[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Proposed Rules]
[Pages 54534-54537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16966]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0608; FRL-10387-01-R4]


Air Plan Approval; FL; Noninterference Demonstrations for Removal 
of CAIR and Obsolete Rules in the Florida SIP

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a portion of a State Implementation Plan (SIP) revision 
submitted by the Florida Department of Environmental Protection (FDEP) 
on April 1, 2022, for the purpose of removing several rules from the 
Florida SIP. EPA is proposing to remove the State's Clean Air 
Interstate Rule (CAIR) rules from the Florida SIP as well as several 
Reasonably Available Control Technology (RACT) rules for particulate 
matter (PM) because these rules have become obsolete. The State has 
provided a non-interference demonstration to support the removal of 
these rules from the Florida SIP pursuant to the Clean Air Act (CAA or 
Act).

DATES: Comments are due on or before September 11, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0608 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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Evan Adams, 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. The telephone number is (404) 
562-9009. Mr. Adams can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on 62-296.470, F.A.C., Implementation of Federal Clean 
Air Interstate Rule

    Under CAA section 110(a)(2)(D)(i)(I), which EPA has traditionally 
termed the good neighbor provision, States are required to address the 
interstate transport of air pollution. Specifically, the good neighbor 
provision requires that each State's implementation plan contain 
adequate provisions to prohibit air pollutant emissions from within the 
State that will contribute significantly to nonattainment in, or 
interfere with maintenance by, any other State with respect to any 
national ambient air quality standard (NAAQS).
    In 2005, EPA published CAIR to limit the interstate transport of 
ozone and fine particulate matter (PM2.5) under the CAA's 
good neighbor provision. See 70 FR 25162 (May 12, 2005). CAIR 
originally required twenty-eight eastern States, including Florida, to 
submit SIPs prohibiting emissions that exceeded:
    (1) Annual budgets specific to each State for nitrogen oxides 
(NOX)--an ozone precursor;
    (2) ozone season budgets specific to each State for NOX; 
and
    (3) annual budgets specific to each State for sulfur dioxide 
(SO2)--a PM2.5 precursor. CAIR also established 
several \1\ trading programs for these pollutants that EPA implemented 
through Federal implementation plans (FIPs) for electric generating 
units (EGUs) greater than 25 megawatts in each affected State.\2\ 
However, these trading programs did not apply to large non-EGUs. States 
could then submit SIPs to replace the FIPs to achieve the required 
emission reductions from EGUs and could choose to opt in non-EGU 
sources.
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    \1\ CAIR had separate trading programs for annual SO2 
emissions, ozone season NOX emissions, and annual 
NOX emissions.
    \2\ For additional background regarding these FIPs, including 
details specific to Florida, see Proposed Approval of Implementation 
Plans of Florida: Clean Air Interstate Rule, 72 FR 42344 (August 2, 
2007).
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    On October 12, 2007, EPA approved a SIP revision for Florida 
implementing the requirements of CAIR. See 72 FR 58016. That revision 
to Florida's SIP included Rule 62-296.470, which, as discussed later in 
this notice, EPA is now proposing to remove from Florida's SIP as 
obsolete.
    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896, 
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling 
allowed CAIR to remain in effect temporarily until a replacement rule 
consistent with the court's opinion was developed. While EPA worked on 
developing a replacement rule, the CAIR program continued to be 
implemented with the NOX annual and ozone season trading 
programs beginning in 2009 and the SO2 annual trading 
program beginning in 2010.
    In response to the D.C. Circuit's remand of CAIR, EPA promulgated 
the Cross-State Air Pollution Rule (CSAPR) to address the good neighbor 
provision for the 1997 ozone NAAQS, the 1997 PM2.5 NAAQS, 
and the 2006 PM2.5 NAAQS. See 76 FR 48208 (August 8, 2011). 
CSAPR requires EGUs in many eastern States to meet annual and ozone

[[Page 54535]]

season NOX emission budgets and annual SO2 
emission budgets implemented through new trading programs.
    CSAPR also contained provisions that would sunset CAIR-related 
obligations on a schedule coordinated with the implementation of CSAPR 
compliance requirements. CSAPR was to become effective January 1, 2012; 
however, the timing of CSAPR's implementation was impacted by a number 
of court actions.
    On December 30, 2011, the D.C. Circuit stayed CSAPR prior to its 
implementation, and EPA was ordered to continue administering CAIR on 
an interim basis.\3\ In a subsequent decision on the merits, the court 
vacated CSAPR based on a subset of petitioners' claims.\4\ However, on 
April 29, 2014, the U.S. Supreme Court reversed that decision and 
remanded the case to the D.C. Circuit for further proceedings.\5\ 
Throughout the initial round of D.C. Circuit proceedings and the 
ensuing Supreme Court proceedings, the stay on CSAPR remained in place, 
and EPA continued to implement CAIR.
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    \3\ Order of December 30, 2011, in EME Homer City Generation, 
L.P. v. EPA, D.C. Cir. No. 11-1302.
    \4\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012), cert. granted 133 U.S. 2857 (2013).
    \5\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 
1600-01 (2014).
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    Following the April 2014 Supreme Court decision, EPA filed a motion 
asking the D.C. Circuit to lift the stay in order to allow CSAPR to 
replace CAIR in an equitable and orderly manner while further D.C. 
Circuit proceedings were held to resolve remaining claims from 
petitioners. Additionally, EPA's motion requested to toll, by three 
years, all CSAPR compliance deadlines that had not passed as of the 
approval date of the stay. On October 23, 2014, the D.C. Circuit 
granted EPA's request, and on December 3, 2014 (79 FR 71663), in an 
interim final rule, EPA set the updated effective date of CSAPR as 
January 1, 2015, and tolled the implementation of CSAPR Phase 1 to 2015 
and CSAPR Phase 2 to 2017.
    In accordance with the interim final rule, the sunset date for CAIR 
was December 31, 2014, and EPA began implementing CSAPR on January 1, 
2015.\6\ However, EPA determined that CSAPR does not apply to Florida 
after demonstrating that Florida does not contribute significantly to 
nonattainment in, or interfere with maintenance by, any other State 
with respect to the covered NAAQS. See 81 FR 74505, 74506.\7\ Because 
CSAPR replaced CAIR and EPA previously determined that CSAPR does not 
apply to Florida, neither of these rules have any applicability in 
Florida today.
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    \6\ See 40 CFR 51.123(ff) (sunsetting CAIR requirements related 
to NOX); 40 CFR 51.124(s) (sunsetting CAIR requirements 
related to SO2).
    \7\ Additional updates were made to the CSAPR trading program 
following its original approval on August 8, 2011, including the 
CSAPR Update on October 26, 2016 (81 FR 74504) and Revised CSAPR 
Update on April 30, 2021 (86 FR 23054) for ozone interstate 
transport. These subsequent CSAPR rules continued to demonstrate 
that sources in Florida were not significantly contributing to any 
maintenance or nonattainment area, therefore, the CSAPR Update and 
the Revised CSAPR Update do not apply for the State.
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II. EPA's Analysis of the Removal of 62-296.470, F.A.C., Implementation 
of Federal Clean Air Interstate Rule

    Rule 62-296.470 was approved by EPA into the Florida SIP on October 
12, 2007 (72 FR 58016). Florida repealed this rule on August 14, 2019, 
through a State regulatory action because CAIR has sunset and, under 
CSAPR, EPA determined that sources in Florida do not contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other State with respect to the covered NAAQS. The State has now 
requested that EPA remove Rule 62-296.470 from the SIP.\8\ EPA proposes 
to remove this rule from Florida's SIP because CAIR was remanded and 
eventually replaced by the CSAPR which does not apply to Florida. For 
these reasons, EPA believes the removal of this rule is appropriate and 
consistent with all applicable requirements, including CAA section 
110(l).\9\
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    \8\ In Florida's April 1, 2022, submittal, the State includes 
other requested SIP revisions that EPA will address in subsequent 
rulemakings.
    \9\ CAA section 110(l) provides that EPA cannot ``approve a [SIP 
revision] if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress . 
. . or any other applicable requirement'' of the CAA. EPA has 
reviewed Florida's CAA section 110(l) demonstration and 
preliminarily agrees that removal of Rule 62-296.470 is compliant 
with CAA section 110(l).
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III. Background on 62-296.701, F.A.C., Portland Cement Plants; 62-
296.703, F.A.C., Carbonaceous Fuel Burners; 62-296.706, F.A.C., Glass 
Manufacturing Process; 62-296.709, F.A.C., Lime Kilns; and 62-296.710, 
F.A.C., Smelt Dissolving Tanks

    On March 3, 1978, EPA designated all areas of the country for the 
1971 total suspended particulates (TSP) NAAQS. Duval, Seminole, Polk, 
and Hillsborough Counties in Florida were designated as not meeting the 
secondary TSP standards. See 43 FR 8962, 8980 (March 3, 1978). After 
several modifications to the designations, EPA determined that portions 
of Seminole and Polk Counties were two full-county nonattainment areas 
for the 1971 TSP standard.\10\ Because these two areas were in 
nonattainment for the 1971 TSP standard, the State was required to 
develop and submit to EPA plans to attain the standard, including 
reasonably available control technology (RACT) regulations in the 
Florida SIP to control TSP. Five of those RACT rules were the 
predecessor rules to F.A.C. 62-296.701, 62-296.703, 62-296.706, 62-
296.709, and 62-296.710, which were approved into the Florida SIP on 
May 2, 1983 (48 FR 19715).\11\
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    \10\ On September 11, 1978 (43 FR 40412), EPA completed a 
modified designation following comment on the March 3, 1978, final 
rule, revising the TSP nonattainment areas for Duval and 
Hillsborough Counties to be partial counties and changing the 
designation of Polk County to ``cannot be classified.'' On April 27, 
1979 (44 FR 24845), EPA changed the designation of Seminole County 
to ``cannot be classified'' for the TSP NAAQS. On November 18, 1982 
(47 FR 51866), EPA changed the designation of part of Duval County 
to attainment for the TSP NAAQS.
    \11\ EPA later promulgated standards more stringent than the 
prior TSP standards when it adopted the PM10 NAAQS and 
the PM2.5 NAAQS. PM10 is particulate matter 
with an aerodynamic diameter of 10 microns or less, also referred to 
as coarse PM; PM2.5 is particulate matter with an 
aerodynamic diameter of 2.5 microns or less, also referred to as 
fine PM. All areas in Florida have been designated unclassifiable/
attainment for the primary and secondary 1987 annual and 24-hour 
PM10 NAAQS, 1997 annual and 24-hour PM2.5 
NAAQS, 2006 annual and 24-hour PM2.5 NAAQS, and 2012 
annual and 24-hour PM2.5 NAAQS. The 2012 PM2.5 
NAAQS is the most recent revision to the suite of PM NAAQS, 
published on January 15, 2013. The primary annual standard was 
strengthened from 15.0 micrograms per cubic meter ([mu]g/m3) to 12.0 
[mu]g/m3. See 78 FR 3086.
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    On February 1, 1990, as part of implementation of the 
PM10 NAAQS, EPA approved portions of Florida's 
PM10 SIP. See 55 FR 3403. Additionally, and of relevance to 
this Notice, EPA explained that regarding Rule 17-2.650--Reasonably 
Available Control Technology (RACT) (state effective May 30, 1988), 
``[r]evisions have been made such that RACT for existing sources will 
continue to be applied in the areas which are presently nonattainment 
for TSP. The portion addressing RACT for new and modified sources has 
been rescinded since the areas where this has been applied will have no 
classification for PM10.'' Id. at 3406. Rule 17-2.650 was 
later recodified to become Rules 62-296.700 through 62-296.712.\12\ In 
that same February 1, 1990 rulemaking, EPA designated all remaining TSP 
nonattainment areas within Florida as

[[Page 54536]]

unclassifiable.\13\ As FDEP notes elsewhere in its SIP submittal in 
support of proposed revisions to Rule 62-296.700,\14\ Florida's PM RACT 
rules only apply to emission units that have been issued an air permit 
on or before May 30, 1988.15 16
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    \12\ For additional detail, please see the Florida rule history 
posted at https://www.flrules.org/. For example, the historical 
notes for Rule 62-296.701 are available at https://www.flrules.org/gateway/ruleno.asp?id=62-296.701; see also 64 FR 32346 (June 16, 
1999).
    \13\ EPA approved a recodification to the 62-296.700 rules on 
October 20, 1994 (59 FR 52916).
    \14\ EPA will address revisions to this rule in a separate 
notice.
    \15\ On May 19, 1988, Florida submitted revisions to the SIP 
regarding particulate matter. The rules submitted under the May 19, 
1988, date were state effective on May 30, 1988. In these revisions, 
which were approved by EPA on February 1, 1990 (55 FR 3403), EPA 
approved Florida's changes to its particulate matter SIP that 
clarify what areas of the state were covered by the PM RACT rules 
and the location of PM (TSP) air quality maintenance areas and areas 
of influence (areas within 50 kilometers outside the boundary of an 
air quality maintenance area).
    \16\ EPA will address Florida's proposed updates to F.A.C. 62-
296.700 in a separate rulemaking.
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IV. EPA's Analysis of the Removal of 62-296.701, F.A.C., Portland 
Cement Plants; 62-296.703, F.A.C., Carbonaceous Fuel Burners; 62-
296.706, F.A.C., Glass Manufacturing Process; 62-296.709, F.A.C., Lime 
Kilns; and 62-296.710, F.A.C., Smelt Dissolving Tanks

    According to Florida's submittal, there are no longer any units in 
the State still in operation covered by Rules 62-296.701, 62-296.703, 
62-296.706, 62-296.709, and 62-296.710. Because these rules only apply 
to existing sources permitted on or before May 30, 1988, and FDEP 
determined that there are no longer any existing sources subject to 
these rules, FDEP likewise determined that removing these rules from 
the SIP will not interfere with attainment or maintenance of the NAAQS, 
prevention of significant deterioration increments, reasonable further 
progress, or protection of visibility. FDEP repealed these rules at the 
State level, effective on February 8, 2017. Because these rules only 
apply to units that were permitted on or before May 30, 1988, and there 
are no longer any existing sources subject to these rules, removing 
these rules from the SIP will have no air quality impacts and is 
consistent with CAA section 110(l). Therefore, EPA proposes to remove 
these obsolete rules from the Florida SIP.

V. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
amended regulatory text that includes incorporation by reference. EPA 
is proposing to remove Rules 62-296.470, F.A.C., Implementation of 
Federal Clean Air Interstate Rule, 62-296.701, F.A.C., Portland Cement 
Plants, 62-296.703, F.A.C., Carbonaceous Fuel Burners, 62-296.706, 
F.A.C., Glass Manufacturing Process, 62-296.709, F.A.C., Lime Kilns, 
and 62-296.710, F.A.C., Smelt Dissolving Tanks from the Florida SIP 
which are incorporated by reference in accordance with the requirements 
of 1 CFR part 51, and as discussed in Sections I through IV of this 
preamble. EPA has made, and will continue to make the SIP generally 
available at the EPA Region 4 Office (please contact the person 
identified in the ``For Further Information Contact'' section of this 
preamble for more information).

VI. Proposed Action

    EPA is proposing to approve that portion of the April 1, 2022, 
Florida SIP revision consisting of the removal of Rules 62-296.470, 
F.A.C., Implementation of Federal Clean Air Interstate Rule, 62-
296.701, Portland Cement Plants, 62-296.703, Carbonaceous Fuel Burners, 
62-296.706, Glass Manufacturing Process, 62-296.709, Lime Kilns, and 
62-296.710, Smelt Dissolving Tanks, from the Florida SIP.

VII. Statutory and Executive Language

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 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 Clean Air Act. 
Accordingly, this proposed 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);
     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); and
     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.
    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 and will not impose 
substantial direct costs on Tribal governments or preempt Tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The FDEP did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this proposed action. Consideration 
of EJ is not required as part of this proposal, and there is no 
information in the record inconsistent with the stated goal of E.O. 
12898 of achieving EJ for people of color, low-income populations, and 
Indigenous peoples.

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List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

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

Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2023-16966 Filed 8-10-23; 8:45 am]
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