Federal Register / Vol. 78, No. 212 / Friday, November 1, 2013 / Rules and Regulations 65559 

1Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

pursuant to 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). 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2013–26059 Filed 10–31–13; 8:45 am] 

BILLING CODE 6750–01–P 

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. 

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

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures.2

• 110(a)(2)(D)(i)(II): Interstate 

transport (prevention of significant 


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65560 Federal Register / Vol. 78, No. 212 / Friday, November 1, 2013 / Rules and Regulations 

3Today’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.’’) 

4This requirement as mentioned above is not 

relevant to today’s proposed rulemaking. 

5Section 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. 

6Action 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). 

deterioration (PSD) and visibility 

prongs).3

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

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

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.4

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/

participation by affected local entities. 

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. 

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. 

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 


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Federal Register / Vol. 78, No. 212 / Friday, November 1, 2013 / Rules and Regulations 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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart K—Florida 

■ 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: 

§ 52.520 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED FLORIDA NON-REGULATORY PROVISIONS

Provision State effective 

date 

EPA approval 

date 

Federal Register 

notice Explanation 

*******

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

Requirements for the 2008 8- 

Hour Ozone National Ambient 

Air Quality Standards.

10/31/2011 11/1/13 [Insert citation of publication].With the exception of section 110(a)(2)(D)(i)(I) concerning interstate transport; section 

110(a)(2)(D)(i)(II) 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. 

■ 3. Section 52.522 is amended by 

designating the existing paragraph as 

paragraph (a) and adding paragraph (b) 

to read as follows: 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2013–0165; FRL–9901–95] 

D-Glucopyranose, oligomeric, decyl 

octyl glycosides; Exemption from the 

Requirement of a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 


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