[Federal Register Volume 85, Number 87 (Tuesday, May 5, 2020)]
[Proposed Rules]
[Pages 26641-26643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08904]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0105; FRL-10008-27-Region 4]


Air Plan Approval; Florida: Public Notice Procedures for Minor 
Operating Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of a State Implementation Plan (SIP) revision 
submitted by the State of Florida, through the Florida Department of 
Environmental Protection (FDEP), on February 27, 2013, that change the 
State's public notice and comment rule for air permitting by modifying 
the public comment period for minor source operating permitting and 
making administrative edits.

DATES: Comments must be received on or before June 4, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0105 at www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be 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 www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: D. Brad Akers, 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. Mr. Akers can be 
reached via telephone at (404) 562-9089 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. What action is EPA proposing?

    EPA is proposing to approve certain changes to the Florida SIP that 
were provided to EPA by FDEP via a letter dated February 27, 2013.\1\ 
EPA has previously approved portions of the February 27, 2013 
submittal,\2\ and FDEP has withdrawn other portions from EPA 
consideration.\3\ In this action, EPA is proposing to approve the 
remaining portions of this SIP revision. These remaining portions make 
changes to Rule 62-210.350, Florida Administrative Code (F.A.C.), 
Public Notice and Comment (hereinafter ``Rule'') by modifying the 
length of the public notice period for federally enforceable state 
operating permits (FESOPs) and making several minor administrative 
edits to the Rule. The changes subject to this proposed action and 
EPA's rationale for proposing approval are described in more detail in 
Section II of this notice of proposed rulemaking (NPRM).
---------------------------------------------------------------------------

    \1\ EPA received the submittal on March 6, 2013.
    \2\ EPA approved portions of the February 27, 2013, SIP revision 
making changes to Rule 62-210.200, Definitions, 62-210.310, Air 
General Permits, and portions of 62-210.350, Public Notice and 
Comment, specifically portions of 62-210.350(1) and (4), on October 
6, 2017 (82 FR 46682).
    \3\ FDEP withdrew portions of the February 27, 2013, SIP 
revision as follows: FDEP withdrew certain changes to Rule 62-
210.200, Definitions, Rule 62-210.350, Public Notice and Comment, 
and Rule 62-296.401, Incinerators, on June 28, 2017; and FDEP 
withdrew the changes to 62-210.300, Permits Required, on December 5, 
2019. These letters are located in the docket for this notice of 
proposed rulemaking (NPRM).
---------------------------------------------------------------------------

II. EPA's Analysis of the State's Submittal

    FESOPs are federally enforceable permits issued by a state under a 
minor source operating permit program that EPA has approved into the 
SIP as meeting criteria published by the Agency on June 28, 1989. See 
54 FR 27274 (June 28, 1989) (hereinafter FESOP Guidance). Among other 
things, these criteria include timely public notice of the proposal and 
issuance of FESOPs. The FESOP program is a voluntary mechanism for 
states to create federally enforceable restrictions on potential to 
emit (PTE) to avoid major source permitting requirements, such as the 
title V operating permit program, and there are no specific Clean Air 
Act (CAA) or federal regulations regarding the issuance of minor source 
operating permits.\4\ EPA originally approved Florida's FESOP program, 
including a

[[Page 26642]]

30-day public comment period, on February 1, 1996. See 61 FR 3572. 
EPA's rationale for approval of Florida's program was based on the 
program's consistency with EPA's FESOP Guidance.
---------------------------------------------------------------------------

    \4\ Florida has an approved title V program pursuant to 40 CFR 
part 70. See 40 CFR 70, Appendix A.
---------------------------------------------------------------------------

    In its February 27, 2013, SIP revision, the State seeks to reduce 
its 30-day comment period for FESOPs in Rule 62-210.350 to a 14-day 
period by: (1) Adding subparagraph (4)(a)2., which states a 14-day 
period for public comments is required prior to final State action to 
issue a new, renewed, or revised FESOP, and (2) revising the time at 
paragraph (4)(b) between publication of the notice for review and 
comment and final agency action on the FESOP from 30 days to 14 days. 
The State also seeks to make the following administrative edits to the 
Rule: Renumbering subparagraph (4)(a)2. to (4)(a)3. and updating a 
cross-reference to administrative procedures in the State at paragraph 
(4)(b). All major sources remain subject to the title V operating 
permit program, and action on the proposed SIP revision will not impact 
the public notice requirements under the State's title V program.
    The FESOP Guidance does not establish a 30-day public notice and 
comment period as a requirement for program approval. EPA instead noted 
the flexibility that states have in determining the appropriate level 
of public engagement by indicating that states need to ``provide EPA 
and the public with timely notice of the proposal and issuance'' of 
FESOPs and that EPA would consider the programs sufficient as long as 
``ample opportunity is provided for comment on permits prior to their 
final issuance'' See 54 FR 27274 at 27282, 27283. However, EPA did not 
provide exacting requirements for how long such opportunity must be. 
Based on its experience, Florida believes that 14 days is adequate time 
for EPA and the public to review and comment on its FESOPs.
    Florida provided a CAA section 110(l) noninterference analysis to 
support the change to the public comment period for FESOPs.\5\ Section 
110(l) states that EPA cannot approve a SIP revision if the revision 
would interfere with any applicable requirement concerning attainment 
or reasonable further progress (RFP), or any other applicable 
requirement of the CAA. FDEP notes that the change in the public 
comment period does not interfere with any applicable requirement 
concerning attainment or reasonable further progress or any other 
applicable requirement because this change does not affect emissions 
limitations or authorize any increase in emissions, and there are no 
specific requirements in the CAA or its implementing regulations 
regarding the duration of the public notice period for FESOPs.
---------------------------------------------------------------------------

    \5\ The 110(l) demonstration was part of a June 28, 2017, 
letter, which is included in the docket for this NPRM.
---------------------------------------------------------------------------

    In a May 10, 2019 email to EPA, FDEP stated that the Department may 
provide an extension of the public comment period provided in Rule 62-
210.350 if requested for good cause during the public comment 
period.\6\ Specifically, FDEP noted that the Florida rules provide for 
revised, increased time for public comments to be submitted in certain 
circumstances at 62-110.106, F.A.C., Decisions Determining Substantial 
Interests, which is cross-referenced in 62-210.350, at paragraph (4), 
Enlargement of Time. FDEP included a copy of 62-110.106 in the February 
27, 2013, submittal for reference.\7\ Rule 62-110.106 is generally 
applicable to various programs, including non-air programs, and is not 
part of the SIP. This rule and FDEP's email indicate that the State may 
go beyond the 14-day comment period when a third-party commenter 
requests an extension for good cause. Therefore, even with the proposed 
SIP revision, the State may provide for a longer comment period on 
FESOPs.
---------------------------------------------------------------------------

    \6\ FDEP's May 10, 2019, email is included in the docket for 
this NPRM.
    \7\ Florida did not ask EPA to incorporate this rule into the 
SIP in its February 27, 2013 SIP revision.
---------------------------------------------------------------------------

    EPA is proposing to approve the change to the public comment period 
for minor source FESOPs in the SIP-approved version of Rule 62-210.350 
because the change is not inconsistent with the FESOP Guidance or the 
CAA, and because the change will not interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other requirements in the Act. EPA is also proposing to approve the 
aforementioned edits to paragraph 4(b) and subparagraph (4)(a)2. These 
edits meet the requirements of 110(l) because they are administrative 
in nature and therefore have no impact on air quality.

III. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference Rule 62-210.350, F.A.C., entitled ``Public Notice and 
Comment,'' state effective October 12, 2008, consisting of changes to 
the public comment period regarding FESOPs as well as administrative 
edits.\8\ EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 4 
office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).
---------------------------------------------------------------------------

    \8\ Except for 62-210.350(1)(c) which was withdrawn from EPA 
consideration on June 28, 2017.
---------------------------------------------------------------------------

IV. Proposed Action

    For the reasons discussed above, EPA is proposing to approve the 
portions of Florida's February 27, 2013, SIP revision that consist of 
changes to the public comment period regarding FESOPs and 
administrative edits not previously incorporated into the SIP by EPA at 
Rule 62-210.350.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. This action merely 
proposes to approve 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);
     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 (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

[[Page 26643]]

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, Reporting and recordkeeping 
requirements.

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

Mary Walker,
Regional Administrator, Region 4.
[FR Doc. 2020-08904 Filed 5-4-20; 8:45 am]
 BILLING CODE 6560-50-P