
[Federal Register Volume 78, Number 97 (Monday, May 20, 2013)]
[Proposed Rules]
[Pages 29306-29314]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11868]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0692; FRL-9814-1]


Approval and Promulgation of Implementation Plans; Florida; 
Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve in part, and disapprove in part, 
the State Implementation Plan (SIP) submission, submitted by the State 
of Florida, through the Florida Department of Environmental Protection 
(FDEP) on October 31, 2011, to demonstrate that the State meets the 
infrastructure requirements of the Clean Air Act (CAA or Act) for the 
2008 8-hour ozone national ambient air quality standards (NAAQS). The 
CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by the EPA, which is commonly referred to as an ``infrastructure'' SIP. 
FDEP certified that the Florida SIP contains provisions that ensure the 
2008 8-hour ozone NAAQS are implemented, enforced, and maintained in 
Florida (hereafter referred to as ``infrastructure submission''). EPA 
is now taking two related actions on FDEP's infrastructure submission 
for Florida. First, EPA is proposing to disapprove in part portions of 
Florida's infrastructure submission as it relates to the regulation of 
greenhouse gas (GHG) emissions. Second, EPA is proposing to determine 
that Florida's infrastructure submission, addresses all other required 
infrastructure elements for the 2008 8-hour ozone NAAQS, with the 
exception of the aforementioned portions and the requirement that the 
SIP include provisions prohibiting any source or other type of 
emissions activity in one state from interfering with measures to 
protect visibility in another state.

DATES: Written comments must be received on or before June 19, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0692, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0692,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0692. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly

[[Page 29307]]

to EPA without going through www.regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the Internet. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9140. Ms. Ward can be reached via electronic mail at 
ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background and Overview
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how Florida addressed the elements of 
sections 110(a)(1) and (2) ``Infrastructure'' Provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    On March 27, 2008, EPA promulgated a revised NAAQS for ozone based 
on 8-hour average concentrations. EPA revised the level of the 8-hour 
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. Pursuant to 
section 110(a)(1) of the CAA, states are required to submit SIPs 
meeting the applicable requirements of section 110(a)(2) within three 
years after promulgation of a new or revised NAAQS or within such 
shorter period as EPA may prescribe. Section 110(a)(2) requires states 
to address basic SIP elements such as requirements for monitoring, 
basic program requirements and legal authority that are designed to 
assure attainment and maintenance of the NAAQS. States were required to 
submit such SIPs for the 2008 8-hour ozone NAAQS to EPA no later than 
March 2011.
    Florida's infrastructure submission was received by EPA on October 
31, 2011, for the 2008 8-hour ozone NAAQS. FDEP's October 31, 2011, 
infrastructure SIP submission for the 2008 8-hour ozone NAAQS also 
addressed CAA section 110(a)(2)(D)(i)(I), which requires that SIPs 
contain adequate provisions prohibiting any source or other type of 
emissions activity in one state from contributing significantly to 
nonattainment maintenance of the NAAQS in another state. On April 30, 
2013, following the recent EME Homer City Generation, L.P. v. EPA, 696 
F.3d 7 (D.C. Cir. 2012) decision, Florida withdrew its submission for 
section 110(a)(2)(D)(i)(I). This decision addressed the requirements of 
110(a)(2)(D)(i)(I), and provided that a section 110(a)(2)(D)(i)(I) SIP 
submission cannot be considered a ``required'' SIP submission until EPA 
has defined a state's obligations pursuant to that section. See EME 
Homer City, 696 F.3d at 32 (``A SIP logically cannot be deemed to lack 
a `required submission' or deemed to be deficient for failure to meet 
the good neighbor obligation before EPA quantifies the good neighbor 
obligation.'') EPA historically has interpreted section 110(a)(1) of 
the CAA as establishing the required submittal date for SIPs addressing 
all of the ``interstate transport'' requirements in section 
110(a)(2)(D), including the provisions in section 110(a)(2)(D)(i)(I) 
regarding significant contribution to nonattainment and interference 
with maintenance. However, at this time in light of the EME Homer City 
opinion, EPA is not treating the section 110(a)(2)(D)(i)(I) SIP 
submission from FDEP as a required SIP submission. The EME Homer City 
opinion provides that EPA does not have authority to promulgate Federal 
Implementation Plan (FIP) to address the requirements of section 
110(a)(a)(2)(D)(i)(I) until EPA has identified emissions in a state 
that significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in another state and given the state an 
opportunity to submit a SIP to address those emissions. EME Homer City, 
696 F.3d at 28.
    Additionally, Florida did not submit a SIP revision to adopt the 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to PSD permitting 
requirements for their GHG emissions as promulgated in the GHG 
Tailoring Rule. See 75 FR 31514, June 3, 2010. Therefore, Florida's 
federally-approved SIP does not address or provide adequate legal 
authority for, the implementation of a GHG PSD program in Florida. 
Approval of a revision to address GHG is required to meet sections 
110(a)(2)(C), D(i)(II), and (J) related to PSD. On December 30, 2010, 
EPA promulgated a FIP \1\ under CAA section 110(c)(1)(A) for Florida to 
govern PSD permitting for GHG in the State. Since the Florida SIP 
currently does not provide adequate legal authority to address the new 
GHG PSD permitting requirements at or above the emissions levels set in 
the GHG Tailoring Rule, or at other appropriate levels, it does not 
satisfy portions of the aforementioned infrastructure requirements. See 
75 FR 82246. As a result, EPA is proposing disapproval in part portions 
of sections 110(a)(2)(C), D(i)(II) and (J) of Florida infrastructure 
SIP submission as related to GHG PSD permitting requirements. EPA's 
proposed disapproval of these elements does not result in any further 
obligation on the part of Florida, because, as described above, EPA has 
already promulgated a FIP for the Florida PSD program to address 
permitting GHGs at or above the GHG Tailoring Rule thresholds. Thus, 
today's proposed action to disapprove FDEP's submission for the PSD-
related portions of sections 110(a)(2)(C), D(i)(II), and (J), once 
final, will not require any further action by either FDEP or EPA.
---------------------------------------------------------------------------

    \1\ Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan--Final Rule, 
75 FR 82246 (December 30, 2010).

---------------------------------------------------------------------------

[[Page 29308]]

    Today's action is proposing two related actions on Florida's 
October 31, 2011, submission. First, EPA is proposing to approve 
Florida's infrastructure submission \2\ for the applicable requirements 
of the 2008 8-hour ozone NAAQS, with the exception of the visibility 
requirements of section 110(a)(2)(D)(i)(II), and the portions of 
sections 110(a)(2)(C), D(i)(II), and (J) related to GHG PSD permitting. 
With respect to Florida's infrastructure SIP submission related to the 
visibility requirements of section 110(a)(2)(D)(i)(II), EPA will act on 
this portion of the submission in a separate action. With respect to 
the portions of sections 110(a)(2)(C), D(i)(II), and (J) related to GHG 
PSD permitting requirements, EPA is proposing to disapprove Florida's 
submission related to these requirements. This action is not approving 
any specific rule, but rather proposing that Florida's already approved 
SIP meets certain CAA requirements.
---------------------------------------------------------------------------

    \2\ As noted above, Florida withdrew the portions of its 
infrastructure SIP submission related to the requirements of section 
110(a)(2)(D)(i)(I). As such, this proposed action does not address 
these requirements.
---------------------------------------------------------------------------

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2008 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with the 1997 8-hour 
ozone NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
requirements that are the subject of this proposed rulemaking are 
summarized below.\3\
---------------------------------------------------------------------------

    \3\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
---------------------------------------------------------------------------

     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\4\
---------------------------------------------------------------------------

    \4\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
---------------------------------------------------------------------------

     110(a)(2)(D): Interstate transport.\5\
---------------------------------------------------------------------------

    \5\ In accordance with the panel of the U.S. Court of Appeals 
for the D.C. Circuit opinion, EPA at this time is not treating 
section 110(a)(2)(D)(i)(I) as a required SIP submission. See EME 
Homer City generation, L.P. v. EPA, 696 F.3d 7. Unless the EME Homer 
City decision is reversed or otherwise modified by the Supreme 
Court, states are not required to submit 110(a)(2)(D)(i)(I) SIPs 
until the EPA has quantified their obligations under that section. 
The portions of the SIP submission relating to 110(a)(2)(D)(i)(II) 
(also referred to as prongs 3 and 4) and 110(a)(2)(D)(ii), in 
contrast, are required. Prong 3 of 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii) are being acted upon by EPA in today's proposed 
rulemaking. Prong 4 of 110(a)(2)(D)(i) will be acted on in a 
separate action.
---------------------------------------------------------------------------

     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\6\
---------------------------------------------------------------------------

    \6\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
---------------------------------------------------------------------------

     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

III. Scope of Infrastructure SIPs

    EPA notes that this rulemaking does not address four substantive 
issues that are not integral to the Florida infrastructure SIP 
submission. These four issues are: (i) Existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources (SSM), that may be contrary to the CAA and EPA's policies 
addressing such excess emissions; (ii) existing provisions related to 
``director's variance'' or ``director's discretion'' that purport to 
permit revisions to SIP approved emissions limits with limited public 
process or without requiring further approval by EPA, that may be 
contrary to the CAA (director's discretion); (iii) existing provisions 
for minor source new source review (NSR) programs that may be 
inconsistent with the requirements of the CAA and EPA's regulations 
that pertain to such programs (minor source NSR); and, (iv) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR 
Reform).
    Instead, EPA has indicated that it has other authority to address 
any such existing SIP defects in other rulemakings, as appropriate. A 
detailed rationale for why these four substantive issues are not part 
of the scope of infrastructure SIP rulemakings can be found in EPA's 
November 8, 2012, proposed rule entitled, ``Approval and Promulgation 
of Implementation Plans; Florida; 110(a)(1) and (2) Infrastructure 
Requirements for the 1997 annual and 2006 24-hour Fine Particulate 
Matter National Ambient Air Quality Standards'' in the section 
entitled, ``Scope of Infrastructure SIPs.'' See 77 FR 66927.

IV. What is EPA's analysis of how Florida addressed the elements of 
Sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    EPA is proposing to take two actions in response to Florida's 
infrastructure SIP submission for the 2008 8-hour ozone NAAQS. FDEP's 
infrastructure submission addresses the provisions of sections 
110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: There 
are several regulations within Florida's SIP relevant to air quality 
control regulations which include enforceable emission limitations and 
other control measures. Chapters 62-204, Air Pollution Control 
Provisions; 62-210, Stationary Sources--General Requirements; and 62-
296, Stationary Sources--Emissions Standards, establish emission limits 
for ozone and address the required control measures,

[[Page 29309]]

means and techniques for compliance with the ozone NAAQS respectively. 
EPA has made the preliminary determination that the provisions 
contained in these chapters and Florida's practices are adequate to 
protect the 2008 8-hour ozone NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in a separate action.\7\ 
In the meantime, EPA encourages any state having a deficient SSM 
provision to take steps to correct it as soon as possible.
---------------------------------------------------------------------------

    \7\ On February 22, 2013, EPA published a proposed action in the 
Federal Register entitled, ``State Implementation Plans: Response to 
Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP 
Calls to Amend Provisions Applying to Excess Emissions During 
Periods of Startup, Shutdown, and Malfunction; Proposed Rule.''
---------------------------------------------------------------------------

    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: 
Chapters 62-204, Air Pollution Control Provisions; 62-210, Stationary 
Sources--General Requirements; 62-212, Stationary Sources--
Preconstruction Review; 62-296, Stationary Sources--Emissions 
Standards; and 62-297, Stationary Sources--Emissions Monitoring, of the 
Florida SIP, along with the Florida Network Description and Ambient Air 
Monitoring Network Plan, provide for an ambient air quality monitoring 
system in the State. Annually, EPA approves the ambient air monitoring 
network plan for the state agencies. In May 2012, Florida submitted its 
monitoring network plan to EPA, and on September 11, 2012, EPA approved 
this plan. Florida's approved monitoring network plan can be accessed 
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0692. EPA 
has made the preliminary determination that Florida's SIP and practices 
are adequate for the ambient air quality monitoring and data system 
related to the 2008 8-hour ozone NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: Florida's authority to 
regulate new and modified sources of the ozone precursors volatile 
organic compounds (VOCs) and nitrogen oxides (NOX) to assist 
in the protection of air quality in nonattainment, attainment or 
unclassifiable areas is established in Chapters 62-210, Stationary 
Sources--General Requirements, Section 200--Definitions; and 62-212, 
Stationary Sources--Preconstruction Review, Section 400--Prevention of 
Significant Deterioration, of the Florida SIP.
    At present, there are four SIP revisions that are relevant to EPA's 
review of FDEP's infrastructure SIP submission for the 2008 8-hour 
ozone NAAQS in connection with the current PSD-related infrastructure 
requirements. See sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J) of the CAA. The EPA regulations that require these SIP 
revisions are: (1) ``Final Rule To Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 2; Final Rule'' (November 29, 2005, 
70 FR 71612) (hereafter referred to as the ``Phase II Rule''); (2) 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
[GHG] Tailoring Rule; Final Rule'' (June 3, 2010, 75 FR 31514) 
(hereafter referred to as the ``GHG Tailoring Rule''); (3) 
``Implementation of the New Source Review Program for Particulate 
Matter Less Than 2.5 Micrometers; Final Rule'' (May 16, 2008, 73 FR 
28321) (hereafter referred to as the ``NSR PM2.5 Rule''); 
and, (4) ``Final Rule on the Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC); Final Rule'' (October 20, 
2010, 75 FR 64864) (hereafter referred to as the``PM2.5 PSD 
Increment-SILs-SMC Rule (only as it relates to PM2.5 
Increments)'').
    On October 19, 2007, and July 1, 2011, FDEP submitted revisions to 
EPA for approval into the Florida SIP to adopt federal requirements for 
NSR permitting promulgated in the Phase II Rule. FDEP's submittal 
addressed the structural PSD program revisions required by the Phase II 
Rule, including requirements to include NOX as an ozone 
precursor for permitting purposes for PSD and nonattainment NSR. EPA 
published a final action approving FDEP's revisions which incorporate 
NOX as an ozone precursor on June 15, 2012. See 77 FR 35862. 
Thus, EPA has preliminarily determined that the infrastructure SIP 
submission is approvable with respect to this issue.
    The second revision pertains to revisions to the PSD program 
promulgated in EPA's June 3, 2010, Greenhouse Gas Tailoring Rule or 
``GHG Tailoring Rule.'' See 75 FR 31514. Florida did not submit a SIP 
revision to adopt the appropriate emission thresholds for determining 
which new stationary sources and modification projects become subject 
to PSD permitting requirements for their GHG emissions as promulgated 
in the GHG Tailoring Rule. Therefore, Florida's federally-approved SIP 
contained errors that resulted in its failure to address, or provide 
adequate legal authority for, the implementation of a GHG PSD program 
in Florida. Approval of a revision to address GHG is required to meet 
110(a)(2)(C). In the GHG SIP Call,\8\ EPA determined that the State of 
Florida's SIP was substantially inadequate to achieve CAA requirements 
because its existing PSD program does not apply to GHG-emitting 
sources; the rule finalized a finding to the effect and promulgated SIP 
call for 15 state and local permitting authorities including Florida. 
EPA explained that if a state, such as Florida, identified in the SIP 
call, failed to submit the required corrective SIP revision by the 
applicable deadline, EPA would promulgate a FIP under CAA section 
110(c)(1)(A) for that state to govern PSD permitting for GHG. On 
December 30, 2010, EPA promulgated a FIP \9\ for Florida because the 
State failed to submit, by its December 22, 2010, deadline, the 
corrective SIP revision to apply its PSD program to sources of GHG 
consistent with the thresholds described in the GHG Tailoring rule. The 
FIP ensured that a permitting authority (i.e., EPA) would be available 
to issue preconstruction PSD permits to GHG-emitting sources in the 
State of Florida. EPA took these actions through interim final 
rulemaking, effective upon publication, to ensure the availability of a 
permitting authority--EPA--in Florida for GHG-emitting sources when 
they

[[Page 29310]]

became subject to PSD on January 2, 2011.
---------------------------------------------------------------------------

    \8\ Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call, Final Rule, 75 FR 77698 (December 13, 2010).
    \9\ Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan--Final Rule, 
75 FR 82246 (December 30, 2010).
---------------------------------------------------------------------------

    Since Florida currently does not have adequate legal authority in 
its SIP to address the GHG PSD permitting requirements established in 
the GHG Tailoring Rule, or at other appropriate levels, it does not 
satisfy portions of elements of the infrastructure requirements. As a 
result, EPA is proposing disapproval of FDEP's submission for the 
portions of infrastructure elements 110(a)(2)(C), (D)(i)(II), and (J) 
related to GHG PSD permitting requirements. EPA's proposed disapproval 
of these elements, if finalized, would not result in any further 
obligation on the part of Florida because EPA has already promulgated a 
FIP for the Florida PSD program to address permitting GHGs at or above 
the GHG Tailoring Rule thresholds. See 76 FR 25178. Thus, today's 
proposed action to disapprove FDEP's submission for sections 
110(a)(2)(C), (D)(i)(II), and (J) as they relate to GHG PSD permitting 
requirements, once final, will not require any further action by either 
FDEP or EPA.
    The third and fourth revisions pertain to the adoption of PSD and 
Nonattainment New Source Review (NNSR) requirements related to the 
implementation of the NSR PM2.5 Rule and PM2.5 
PSD Increment-SILs-SMC Rule (only as it relates to PM2.5 
Increments). On March 15, 2012, FDEP submitted revisions to its PSD/NSR 
regulations for EPA approval to revise Florida's SIP and adopt required 
federal PSD permitting provisions governing the implementation of the 
NSR program for PM2.5 as promulgated in the NSR 
PM2.5 Rule and PM2.5 increments pursuant to 
section 166(a) of the CAA to prevent significant deterioration of air 
quality in areas meeting the NAAQS. Approval of these regulations into 
the SIP address the relevant requirements of sections 110(a)(2)(C), 
(D)(i)(II), and (J). EPA finalized approval of Florida's March 15, 
2012, submittal on September 19, 2012. See 77 FR 58027.
    EPA notes that on September 19, 2012, the Agency approved the SMC 
portion of the PM2.5 PSD Increment-SILs-SMC Rule into the 
Florida SIP. See 77 FR 58027. Since that time, on January 22, 2013, the 
U.S. Court of Appeals for the District of Columbia, issued a decision 
that, inter alia, vacated the provisions adding the PM2.5 
SMC to the federal regulations, at 40 CFR 51.166(i)(5)(i)(c) and 
52.21(i)(5)(i)(c), that were promulgated as part of the 2010 
PM2.5 PSD Increment-SILs-SMC Rule. See Sierra Club v. EPA, 
703 F.3d 458 (D.C. Cir. 2013). In its decision, the court held that EPA 
did not have the authority to use SMCs to exempt permit applicants from 
the statutory requirement in section 165(e)(2) of the CAA that ambient 
monitoring data for PM2.5 be included in all PSD permit 
applications. Thus, although the PM2.5 SMC was not a 
required element of a State's PSD program and thus not a structural 
requirement for purposes of infrastructure SIPs, were a SIP-approved 
PSD program that contains such a provision to use that provision to 
issue new permits without requiring ambient PM2.5 monitoring 
data, such application of the SIP would be inconsistent with the 
court's opinion and the requirements of section 165(e)(2) of the CAA.
    Given the clarity of the court's decision, it would now be 
inappropriate for Florida to continue to allow applicants for any 
pending or future PSD permits to rely on the PM2.5 SMC in 
order to avoid compiling ambient monitoring data for PM2.5. 
Because of the vacatur of the EPA regulations, the SMC provisions 
included in Florida's SIP-approved PSD programs on the basis of EPA's 
regulations are unlawful and no longer enforceable by law. Permits 
issued on the basis of these provisions as they appear in approved SIPs 
would be inconsistent with the CAA and difficult to defend in 
administrative and judicial challenges. Thus, the SIP provisions may 
not be applied even prior to their removal from the SIP. Florida should 
instead require applicants requesting a PSD permit, including those 
having already been applied for but for which the permit has not yet 
been received, to submit ambient PM2.5 monitoring data in 
accordance with the CAA requirements whenever either direct 
PM2.5 or any PM2.5 precursor is emitted in a 
significant amount.\10\ As the previously-approved PM2.5 SMC 
provisions in the Florida SIP are no longer enforceable, EPA does not 
believe the existence of the provisions in the State's SIP precludes 
today's proposed approval of portions of the infrastructure SIP 
submission for Florida as it relates to the 2008 8-hour ozone NAAQS.
---------------------------------------------------------------------------

    \10\ In lieu of the applicants' need to set out PM2.5 
monitors to collect ambient data, applicants may submit 
PM2.5 ambient data collected from existing monitoring 
networks when the permitting authority deems such data to be 
representative of the air quality in the area of concern for the 
year preceding receipt of the application. EPA believes that 
applicants will generally be able to rely on existing representative 
monitoring data to satisfy the monitoring data requirement.
---------------------------------------------------------------------------

    EPA intends to initiate a rulemaking to correct SIPs that were 
approved with regard to the PM2.5 SMCs prior to the court's 
decision. EPA also advises the States to begin preparations to remove 
the PM2.5 SMC provisions from their state PSD regulations 
and SIPs. However, EPA has not yet set a deadline requiring States to 
take action to revise their existing PSD programs to address the 
court's decision.
    These SIP revisions and the FIP for GHG \11\ address requisite 
requirements of infrastructure elements 110(a)(2)(C), D(i)(II), and 
(J). The FIP that is currently in place to address GHG requirements in 
Florida will remain until Florida submits a final submission to EPA for 
federal approval and EPA takes final action on the submission.
---------------------------------------------------------------------------

    \11\ (1) EPA's approval of Florida's PSD/NSR regulations which 
address the Ozone Implementation NSR Update requirements, (2) EPA's 
FIP for PSD GHG Tailoring Rule revisions which addresses the 
thresholds for GHG permitting applicability in Florida, (3) EPA's 
approval of Florida's NSR PM2.5 Rule, and (4) EPA's 
approval of Florida's PM2.5 PSD Increment-SILs-SMC Rule.
---------------------------------------------------------------------------

    Finally, EPA notes that today's action is not proposing to approve 
or disapprove the State's existing minor NSR program itself to the 
extent that it is inconsistent with EPA's regulations governing this 
program. EPA believes that a number of states may have minor NSR 
provisions that are contrary to the existing EPA regulations for this 
program. EPA intends to work with states to reconcile state minor NSR 
programs with EPA's regulatory provisions for the program. The 
statutory requirements of section 110(a)(2)(C) provide for considerable 
flexibility in designing minor NSR programs, and EPA believes it may be 
time to revisit the regulatory requirements for this program to give 
the states an appropriate level of flexibility to design a program that 
meets their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    EPA has made the preliminary determination that Florida's SIP and 
practices are adequate for program enforcement of control measures 
including review of proposed new sources related to the 2008 8-hour 
ozone NAAQS. For the portion of this element that EPA is disapproving 
related to GHG PSD permitting requirements, EPA has made the 
preliminary determination that the already promulgated FIP for Florida 
is adequate for program enforcement of control measures including 
review of proposed new sources related to the 2008 8-hour ozone NAAQS.
    4. 110(a)(2)(D)(i) and (ii) Interstate and International transport 
provisions: Section 110(a)(2)(D) has two

[[Page 29311]]

components; 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 
110(a)(2)(D)(i) includes four distinct components, commonly referred to 
as ``prongs,'' that must be addressed in SIP submissions. The first two 
prongs, which are codified in section 110(a)(2)(D)(i)(I), are 
provisions that prohibit any source or other type of emissions activity 
in one state from contributing significantly to nonattainment of the 
NAAQS in another state (``prong 1''), and interfering with maintenance 
of the NAAQS in another state (``prong 2''). The third and fourth 
prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state interfering 
with measures required to prevent significant deterioration of air 
quality in another state (``prong 3''), or to protect visibility in 
another state (``prong 4''). Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
EPA's analysis of FDEP's infrastructure submission with regard to the 
requirements of 110(a)(2)(D) is as follows:
    110(a)(2)(D)(i)(I): Florida does not currently have a section 
110(a)(2)(D)(i)(I) submission for the 2008 8-hour ozone NAAQS before 
the Agency.\12\ However, in accordance with the panel of the U.S. Court 
of Appeals for the D.C. Circuit opinion, a SIP submission addressing 
section 110(a)(2)(D)(i)(I) from the State of Florida is not currently 
required. See EME Homer City, 696 F.3d 7. The opinion in EME Homer City 
concluded that EPA cannot promulgate a FIP to address the requirements 
of 110(a)(2)(D)(i)(I) for a state until EPA has first quantified the 
emissions that must be prohibited under that provision. See EME Homer 
City, 696 F.3d at 28 (``explaining that EPA must, after quantifying 
state's obligations under section 110(a)(2)(D)(i)(I) give states an 
initial opportunity to implement the obligations through SIPs''). As 
such, the lack of a submission from Florida does not currently trigger 
a FIP pursuant to section 110(c)(1) unless the EME Homer City decision 
is reversed or otherwise modified by the Supreme Court.
---------------------------------------------------------------------------

    \12\ As previously described, Florida withdrew this portion of 
its infrastructure submission related to section 110(a)(2)(D)(i)(I) 
on April 30, 2013.
---------------------------------------------------------------------------

    110(a)(2)(D)(i)(II)--prong 3: With regard to prong 3 of section 
110(a)(2)(D)(i), this requirement may be met by the state's 
confirmation in an infrastructure SIP submission that new major sources 
and major modifications in the state are subject to a PSD program 
meeting all the current structural requirements of part C of title I of 
the CAA or (if the state contains a nonattainment area for the relevant 
pollutant) to a NNSR program that implements the 2008 8-hour ozone 
NAAQS. As discussed in more detail above with respect to section 
110(a)(2)(C), FDEP's infrastructure SIP submission describes the PSD 
Program provisions contained in for Florida's SIP that provide the 
necessary structural PSD requirements to satisfy prong 3 requirements, 
with the exception of those necessary to address GHG permitting. 
Because the Florida SIP does not currently provide adequate legal 
authority to address GHG PSD permitting requirements, EPA is proposing 
disapproval of the Florida prong 3 infrastructure SIP submission 
related to the GHG PSD permitting requirements. As previously 
described, EPA has promulgated a FIP for Florida addressing these GHG 
permitting requirements, and as such, EPA's proposed disapproval, if 
finalized, would not result in further obligations on the part of 
Florida because the FIP addresses the permitting of GHGs at our above 
the applicable Tailoring Rule thresholds. See 75 FR 82246.
    EPA has preliminarily determined that the Florida SIP meets the 
relevant PSD program requirements, with the exception of those for 
pertaining to GHG. Accordingly, in this action EPA is proposing to 
approve in part, and disapprove in part, Florida's infrastructure SIP 
submission as meeting the applicable requirements of prong 3 of section 
110(a)(2)(D)(i).
    110(a)(2)(D)(i)(II)--prong 4: Prong 4 of section 110(a)(2)(D)(i) 
requires that SIPs include provisions prohibiting any source or other 
type of emissions activity in one state from interfering with measures 
to protect visibility in another state. In this rulemaking, EPA is not 
proposing any action on prong 4 and instead will do so in a separate 
action.
    110(a)(2)(D)(ii) Interstate and International transport provisions: 
With regard to 110(a)(2)(D)(ii), Chapter 62-210, Stationary Sources--
General Requirements of the Florida SIP outlines how Florida will 
notify neighboring states of potential impacts from new or modified 
sources. EPA is unaware of any pending obligations for the State of 
Florida pursuant to sections 115 or 126 of the CAA. EPA has made the 
preliminary determination that Florida's SIP and practices are adequate 
for insuring compliance with the applicable requirements relating to 
interstate and international pollution abatement for the 2008 8-hour 
ozone NAAQS.
    5. 110(a)(2)(E) Adequate resources: Section 110(a)(2)(E) requires 
that each implementation plan provide (i) necessary assurances that the 
State will have adequate personnel, funding, and authority under state 
law to carry out its implementation plan, (ii) that the State comply 
with the requirements respecting State Boards pursuant to section 128 
of the Act, and (iii) necessary assurances that, where the State has 
relied on a local or regional government, agency, or instrumentality 
for the implementation of any plan provision, the State has 
responsibility for ensuring adequate implementation of such plan 
provisions.
    In support of EPA's proposal to approve sections 110(a)(2)(E)(i), 
(ii), and (iii), EPA notes that FDEP is responsible for promulgating 
rules and regulations for the NAAQS, emissions standards general 
policies, a system of permits, and fee schedules for the review of 
plans, and other planning needs. As evidence of the adequacy of FDEP's 
resources, EPA submitted a letter to Florida on February 28, 2013, 
outlining 105 grant commitments and the current status of these 
commitments for fiscal year 2012. The letter EPA submitted to Florida 
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0692. Annually, states update these grant commitments based on 
current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. Florida satisfactorily met all 
commitments agreed to in the Air Planning Agreement for fiscal year 
2012, therefore Florida's grants were finalized. On July 30, 2012, EPA 
approved Florida statutes into the SIP to comply with section 128 
respecting state boards. See 77 FR 44485. EPA has made the preliminary 
determination that Florida has adequate resources for implementation of 
the 2008 8-hour ozone NAAQS.
    6. 110(a)(2)(F) Stationary source monitoring system: Florida's 
infrastructure submission describes how the State establishes 
requirements for emissions compliance testing and utilizes emissions 
sampling and analysis. It further describes how the State ensures the 
quality of its data through observing emissions and monitoring 
operations. Florida FDEP uses these data to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with emission regulations and additional EPA requirements. These 
requirements are provided in Chapters 62-210, Stationary Sources--
General

[[Page 29312]]

Requirements; 62-212, Stationary Sources--Preconstruction Review; 62-
296, Stationary Sources--Emissions Standards; and 62-297, Stationary 
Sources--Emissions Monitoring.
    Additionally, Florida is required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Florida made its latest update to the NEI on 
February 27, 2013. EPA compiles the emissions data, supplementing it 
where necessary, and releases it to the general public through the Web 
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the 
preliminary determination that Florida's SIP and practices are adequate 
for the stationary source monitoring systems related to the 2008 8-hour 
ozone NAAQS.
    7. 110(a)(2)(G) Emergency power: Florida's infrastructure SIP 
submission identifies air pollution emergency episodes and preplanned 
abatement strategies as outlined in Florida Statutes 403.131 and 
120.569(2)(n). These statutes were submitted for inclusion to the SIP 
to address the requirements of section 110(a)(2)(G) of the CAA and have 
been approved by EPA on July 30, 2012. See 77 FR 44485. EPA has made 
the preliminary determination that Florida's SIP and practices are 
adequate for emergency powers related to the 2008 8-hour ozone NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: FDEP is responsible for 
adopting air quality rules and revising SIPs as needed to attain or 
maintain the NAAQS in Florida. FDEP has the ability and authority to 
respond to calls for SIP revisions, and has provided a number of SIP 
revisions over the years for implementation of the NAAQS. Florida does 
not have any nonattainment areas for the 2008 8-hour ozone standard but 
has made an infrastructure submission for this standard, which is the 
subject of this rulemaking. EPA has made the preliminary determination 
that Florida's SIP and practices adequately demonstrate a commitment to 
provide future SIP revisions related to the 2008 8-hour ozone NAAQS 
when necessary.
    9. 110(a)(2)(J): EPA is proposing to approve in part, and 
disapprove in part, Florida's infrastructure SIP for the 2008 8-hour 
ozone NAAQS with respect to the requirements in section 110(a)(2)(J) to 
include a program in the SIP that provides for meeting the applicable 
consultation requirements of section 121, the public notification 
requirements of section 127, and the PSD and visibility protection 
requirements of part C of the Act.
    110(a)(2)(J) (121 consultation) Consultation with government 
officials: Chapters 62-204, Air Pollution Control Provisions and 62-
212, Stationary Sources--Preconstruction Review, as well as Florida's 
Regional Haze Implementation Plan (which allows for consultation 
between appropriate state, local, and tribal air pollution control 
agencies as well as the corresponding Federal Land Managers), provide 
for consultation with government officials whose jurisdictions might be 
affected by SIP development activities. Florida adopted state-wide 
consultation procedures for the implementation of transportation 
conformity. These consultation procedures include considerations 
associated with the development of mobile inventories for SIPs. 
Implementation of transportation conformity as outlined in the 
consultation procedures requires FDEP to consult with federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. EPA has made the 
preliminary determination that Florida's SIP and practices adequately 
demonstrate consultation with government officials related to the 2008 
8-hour ozone NAAQS when necessary.
    110(a)(2)(J) (127 public notification) Public notification: FDEP 
has public notice mechanisms in place to notify the public of ozone and 
other pollutant forecasting, including an air quality monitoring Web 
site providing ground level ozone alerts, http://www.dep.state.fl.us/air/air_quality/countyaqi.htm. Florida also has state statutes, 
403.131, Injunctive relief, remedies and 120.569(n) (relating to 
emergency orders) which allow the state to seek injunctive relief to 
prevent irreparable damage to air quality. In addition, the Florida SIP 
contains federally-approved provisions to monitor air pollution 
episodes for ozone and particulate matter contained in Chapter 62-
256.300, Prohibitions. EPA has made the preliminary determination that 
Florida's SIP and practices adequately demonstrate the State's ability 
to provide public notification related to the 2008 8-hour ozone NAAQS 
when necessary.
    110(a)(2)(J) (PSD) PSD: Florida's authority to regulate new and 
modified sources of the ozone precursors VOCs and NOx to 
assist in the protection of air quality in nonattainment, attainment or 
unclassifiable areas is established in Chapters 62-210, Stationary 
Sources--General Requirements, Section 200--Definitions, and 62-212, 
Stationary Sources--Preconstruction Review, Section 400--Prevention of 
Significant Deterioration of the Florida SIP. Accordingly, as with the 
PSD related elements of the infrastructure SIP, this portion of element 
(J) also requires compliance with the Phase II Rule, the GHG Tailoring 
Rule, the NSR PM2.5 Rule, and the PM2.5 PSD 
Increment-SILs-SMC Rule. EPA has approved into the Florida SIP or has 
promulgated a FIP to address each of these requirements, and as such, 
the requisite PSD-related requirements of infrastructure element 
110(a)(2)(J) have been addressed. However, as with infrastructure 
elements 110(a)(2)(C), and prong 3 of 110(a)(2)(D)(i), EPA has 
preliminarily determined that FDEP's infrastructure SIP submission does 
not fully meet element 110(a)(2)(J) due to the existing GHG permitting 
FIP for Florida. As discussed in more detail above with respect to 
section 110(a)(2)(C), FDEP's SIP contains provisions for Florida's PSD 
program that reflect relevant SIP revisions of the structural PSD 
requirements with the exception of the authority to regulate new GHG 
PSD permitting requirements at or above the levels of emissions set in 
the GHG Tailoring Rule, or at other appropriate levels. On December 30, 
2010, EPA promulgated a FIP \13\ for those states including Florida, 
because they failed to submit, a corrective SIP revision to apply its 
PSD program to sources of GHG consistent with the thresholds described 
in the GHG Tailoring rule.
---------------------------------------------------------------------------

    \13\ Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan--Final Rule, 
75 FR 82246 (December 30, 2010).
---------------------------------------------------------------------------

    EPA has preliminarily determined that the Florida SIP meets the 
relevant PSD program requirements, with the exception of those for 
pertaining to GHG. Accordingly, in this action EPA is proposing to 
approve in part, and

[[Page 29313]]

disapprove in part, Florida's infrastructure SIP submission as meeting 
the applicable requirements of 110(a)(2)(J). As previously described, 
EPA's proposed disapproval of section 110(a)(2)(J) related to GHG PSD 
permiting, if finalized, would not result in further obligations on the 
part of Florida because the FIP addresses the permitting of GHGs at our 
above the applicable Tailoring Rule thresholds. See 75 FR 82246.
    110(a)(2)(J) Visibility protection: With regard to the visibility 
protection aspect of 110(a)(2)(J), EPA recognizes that states are 
subject to visibility and regional haze program requirements under part 
C of the Act (which includes sections 169A and 169B). In the event of 
the establishment of a new NAAQS, however, the visibility and regional 
haze program requirements under part C do not change. Thus, EPA finds 
that there are no applicable visibility obligations under part C 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. Florida has submitted SIP revisions to satisfy the 
requirements of the CAA Section 169A and 169B, and the regional haze 
and BART rules contained in 40 CFR 51.308. On November 29, 2012, EPA 
published a final rulemaking approving certain BART determinations 
under Florida's regional haze program. See 77 FR 71111. EPA has 
proposed full approval of the remaining aspects of Florida's regional 
haze program on December 10, 2012. See 77 FR 73369. In EPA's view, the 
current status of Florida's regional haze SIP as having not been fully 
approved is not a bar to full approval of the infrastructure SIP 
submission with respect to the visibility protection aspect of 
110(a)(2)(J), and EPA is proposing to fully approve the infrastructure 
SIP for this aspect.
    10. 110(a)(2)(K) Air quality and modeling/data: Chapter 62-204.800, 
Federal Regulations Adopted by Reference, incorporates by reference 40 
CFR 52.21(l), which specifies that air modeling be conducted in 
accordance with 40 CFR part 51, Appendix W ``Guideline on Air Quality 
Models.'' These regulations demonstrate that Florida has the authority 
to provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 8-hour ozone NAAQS. Additionally, Florida 
supports a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for several NAAQS, including 
the 1997 8-hour ozone NAAQS, for the Southeastern states. Taken as a 
whole, Florida's air quality regulations demonstrate that FDEP has the 
authority to provide relevant data for the purpose of predicting the 
effect on ambient air quality of the 8-hour ozone NAAQS. EPA has made 
the preliminary determination that Florida's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
and modeling, along with analysis of the associated data, related to 
the 2008 8-hour ozone NAAQS when necessary.
    11. 110(a)(2)(L) Permitting fees: Florida addresses the review of 
construction permits as previously discussed in 110(a)(2)(C). 
Permitting fees in Florida are collected through the State's federally-
approved title V fees program, according to State regulation 
403.087(6)(a), Permit Fees. EPA has made the preliminary determination 
that Florida's SIP and practices adequately provide for permitting fees 
related to the 2008 8-hour ozone NAAQS when necessary.
    12. 110(a)(2)(M) Consultation/participation by affected local 
entities: Chapter 62-204, Air Pollution Control Provisions, requires 
that SIPs be submitted in accordance with 40 CFR part 51, Subpart F, 
for permitting purposes. Florida statute 403.061(21) authorizes FDEP to 
``[a]dvise, consult, cooperate and enter into agreements with other 
agencies of the state, the Federal Government, other states, interstate 
agencies, groups, political subdivisions, and industries affected by 
the provisions of this act, rules, or policies of the department.'' 
Furthermore, FDEP has demonstrated consultation with, and participation 
by, affected local entities through its work with local political 
subdivisions during the developing of its Transportation Conformity SIP 
and Regional Haze Implementation Plan. EPA has made the preliminary 
determination that Florida's SIP and practices adequately demonstrate 
consultation with affected local entities related to the 2008 8-hour 
ozone NAAQS when necessary.

V. Proposed Action

    As described above, Florida has addressed the elements of the CAA 
section 110(a)(1) and (2) SIP requirements being proposed for approval 
to ensure that the 2008 8-hour ozone NAAQS are implemented, enforced, 
and maintained in Florida. EPA is now proposing two related actions on 
Florida's October 31, 2011, submission. First, EPA is proposing to 
approve Florida's infrastructure submission for the applicable 
requirements of the 2008 8-hour ozone NAAQS, with the exception prong 4 
of section 110(a)(2)(D)(i), and the portions of sections 110(a)(2)(C), 
prong 3 of D(i), and (J) related to GHG PSD permitting. With respect to 
Florida infrastructure SIP submission related to prong 4 of section 
110(a)(2)(D)(i), EPA will act on this portion of the submission in a 
separate action. With respect to the portions of sections 110(a)(2)(C), 
prong 3 of D(i) and (J) related to GHG PSD permitting requirements, EPA 
is proposing to disapprove Florida's submission related to these 
requirements.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible

[[Page 29314]]

methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: May 6, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2013-11868 Filed 5-17-13; 8:45 am]
BILLING CODE 6560-50-P


