47094 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Catalog of Federal Domestic Assistance 

There are no Catalog of Federal 

Domestic Assistance programs numbers 

and titles associated with this proposed 

rule. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized Gina S. Farrisee, Deputy 

Chief of Staff, to sign and submit the 

document to the Office of the Federal 

Register for publication electronically as 

an official document of the Department 

of Veterans Affairs. Gina S. Farrisee, 

Deputy Chief of Staff, Department of 

Veterans Affairs, approved this 

document on July 14, 2016 for 

publication. 

List of Subjects in 38 CFR Part 14 

Administrative practice and 

procedure, Claims, Courts, Foreign 

relations, Government employees, 

Lawyers, Legal services, Organization 

and functions (Government agencies), 

Reporting and recordkeeping 

requirements, Surety bonds, Trusts and 

trustees, Veterans. 

Dated: July 14, 2016. 

Janet J. Coleman, 

Chief, Office of Regulation Policy & 

Management, Office of the Secretary, 

Department of Veterans Affairs. 

For the reasons set out in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR part 

14 as follows: 

PART 14—LEGAL SERVICES, 

GENERAL COUNSEL, AND 

MISCELLANEOUS CLAIMS 

■ 1. The authority citation for part 14 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 2671– 

2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901– 

5905; 28 CFR part 14, appendix to part 14, 

unless otherwise noted. 

■ 2. Amend § 14.627 by adding 

paragraph (r) to read as follows: 

§ 14.627 Definitions. 

* * * * * 

(r) Tribal government means the 

Federally recognized governing body of 

any Indian tribe, band, nation, or other 

organized group or community, 

including any Alaska Native village or 

Regional or Village Corporation as 

defined in or established pursuant to the 

Alaska Native Claims Settlement Act, 

which is recognized as eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians. 

* * * * * 

■ 3. Amend § 14.628 by: 

■ a. Redesignating paragraph (b) as 

paragraph (b)(1) and adding paragraph 

(b)(2); and 

■ b. In the parenthetical at the end of 

the section, removing ‘‘2900–0439’’ and 

adding, in its place, 2900–XXXX’’. 

The addition reads as follows: 

§ 14.628 Recognition of organizations. 

* * * * * 

(b)(1) State organization. * * * 

(2) Tribal organization. For the 

purposes of 38 CFR 14.626 through 

14.637, an organization that is a legally 

established organization that is 

primarily funded and controlled, 

sanctioned, or chartered by one or more 

tribal governments and that has a 

primary purpose of serving the needs of 

Native American veterans. Only one 

tribal organization may be recognized 

for each tribal government. If a tribal 

organization is created and funded by 

more than one tgovernment, the 

approval of each tribal government must 

be obtained prior to applying for VA 

recognition. If one of the supporting 

tribal governments withdraws from the 

tribal organization, the tribal 

organization must notify VA of the 

withdrawal and certify that the tribal 

organization continues to meet the 

recognition requirements in paragraph 

(d) of this section. 

* * * * * 

§ 14.629 [Amended] 

■ 4. Amend § 14.629 by: 

■ a. In paragraph (a)(2) introductory 

text, removing ‘‘county veteran’s service 

officer’’ and adding in its place ‘‘county 

veterans’ service officer’’; 

■ b. In paragraph (a)(2) introductory 

text, adding ‘‘or tribal veterans’ service 

officer’’ immediately following ‘‘county 

veterans’ service officer’’; and 

■ c. In paragraph (a)(2)(i), adding ‘‘or 

tribal government’’ immediately 

following ‘‘county’’. 

§ 14.635 [Amended] 

■ 5. Amend § 14.635 by adding, in the 

introductory paragraph, ‘‘or tribal’’ 

immediately following ‘‘State’’. 

[FR Doc. 2016–17052 Filed 7–19–16; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2014–0507; FRL–9949–30– 

Region 4] 

Air Plan Approval; Florida; 

Infrastructure Requirements for the 

2010 Nitrogen Dioxide National 

Ambient Air Quality Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

the State Implementation Plan (SIP) 

submission, submitted by the State of 

Florida, through the Florida Department 

of Environmental Protection (FDEP), on 

January 22, 2013, for inclusion into the 

Florida SIP. This proposal pertains to 

the infrastructure requirements of the 

Clean Air Act (CAA or Act) for the 2010 

1-hour nitrogen dioxide (NO2) national 

ambient air quality standard (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 submission.’’ FDEP 

certified that the Florida SIP contains 

provisions that ensure the 2010 1-hour 

NO2 NAAQS is implemented, enforced, 

and maintained in Florida. With the 

exception of provisions pertaining to the 

ambient air quality monitoring and data 

system, prevention of significant 

deterioration (PSD) permitting and 

interstate transport provisions 

pertaining to the contribution to 

nonattainment or interference with 

maintenance in other states, EPA is 

proposing to find that Florida’s 

infrastructure SIP submission, provided 

to EPA on January 22, 2013, satisfies 

certain required infrastructure elements 

for the 2010 1-hour NO2 NAAQS. 

DATES: Written comments must be 

received on or before August 19, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2014–0507 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

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Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 47095 

1 In these infrastructure SIP submissions States 

generally certify evidence of compliance with 

sections 110(a)(1) and (2) of the CAA through a 

combination of state regulations and statutes, some 

of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be 

appropriate for demonstrating compliance with 

sections 110(a)(1) and (2). Throughout this 

rulemaking, unless otherwise indicated, the term 

‘‘Florida Administrative Code’’ or ‘‘F.A.C.’’ 

indicates that the cited regulation has been 

approved into Florida’s federally-approved SIP. The 

term ‘‘Florida statute’’ or ‘‘F.S.’’ indicates cited 

Florida state statutes, which are not a part of the 

SIP unless otherwise indicated. 

2Two 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). 

3This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

4As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Richard Wong, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Mr. Wong 

can be reached via electronic mail at 

wong.richard@epa.gov or via telephone 

at (404) 562–8726. 

SUPPLEMENTARY INFORMATION: 

I. Background and Overview 

On February 9, 2010, EPA published 

a new 1-hour primary NAAQS for NO2

at a level of 100 parts per billion (ppb), 

based on a 3-year average of the 98th 

percentile of the yearly distribution of 1- 

hour daily maximum concentrations. 

See 75 FR 6474. Pursuant to section 

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

to submit SIPs meeting the requirements 

of section 110(a)(2) within three years 

after promulgation of a new or revised 

NAAQS. Section 110(a)(2) requires 

states to address basic SIP requirements, 

including emissions inventories, 

monitoring, and modeling to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 2010 1-hour NO2

NAAQS to EPA no later than January 

22, 2013.1

In this action, EPA is proposing to 

approve Florida’s infrastructure SIP 

submission for the applicable 

requirements of the 2010 1-hour NO2

NAAQS, with the exception of the 

ambient air quality monitoring and data 

system requirements of section 

110(a)(2)(B), the PSD permitting 

requirements for major sources of 

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

and (J) and the interstate transport 

provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states of prongs 1 and 2 of section 

110(a)(2)(D)(i). On March 18, 2015, EPA 

approved Florida’s January 22, 2013 

infrastructure SIP submission regarding 

the PSD permitting requirements for 

major sources of sections 110(a)(2)(C), 

prong 3 of D(i), and (J) for the 2010 1- 

hour NO2 NAAQS. See 80 FR 14019. 

Therefore, EPA is not proposing any 

action today pertaining to sections 

110(a)(2)(C), prong 3 of D(i), and (J). 

Additionally, EPA is not proposing 

action related to the ambient air quality 

monitoring and data system of section 

110(a)(2)(B) and prongs 1 and 2 of 

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

these provisions in a separate action. 

For the aspects of Florida’s submittal 

proposed for approval today, EPA notes 

that the Agency 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 2010 1-hour NO2 NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned above, these requirements 

include SIP infrastructure elements 

such as modeling, monitoring, and 

emissions inventories that are designed 

to assure attainment and maintenance of 

the NAAQS. The requirements that are 

the subject of this proposed rulemaking 

are listed below and in EPA’s September 

13, 2013, memorandum entitled 

‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements 

under Clean Air Act Sections 110(a)(1) 

and (2).’’ 2

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

• 110(a)(2)(C): Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources 3

• 110(a)(2)(D)(i)(I) and (II): Interstate 

Pollution Transport 

• 110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Air 

Pollution 

• 110(a)(2)(E): Adequate Resources and 

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 4

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection 

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47096 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 

5For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

6See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

7EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

8See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

9On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from Florida that addresses 

the infrastructure requirements of CAA 

sections 110(a)(1) and 110(a)(2) for the 

2010 NO2 NAAQS. The requirement for 

states to make a SIP submission of this 

type arises out of CAA section 110(a)(1). 

Pursuant to section 110(a)(1), states 

must make SIP submissions ‘‘within 3 

years (or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a national primary 

ambient air quality standard (or any 

revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.6 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.8

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

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10For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

11EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

12 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

13EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.10

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.11 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).12 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

implementation plan appropriately 

addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 

2013 Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including GHGs. By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 

CFR 51.166 but are merely available as 

an option for the state, such as the 

option to provide grandfathering of 

complete permit applications with 

respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s 

implementation plan meets basic 

structural requirements. For example, 

section 110(a)(2)(C) includes, inter alia, 

the requirement that states have a 

program to regulate minor new sources. 

Thus, EPA evaluates whether the state 

has an EPA-approved minor new source 

review program and whether the 

program addresses the pollutants 

relevant to that NAAQS. In the context 

of acting on an infrastructure SIP 

submission, however, EPA does not 

think it is necessary to conduct a review 

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14By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

15For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

16EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

17See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (Jan. 26, 2011) 

(final disapproval of such provisions). 

of each and every provision of a state’s 

existing minor source program (i.e., 

already in the existing SIP) for 

compliance with the requirements of the 

CAA and EPA’s regulations that pertain 

to such programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) 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’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.14 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

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

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s 

implementation plan is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or to otherwise comply with the CAA.15

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

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

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.17

IV. What is EPA’s analysis of how 

Florida addressed the elements of the 

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

‘‘infrastructure’’ provisions? 

Below is a discussion of the Florida 

submission organized by each of the 

sub-elements found in sections 110(a)(1) 

and (2). 

1. 110(a)(2)(A) Emission limits and 

other control measures: Section 

110(a)(2)(A) requires that each 

implementation plan include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements. There are 

several regulations within Florida 

Administrative Code (F.A.C.) relevant to 

air quality control regulations which 

include enforceable emission 

limitations and other control measures. 

Chapters 62–204, F.A.C., Air Pollution 

Control Provisions; 62–210, F.A.C., 

Stationary Sources—General 

Requirements; 62–212, F.A.C., 

Stationary Sources—Preconstruction 

Review; 62–296, F.A.C., Stationary 

Sources—Emissions Standards; and 62– 

297, F.A.C., Stationary Sources— 

Emissions Monitoring, establish 

emission limits for NO2 and address the 

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18On June 12, 2015, EPA published a final action 

entitled, ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown, and Malfunction.’’ 

See 80 FR 33840. 

19See 77 FR 71111 (November 29, 2012); 78 FR 

53250 (August 29, 2013). 

20See 40 CFR 51.308(d). 

required control measures, means and 

techniques for compliance with the 

2010 1-hour NO2 NAAQS respectively. 

Additionally, the following sections of 

the Florida Statutes provide FDEP the 

authority to conduct certain actions in 

support of this infrastructure element. 

Section 403.061(9), Florida Statutes, 

authorizes FDEP to ‘‘[a]dopt a 

comprehensive program for the 

prevention, control, and abatement of 

pollution of the air . . . of the state,’’ 

and section 403.8055, Florida Statutes, 

authorizes FDEP to ‘‘[a]dopt rules 

substantively identical to regulations 

adopted in the Federal Register by the 

United States Environmental Protection 

Agency pursuant to federal law . . .’’ 

EPA has made the preliminary 

determination that the provisions 

contained in these chapters satisfy 

section 110(a)(2)(A) for the 2010 1-hour 

NO2 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 start up, shut down, 

and malfunction (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 is addressing such state 

regulations in a separate action.18

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: With respect to 

Florida’s infrastructure SIP submission 

related to the ambient air quality 

monitoring and data system, EPA is not 

proposing any action today regarding 

these requirements and instead will act 

on this portion of the submission in a 

separate action. 

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

enforcement of control measures and for 

construction or modification of 

stationary sources: This element 

consists of three sub-elements; 

enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources; 

and preconstruction permitting of major 

sources and major modifications in 

areas designated attainment or 

unclassifiable for the subject NAAQS as 

required by CAA title I part C (i.e., the 

major source PSD program). As 

discussed further below, in this action 

EPA is only proposing to approve the 

enforcement and the regulation of minor 

sources and minor modifications 

aspects of Florida’s section 110(a)(2)(C) 

infrastructure SIP submission. 

Enforcement: Florida cites to Section 

403.061(6), Florida Statutes, which 

requires FDEP to ‘‘[e]xercise general 

supervision of the administration and 

enforcement of the laws, rules, and 

regulations pertaining to air and water 

pollution.’’ Section 403.121, Florida 

Statutes, authorizes FDEP to seek 

judicial and administrative remedies, 

including civil penalties, injunctive 

relief, and criminal prosecution for 

violations of any FDEP rule or permit. 

These provisions provide FDEP with 

authority for enforcement of NO2

emission limits and control measures. 

Preconstruction PSD Permitting for 

Major Sources: With respect to Florida’s 

January 22, 2013, infrastructure SIP 

submission related to the 

preconstruction PSD permitting 

requirements for major sources of 

section 110(a)(2)(C), EPA took final 

action to approve these provisions for 

the 2010 1-hour NO2 NAAQS on March 

18, 2015. See 80 FR 14019. 

Regulation of minor sources and 

modifications: Section 110(a)(2)(C) also 

requires the SIP to include provisions 

that govern the minor source program 

that regulates emissions of the 2010 1- 

hour NO2 NAAQS. FDEP’s SIPapproved rule Chapters 62–204, F.A.C., 

Air Pollution Control Provisions, 62– 

210, F.A.C., Stationary Sources— 

General Requirements, 62–212, F.A.C., 

Stationary Sources—Preconstruction 

Review apply to minor sources and 

minor modifications as well as major 

stationary sources and modifications. 

EPA has made the preliminary 

determination that Florida’s SIP is 

adequate for program enforcement of 

control measures and regulation of 

minor sources and modifications related 

to the 2010 1-hour NO2 NAAQS. 

4. 110(a)(2)(D)(i)(I) and (II) Interstate 

pollution transport: Section 

110(a)(2)(D)(i) has two components; 

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

Each of these components have two 

subparts resulting in four distinct 

components, commonly referred to as 

‘‘prongs,’’ that must be addressed in 

infrastructure 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’’). 

110(a)(2)(D)(i)(I)—prongs 1 and 2: 

EPA is not proposing any action in this 

rulemaking related to the interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states of section 110(a)(2)(D)(i)(I) 

(prongs 1 and 2) because Florida’s 2010 

1-hour NO2 NAAQS infrastructure 

submission did not address prongs 1 

and 2. 

110(a)(2)(D)(i)(II)—prong 3: With 

respect to Florida’s infrastructure SIP 

submission related to the interstate 

transport requirements for PSD of 

section 110(a)(2)(D)(i)(II) (prong 3), EPA 

took final action to approve Florida’s 

January 22, 2013, infrastructure SIP 

submission regarding prong 3 of D(i) for 

the 2010 1-hour NO2 NAAQS on March 

18, 2015. See 80 FR 14019. 

110(a)(2)(D)(i)(II)—prong 4: Section 

110(a)(2)(D)(i)(II) requires that the SIP 

contain adequate provisions to protect 

visibility in other states. In its submittal, 

Florida cited to EPA’s proposed 

approval of the State’s regional haze 

SIP, which EPA fully approved.19

Federal regulations require that a state’s 

regional haze SIP contain a long-term 

strategy to address regional haze 

visibility impairment in each Class I 

area within the state and each Class I 

area outside the state that may be 

affected by emissions from the state.20 A 

state participating in a regional planning 

process, such as Florida, must include 

all measures needed to achieve its 

apportionment of emissions reduction 

obligations agreed upon through that 

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21See, e.g., 40 CFR 51.308(d)(3)(ii). Florida 

participated in the Visibility Improvement State 

and Tribal Association of the Southeast regional 

planning organization, a collaborative effort of state 

governments, tribal governments, and various 

Federal agencies established to initiate and 

coordinate activities associated with the 

management of regional haze, visibility, and other 

air quality issues in the Southeastern United States. 

Member state and tribal governments included: 

Alabama, Florida, Georgia, Kentucky, Mississippi, 

North Carolina, South Carolina, Tennessee, 

Virginia, West Virginia, and the Eastern Band of the 

Cherokee Indians. 

22See EPA’s September 13, 2013, guidance 

document entitled ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) Elements under 

Clean Air Act Sections 110(a)(1) and 110(a)(2)’’ at 

pp. 32–35, available at: http://www.epa.gov/air/

urbanair/sipstatus/infrastructure.html; see also 

memorandum from William T. Harnett, Director, 

Air Quality Policy Division, Office of Air Quality 

Planning and Standards, to Regional Air Division 

Directors, entitled ‘‘Guidance on SIP Elements 

Required Under Sections 110(1)(1) and (2) for the 

2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS) 

(September 25, 2009) at pp. 5–6, available at: http:// 

www.epa.gov/ttn/caaa/t1/memoranda/20090925_

harnett_pm25_sip_110a12.pdf. 

process.21 EPA’s approval of Florida’s 

regional haze SIP therefore ensures that 

emissions from Florida are not 

interfering with measures to protect 

visibility in other states, satisfying the 

requirements of prong 4 of section 

110(a)(2)(D)(i)(II) for the 2010 1-hour 

NO2 NAAQS.22 Thus, EPA has made the 

preliminary determination that Florida’s 

infrastructure SIP submission for the 

2010 1-hour NO2 NAAQS meets the 

requirements of prong 4 of section 

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

5. 110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Air 

Pollution: Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

ensuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

Chapters 62–204, F.A.C., Air Pollution 

Control Provisions ; 62–210, F.A.C., 

Stationary Sources—General 

Requirements, and 62–212, F.A.C., 

Stationary Sources—Preconstruction 

Review 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 2010 1-hour NO2 NAAQS. 

6. 110(a)(2)(E) Adequate resources 

and authority, conflict of interest, and 

oversight of local governments and 

regional agencies: Section 110(a)(2)(E) 

requires that each implementation plan 

provide (i) necessary assurances that the 

State will have adequate personnel, 

funding, and authority under state law 

to carry out its implementation plan, (ii) 

that the State comply with the 

requirements respecting State Boards 

pursuant to section 128 of the Act, and 

(iii) necessary assurances that, where 

the State has relied on a local or 

regional government, agency, or 

instrumentality for the implementation 

of any plan provision, the State has 

responsibility for ensuring adequate 

implementation of such plan provisions. 

EPA is proposing to approve Florida’s 

SIP as meeting the requirements of 

section 110(a)(2)(E). EPA’s rationale for 

today’s proposal respecting each 

requirement of section 110(a)(2)(E) is 

described in turn below. 

In support of EPA’s proposal to 

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

(iii), FDEP’s infrastructure submission 

demonstrates 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. 

Section 403.061(2), Florida Statutes, 

authorizes FDEP to ‘‘[h]ire only such 

employees as may be necessary to 

effectuate the responsibilities of the 

department.’’ Section 403.061(4), 

Florida Statutes, authorizes FDEP to 

‘‘[s]ecure necessary scientific, technical, 

research, administrative, and 

operational services by interagency 

agreement, by contract, or otherwise.’’ 

Section 403.061(35), Florida Statutes, 

authorizes FDEP to exercise the duties, 

powers, and responsibilities required of 

the state under the federal CAA. Section 

403.182, Florida Statutes, authorizes 

FDEP to approve local pollution control 

programs, and provides for the State air 

pollution control program administered 

by FDEP to supersede a local program 

if FDEP determines that an approved 

local program is inadequate and the 

locality fails to take the necessary 

corrective actions. Section 320.03(6), 

Florida Statutes, authorizes FDEP to 

establish an Air Pollution Control Trust 

Fund and use a $1 fee on every motor 

vehicle license registration sold in the 

State for air pollution control purposes. 

As evidence of the adequacy of FDEP’s 

resources, EPA submitted a letter to 

Florida on April 19, 2016, outlining 

section 105 grant commitments and the 

current status of these commitments for 

fiscal year 2015. The letter EPA 

submitted to Florida can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2014–0507. 

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 2013, 

therefore Florida’s grants were finalized. 

EPA has made the preliminary 

determination that Florida has adequate 

resources and authority for 

implementation of the 2010 1-hour NO2

NAAQS. 

Section 110(a)(2)(E)(ii) requires that 

the state comply with section 128 of the 

CAA. Section 128 requires that the SIP 

provide: (1) The majority of members of 

the state board or body which approves 

permits or enforcement orders represent 

the public interest and do not derive 

any significant portion of their income 

from persons subject to permitting or 

enforcement orders under the CAA; and 

(2) any potential conflicts of interest by 

such board or body, or the head of an 

executive agency with similar powers be 

adequately disclosed. 

For purposes of section 128(a)(1), 

Florida has no boards or bodies with 

authority over air pollution permits or 

enforcement actions. Such matters are 

instead handled by an appointed 

Secretary. Appeals of final 

administrative orders and permits are 

available only through the judicial 

appellate process described at Florida 

Statute 120.68, F.S., Judicial review. As 

such, a ‘‘board or body’’ is not 

responsible for approving permits or 

enforcement orders in Florida, and the 

requirements of section 128(a)(1) are not 

applicable. 

Regarding section 128(a)(2), on July 

30, 2012, EPA approved Florida statutes 

into the SIP to comply with section 128 

respecting state boards. See 77 FR 

44485. Specifically, the following 

provisions of Florida Statutes, 

112.3143(4), F.S., Voting conflicts and 

112.3144, F.S, Full and public 

disclosure of financial interests were 

incorporated into the SIP to satisfy the 

conflict of interest provisions applicable 

to the head of FDEP and all public 

officers within the Department. EPA has 

made the preliminary determination 

that the State has adequately addressed 

the requirements of section 128(a)(2), 

and accordingly has met the 

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

with respect to infrastructure SIP 

requirements. 

Therefore, EPA is proposing to 

approve Florida’s infrastructure SIP 

submission as meeting the requirements 

of sub-elements 110(a)(2)(E)(i), (ii) and 

(iii). 

7. 110(a)(2)(F) Stationary source 

monitoring and reporting: Section 

110(a)(2)(F) requires SIPs to meet 

applicable requirements addressing (i) 

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23 ‘‘Credible Evidence’’ makes allowances for 

owners and/or operators to utilize ‘‘any credible 

evidence or information relevant’’ to demonstrate 

compliance with applicable requirements if the 

appropriate performance or compliance test had 

been performed, for the purpose of submitting 

compliance certification and can be used to 

establish whether or not an owner or operator has 

violated or is in violation of any rule or standard. 

the installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary 

steps, by owners or operators of 

stationary sources to monitor emissions 

from such sources, (ii) periodic reports 

on the nature and amounts of emissions 

and emissions related data from such 

sources, and (iii) correlation of such 

reports by the state agency with any 

emission limitations or standards 

established pursuant to this section, 

which reports shall be available at 

reasonable times for public inspection. 

FDEP’s infrastructure SIP submission 

describes the establishment of 

requirements for compliance testing by 

emissions sampling and analysis, and 

for emissions and operation monitoring 

to ensure the quality of data in the State. 

The Florida infrastructure SIP 

submission also describes how the 

major source and minor source emission 

inventory programs collect emission 

data throughout the State and ensure the 

quality of such data. Florida meets these 

requirements through Chapters 62–204, 

62–210, 62–212, 62–296, and 62–297, 

F.A.C., which require emissions 

monitoring and reporting for activities 

that contribute to NO2 concentrations in 

the air, including requirements for the 

installation, calibration, maintenance, 

and operation of equipment for 

continuously monitoring or recording 

emissions, or provide authority for 

FDEP to establish such emissions 

monitoring and reporting requirements 

through SIP-approved permits and 

require reporting of NO2 emissions. 

The following sections of the Florida 

Statutes provide FDEP the authority to 

conduct certain actions in support of 

this infrastructure element. Section 

403.061(13) authorizes FDEP to 

‘‘[r]equire persons engaged in operations 

which may result in pollution to file 

reports which may contain . . . any 

other such information as the 

department shall prescribe . . .’’. 

Section 403.8055 authorizes FDEP to 

‘‘[a]dopt rules substantively identical to 

regulations adopted in the Federal 

Register by the United States 

Environmental Protection Agency 

pursuant to federal law. . . .’’ 

Section 90.401, Florida Statutes, 

defines relevant evidence as evidence 

tending to prove or disprove a material 

fact. Section 90.402, Florida Statutes, 

states that all relevant evidence is 

admissible except as provided by law. 

EPA is unaware of any provision 

preventing the use of credible evidence 

in the Florida SIP.23

Additionally, Florida is required to 

submit emissions data to EPA for 

purposes of the National Emissions 

Inventory (NEI). The NEI is EPA’s 

central repository for air emissions data. 

EPA published the Air Emissions 

Reporting Rule (AERR) on December 5, 

2008, which modified the requirements 

for collecting and reporting air 

emissions data (73 FR 76539). The 

AERR shortened the time states had to 

report emissions data from 17 to 12 

months, giving states one calendar year 

to submit emissions data. All states are 

required to submit a comprehensive 

emissions inventory every three years 

and report emissions for certain larger 

sources annually through EPA’s online 

Emissions Inventory System. States 

report emissions data for the six criteria 

pollutants and the precursors that form 

them—nitrogen oxides, sulfur dioxide, 

ammonia, lead, carbon monoxide, 

particulate matter, and volatile organic 

compounds. Many states also 

voluntarily report emissions of 

hazardous air pollutants. Florida made 

its latest update to the NEI on November 

5, 2014. 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 2010 1-hour NO2 NAAQS. 

Accordingly, EPA is proposing to 

approve Florida’s infrastructure SIP 

submission with respect to section 

110(a)(2)(F). 

8. 110(a)(2)(G) Emergency powers: 

This section requires that states 

demonstrate authority comparable with 

section 303 of the CAA and adequate 

contingency plans to implement such 

authority. Florida’s infrastructure SIP 

submission identifies air pollution 

emergency episodes and preplanned 

abatement strategies as outlined in 

Florida Statutes 403.131, Injunctive 

relief, remedies, and 120.569(2)(n), 

Decisions which affect substantial 

interests. Section 403.131 authorizes 

FDEP to enforce compliance with any 

rule, regulation or permit, order, to 

enjoin any violation specified in Section 

403.061(1) or Florida Statutes. Section 

403.061(1) authorizes injunctive relief to 

prevent irreparable injury to the air, 

waters, and property, including animal, 

plant, and aquatic life, of the State and 

to protect human health, safety, and 

welfare caused or threatened by any 

violation. Section 120.569(2)(n) 

authorizes FDEP to issue emergency 

orders to address immediate dangers to 

public health, safety or welfare. These 

statutes were submitted for inclusion 

into the SIP to satisfy the requirements 

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

were 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 2010 

1-hour NO2 NAAQS. 

9. 110(a)(2)(H) SIP revisions: Section 

110(a)(2)(H), in summary, requires each 

SIP to provide for revisions of such plan 

(i) as may be necessary to take account 

of revisions of such national primary or 

secondary ambient air quality standard 

or the availability of improved or more 

expeditious methods of attaining such 

standard, and (ii) whenever the 

Administrator finds that the plan is 

substantially inadequate to attain the 

NAAQS or to otherwise comply with 

any additional applicable requirements. 

FDEP is responsible for adopting air 

quality rules and revising SIPs as 

needed to attain or maintain the 

NAAQS in Florida. Florida Statutes 

subsection 403.061(35) grants FDEP the 

broad authority to implement the CAA; 

also, subsection 403.061(9), F.S., 

authorizes FDEP to adopt a 

comprehensive program for the 

prevention, control, and abatement of 

pollution of the air . . . of the state, and 

from time to time review and modify 

such programs as necessary. 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 2010 1-hour 

NO2 NAAQS 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 2010 

1-hour NO2 NAAQS when necessary. 

10. 110(a)(2)(J) Consultation with 

government officials, public 

notification, and PSD and visibility 

protection: EPA is proposing to approve 

Florida’s infrastructure SIP submission 

for the 2010 1-hour NO2 NAAQS with 

respect to the general requirement 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 

visibility protection requirements of 

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24Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

part C of the Act. With respect to 

Florida’s infrastructure SIP submission 

related to the preconstruction PSD 

permitting requirements of section 

110(a)(2)(J), EPA took final action to 

approve Florida’s January 22, 2013, 

2010 1-hour NO2 NAAQS infrastructure 

SIP for theses requirements on March 

18, 2015. See 80 FR 14019. EPA’s 

rationale for its proposed action 

regarding applicable consultation 

requirements of section 121, the public 

notification requirements of section 127, 

and visibility protection requirements is 

described below. 

Consultation with government 

officials (121 consultation): Section 

110(a)(2)(J) of the CAA requires states to 

provide a process for consultation with 

local governments, designated 

organizations and federal land managers 

(FLMs) carrying out NAAQS 

implementation requirements pursuant 

to section 121 relative to consultation. 

Chapters 62–204, F.A.C., Air Pollution 

Control Provisions, 62–210, F.A.C., 

Stationary Sources—General 

Requirements and 62–212, F.A.C., 

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 FLMs), 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. 

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 for the SIP. 

EPA has made the preliminary 

determination that Florida’s SIP and 

practices adequately demonstrate 

consultation with government officials 

related to the 2010 1-hour NO2 NAAQS 

when necessary. 

Public notification (127 public 

notification): Section 403.061(21), 

Florida Statutes authorizes FDEP to 

advise, consult cooperate, and enter into 

agreements with other entities affected 

by the provisions of this act, rules, or 

policies of the department. Section 

403.061(20) Florida Statues authorizes 

FDEP to collect and disseminate 

information relating to pollution. FDEP 

has public notice mechanisms in place 

to notify the public of NO2 and other 

pollutant forecasting, including an air 

quality monitoring Web site providing 

alerts, http://www.dep.state.fl.us/air/

air_quality/countyaqi.htm. 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 2010 NO2 NAAQS when 

necessary. 

Visibility protection: EPA’s 2013 

Guidance notes that it does not treat the 

visibility protection aspects of section 

110(a)(2)(J) as applicable for purposes of 

the infrastructure SIP approval process. 

FDEP referenced its regional haze 

program as germane to the visibility 

component of section 110(a)(2)(J). EPA 

recognizes that states are subject to 

visibility protection and regional haze 

program requirements under Part C of 

the Act (which includes sections 169A 

and 169B). However, there are no newly 

applicable visibility protection 

obligations after the promulgation of a 

new or revised NAAQS. Thus, EPA has 

determined that states do not need to 

address the visibility component of 

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

submittals so FDEP does not need to 

rely on its regional haze program to 

fulfill its obligations under section 

110(a)(2)(J). As such, EPA has made the 

preliminary determination that the 

visibility protection element of section 

110(a)(2)(J) is approvable and that 

Florida does not need to rely on its 

regional haze program for this element. 

11. 110(a)(2)(K) Air quality modeling 

and submission of modeling data: 

Section 110(a)(2)(K) of the CAA requires 

that SIPs provide for performing air 

quality modeling so that effects on air 

quality of emissions from NAAQS 

pollutants can be predicted and 

submission of such data to the EPA can 

be made. Chapter 62–204.800, F.A.C., 

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.’’ 

Chapters 62–210 and 62–212 require use 

of EPA approved modeling related to 

NO2 concentrations in ambient air. 

Florida Statute 403.061(13) authorizes 

FDEP to require persons to file reports 

which may contain information used for 

modeling and 403.061(18) authorizes 

FDEP to encourage and conduct studies 

related to pollution. FDEP has the 

technical capability to conduct or 

review all air quality modeling 

associated with the NSR program and 

SIP related modeling, except photo 

chemical grid modeling which is 

contracted out. Additionally, Florida 

supports a regional effort to coordinate 

the development of emissions 

inventories and conduct regional 

modeling for NOX, which includes NO2.

Taken as a whole, Florida’s air quality 

regulations and statutes demonstrate 

that FDEP has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 1-hour NO2 NAAQS. EPA 

has made the preliminary determination 

that Florida’s SIP and practices 

adequately demonstrate the State’s 

ability to provide for air quality 

modeling, along with analysis of the 

associated data, related to the 2010 1- 

hour NO2 NAAQS when necessary. 

12. 110(a)(2)(L) Permitting fees: This 

element necessitates that the SIP require 

the owner or operator of each major 

stationary source to pay to the 

permitting authority, as a condition of 

any permit required under the CAA, a 

fee sufficient to cover (i) the reasonable 

costs of reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

Funding for review of PSD and NNSR 

permits comes from a processing fee, 

submitted by permit applicants, 

required by paragraph 403.087(6)(a) of 

the Florida Statute. 

These regulations demonstrate that 

Florida has the authority to provide 

FDEP ensures this is sufficient for the 

reasonable cost of reviewing and acting 

upon PSD and NNSR permits. 

Additionally, Florida has a fully 

approved title V operating permit 

program at Chapter 62–213.300 F.A.C.24

that covers the cost of implementation 

and enforcement of PSD and NNSR 

permits after they have been issued. 

EPA has made the preliminary 

determination that Florida’s SIP and 

practices adequately provide for 

permitting fees related to the 2010 NO2

NAAQS, when necessary. Accordingly, 

EPA is proposing to approve Florida’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(L). 

13. 110(a)(2)(M) Consultation and 

participation by affected local entities: 

This element requires states to provide 

for consultation and participation in SIP 

development by local political 

subdivisions affected by the SIP. Florida 

statute 403.061(21) authorizes FDEP to 

‘‘[a]dvise, consult, cooperate and enter 

into agreements with other agencies of 

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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 2010 1-hour 

NO2 NAAQS when necessary. 

V. Proposed Action 

With the exception of the elements 

related to the ambient air quality 

monitoring and data system of section 

110(a)(2)(B), the PSD permitting 

requirements for major sources of 

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

and (J), and the interstate transport 

provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states of prongs 1 and 2 of section 

110(a)(2)(D)(i), EPA is proposing to 

approve Florida’s January 22, 2013, SIP 

submission to incorporate provisions 

into the Florida SIP to address 

infrastructure requirements for the 2010 

1-hour NO2 NAAQS. EPA is proposing 

to approve portions of Florida’s 

infrastructure submission for the 2010 

1-hour NO2 NAAQS because this 

submission is consistent with section 

110 of the CAA. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

See 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 Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• 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). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it 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. 

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

Dated: July 8, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–17055 Filed 7–19–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2016–0133, FRL–9949–33– 

Region 10] 

Approval and Promulgation of 

Implementation Plans; Alaska: 

Infrastructure Requirements for the 

2010 Nitrogen Dioxide and 2010 Sulfur 

Dioxide Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Whenever a new or revised 

National Ambient Air Quality Standard 

(NAAQS) is promulgated, states must 

submit a plan for the implementation, 

maintenance and enforcement of such 

standard, commonly referred to as 

infrastructure requirements. The 

Environmental Protection Agency (EPA) 

is proposing to approve the May 12, 

2015 Alaska State Implementation Plan 

(SIP) submission as meeting the 

infrastructure requirements for the 2010 

nitrogen dioxide (NO2) and 2010 sulfur 

dioxide (SO2) NAAQS. 

DATES: Comments must be received on 

or before August 19, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2016–0133, at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from http://

www.regulations.gov. The EPA may 

publish any comment received to its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Multimedia submissions (audio, 

video, etc.) must be accompanied by a 

written comment. The written comment 

is considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the web, 

cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

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