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[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23181-23191]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9225]

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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.

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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.

[[Page 23182]]

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

[[Page 23183]]

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

     110(a)(2)(A): Emission limits and other control 
measures.
     110(a)(2)(B): Ambient air quality monitoring/data 
system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today'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.
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     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\
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    \4\ This 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.
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     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

[[Page 23184]]

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.
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    \5\ See 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.
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    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\
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    \6\ For 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.
    \7\ For 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'').
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    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

[[Page 23185]]

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\
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    \8\ See 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)).
    \9\ EPA 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.
    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    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.
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    \11\ See ``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.
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    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

[[Page 23186]]

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.
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    \15\ See ``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'').
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    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\
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    \16\ EPA 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).
    \17\ EPA 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 Emitting-Sources 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).
    \18\ EPA 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).
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IV. What is EPA's analysis of how Florida addressed the elements of the 
Sections 110(a)(1) and (2) ``infrastructure'' provisions?

    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

[[Page 23187]]

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 
GHG-emitting 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 GHG-emitting 
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.
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    \19\ Action 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).
    \20\ Action 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).
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    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.
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    \21\ This pertains to EPA's proposed approval of Florida's PSD/
NSR regulations which address the Ozone Implementation NSR Update 
requirements.
---------------------------------------------------------------------------

    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

[[Page 23188]]

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 sub-elements 
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\
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    \22\ EPA 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.
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    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,

[[Page 23189]]

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.
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    \23\ To 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.
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    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://

[[Page 23190]]

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.
---------------------------------------------------------------------------

    \24\ This pertains to EPA's proposed approval of Florida's PSD/
NSR regulations which address the Ozone Implementation NSR Update 
requirements.
---------------------------------------------------------------------------

    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

[[Page 23191]]

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
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