29306 Federal Register / Vol. 78, No. 97 / Monday, May 20, 2013 / Proposed Rules 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it is not an 

economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This proposed 

partial approval and partial disapproval 

under section 110 of the Clean Air Act 

will not in-and-of itself create any new 

regulations but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211 (66 FR 28355, 

May 22, 2001) because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. The EPA believes 

that this action is not subject to 

requirements of Section 12(d) of 

NTTAA because application of those 

requirements would be inconsistent 

with the Clean Air Act. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. EPA 

lacks the discretionary authority to 

address environmental justice in this 

rulemaking. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Visibility, 

Volatile organic compounds. 

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

Dated: May 9, 2013. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

[FR Doc. 2013–11976 Filed 5–17–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0692; FRL–9814–1] 

Approval and Promulgation of 

Implementation Plans; Florida; 

Infrastructure Requirements for the 

2008 8-Hour Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

in part, and disapprove in part, the State 

Implementation Plan (SIP) submission, 

submitted by the State of Florida, 

through the Florida Department of 

Environmental Protection (FDEP) on 

October 31, 2011, to demonstrate that 

the State meets the infrastructure 

requirements of the Clean Air Act (CAA 

or Act) for the 2008 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. FDEP certified that 

the Florida SIP contains provisions that 

ensure the 2008 8-hour ozone NAAQS 

are implemented, enforced, and 

maintained in Florida (hereafter referred 

to as ‘‘infrastructure submission’’). EPA 

is now taking two related actions on 

FDEP’s infrastructure submission for 

Florida. First, EPA is proposing to 

disapprove in part portions of Florida’s 

infrastructure submission as it relates to 

the regulation of greenhouse gas (GHG) 

emissions. Second, EPA is proposing to 

determine that Florida’s infrastructure 

submission, addresses all other required 

infrastructure elements for the 2008 8- 

hour ozone NAAQS, with the exception 

of the aforementioned portions and the 

requirement that the SIP include 

provisions prohibiting any source or 

other type of emissions activity in one 

state from interfering with measures to 

protect visibility in another state. 

DATES: Written comments must be 

received on or before June 19, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0692, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2012– 

0692,’’ 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 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2012– 

0692. 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 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 78, No. 97 / Monday, May 20, 2013 / Proposed Rules 29307 

1Action 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). 

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. 

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 a.m. to 

4:30 p.m., 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: 

Table of Contents 

I. Background and Overview 

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 and Overview 

On March 27, 2008, EPA promulgated 

a revised NAAQS for ozone based on 8- 

hour average concentrations. EPA 

revised the level of the 8-hour ozone 

NAAQS to 0.075 parts per million. See 

77 FR 16436. Pursuant to section 

110(a)(1) of the CAA, states are required 

to submit SIPs meeting the applicable 

requirements of section 110(a)(2) within 

three years after promulgation of a new 

or revised NAAQS or within such 

shorter period as EPA may prescribe. 

Section 110(a)(2) requires states to 

address basic SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 2008 8-hour ozone 

NAAQS to EPA no later than March 

2011. 

Florida’s infrastructure submission 

was received by EPA on October 31, 

2011, for the 2008 8-hour ozone 

NAAQS. FDEP’s October 31, 2011, 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS also 

addressed CAA section 110(a)(2)(D)(i)(I), 

which requires that SIPs contain 

adequate provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment 

maintenance of the NAAQS in another 

state. On April 30, 2013, following the 

recent EME Homer City Generation, L.P. 

v. EPA, 696 F.3d 7 (D.C. Cir. 2012) 

decision, Florida withdrew its 

submission for section 110(a)(2)(D)(i)(I). 

This decision addressed the 

requirements of 110(a)(2)(D)(i)(I), and 

provided that a section 110(a)(2)(D)(i)(I) 

SIP submission cannot be considered a 

‘‘required’’ SIP submission until EPA 

has defined a state’s obligations 

pursuant to that section. See EME 

Homer City, 696 F.3d at 32 (‘‘A SIP 

logically cannot be deemed to lack a 

‘required submission’ or deemed to be 

deficient for failure to meet the good 

neighbor obligation before EPA 

quantifies the good neighbor 

obligation.’’) EPA historically has 

interpreted section 110(a)(1) of the CAA 

as establishing the required submittal 

date for SIPs addressing all of the 

‘‘interstate transport’’ requirements in 

section 110(a)(2)(D), including the 

provisions in section 110(a)(2)(D)(i)(I) 

regarding significant contribution to 

nonattainment and interference with 

maintenance. However, at this time in 

light of the EME Homer City opinion, 

EPA is not treating the section 

110(a)(2)(D)(i)(I) SIP submission from 

FDEP as a required SIP submission. The 

EME Homer City opinion provides that 

EPA does not have authority to 

promulgate Federal Implementation 

Plan (FIP) to address the requirements 

of section 110(a)(a)(2)(D)(i)(I) until EPA 

has identified emissions in a state that 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in another 

state and given the state an opportunity 

to submit a SIP to address those 

emissions. EME Homer City, 696 F.3d at 

28. 

Additionally, 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. See 75 FR 31514, 

June 3, 2010. Therefore, Florida’s 

federally-approved SIP does not address 

or provide adequate legal authority for, 

the implementation of a GHG PSD 

program in Florida. Approval of a 

revision to address GHG is required to 

meet sections 110(a)(2)(C), D(i)(II), and 

(J) related to PSD. On December 30, 

2010, EPA promulgated a FIP 1 under 

CAA section 110(c)(1)(A) for Florida to 

govern PSD permitting for GHG in the 

State. Since the Florida SIP currently 

does not provide adequate legal 

authority to address the new GHG PSD 

permitting requirements at or above the 

emissions levels set in the GHG 

Tailoring Rule, or at other appropriate 

levels, it does not satisfy portions of the 

aforementioned infrastructure 

requirements. See 75 FR 82246. As a 

result, EPA is proposing disapproval in 

part portions of sections 110(a)(2)(C), 

D(i)(II) and (J) of Florida infrastructure 

SIP submission as related 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, as 

described above, EPA has already 

promulgated a FIP for the Florida PSD 

program to address permitting GHGs at 

or above the GHG Tailoring Rule 

thresholds. Thus, today’s proposed 

action to disapprove FDEP’s submission 

for the PSD-related portions of sections 

110(a)(2)(C), D(i)(II), and (J), once final, 

will not require any further action by 

either FDEP or EPA. 

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29308 Federal Register / Vol. 78, No. 97 / Monday, May 20, 2013 / Proposed Rules 

2As noted above, Florida withdrew the portions 

of its infrastructure SIP submission related to the 

requirements of section 110(a)(2)(D)(i)(I). As such, 

this proposed action does not address these 

requirements. 

3Two 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). 

4This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

5 In accordance with the panel of the U.S. Court 

of Appeals for the D.C. Circuit opinion, EPA at this 

time is not treating section 110(a)(2)(D)(i)(I) as a 

required SIP submission. See EME Homer City 

generation, L.P. v. EPA, 696 F.3d 7. Unless the EME 

Homer City decision is reversed or otherwise 

modified by the Supreme Court, states are not 

required to submit 110(a)(2)(D)(i)(I) SIPs until the 

EPA has quantified their obligations under that 

section. The portions of the SIP submission relating 

to 110(a)(2)(D)(i)(II) (also referred to as prongs 3 and 

4) and 110(a)(2)(D)(ii), in contrast, are required. 

Prong 3 of 110(a)(2)(D)(i) and 110(a)(2)(D)(ii) are 

being acted upon by EPA in today’s proposed 

rulemaking. Prong 4 of 110(a)(2)(D)(i) will be acted 

on in a separate action. 

6As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

Today’s action is proposing two 

related actions on Florida’s October 31, 

2011, submission. First, EPA is 

proposing to approve Florida’s 

infrastructure submission 2 for the 

applicable requirements of the 2008 8- 

hour ozone NAAQS, with the exception 

of the visibility requirements of section 

110(a)(2)(D)(i)(II), and the portions of 

sections 110(a)(2)(C), D(i)(II), and (J) 

related to GHG PSD permitting. With 

respect to Florida’s infrastructure SIP 

submission related to the visibility 

requirements of section 

110(a)(2)(D)(i)(II), EPA will act on this 

portion of the submission in a separate 

action. With respect to the portions of 

sections 110(a)(2)(C), D(i)(II), and (J) 

related to GHG PSD permitting 

requirements, EPA is proposing to 

disapprove Florida’s submission related 

to these requirements. This action is not 

approving any specific rule, but rather 

proposing that Florida’s already 

approved SIP meets certain CAA 

requirements. 

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 2008 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 the 

1997 8-hour 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 basic SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. The requirements that are the 

subject of this proposed rulemaking are 

summarized below.3

• 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.4

• 110(a)(2)(D): Interstate transport.5

• 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.6

• 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 notes that this rulemaking does 

not address four substantive issues that 

are not integral to the Florida 

infrastructure SIP submission. These 

four issues are: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources (SSM), that may 

be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; (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); (iii) 

existing provisions for minor source 

new source review (NSR) programs that 

may be inconsistent with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (minor source NSR); and, (iv) 

existing provisions for PSD programs 

that may be inconsistent 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). 

Instead, EPA has indicated that it has 

other authority to address any such 

existing SIP defects in other 

rulemakings, as appropriate. A detailed 

rationale for why these four substantive 

issues are not part of the scope of 

infrastructure SIP rulemakings can be 

found in EPA’s November 8, 2012, 

proposed rule entitled, ‘‘Approval and 

Promulgation of Implementation Plans; 

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

Requirements for the 1997 annual and 

2006 24-hour Fine Particulate Matter 

National Ambient Air Quality 

Standards’’ in the section entitled, 

‘‘Scope of Infrastructure SIPs.’’ See 77 

FR 66927. 

IV. What is EPA’s analysis of how 

Florida addressed the elements of 

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

‘‘Infrastructure’’ provisions? 

EPA is proposing to take two actions 

in response to Florida’s infrastructure 

SIP submission for the 2008 8-hour 

ozone NAAQS. FDEP’s infrastructure 

submission addresses the provisions of 

sections 110(a)(1) and (2) as described 

below. 

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, 

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Federal Register / Vol. 78, No. 97 / Monday, May 20, 2013 / Proposed Rules 29309 

7On February 22, 2013, EPA published a 

proposed action in the Federal Register entitled, 

‘‘State Implementation Plans: Response to Petition 

for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls to Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction; Proposed 

Rule.’’ 

8Action 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). 

9Action 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). 

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 2008 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 a separate action.7 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 2012, Florida submitted its 

monitoring network plan to EPA, and on 

September 11, 2012, EPA approved this 

plan. Florida’s approved monitoring 

network plan can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0692. EPA 

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 2008 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. 

At present, there are four SIP 

revisions that are relevant to EPA’s 

review of FDEP’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS in connection with the current 

PSD-related infrastructure requirements. 

See sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J) of the 

CAA. The EPA regulations that require 

these SIP revisions are: (1) ‘‘Final Rule 

To Implement the 8-Hour Ozone 

National Ambient Air Quality 

Standard—Phase 2; Final Rule’’ 

(November 29, 2005, 70 FR 71612) 

(hereafter referred to as the ‘‘Phase II 

Rule’’); (2) ‘‘Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas [GHG] Tailoring Rule; Final Rule’’ 

(June 3, 2010, 75 FR 31514) (hereafter 

referred to as the ‘‘GHG Tailoring 

Rule’’); (3) ‘‘Implementation of the New 

Source Review Program for Particulate 

Matter Less Than 2.5 Micrometers; Final 

Rule’’ (May 16, 2008, 73 FR 28321) 

(hereafter referred to as the ‘‘NSR PM2.5

Rule’’); and, (4) ‘‘Final Rule on the 

Prevention of Significant Deterioration 

(PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC); Final Rule’’ (October 20, 2010, 

75 FR 64864) (hereafter referred to as 

the‘‘PM2.5 PSD Increment-SILs-SMC 

Rule (only as it relates to PM2.5

Increments)’’). 

On October 19, 2007, and July 1, 

2011, FDEP submitted revisions to EPA 

for approval into the Florida SIP to 

adopt federal requirements for NSR 

permitting promulgated in the Phase II 

Rule. FDEP’s submittal addressed the 

structural PSD program revisions 

required by the Phase II Rule, including 

requirements to include NOX as an 

ozone precursor for permitting purposes 

for PSD and nonattainment NSR. EPA 

published a final action approving 

FDEP’s revisions which incorporate 

NOX as an ozone precursor on June 15, 

2012. See 77 FR 35862. Thus, EPA has 

preliminarily determined that the 

infrastructure SIP submission is 

approvable with respect to this issue. 

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 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 GHG is required to meet 

110(a)(2)(C). In the GHG SIP Call,8 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 finding to the effect and promulgated 

SIP call for 15 state and local permitting 

authorities including Florida. EPA 

explained that if a state, such as Florida, 

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 GHG. On 

December 30, 2010, EPA promulgated a 

FIP 9 for Florida because the State 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 

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10 In lieu of the applicants’ need to set out PM2.5

monitors to collect ambient data, applicants may 

submit PM2.5 ambient data collected from existing 

monitoring networks when the permitting authority 

deems such data to be representative of the air 

quality in the area of concern for the year preceding 

receipt of the application. EPA believes that 

applicants will generally be able to rely on existing 

representative monitoring data to satisfy the 

monitoring data requirement. 

11 (1) EPA’s approval of Florida’s PSD/NSR 

regulations which address the Ozone 

Implementation NSR Update requirements, (2) 

EPA’s FIP for PSD GHG Tailoring Rule revisions 

which addresses the thresholds for GHG permitting 

applicability in Florida, (3) EPA’s approval of 

Florida’s NSR PM2.5 Rule, and (4) EPA’s approval 

of Florida’s PM2.5 PSD Increment-SILs-SMC Rule. 

became subject to PSD on January 2, 

2011. 

Since Florida currently does not have 

adequate legal authority in its SIP to 

address the GHG PSD permitting 

requirements established in the GHG 

Tailoring Rule, or at other appropriate 

levels, it does not satisfy portions of 

elements of the infrastructure 

requirements. As a result, EPA is 

proposing disapproval of FDEP’s 

submission for the portions of 

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

(D)(i)(II), and (J) related to GHG PSD 

permitting requirements. EPA’s 

proposed disapproval of these elements, 

if finalized, would 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. See 76 

FR 25178. Thus, today’s proposed 

action to disapprove FDEP’s submission 

for sections 110(a)(2)(C), (D)(i)(II), and 

(J) as they relate to GHG PSD permitting 

requirements, once final, will not 

require any further action by either 

FDEP or EPA. 

The third and fourth revisions pertain 

to the adoption of PSD and 

Nonattainment New Source Review 

(NNSR) requirements related to the 

implementation of the NSR PM2.5 Rule 

and PM2.5 PSD Increment-SILs-SMC 

Rule (only as it relates to PM2.5

Increments). On March 15, 2012, FDEP 

submitted revisions to its PSD/NSR 

regulations for EPA approval to revise 

Florida’s SIP and adopt required federal 

PSD permitting provisions governing 

the implementation of the NSR program 

for PM2.5 as promulgated in the NSR 

PM2.5 Rule and PM2.5 increments 

pursuant to section 166(a) of the CAA to 

prevent significant deterioration of air 

quality in areas meeting the NAAQS. 

Approval of these regulations into the 

SIP address the relevant requirements of 

sections 110(a)(2)(C), (D)(i)(II), and (J). 

EPA finalized approval of Florida’s 

March 15, 2012, submittal on September 

19, 2012. See 77 FR 58027. 

EPA notes that on September 19, 

2012, the Agency approved the SMC 

portion of the PM2.5 PSD IncrementSILs-SMC Rule into the Florida SIP. See 

77 FR 58027. Since that time, on 

January 22, 2013, the U.S. Court of 

Appeals for the District of Columbia, 

issued a decision that, inter alia, 

vacated the provisions adding the PM2.5

SMC to the federal regulations, at 40 

CFR 51.166(i)(5)(i)(c) and 

52.21(i)(5)(i)(c), that were promulgated 

as part of the 2010 PM2.5 PSD 

Increment-SILs-SMC Rule. See Sierra 

Club v. EPA, 703 F.3d 458 (D.C. Cir. 

2013). In its decision, the court held that 

EPA did not have the authority to use 

SMCs to exempt permit applicants from 

the statutory requirement in section 

165(e)(2) of the CAA that ambient 

monitoring data for PM2.5 be included in 

all PSD permit applications. Thus, 

although the PM2.5 SMC was not a 

required element of a State’s PSD 

program and thus not a structural 

requirement for purposes of 

infrastructure SIPs, were a SIP-approved 

PSD program that contains such a 

provision to use that provision to issue 

new permits without requiring ambient 

PM2.5 monitoring data, such application 

of the SIP would be inconsistent with 

the court’s opinion and the 

requirements of section 165(e)(2) of the 

CAA. 

Given the clarity of the court’s 

decision, it would now be inappropriate 

for Florida to continue to allow 

applicants for any pending or future 

PSD permits to rely on the PM2.5 SMC 

in order to avoid compiling ambient 

monitoring data for PM2.5. Because of 

the vacatur of the EPA regulations, the 

SMC provisions included in Florida’s 

SIP-approved PSD programs on the 

basis of EPA’s regulations are unlawful 

and no longer enforceable by law. 

Permits issued on the basis of these 

provisions as they appear in approved 

SIPs would be inconsistent with the 

CAA and difficult to defend in 

administrative and judicial challenges. 

Thus, the SIP provisions may not be 

applied even prior to their removal from 

the SIP. Florida should instead require 

applicants requesting a PSD permit, 

including those having already been 

applied for but for which the permit has 

not yet been received, to submit ambient 

PM2.5 monitoring data in accordance 

with the CAA requirements whenever 

either direct PM2.5 or any PM2.5

precursor is emitted in a significant 

amount.10 As the previously-approved 

PM2.5 SMC provisions in the Florida SIP 

are no longer enforceable, EPA does not 

believe the existence of the provisions 

in the State’s SIP precludes today’s 

proposed approval of portions of the 

infrastructure SIP submission for 

Florida as it relates to the 2008 8-hour 

ozone NAAQS. 

EPA intends to initiate a rulemaking 

to correct SIPs that were approved with 

regard to the PM2.5 SMCs prior to the 

court’s decision. EPA also advises the 

States to begin preparations to remove 

the PM2.5 SMC provisions from their 

state PSD regulations and SIPs. 

However, EPA has not yet set a deadline 

requiring States to take action to revise 

their existing PSD programs to address 

the court’s decision. 

These SIP revisions and the FIP for 

GHG 11 address requisite requirements 

of infrastructure elements 110(a)(2)(C), 

D(i)(II), and (J). 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. 

Finally, EPA 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 

including review of proposed new 

sources related to the 2008 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 2008 8-hour ozone 

NAAQS. 

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

and International transport provisions: 

Section 110(a)(2)(D) has two 

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12As previously described, Florida withdrew this 

portion of its infrastructure submission related to 

section 110(a)(2)(D)(i)(I) on April 30, 2013. 

components; 110(a)(2)(D)(i) and 

110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) 

includes four distinct components, 

commonly referred to as ‘‘prongs,’’ that 

must be addressed in SIP submissions. 

The first two prongs, which are codified 

in section 110(a)(2)(D)(i)(I), are 

provisions that prohibit any source or 

other type of emissions activity in one 

state from contributing significantly to 

nonattainment of the NAAQS in another 

state (‘‘prong 1’’), and interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). The third and fourth 

prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that 

prohibit emissions activity in one state 

interfering with measures required to 

prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

insuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

EPA’s analysis of FDEP’s infrastructure 

submission with regard to the 

requirements of 110(a)(2)(D) is as 

follows: 

110(a)(2)(D)(i)(I): Florida does not 

currently have a section 

110(a)(2)(D)(i)(I) submission for the 

2008 8-hour ozone NAAQS before the 

Agency.12 However, in accordance with 

the panel of the U.S. Court of Appeals 

for the D.C. Circuit opinion, a SIP 

submission addressing section 

110(a)(2)(D)(i)(I) from the State of 

Florida is not currently required. See 

EME Homer City, 696 F.3d 7. The 

opinion in EME Homer City concluded 

that EPA cannot promulgate a FIP to 

address the requirements of 

110(a)(2)(D)(i)(I) for a state until EPA 

has first quantified the emissions that 

must be prohibited under that 

provision. See EME Homer City, 696 

F.3d at 28 (‘‘explaining that EPA must, 

after quantifying state’s obligations 

under section 110(a)(2)(D)(i)(I) give 

states an initial opportunity to 

implement the obligations through 

SIPs’’). As such, the lack of a 

submission from Florida does not 

currently trigger a FIP pursuant to 

section 110(c)(1) unless the EME Homer 

City decision is reversed or otherwise 

modified by the Supreme Court. 

110(a)(2)(D)(i)(II)—prong 3: With 

regard to prong 3 of section 

110(a)(2)(D)(i), this requirement may be 

met by the state’s confirmation in an 

infrastructure SIP submission that new 

major sources and major modifications 

in the state are subject to a PSD program 

meeting all the current structural 

requirements of part C of title I of the 

CAA or (if the state contains a 

nonattainment area for the relevant 

pollutant) to a NNSR program that 

implements the 2008 8-hour ozone 

NAAQS. As discussed in more detail 

above with respect to section 

110(a)(2)(C), FDEP’s infrastructure SIP 

submission describes the PSD Program 

provisions contained in for Florida’s SIP 

that provide the necessary structural 

PSD requirements to satisfy prong 3 

requirements, with the exception of 

those necessary to address GHG 

permitting. Because the Florida SIP does 

not currently provide adequate legal 

authority to address GHG PSD 

permitting requirements, EPA is 

proposing disapproval of the Florida 

prong 3 infrastructure SIP submission 

related to the GHG PSD permitting 

requirements. As previously described, 

EPA has promulgated a FIP for Florida 

addressing these GHG permitting 

requirements, and as such, EPA’s 

proposed disapproval, if finalized, 

would not result in further obligations 

on the part of Florida because the FIP 

addresses the permitting of GHGs at our 

above the applicable Tailoring Rule 

thresholds. See 75 FR 82246. 

EPA has preliminarily determined 

that the Florida SIP meets the relevant 

PSD program requirements, with the 

exception of those for pertaining to 

GHG. Accordingly, in this action EPA is 

proposing to approve in part, and 

disapprove in part, Florida’s 

infrastructure SIP submission as 

meeting the applicable requirements of 

prong 3 of section 110(a)(2)(D)(i). 

110(a)(2)(D)(i)(II)—prong 4: Prong 4 of 

section 110(a)(2)(D)(i) requires that SIPs 

include provisions prohibiting any 

source or other type of emissions 

activity in one state from interfering 

with measures to protect visibility in 

another state. In this rulemaking, EPA is 

not proposing any action on prong 4 and 

instead will do so in a separate action. 

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

International transport provisions: With 

regard to 110(a)(2)(D)(ii), Chapter 62– 

210, Stationary Sources—General 

Requirements of the Florida SIP outlines 

how Florida will notify neighboring 

states of potential impacts from new or 

modified sources. EPA is unaware of 

any pending obligations for the State of 

Florida pursuant to sections 115 or 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 2008 8-hour ozone NAAQS. 

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

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. 

In support of EPA’s proposal to 

approve sections 110(a)(2)(E)(i), (ii), and 

(iii), EPA notes that FDEP 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 FDEP’s 

resources, EPA submitted a letter to 

Florida on February 28, 2013, outlining 

105 grant commitments and the current 

status of these commitments for fiscal 

year 2012. The letter EPA submitted to 

Florida can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0692. 

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 2012, 

therefore Florida’s grants were finalized. 

On July 30, 2012, EPA approved Florida 

statutes into the SIP to comply with 

section 128 respecting state boards. See 

77 FR 44485. EPA has made the 

preliminary determination that Florida 

has adequate resources for 

implementation of the 2008 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 FDEP 

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, 

Stationary Sources—General 

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13Action 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). 

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 February 

27, 2013. 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 2008 8-hour ozone 

NAAQS. 

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

Florida’s infrastructure SIP submission 

identifies air pollution emergency 

episodes and preplanned abatement 

strategies as outlined in Florida Statutes 

403.131 and 120.569(2)(n). These 

statutes were submitted for inclusion to 

the SIP to address the requirements of 

section 110(a)(2)(G) of the CAA and 

have been approved by EPA on July 30, 

2012. See 77 FR 44485. EPA has made 

the preliminary determination that 

Florida’s SIP and practices are adequate 

for emergency powers related to the 

2008 8-hour ozone NAAQS. 

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

FDEP is responsible for adopting air 

quality rules and revising SIPs as 

needed to attain or maintain the 

NAAQS in Florida. FDEP 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 2008 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 2008 

8-hour ozone NAAQS when necessary. 

9. 110(a)(2)(J): EPA is proposing to 

approve in part, and disapprove in part, 

Florida’s infrastructure SIP for the 2008 

8-hour ozone NAAQS with respect to 

the requirements in section 110(a)(2)(J) 

to include a program in the SIP that 

provides for meeting the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127, and the 

PSD and visibility protection 

requirements of part C of the Act. 

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 FDEP 

to consult with federal, state and local 

transportation and air quality agency 

officials on the development of motor 

vehicle emissions budgets. EPA has 

made the preliminary determination 

that Florida’s SIP and practices 

adequately demonstrate consultation 

with government officials related to the 

2008 8-hour ozone NAAQS when 

necessary. 

110(a)(2)(J) (127 public notification) 

Public notification: FDEP 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:// 

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 allow the state 

to seek injunctive relief to prevent 

irreparable damage to air quality. In 

addition, the Florida SIP contains 

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 2008 8-hour ozone 

NAAQS when necessary. 

110(a)(2)(J) (PSD) PSD: Florida’s 

authority to regulate new and modified 

sources of the ozone precursors VOCs 

and 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. 

Accordingly, as with the PSD related 

elements of the infrastructure SIP, this 

portion of element (J) also requires 

compliance with the Phase II Rule, the 

GHG Tailoring Rule, the NSR PM2.5

Rule, and the PM2.5 PSD IncrementSILs-SMC Rule. EPA has approved into 

the Florida SIP or has promulgated a FIP 

to address each of these requirements, 

and as such, the requisite PSD-related 

requirements of infrastructure element 

110(a)(2)(J) have been addressed. 

However, as with infrastructure 

elements 110(a)(2)(C), and prong 3 of 

110(a)(2)(D)(i), EPA has preliminarily 

determined that FDEP’s infrastructure 

SIP submission does not fully meet 

element 110(a)(2)(J) due to the existing 

GHG permitting FIP for Florida. As 

discussed in more detail above with 

respect to section 110(a)(2)(C), FDEP’s 

SIP contains provisions for Florida’s 

PSD program that reflect relevant SIP 

revisions of the structural PSD 

requirements with the exception of the 

authority to regulate new GHG PSD 

permitting requirements at or above the 

levels of emissions set in the GHG 

Tailoring Rule, or at other appropriate 

levels. On December 30, 2010, EPA 

promulgated a FIP 13 for those states 

including Florida, because they failed to 

submit, a corrective SIP revision to 

apply its PSD program to sources of 

GHG consistent with the thresholds 

described in the GHG Tailoring rule. 

EPA has preliminarily determined 

that the Florida SIP meets the relevant 

PSD program requirements, with the 

exception of those for pertaining to 

GHG. Accordingly, in this action EPA is 

proposing to approve in part, and 

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disapprove in part, Florida’s 

infrastructure SIP submission as 

meeting the applicable requirements of 

110(a)(2)(J). As previously described, 

EPA’s proposed disapproval of section 

110(a)(2)(J) related to GHG PSD 

permiting, if finalized, would not result 

in further obligations on the part of 

Florida because the FIP addresses the 

permitting of GHGs at our above the 

applicable Tailoring Rule thresholds. 

See 75 FR 82246. 

110(a)(2)(J) Visibility protection: With 

regard to the visibility protection aspect 

of 110(a)(2)(J), 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 are no applicable visibility 

obligations under part C ‘‘triggered’’ 

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

NAAQS becomes effective. Florida has 

submitted SIP revisions to satisfy the 

requirements of the CAA Section 169A 

and 169B, and the regional haze and 

BART rules contained in 40 CFR 51.308. 

On November 29, 2012, EPA published 

a final rulemaking approving certain 

BART determinations under Florida’s 

regional haze program. See 77 FR 71111. 

EPA has proposed full approval of the 

remaining aspects of Florida’s regional 

haze program on December 10, 2012. 

See 77 FR 73369. In EPA’s view, the 

current status of Florida’s regional haze 

SIP as having not been fully approved 

is not a bar to full approval of the 

infrastructure SIP submission with 

respect to the visibility protection 

aspect of 110(a)(2)(J), and EPA is 

proposing to fully approve the 

infrastructure SIP for this aspect. 

10. 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 FDEP 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 

State’s ability to provide for air quality 

and modeling, along with analysis of the 

associated data, related to the 2008 8- 

hour ozone NAAQS when necessary. 

11. 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 2008 8-hour ozone 

NAAQS when necessary. 

12. 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 FDEP 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, FDEP 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 2008 8-hour 

ozone NAAQS when necessary. 

V. Proposed Action 

As described above, Florida has 

addressed the elements of the CAA 

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

requirements being proposed for 

approval to ensure that the 2008 8-hour 

ozone NAAQS are implemented, 

enforced, and maintained in Florida. 

EPA is now proposing two related 

actions on Florida’s October 31, 2011, 

submission. First, EPA is proposing to 

approve Florida’s infrastructure 

submission for the applicable 

requirements of the 2008 8-hour ozone 

NAAQS, with the exception prong 4 of 

section 110(a)(2)(D)(i), and the portions 

of sections 110(a)(2)(C), prong 3 of D(i), 

and (J) related to GHG PSD permitting. 

With respect to Florida infrastructure 

SIP submission related to prong 4 of 

section 110(a)(2)(D)(i), EPA will act on 

this portion of the submission in a 

separate action. With respect to the 

portions of sections 110(a)(2)(C), prong 

3 of D(i) and (J) related to GHG PSD 

permitting requirements, EPA is 

proposing to disapprove Florida’s 

submission related to these 

requirements. 

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 

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29314 Federal Register / Vol. 78, No. 97 / Monday, May 20, 2013 / Proposed Rules 

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: May 6, 2013. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2013–11868 Filed 5–17–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0350; FRL–9815–2] 

Approval and Promulgation of State 

Implementation Plans; State of Utah; 

Interstate Transport of Pollution for the 

2006 PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

disapprove a portion of a State 

Implementation Plan (SIP) submission 

from the State of Utah that is intended 

to demonstrate that its SIP meets certain 

interstate transport requirements of the 

Clean Air Act (‘‘Act’’ or ‘‘CAA’’) for the 

2006 fine particulate matter (‘‘PM2.5’’) 

National Ambient Air Quality Standards 

(NAAQS). This SIP submission 

addresses the requirement that Utah’s 

SIP contain adequate provisions to 

prohibit air emissions from adversely 

affecting another state’s air quality 

through interstate transport. 

Specifically, EPA is proposing to 

disapprove the portion of the Utah SIP 

submission that addresses the CAA 

requirement prohibiting emissions from 

Utah sources from significantly 

contributing to nonattainment of the 

2006 PM2.5 NAAQS in any other state or 

interfering with maintenance of the 

2006 PM2.5 NAAQS by any other state. 

Under a recent court decision, this 

disapproval does not trigger an 

obligation for EPA to promulgate a 

Federal Implementation Plan (FIP) to 

address these interstate transport 

requirements. 

DATES: Comments must be received on 

or before June 19, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2012–0350, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: clark.adam@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Carl Daly, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl Daly, Director, 

Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop, Denver, Colorado 

80202–1129. Such deliveries are only 

accepted Monday through Friday, 8:00 

a.m. to 4:30 p.m., excluding Federal 

holidays. Special arrangements should 

be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2012– 

0350. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

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 information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. The 

http://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 http:// 

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. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly-available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop, 

Denver, Colorado 80202–1129. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. You 

may view the hard copy of the docket 

Monday through Friday, 8:00 a.m. to 

4:00 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Adam Clark, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129, (303) 312–7104, 

clark.adam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The initials CAIR mean or refer to 

the Clean Air Interstate Rule 

(iii) The initials CSAPR mean or refer 

to the Cross-State Air Pollution Rule 

(iv) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(v) The initials SIP mean or refer to 

State Implementation Plan. 

(vi) The initials UDEQ mean or refer 

to the Utah Department of 

Environmental Quality. 

(vii) The words Utah and State mean 

the State of Utah. 

Table of Contents 

I. General Information 

II. Background 

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