAAQS'' at the 
end of the table to read as follows:


Sec.  52.520  Identification of plan.

* * * * *
    (e) * * *

[[Page 19093]]



                                 EPA-Approved Florida Non-Regulatory Provisions
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                                         State         EPA
              Provision                effective     approval   Federal Register notice        Explanation
                                          date         date
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                                                  * * * * * * *
110(a)(1) and (2) Infrastructure        9/18/2018     4/6/2020  [Insert citation of      With the exception of
 Requirements for the 2015 8-Hour                                publication].            Prongs 1 and 2 of
 Ozone NAAQS.                                                                             section
                                                                                          110(a)(2)(D)(i)(I).
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[FR Doc. 2020-06585 Filed 4-3-20; 8:45 am]
 BILLING CODE 6560-50-P