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[Federal Register Volume 78, Number 212 (Friday, November 1, 2013)]
[Rules and Regulations]
[Pages 65559-65561]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-25985]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0692; FRL-9902-25-Region 4]

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: Final rule.

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SUMMARY: EPA is taking final action 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 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 taking 
final action to approve that Florida's infrastructure submission 
addresses all required infrastructure elements for the 2008 8-hour 
ozone NAAQS with the exception of the portion of the submission related 
to prevention of significant deterioration (PSD) regarding greenhouse 
gas (GHG) requirements, and the portion of the submission that purports 
to meet 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. 
Second, EPA is taking final action to disapprove in part portions of 
Florida's infrastructure submission as it relates to PSD requirements 
regarding the regulation of greenhouse gas (GHG) emissions.

DATES: Effective Date: This rule is effective December 2, 2013.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0692. All documents in the docket 
are listed on the  www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 through 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
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that new NAAQS. Section 110(a) of the 
CAA generally requires states to make a SIP submission to meet 
applicable requirements in order 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. These SIP submissions are commonly 
referred to as ``infrastructure'' SIP submissions. Section 110(a) 
imposes the obligation upon states to make an infrastructure 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 infrastructure SIP for a new or revised 
NAAQS affect the content of the submission. The contents of such 
infrastructure 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 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 basic structural SIP elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The applicable infrastructure 
SIP requirements that are the subject of this rulemaking are listed 
below.\1\
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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 other provisions of the CAA 
for submission of SIP revisions specifically applicable for 
attainment planning purposes. 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).
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     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)(i)(II): Interstate transport (prevention of 
significant

[[Page 65560]]

deterioration (PSD) and visibility prongs).\3\
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    \3\ Today's final rule does not address section 
110(a)(2)(D)(i)(I) (the significant contribution to nonattainment 
prong or the interfere with maintenance prong) for the 2008 8-hour 
Ozone NAAQS, which as described in greater detail below, EPA does 
not presently view as a ``required submission'' consistent with the 
DC Circuit Court's recent opinion in EME City Generation v. EPA, 696 
F.3d 7, 31 (DC Cir. 2012). In that opinion, the DC Circuit Court 
concluded that a SIP submission to address section 
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a 
``required'' SIP submission until EPA has first 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.'')
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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 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.
    On May 20, 2013, EPA proposed to approve Florida's October 31, 
2011, 2008 8-hour ozone NAAQS infrastructure SIP submission except as 
it relates to the regulation of GHG emissions for sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (also referred to as prong 3 of 
110(a)(2)(D)(i)),\5\ and 110(a)(2)(J), which EPA proposed to 
disapprove, and section 110(a)(2)(D)(i)(II)) (also referred to as prong 
4 of 110(a)(2)(D)(i)), related to provisions prohibiting any source or 
other type of emissions activity in one state from interfering with 
measures to protect visibility in another state, which EPA will address 
in a separate action. See 78 FR 29306.
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    \5\ Section 110(a)(2)(D)(i) includes four requirements referred 
to as prongs 1 through 4. Prongs 1 and 2 are provided at section 
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II). This only relates to the PSD requirements of 
section 110(a)(2)(D)(i)(II), also known as prong 3.
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    EPA proposed disapproval in part of sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), and 110(a)(2)(J), because 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. 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 Federal Implementation Plan (FIP) \6\ 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 the portions of the 
aforementioned infrastructure requirements.
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    \6\ 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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    Florida's October 31, 2011, 2008 8-hour ozone infrastructure 
submission 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 or interference with maintenance of the 
NAAQS in another state. On April 30, 2013, following the EME Homer City 
Generation, L.P. v. EPA, 696 F.3d 7 (DC Cir. 2012) decision, Florida 
withdrew its submission for section 110(a)(2)(D)(i)(I). In EME Homer 
City, the U.S. Court of Appeals for the DC Circuit concluded 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.'') Under this decision, 
therefore, states like Florida have no obligation to make a SIP 
submission to address CAA 110(a)(2)(D)(i)(I) until EPA has defined the 
state's obligations. On June 24, 2013, the Supreme Court granted the 
petitions of the United States and others and agreed to review the 
merits of the DC Circuit decision in EME Homer City during the Court's 
2013 term. See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (DC 
Cir. 2012), cert. granted 133 U.S. 2857 (2013). The United States' 
brief was filed on September 4, 2013 and oral argument has been 
scheduled for December 10, 2013. At this time, however, the DC 
Circuit's decision remains in place. EPA intends to act in accordance 
with the DC Circuit opinion in EME Homer City unless it is reversed or 
otherwise modified by the Supreme Court.

II. This Action

    In this rulemaking, EPA is taking final action to approve Florida's 
infrastructure submission as demonstrating that the State meets the 
applicable requirements of sections 110(a)(1) and (2) of the CAA for 
the 2008 8-hour ozone NAAQS, with the exception of sections 
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) as it 
relates to the regulation of GHG emissions and prong 4 of 
110(a)(2)(D)(i) as it relates to the visibility requirements. EPA is 
taking no action with respect to section 110(a)(2)(D)(i)(I) for the 
2008 8-hour ozone NAAQS in this rulemaking because no such action is 
required at this time for this State. EPA will be taking action on 
110(a)(2)(D)(i)(I), if required, in a separate future action.
    Today's final action to disapprove sections 110(a)(2)(C), prong 3 
of 110(a)(2)(D)(i), and 110(a)(2)(J) as it relates to the regulation of 
GHG emissions 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. See 76 FR 25178. Thus, today's final 
action to disapprove FDEP's submission for the PSD-related portions of 
sections 110(a)(2)(C), prong 3 of (D)(i), and (J), once final, will not 
require any further action by either FDEP or EPA.

III. Final Action

    EPA is taking final action to approve two related actions on 
Florida's October 31, 2011, submission. First, with the exception of 
section 110(a)(2)(D)(i)(I) as it relates to interstate transport, 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, EPA is approving Florida's infrastructure submission 
because it addresses the required infrastructure elements for the 2008 
8-hour ozone NAAQS. With respect to the portions of sections 
110(a)(2)(C), D(i)(II), and (J) related to GHG PSD permitting 
requirements, specifically the regulation of GHG emissions, EPA is 
taking final action to

[[Page 65561]]

disapprove Florida's submission related to these requirements. With the 
exceptions noted above FDEP has addressed the elements of the CAA 
110(a)(1) and (2) SIP requirements pursuant to section 110 of the CAA 
to ensure that the 2008 8-hour ozone NAAQS are implemented, enforced, 
and maintained in Florida.

IV. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: October 21, 2013.
Beverly H. Banister
Acting Regional Administrator, Region 4.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart K--Florida

0
2. Section 52.520(e), is amended by adding a new entry ``110(a)(1) and 
(2) Infrastructure Requirements for the 2008 8-Hour Ozone National 
Ambient Air Quality Standards'' at the end of the table to read as 
follows:

Sec.  52.520  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Florida Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     State       EPA approval
           Provision            effective date       date         Federal Register  notice        Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110(a)(1) and (2)                   10/31/2011         11/1/13  [Insert citation of           With the exception
 Infrastructure Requirements                                     publication].                 of section
 for the 2008 8-Hour Ozone                                                                     110(a)(2)(D)(i)(I
 National Ambient Air Quality                                                                  ) concerning
 Standards.                                                                                    interstate
                                                                                               transport;
                                                                                               section
                                                                                               110(a)(2)(D)(i)(I
                                                                                               I) concerning
                                                                                               visibility
                                                                                               requirements; and
                                                                                               the portions of
                                                                                               sections
                                                                                               110(a)(2)(C),
                                                                                               prong 3 of
                                                                                               110(a)(2)(D)(i),
                                                                                               and 110(a)(2)(J)
                                                                                               related to the
                                                                                               regulation of GHG
                                                                                               emissions, which
                                                                                               are being
                                                                                               disapproved.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.522 is amended by designating the existing paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:

Sec.  52.522  Approval status.

    (a) * * *
    (b) Disapproval. Submittal from the State of Florida, through the 
Florida Department of Environmental Protection (FDEP) on October 31, 
2011, to address the Clean Air Act (CAA) sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), and 110(a)(2)(J) for the 2008 8-hour Ozone 
National Ambient Air Quality Standards related to prevention of 
significant deterioration (PSD) requirements for the regulation of 
greenhouse gas emissions. EPA is disapproving FDEP's submittal with 
respect to the PSD requirements of CAA sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), and 110(a)(2)(J) for the 2008 8-hour Ozone 
National Ambient Air Quality Standards related to PSD requirements for 
the regulation of greenhouse gas emissions.

[FR Doc. 2013-25985 Filed 10-31-13; 8:45 am]
BILLING CODE 6560-50-P
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