Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23181 

which was submitted on December 14, 

2011. EPA is soliciting public comments 

on this proposed approval of Virginia’s 

SIP revision request. These comments 

will be considered before taking final 

action. 

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 

CAA 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 CAA. Accordingly, 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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule relating 

to GHG permitting under Virginia’s PSD 

program does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in the 

state, and EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse Gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: April 5, 2012. 

W.C. Early, 

Action Regional Administrator, Region III. 

[FR Doc. 2012–9339 Filed 4–17–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2011–0809; FRL–9659–1] 

Approval and Promulgation of 

Implementation Plans; Florida; 

110(a)(1) and (2) Infrastructure 

Requirements for the 1997 8-Hour 

Ozone National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

in part, conditionally approve, and 

disapprove in part, the State 

Implementation Plan (SIP) submission, 

submitted by the State of Florida, 

through the Florida Department of 

Environmental Protection (DEP) on 

December 13, 2007, and supplemented 

on April 18, 2008, to demonstrate that 

the State meets the requirements of the 

Clean Air Act (CAA or Act) for the 1997 

8-hour ozone national ambient air 

quality standards (NAAQS). The CAA 

requires that each state adopt and 

submit a SIP for the implementation, 

maintenance and enforcement of each 

NAAQS promulgated by the EPA, which 

is commonly referred to as an 

‘‘infrastructure’’ SIP. DEP certified that 

the Florida SIP contains provisions that 

ensure the 1997 8-hour ozone NAAQS 

are implemented, enforced, and 

maintained in Florida (hereafter referred 

to as ‘‘infrastructure submission’’). EPA 

is taking four related actions on DEP’s 

infrastructure submission for Florida. 

DATES: Written comments must be 

received on or before May 18, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2011–0809, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: benjamin.lynorae@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2011– 

0809,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2011– 

0809. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

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23182 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA is 

now taking four related actions on DEP’s 

infrastructure submission for Florida. 

First, EPA is proposing to approve a 

Federal Implementation Plan (FIP) for 

element 110(a)(2)(G), which relates to 

the authority to implement emergency 

powers under section 303 of the CAA. 

Second, EPA is proposing to disapprove 

in part portions of elements 110(a)(2)(C) 

and 110(a)(2)(J) of the State’s submittal 

as it relates to the regulation of 

greenhouse gas (GHG) emissions. Third, 

EPA is proposing to conditionally 

approve sub-element 110(a)(2)(E)(ii), 

which relates to the State board 

requirements contained section 128 of 

the CAA. Fourth, and with the 

exception of the aforementioned 

elements, EPA is proposing to 

determine that Florida’s infrastructure 

submission, provided to EPA on 

December 13, 2007, as supplemented on 

April 18, 2008, addresses all other 

required infrastructure elements for the 

1997 8-hour ozone NAAQS. 

Table of Contents 

I. Background 

II. What elements are required under 

Sections 110(a)(1) and (2)? 

III. Scope of Infrastructure SIPs 

IV. What is EPA’s analysis of how Florida 

addressed the elements of Sections 

110(a)(1) and (2) ‘‘Infrastructure’’ 

Provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm. 

See 62 FR 38856. 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 1997 8-hour ozone 

NAAQS to EPA no later than June 2000. 

However, intervening litigation over the 

1997 8-hour ozone NAAQS created 

uncertainty about how to proceed and 

many states did not provide the 

required ‘‘infrastructure’’ SIP 

submission for these newly promulgated 

NAAQS. 

On March 4, 2004, Earthjustice 

submitted a notice of intent to sue 

related to EPA’s failure to issue findings 

of failure to submit related to the 

‘‘infrastructure’’ requirements for the 

1997 8-hour ozone NAAQS. EPA 

entered into a consent decree with 

Earthjustice which required EPA, among 

other things, to complete a Federal 

Register notice announcing EPA’s 

determinations pursuant to section 

110(k)(1)(B) as to whether each state had 

made complete submissions to meet the 

requirements of section 110(a)(2) for the 

1997 8-hour ozone NAAQS by 

December 15, 2007. Subsequently, EPA 

received an extension of the date to 

complete this Federal Register notice 

until March 17, 2008, based upon 

agreement to make the findings with 

respect to submissions made by January 

7, 2008. In accordance with the consent 

decree, EPA made completeness 

findings for each state based upon what 

the Agency received from each state as 

of January 7, 2008. 

On March 27, 2008, EPA published a 

final rulemaking entitled, 

‘‘Completeness Findings for Section 

110(a) State Implementation Plans; 8- 

Hour Ozone NAAQS,’’ making a finding 

that each state had submitted or failed 

to submit a complete SIP that provided 

the basic program elements of section 

110(a)(2) necessary to implement the 

1997 8-hour ozone NAAQS. See 73 FR 

16205. For those states that did receive 

findings, such as Florida, the findings of 

failure to submit for all or a portion of 

a State’s implementation plan 

established a 24-month deadline for 

EPA to promulgate a FIP to address the 

outstanding SIP elements unless, prior 

to that time, the affected states 

submitted, and EPA approved, the 

required SIPs. However, the findings of 

failure to submit did not impose 

sanctions or set deadlines for imposing 

sanctions as described in section 179 of 

the CAA, because these findings do not 

pertain to the elements contained in the 

Title I part D plan for nonattainment 

areas as required under section 

110(a)(2)(I). Additionally, the findings 

of failure to submit for the infrastructure 

submittals are not a SIP call pursuant to 

section 110(k)(5). 

The finding that all or portions of a 

state’s submission are complete 

established a 12-month deadline for 

EPA to take action upon the complete 

SIP elements in accordance with section 

110(k). Florida’s infrastructure 

submission was received by EPA on 

December 13, 2007, and was determined 

to be complete on March 27, 2008, for 

all elements with the exception of 

110(a)(2)(G). Specifically, 110(a)(2)(G) 

relates to the requirement for states to 

provide authority comparable to that in 

section 303 of the CAA, Emergency 

Power, and adequate contingency plans 

to implement such authority. Florida 

was among other states that received a 

finding of failure to submit because its 

infrastructure submission was deemed 

incomplete for element (G) for the 1997 

8-hour ozone NAAQS by March 1, 2008. 

The finding of failure to submit action 

triggered a 24-month clock for EPA to 

either issue a FIP or take final action on 

a SIP revision which corrects the 

deficiency for which the finding of 

failure to submit was received. Today’s 

action involves four related proposals to 

act on DEP’s December 13, 2007, 

submission as supplemented on April 

18, 2008. 

With regard to the proposal to 

establish a FIP, which will be discussed 

in further detail below, preliminary 

background information is provided as 

follows. In DEP’s December 13, 2007, 

submission and a letter dated April 18, 

2008, DEP cited State statutes as 

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1Two 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). 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

3Today’s proposed rule does not address element 

110(a)(2)(D)(i) (Interstate Transport) for the 1997 8- 

hour ozone NAAQS. Interstate transport 

requirements were formerly addressed by Florida 

consistent with the Clean Air Interstate Rule 

(CAIR). On December 23, 2008, CAIR was remanded 

by the D.C. Circuit Court of Appeals, without 

vacatur, back to EPA. See North Carolina v. EPA, 

531 F.3d 896 (D.C. Cir. 2008). Prior to this remand, 

EPA took final action to approve Florida’s SIP 

revision, which was submitted to comply with 

CAIR. See 72 FR 58016 (October 12, 2007). In so 

doing, Florida’s CAIR SIP revision addressed the 

interstate transport provisions in section 

110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS. 

In response to the remand of CAIR, EPA has 

recently finalized a new rule to address the 

interstate transport of NOX and SOX in the eastern 

United States. See 76 FR 48208 (August 8, 2011) 

(‘‘the Cross-State Air Pollution Rule’’). EPA’s action 

on element 110(a)(2)(D)(i) will be addressed in a 

separate action. 

4This requirement was inadvertently omitted 

from EPA’s October 2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required Under 

Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 

and PM2.5 National Ambient Air Quality 

Standards,’’ but as mentioned above is not relevant 

to today’s proposed rulemaking. 

5See Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

evidence that Florida has the authority 

to implement emergency powers for the 

1997 8-hour ozone standard. Because 

these statutes have not been approved 

into the Florida SIP, as part of today’s 

proposal, EPA is proposing a FIP to 

correct this deficiency. EPA will take 

action to approve a FIP for element 

110(a)(2)(G) unless Florida submits a 

SIP revision correcting the deficiency 

for element 110(a)(2)(G) and EPA takes 

final action to approve the revision prior 

to such time that EPA is obligated to 

take final action on this ozone 

infrastructure SIP submission, per a 

settlement agreement signed on 

November 30, 2011. In a letter dated 

March 23, 2012, DEP provided a letter 

with the State’s intent to submit a SIP 

revision to address this deficiency in the 

very near future. A copy of this letter is 

in the docket for today’s proposed 

rulemaking. EPA acknowledges 

Florida’s request and if EPA is able to 

take action on Florida’s forthcoming SIP 

revision prior to finalizing the proposed 

FIP that is being proposed today, the FIP 

proposed today will no longer be 

necessary. 

Today’s action is proposing to 

approve Florida’s infrastructure 

submission for which EPA made the 

completeness determination and 

findings of failure to submit on March 

27, 2008. This action is not approving 

revisions to any rules; but rather, is 

proposing that Florida’s already 

approved SIP meets certain CAA 

infrastructure requirements for the 1997 

8-hour ozone NAAQS. 

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 1997 8-hour ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous ozone 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 1 and in EPA’s October 

2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 

1997 8-Hour Ozone and PM2.5 National 

Ambient Air Quality Standards.’’ 

• 110(a)(2)(A): Emission limits and other 

control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for enforcement of 

control measures.2

• 110(a)(2)(D): Interstate transport.3

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

• 110(a)(2)(H): Future SIP revisions. 

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.4

• 110(a)(2)(J): Consultation with 

government officials; public notification; and 

PSD and visibility protection. 

• 110(a)(2)(K): Air quality modeling/data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/participation 

by affected local entities. 

III. Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and fine particulate matter (PM2.5) 

NAAQS for various states across the 

country. Commenters on EPA’s recent 

proposals for some states raised 

concerns about EPA statements that it 

was not addressing certain substantive 

issues in the context of acting on those 

infrastructure SIP submissions.5 Those 

Commenters specifically raised 

concerns involving provisions in 

existing SIPs and with EPA’s statements 

in other proposals that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction (SSM) at sources, that may 

be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (director’s discretion). EPA 

notes that there are two other 

substantive issues for which EPA 

likewise stated in other proposals that it 

would address the issues separately: (i) 

Existing provisions for minor source 

new source review programs that may 

be inconsistent with the requirements of 

the CAA and EPA’s regulations that 

pertain to such programs (minor source 

NSR); and (ii) existing provisions for 

Prevention of Significant Deterioration 

(PSD) programs that may be inconsistent 

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6For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

7For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. See ‘‘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 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

8See Id., 70 FR 25162, at 63–65 (May 12, 2005) 

(explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

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). In light of the comments, EPA 

believes that its statements in various 

proposed actions on infrastructure SIPs 

with respect to these four individual 

issues should be explained in greater 

depth. It is important to emphasize that 

EPA is taking the same position with 

respect to these four substantive issues 

in this action on the infrastructure SIPs 

for the 1997 8-hour ozone NAAQS from 

Florida. 

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational, and 

to provide general notice of the 

potential existence of provisions within 

the existing SIPs of some states that 

might require future corrective action. 

EPA did not want states, regulated 

entities, or members of the public to be 

under the misconception that the 

Agency’s approval of the infrastructure 

SIP submission of a given state should 

be interpreted as a re-approval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit re-approval of any existing 

provisions that relate to these four 

substantive issues. EPA is reiterating 

that position in this action on the 

infrastructure SIP for Florida. 

Unfortunately, the Commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issues in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 

potential for certain types of 

deficiencies in existing SIPs, and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those other 

proposals, however, we want to explain 

more fully the Agency’s reasons for 

concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately from actions on 

infrastructure SIP submissions. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPs are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

address the requirements of part D, and 

a host of other specific types of SIP 

submissions that address other specific 

matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, 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 provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.6 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.7

Notwithstanding that section 110(a)(2) 

provides that ‘‘each’’ SIP submission 

must meet the list of requirements 

therein, EPA has long noted that this 

literal reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).8 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

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9EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

10For 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. 

11See ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). 

12 Id., at page 2. 

13 Id., at attachment A, page 1. 

14 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

15See ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T, 

Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I–X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.9 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s implementation 

plans. Finally, 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 and the attendant infrastructure 

SIP submission for that NAAQS. For 

example, the monitoring requirements 

that might be necessary for purposes of 

section 110(a)(2)(B) for one NAAQS 

could be very different than what might 

be necessary for a different pollutant. 

Thus, the content of an infrastructure 

SIP submission to meet this element 

from a state might be very different for 

an entirely new NAAQS, versus a minor 

revision to an existing NAAQS.10

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these ozone 

and PM2.5 NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.11 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 12 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 13 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 14

However, for the one exception to that 

general assumption (i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS), EPA gave 

much more specific recommendations. 

But for other infrastructure SIP 

submittals, and for certain elements of 

the submittals for the 1997 PM2.5

NAAQS, EPA assumed that each State 

would work with its corresponding EPA 

regional office to refine the scope of a 

State’s submittal based on an 

assessment of how the requirements of 

section 110(a)(2) should reasonably 

apply to the basic structure of the State’s 

implementation plans for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.15 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS (e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS). Significantly, 

neither the 2007 Guidance nor the 2009 

Guidance explicitly referred to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance and 

the 2009 Guidance, however, EPA did 

not indicate to states that it intended to 

interpret these provisions as requiring a 

substantive submission to address these 

specific issues in existing SIP provisions 

in the context of the infrastructure SIPs 

for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief 

that the states should make submissions 

in which they established that they have 

the basic SIP structure necessary to 

implement, maintain, and enforce the 

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16EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (April 

18, 2011). 

17EPA has recently utilized 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 EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See 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). 

18EPA has recently disapproved 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 75 FR 42342, 42344 (July 

21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

NAAQS. EPA believes that states can 

establish that they have the basic SIP 

structure, notwithstanding that there 

may be potential deficiencies within the 

existing SIP. Thus, EPA’s proposals for 

other states mentioned these issues not 

because the Agency considers them 

issues that must be addressed in the 

context of an infrastructure SIP as 

required by section 110(a)(1) and (2), 

but rather because EPA wanted to be 

clear that it considers these potential 

existing SIP problems as separate from 

the pending infrastructure SIP actions. 

The same holds true for this action on 

the infrastructure SIP for Florida. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP 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 that, 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 considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate 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 SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.16 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.17

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action 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 the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.18

IV. What is EPA’s analysis of how 

Florida addressed the elements of the 

Sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

EPA is proposing to take four 

previously described actions in 

response to Florida’s infrastructure SIP 

submission for the 1997 8-hour ozone 

NAAQS. Below is a discussion of 

Florida’s 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: There are 

several regulations within Florida’s SIP 

relevant to air quality control 

regulations which include enforceable 

emission limitations and other control 

measures. Chapters 62–204, Air 

Pollution Control Provisions; 62–210, 

Stationary Sources—General 

Requirements; and 62–296, Stationary 

Sources—Emissions Standards, 

establish emission limits for ozone and 

address the required control measures, 

means and techniques for compliance 

with the ozone NAAQS respectively. 

EPA has made the preliminary 

determination that the provisions 

contained in these chapters and 

Florida’s practices are adequate to 

protect the 1997 8-hour ozone 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 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 plans to address such state 

regulations in the future. In the 

meantime, EPA encourages any state 

having a deficient SSM provision to take 

steps to correct it as soon as possible. 

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: Chapters 62– 

204, Air Pollution Control Provisions, 

62–210, Stationary Sources—General 

Requirements, 62–212, Stationary 

Sources—Preconstruction Review, 62– 

296, Stationary Sources—Emissions 

Standards, and 62–297, Stationary 

Sources—Emissions Monitoring of the 

Florida SIP, along with the Florida 

Network Description and Ambient Air 

Monitoring Network Plan, provide for 

an ambient air quality monitoring 

system in the State. Annually, EPA 

approves the ambient air monitoring 

network plan for the state agencies. In 

May 2011, Florida submitted its 

monitoring network plan to EPA, and on 

October 17, 2011, EPA approved this 

plan. Florida’s approved monitoring 

network plan can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2011–0809. EPA 

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19Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call, 

Final Rule, 75 FR 77698 (December 13, 2010). 

20Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan—Final Rule, 75 FR 

82246 (December 30, 2010). 

21This pertains to EPA’s proposed approval of 

Florida’s PSD/NSR regulations which address the 

Ozone Implementation NSR Update requirements. 

has made the preliminary determination 

that Florida’s SIP and practices are 

adequate for the ambient air quality 

monitoring and data system related to 

the 1997 8-hour ozone NAAQS. 

3. 110(a)(2)(C) Program for 

enforcement of control measures 

including review of proposed new 

sources: Florida’s authority to regulate 

new and modified sources of the ozone 

precursors volatile organic compounds 

(VOCs) and nitrogen oxides (NOX) to 

assist in the protection of air quality in 

nonattainment, attainment or 

unclassifiable areas is established in 

Chapters 62–210, Stationary Sources— 

General Requirements, Section 200— 

Definitions, and 62–212, Stationary 

Sources—Preconstruction Review, 

Section 400—Prevention of Significant 

Deterioration of the Florida SIP. There 

are two recent revisions to the Florida 

SIP (including revisions to Chapters 62– 

210 and 62–212) that are necessary to 

meet the requirements of infrastructure 

element 110(a)(2)(C). 

The first revision modifies provisions 

of Florida’s SIP at Chapter 62–210 and 

62–212 to recognize NOX as an ozone 

precursor as required by the 1997 8- 

Hour Ozone NAAQS Implementation 

Rule New Source Review (NSR) 

Update—Phase 2 final rule (hereafter 

referred to as the ‘‘Ozone 

Implementation NSR Update’’ or ‘‘Phase 

2 Rule’’), among other requirements. See 

70 FR 71612 (November 29, 2005). 

On October 19, 2007, and July 1, 

2011, DEP submitted revisions to EPA 

for approval into the Florida SIP to 

adopt federal requirements for new 

source review (NSR) permitting 

promulgated in the Phase 2 Rule. Both, 

the October 19, 2007, and July 1, 2011, 

SIP revisions amend the State’s PSD 

regulations to establish that PSD permit 

applicants must identify NOX as an 

ozone precursor as established in the 

Phase 2 Rule. In addition to meeting the 

requirements of the Ozone 

Implementation NSR Update, these 

revisions are also necessary to address 

portions of the infrastructure SIP 

requirements described at element 

110(a)(2)(C). Specifically, these SIP 

revisions address the Ozone 

Implementation NSR Update 

requirements to include NOX as an 

ozone precursor for permitting 

purposes. EPA is currently proposing 

approval of these provisions into the SIP 

in a separate action from this 

rulemaking. On March 23, 2012, the 

proposed rulemaking of Florida’s 

October 19, 2007, and July 1, 2011, SIP 

revisions was signed by EPA Region 4. 

The second revision pertains to 

revisions to the PSD program 

promulgated in EPA’s June 3, 2010, 

Greenhouse Gas Tailoring Rule or ‘‘GHG 

Tailoring Rule.’’ See 75 FR 31514. 

Florida did not submit a SIP revision to 

adopt the appropriate emission 

thresholds for determining which new 

stationary sources and modification 

projects become subject to PSD 

permitting requirements for their 

greenhouse gas (GHG) emissions as 

promulgated in the GHG Tailoring Rule. 

Therefore, Florida’s federally-approved 

SIP contained errors that resulted in its 

failure to address, or provide adequate 

legal authority for, the implementation 

of a GHG PSD program in Florida. 

Approval of a revision to address GHGs 

is required to meet 110(a)(2)(C). In the 

GHG SIP Call,19 EPA determined that 

the State of Florida’s SIP was 

substantially inadequate to achieve CAA 

requirements because its existing PSD 

program does not apply to GHGemitting sources; the rule finalized a 

findings and SIP call for 15 state and 

local permitting authorities including 

Florida. EPA explained that if a state, 

identified in the SIP call, failed to 

submit the required corrective SIP 

revision by the applicable deadline, 

EPA would promulgate a FIP under 

CAA section 110(c)(1)(A) for that state 

to govern PSD permitting for GHGs. On 

December 30, 2010, EPA promulgated a 

FIP 20 because Florida failed to submit, 

by its December 22, 2010, deadline, the 

corrective SIP revision to apply its PSD 

program to sources of GHG consistent 

with the thresholds described in the 

GHG Tailoring rule. The FIP ensured 

that a permitting authority (i.e., EPA) 

would be available to issue 

preconstruction PSD permits to GHGemitting sources in the State of Florida. 

EPA took these actions through interim 

final rulemaking, effective upon 

publication, to ensure the availability of 

a permitting authority—EPA—in Florida 

for GHG-emitting sources when they 

became subject to PSD on January 2, 

2011. 

Since Florida currently does not have 

adequate legal authority to address the 

new GHG PSD permitting requirements 

at or above the levels of emissions set 

in the GHG Tailoring Rule, or at other 

appropriate levels, its SIP does not 

satisfy portions of elements of the 

infrastructure requirements. As a result, 

EPA is proposing disapproval DEP’s 

submission for infrastructure elements 

110(a)(2)(C) and 110(a)(2)(J) as they 

relate to GHG PSD permitting 

requirements. EPA’s proposed 

disapproval of these elements does not 

result in any further obligation on the 

part of Florida, because EPA has already 

promulgated a FIP for the Florida PSD 

program to address permitting GHGs at 

or above the GHG Tailoring Rule 

thresholds (76 FR 25178). Thus, today’s 

proposed action to disapprove DEP’s 

submission for elements 110(a)(2)(C) 

and 110(a)(2)(J), once final, will not 

require any further action by either DEP 

or EPA. 

Florida’s October 19, 2007, and July 1, 

2011, SIP revisions 21 address the 

requisite requirements of infrastructure 

element 110(a)(2)(C) related to the Phase 

2 Rule, therefore, today’s action to 

propose approval of infrastructure SIP 

element 110(a)(2)(C) related to the Phase 

2 Rule is contingent upon EPA is taking 

final action to approve each of those 

revisions into the Florida SIP. 

Additionally, the FIP that is currently in 

place to address GHG requirements in 

Florida will remain until Florida 

submits a final submission to EPA for 

federal approval and EPA takes final 

action on the submission. Final action 

regarding today’s proposed approval of 

infrastructure SIP element 110(a)(2)(C) 

will not occur prior to final approval of 

the pending related SIP revisions. 

EPA also notes that today’s action is 

not proposing to approve or disapprove 

the State’s existing minor NSR program 

itself to the extent that it is inconsistent 

with EPA’s regulations governing this 

program. EPA believes that a number of 

states may have minor NSR provisions 

that are contrary to the existing EPA 

regulations for this program. EPA 

intends to work with states to reconcile 

state minor NSR programs with EPA’s 

regulatory provisions for the program. 

The statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the states an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

EPA has made the preliminary 

determination that Florida’s SIP and 

practices are adequate for program 

enforcement of control measures 

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22EPA notes that pursuant to section 110(k)(4), a 

conditional approval is treated as a disapproval in 

the event that a State fails to comply with its 

commitment. Notification of this disapproval action 

in the Federal Register is not subject to public 

notice and comment. 

including review of proposed new 

sources related to the 1997 8-hour ozone 

NAAQS. For the portion of this element 

that EPA is disapproving related to GHG 

PSD permitting requirements, EPA has 

made the preliminary determination 

that the already promulgated FIP for 

Florida is adequate for program 

enforcement of control measures 

including review of proposed new 

sources related to the 1997 8-hour ozone 

NAAQS. 

4. 110(a)(2)(D)(ii) Interstate and 

International transport provisions: 

Chapter 62–210, Stationary Sources— 

General Requirements of Florida’s SIP, 

outlines how Florida will notify 

neighboring states of potential impacts 

from new or modified sources. Florida 

does not have any pending obligation 

under sections 115 and 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 1997 8-hour ozone NAAQS. 

5. 110(a)(2)(E) Adequate resources: 

EPA is proposing two separate actions 

with respect to the sub-elements 

required pursuant to section 

110(a)(2)(E). 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 subelements 110(a)(2)(E)(i) and (iii). With 

respect to 110(a)(2)(E)(ii) (regarding 

state boards), EPA is proposing to 

conditionally approve this sub-element. 

EPA’s rationale for today’s proposals 

respecting each sub-element is 

described in turn below. 

In support of EPA’s proposal to 

approve sub-elements 110(a)(2)(E)(i) and 

(iii), EPA notes that DEP 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. As 

evidence of the adequacy of DEP’s 

resources, EPA submitted a letter to 

Florida on March 13, 2012, outlining 

105 grant commitments and the current 

status of these commitments for fiscal 

year 2011. The letter EPA submitted to 

Florida can be accessed at www.

regulations.gov using Docket ID No. 

EPA–R04–OAR–2011–0809. 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 2011, 

therefore Florida’s grants were finalized 

and closed out. 

As discussed above, with respect to 

sub-element 110(a)(2)(E)(ii), EPA is 

proposing to conditionally approve 

Florida’s infrastructure SIP as to this 

requirement. Florida’s December 13, 

2007, infrastructure certification letter 

did not certify the adequacy of the 

State’s implementation plan to meet the 

requirements of section 110(a)(2)(E)(ii) 

(requiring state compliance with section 

128 of the CAA), and presently Florida’s 

SIP does not include provisions to meet 

section 128 requirements. EPA is 

proposing to conditionally approve 

Florida’s infrastructure SIP with respect 

to element 110(a)(2)(E)(ii) based upon a 

letter dated March 13, 2012, which 

outlined DEP’s commitment to adopt 

specific enforceable measures into its 

SIP within one year to address the 

applicable portions of section 128. 

The section 128(a)(1) State Board 

requirements—as applicable to the 

infrastructure SIP pursuant to section 

110(a)(2)(E)(ii)—provide that each SIP 

shall require that any board or body 

which approves permits or enforcement 

orders shall be subject to the described 

public interest and income restrictions 

therein. Subsection 128(a)(2) requires 

that any board or body, or the head of 

an executive agency with similar power 

to approve permits or enforcement 

orders under the CAA, shall also be 

subject to conflict of interest disclosure 

requirements. EPA’s proposed 

conditional approval of Florida’s 

110(a)(2)(E)(ii) infrastructure SIP 

requires the State to adopt specific 

enforceable measures related to 

128(a)(2) to address current deficiencies 

in the Florida SIP. 

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. 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) (also 

made applicable to the infrastructure 

SIP pursuant to section 110(a)(2)(E)(ii)), 

Florida has committed to submit for 

incorporation into the SIP relevant 

provisions of Florida Statutes, 

specifically 112.3143(4) and 112.3144, 

sufficient to satisfy the conflict of 

interest provisions applicable to the 

head of DEP and all public officers 

within the Department. 

In accordance with section 110(k)(4) 

of the CAA, the commitment from 

Florida must provide that the State will 

adopt the specified enforceable 

provisions, and provide a SIP 

submission to EPA, by a date certain 

within one year from EPA’s final action 

in this matter. In Florida’s letter, dated 

March 13, 2012, DEP committed to 

adopt the specified enforceable 

provisions by October 31, 2012. Failure 

by the State to adopt these provisions 

and submit them to EPA for 

incorporation into the SIP within one 

year from the effective date of EPA’s 

final conditional approval action would 

result in this proposed conditional 

approval being treated as a disapproval. 

Should that occur, EPA would provide 

the public with notice of such a 

disapproval in the Federal Register.22

As a result of Florida’s formal 

commitment to correct deficiencies 

contained in the Florida SIP pertaining 

to section 128, EPA intends to move 

forward with finalizing the conditional 

approval consistent with section 

110(k)(4) of the Act. EPA has made the 

preliminary determination that Florida 

has adequate resources for 

implementation of the 1997 8-hour 

ozone NAAQS. 

6. 110(a)(2)(F) Stationary source 

monitoring system: Florida’s 

infrastructure submission describes how 

the State establishes requirements for 

emissions compliance testing and 

utilizes emissions sampling and 

analysis. It further describes how the 

State ensures the quality of its data 

through observing emissions and 

monitoring operations. Florida DEP uses 

these data to track progress towards 

maintaining the NAAQS, develop 

control and maintenance strategies, 

identify sources and general emission 

levels, and determine compliance with 

emission regulations and additional 

EPA requirements. These requirements 

are provided in Chapters 62–210, 

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23To facilitate an expeditious remedy to this 

deficiency, upon request of the State, EPA will 

parallel process such a SIP submittal. See 40 CFR 

part 51, Appendix V. 

Stationary Sources—General 

Requirements; 62–212, Stationary 

Sources—Preconstruction Review; 62– 

296, Stationary Sources—Emissions 

Standards: and 62–297, Stationary 

Sources—Emissions Monitoring. 

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 

22, 2011. 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 1997 

8-hour ozone NAAQS. 

7. 110(a)(2)(G) Emergency power: On 

March 27, 2008, EPA published a final 

rulemaking entitled, ‘‘Completeness 

Findings for Section 110(a) State 

Implementation Plans; 8-Hour Ozone 

NAAQS,’’ making a finding as to 

whether each state had submitted or 

failed to submit a complete SIP that 

provided the basic program elements of 

section 110(a)(2) necessary to 

implement the 1997 8-hour ozone 

NAAQS. See 73 FR 16205. Florida was 

among other states that received a 

finding of failure to submit because its 

infrastructure submission was deemed 

incomplete for element 110(a)(2)(G) for 

the 1997 8-hour ozone NAAQS by 

March 1, 2008. The finding of failure to 

submit action triggered a 24-month 

clock for EPA to either issue a FIP or 

take final action on a SIP revision which 

corrects the deficiency for which the 

finding of failure to submit was 

received. See 42 U.S.C. 7410(c)(1). 

In DEP’s December 13, 2007, 

submission and a letter dated April 18, 

2008, DEP cited State statutes as 

evidence that Florida has the authority 

to implement emergency powers for the 

8-hour ozone standard. The April 18, 

2008, letter DEP sent to EPA, which 

includes the specific State statutes cited 

by DEP, can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2011–0809. 

Because these statutes have not been 

adopted into the federally-approved SIP, 

EPA is proposing a FIP to correct this 

deficiency. EPA has preliminarily 

determined that the cited statutes are 

sufficient to meet the requirements of 

section 303 of the CAA thus meet the 

requirements of element 110(a)(2)(G). 

Through this action, EPA is proposing 

use of the following parts of Florida’s 

statutes as part of a FIP, to meet the 

‘‘emergency powers’’ requirements 

described at section 110(a)(2)(G) for 

Florida: 

a. Injunctive relief, remedies.— 

The department may institute a civil 

action in a court of competent 

jurisdiction to seek injunctive relief to 

enforce compliance with this chapter or 

any rule, regulation, permit 

certification, or order; to enjoin any 

violation specified in s. 403.161(1); and 

to seek 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. 

b. Decisions which affect substantial 

interests.— 

If an agency head finds that an 

immediate danger to the public health, 

safety, or welfare requires an immediate 

final order, it shall recite with 

particularity the facts underlying such 

finding in the final order, which shall be 

appealable or enjoinable from the date 

rendered. 

In a letter dated, March 23, 2012, DEP 

committed to submit a SIP revision 

correcting deficiencies in the SIP for 

element 110(a)(2)(G). EPA intends to 

approve a FIP for element 110(a)(2)(G) 

unless Florida submits a SIP revision 

correcting the deficiency for element 

110(a)(2)(G). Due to EPA’s obligations 

pursuant to the infrastructure SIP 

settlement agreement described above, 

EPA would need to take final action to 

approve such a SIP revision prior to the 

date on which EPA is obligated to take 

final action.23 Should final approval of 

a SIP revision related to emergency 

powers occur after EPA finalizes a FIP 

for element 110(a)(2)(G), EPA would act 

to rescind the FIP at that time. 

EPA has made the preliminary 

determination that the proposed FIP for 

Florida, as outlined above, is adequate 

for emergency powers related to the 

1997 8-hour ozone NAAQS. 

8. 110(a)(2)(H) Future SIP revisions: 

DEP is responsible for adopting air 

quality rules and revising SIPs as 

needed to attain or maintain the 

NAAQS in Florida. DEP 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 1997 8-hour ozone standard 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 1997 

8-hour ozone NAAQS when necessary. 

9. 110(a)(2)(J) (121 consultation) 

Consultation with government officials: 

Chapters 62–204, Air Pollution Control 

Provisions and 62–212, 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 

Federal Land Managers), 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. These 

consultation procedures include 

considerations associated with the 

development of mobile inventories for 

SIPs. Implementation of transportation 

conformity as outlined in the 

consultation procedures requires DEP to 

consult with federal, state and local 

transportation and air quality agency 

officials on the development of motor 

vehicle emissions budgets. EPA 

approved Florida’s consultation 

procedures on August 11, 2003 (See 68 

FR 47468). EPA has made the 

preliminary determination that Florida’s 

SIP and practices adequately 

demonstrate consultation with 

government officials related to the 1997 

8-hour ozone NAAQS when necessary. 

10. 110(a)(2)(J) (127 public 

notification) Public notification: DEP 

has public notice mechanisms in place 

to notify the public of ozone and other 

pollutant forecasting, including an air 

quality monitoring Web site providing 

ground level ozone alerts, http:// 

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24This pertains to EPA’s proposed approval of 

Florida’s PSD/NSR regulations which address the 

Ozone Implementation NSR Update requirements. 

www.dep.state.fl.us/air/air_quality/ 

countyaqi.htm. Florida also has state 

statutes, 403.131 Injunctive relief, 

remedies and 120.569(n) (relating to 

emergency orders) which allows the 

state to seek injunctive relief to prevent 

irreparable damage to air quality and 

federally approved provisions to 

monitor air pollution episodes for ozone 

and particulate matter contained in 

Chapter 62–256.300 Prohibitions. 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 1997 8-hour ozone 

NAAQS when necessary. 

11. 110(a)(2)(J) (PSD) PSD and 

visibility protection: Florida’s authority 

to regulate new and modified sources of 

ozone precursors VOCs and NOX to 

assist in the protection of air quality in 

nonattainment, attainment or 

unclassifiable areas is provided for in 

Chapters 62–210, Stationary Sources— 

General Requirements, Section 200— 

Definitions, and 62–212, Stationary 

Sources—Preconstruction Review, 

Section 400—Prevention of Significant 

Deterioration. As with infrastructure 

element 110(a)(2)(C), infrastructure 

element 110(a)(2)(J) also requires 

compliance with applicable provisions 

of the PSD program described in Part C 

of the Act. Accordingly, the GHG 

Tailoring Rule revisions to Florida’s SIP 

and pending EPA actions on the Ozone 

Implementation NSR Update are 

likewise prerequisites to today’s 

proposed action to approve the State’s 

infrastructure element 110(a)(2)(J). See 

the discussion for element 110(a)(2)(C) 

above for a description of these pending 

revisions to the Florida SIP respecting 

the Ozone Implementation NSR Update. 

The second revision pertains to 

revisions to the PSD program 

promulgated in the June 3, 2010, GHG 

Tailoring Rule (75 FR 31514). Florida 

did not submit a SIP revision to adopt 

the appropriate emission thresholds for 

determining which new stationary 

sources and modification projects 

become subject to PSD permitting 

requirements for their GHG emissions as 

promulgated in the GHG Tailoring Rule. 

Therefore, Florida’s federally-approved 

SIP contained errors that resulted in its 

failure to address, or provide adequate 

legal authority for, the implementation 

of a GHG PSD program in Florida. 

Approval of a revision to address GHGs 

is required to meet 110(a)(2)(J). 

Since Florida currently does not have 

adequate legal authority to address the 

new GHG PSD permitting requirements 

at or above the levels of emissions set 

in the GHG Tailoring Rule, or at other 

appropriate levels, its SIP does not 

satisfy portions of elements of the 

infrastructure requirements. As a result, 

EPA is proposing disapproval DEP’s 

submission for infrastructure elements 

110(a)(2)(C) and 110(a)(2)(J) as they 

relate to GHG PSD permitting 

requirements. EPA’s proposed 

disapproval of these elements does not 

result in any further action, because 

EPA has already promulgated a FIP for 

the Florida PSD program to address 

permitting GHGs at or above the GHG 

Tailoring Rule thresholds (76 FR 25178). 

See the discussion for element 

110(a)(2)(C) above for a description of 

the FIP related to GHG PSD permitting 

requirements in Florida. 

Both of the previously discussed 

proposed Ozone Implementation NSR 

Update SIP revisions 24 address 

requisite requirements of infrastructure 

element 110(a)(2)(J), therefore, today’s 

action to propose approval of 

infrastructure SIP element 110(a)(2)(J) is 

contingent upon EPA taking final action 

to approve each of these pending 

revisions into the Florida SIP. The FIP 

that is currently in place to address 

GHG requirements in Florida will 

remain until Florida submits a final 

submission to EPA for federal approval 

and EPA takes final action on the 

submission. Final action regarding 

today’s proposed approval of 

infrastructure SIP element 110(a)(2)(J) 

(PSD and visibility protection) will not 

occur prior to final approval of the 

pending related SIP revisions. 

EPA also notes that today’s action is 

not proposing to approve or disapprove 

the State’s existing minor NSR program 

itself to the extent that it is inconsistent 

with EPA’s regulations governing this 

program. EPA believes that a number of 

states may have minor NSR provisions 

that are contrary to the existing EPA 

regulations for this program. EPA 

intends to work with states to reconcile 

state minor NSR programs with EPA’s 

regulatory provisions for the program. 

The statutory requirements of section 

110(a)(2)(J) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the states an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

With regard to the applicable 

requirements for visibility protection, 

EPA recognizes that states are subject to 

visibility and regional haze program 

requirements under part C of the Act 

(which includes sections 169A and 

169B). In the event of the establishment 

of a new NAAQS, however, the 

visibility and regional haze program 

requirements under Part C do not 

change. Thus, EPA finds that there is no 

new visibility obligation ‘‘triggered’’ 

under section 110(a)(2)(J) when a new 

NAAQS becomes effective. This would 

be the case even in the event a 

secondary PM2.5 NAAQS for visibility is 

established, because this NAAQS would 

not affect visibility requirements under 

part C. Florida has submitted SIP 

revisions for approval to satisfy the 

requirements of the CAA Section 169A 

and 169B, and the regional haze and 

best available retrofit technology rules 

contained in 40 CFR 51.308. These 

revisions are currently under review 

and will be acted on in a separate 

action. 

EPA has made the preliminary 

determination that Florida’s SIP and 

practices adequately demonstrate the 

State’s ability to implement PSD 

programs and to provide for visibility 

protection related to the 1997 8-hour 

ozone NAAQS when necessary. For the 

portion of this element that EPA is 

disapproving related to GHG PSD 

permitting requirements, EPA has made 

the preliminary determination that the 

promulgated FIP for Florida is adequate 

for program enforcement of control 

measures including review of proposed 

new sources related to the 1997 8-hour 

ozone NAAQS. 

12. 110(a)(2)(K) Air quality and 

modeling/data: Chapter 62–204.800, 

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.’’ 

These regulations demonstrate that 

Florida has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 8-hour ozone NAAQS. 

Additionally, Florida supports a 

regional effort to coordinate the 

development of emissions inventories 

and conduct regional modeling for 

several NAAQS, including the 1997 

8-hour ozone NAAQS, for the 

Southeastern states. Taken as a whole, 

Florida’s air quality regulations 

demonstrate that DEP has the authority 

to provide relevant data for the purpose 

of predicting the effect on ambient air 

quality of the 8-hour ozone NAAQS. 

EPA has made the preliminary 

determination that Florida’s SIP and 

practices adequately demonstrate the 

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State’s ability to provide for air quality 

and modeling, along with analysis of the 

associated data, related to the 1997 

8-hour ozone NAAQS when necessary. 

13. 110(a)(2)(L) Permitting fees: 

Florida addresses the review of 

construction permits as previously 

discussed in 110(a)(2)(C). Permitting 

fees in Florida are collected through the 

State’s federally-approved title V fees 

program, according to State regulation 

403.087(6)(a) Permit Fees. EPA has 

made the preliminary determination 

that Florida’s SIP and practices 

adequately provide for permitting fees 

related to the 1997 8-hour ozone 

NAAQS when necessary. 

14. 110(a)(2)(M) Consultation/ 

participation by affected local entities: 

Chapter 62–204, Air Pollution Control 

Provisions, requires that SIPs be 

submitted in accordance with 40 CFR 

part 51, Subpart F, for permitting 

purposes. Florida statute 403.061(21) 

authorizes DEP to ‘‘[a]dvise, consult, 

cooperate and enter into agreements 

with other agencies of 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, DEP 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 1997 8-hour 

ozone NAAQS when necessary. 

V. Proposed Action 

As described above, EPA has 

addressed the elements of the CAA 

110(a)(1) and (2) SIP requirements 

pursuant to EPA’s October 2, 2007, 

guidance to ensure that the 1997 8-hour 

ozone NAAQS are implemented, 

enforced, and maintained in Florida. 

EPA is now proposing four related 

actions on Florida’s December 13, 2007, 

submission as supplemented on April 

18, 2008. First, EPA is proposing to 

approve Florida’s infrastructure 

submission for the 1997 8-hour ozone 

NAAQS, with the specific exceptions as 

follows. Second, EPA is proposing a FIP 

to address 110(a)(G) for the 1997 8-hour 

ozone standard. EPA notes that the 

proposed FIP will not be necessary if 

EPA receives, and is able to take action 

on, a SIP revision to address the 

110(a)(2)(G) requirements prior to the 

Agency’s obligation to take final action 

per the terms of a settlement agreement 

related to this action. Third, EPA is 

proposing to disapprove Florida’s 

submission for portions of elements 

110(a)(2)(C) and 110(a)(2)(J) related to 

the regulation of GHG emissions. 

Fourth, EPA is proposing to 

conditionally approve sub-element 

110(a)(2)(E)(ii) related to section 128 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. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does not 

have tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: March 30, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–9225 Filed 4–17–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R9–OAR–2011–0130; FRL–9661–4] 

State of Nevada; Regional Haze State 

and Federal Implementation Plans; 

BART Determination for Reid Gardner 

Generating Station 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Announcement of public 

hearing. 

SUMMARY: EPA is holding a public 

hearing on May 3, 2012 for the proposed 

rule, ‘‘Approval and Promulgation of 

Air Quality Implementation Plans; State 

of Nevada; Regional Haze State and 

Federal Implementation Plans; BART 

Determination for Reid Gardner 

Generating Station.’’ 

DATES: The public hearing will be held 

on May 3, 2012. 

ADDRESSES: We will hold a public 

hearing at Moapa Valley Empowerment 

High School, 2400 St. Joseph Street, 

Overton, Nevada 89040. The hearing 

will begin at 6:30 p.m. and continue 

until 8:30 p.m., if necessary. An open 

house will precede the public hearing at 

the same location from 5 p.m.–6 p.m. 

The EPA Region 9 Web site for the 

rulemaking, which includes the 

proposal and information about the 

public hearing, is at http:// 

www.epa.gov/region9/air/actions/ 

nv.html#reid. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about the public 

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