[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Proposed Rules]
[Pages 34906-34915]
[FR Doc No: 2012-14244]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0382; FRL-9686-2]

Approval and Promulgation of Implementation Plans; Florida;
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006
Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plans
(SIPs), submitted by the State of Florida, through the Florida
Department of Environmental Protection (FDEP), as demonstrating that
the State meets the requirements of sections 110(a)(1) and (2) of the
Clean Air Act (CAA or the Act) for the 1997 annual and 2006 24-hour
fine particulate matter (PM2.5) national ambient air quality
standards (NAAQS). Section 110(a) of 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. Florida certified that the
Florida SIP contains provisions that ensure the 1997 annual and 2006
24-hour PM2.5 NAAQS are implemented, enforced, and
maintained in Florida (hereafter referred to as ``infrastructure
submission''). EPA is proposing to determine that Florida's
infrastructure submissions, provided to EPA on April 18, 2008, and on
September 23, 2009, addressed all the required infrastructure elements
for the 1997 annual and 2006 24-hour PM2.5 NAAQS. As
discussed further below, final action to approve elements 110(a)(2)(C),
(E)(ii), and (J) is contingent upon the Agency first taking final
action on submitted SIP revisions associated with these elements. Final
action on those SIP revisions will be addressed in a separate action.

DATES: Written comments must be received on or before July 12, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0382, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2012-0382,'' 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 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0382. 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 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 to 4:30, excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, 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)
562-9043. Mr. Lakeman can be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
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

    On July 18, 1997 (62 FR 36852), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour NAAQS of
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\
based on a 3-year average of annual mean PM2.5
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\
based on a 3-year average of the 98th percentile of 24-hour
concentrations. By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and
(2) require 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
to EPA no later than July 2000 for the 1997 annual PM2.5
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 annual
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent
decree with Earthjustice which required EPA, among other things, to
complete a Federal Register notice announcing EPA's determinations
pursuant to section 110(k)(1)(B) as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state for the 1997
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS''
making a finding that each state had submitted or failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (See
73 FR 62902). For those states that did receive findings, the findings
of failure to submit for all or a portion of a state's implementation
plan established a 24-month deadline for EPA to promulgate a Federal
Implementation Plan (FIP) to address the outstanding SIP elements
unless, prior to that time, the affected states submitted, and EPA
approved, the required SIPs.
    The findings that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k). Florida's
infrastructure submissions were received by EPA on April 18, 2008, for
the 1997 annual PM2.5 NAAQS and on September 23, 2009, for
the 2006 24-hour PM2.5 NAAQS. The submissions were
determined to be complete on October 18, 2008, and March 23, 2010,
respectively. Florida was among other states that did not receive
findings of failure to submit because it had provided a complete
submission to EPA to address the infrastructure elements for the 1997
PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
submittal related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's final action either approving, disapproving, or approving in
part and disapproving in part the Florida 2006 24-hour PM2.5
NAAQS Infrastructure SIP submittal addressing the applicable
requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section
110(a)(2)(C) the nonattainment area requirements and section
110(a)(2)(D)(i) interstate transport requirements, by September 30,
2012.
    Today's action is proposing to approve Florida's infrastructure
submission for the 1997 annual and 2006 24-hour PM2.5 NAAQS
for sections

110(a)(2)(A)-(H), (J)-(M), except for section 110(a)(2)(C)
nonattainment area requirements and section 110(a)(2)(D)(i) interstate
transport requirements. EPA notes that final action to approve elements
110(a)(2)(C), (E)(ii), and (J) is contingent upon the Agency first
taking final action on submitted SIP revisions associated with each of
these elements. Final action on those SIP revisions will be addressed
in separate actions.
    Today's action is not approving any specific rule, but rather
proposing that Florida's already approved SIP meets certain CAA
requirements.

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

    Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 annual and 2006 24-hour
PM2.5 NAAQS, some states may need to adopt language specific
to the PM2.5 NAAQS to ensure that they have adequate SIP
provisions to implement the PM2.5 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\1\ and in EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' and September
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to 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), but does provide detail on how Florida's SIP
addresses 110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006
PM2.5 NAAQS. Interstate transport requirements were
formerly addressed by Florida consistent with the Clean Air
Interstate Rule (CAIR). On December 23, 2008, CAIR was remanded by
the DC Circuit Court of Appeals, without vacatur, back to EPA. See
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this
remand, EPA took final action to approve Florida SIP revision, which
was submitted to comply with CAIR. See 72 FR 58016 (October 12,
2007). In so doing, Florida CAIR SIP revision addressed the
interstate transport provisions in section 110(a)(2)(D)(i) for the
1997 and 2006 PM2.5 NAAQS. In response to the remand of
CAIR, EPA has recently finalized a new rule to address the
interstate transport of nitrogen oxides and sulfur oxides in the
eastern United States. See 76 FR 48208 (August 8, 2011) (``the
Transport Rule''). That rule was recently stayed by the DC Circuit
Court of Appeals. EPA's action on element 110(a)(2)(D)(i) will be
addressed in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' and
the September 25, 2009, memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine
Particle (PM2.5) National Ambient Air Quality
Standards,'' but as mentioned above is not relevant to today's
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\5\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction (SSM) at sources, that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (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). EPA notes that there are two other substantive issues for
which EPA likewise stated in other proposals that it would address
separately: (i) 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 (ii) existing provisions for Prevention of Significant
Deterioration (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). In light of the comments, EPA believes that its statements in
various proposed actions on infrastructure SIPs with respect to these
four individual issues should be explained in greater depth. It is
important to emphasize that EPA is taking the same position with
respect to these four substantive issues in this action on the
infrastructure SIPs

for the 1997 and 2006 PM2.5 NAAQS from Florida.
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    \5\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these
four issues merely to be informational and to provide general notice of
the potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for Florida.
    Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, 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 provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) 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 substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``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 (May 12,
2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA

may conclude that subdividing the applicable requirements of section
110(a)(2) into separate SIP actions may sometimes be appropriate for a
given NAAQS where a specific substantive action is necessitated, beyond
a mere submission addressing basic structural aspects of the state's
implementation plans. Finally, 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 and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See ``Guidance for State Implementation
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division OAQPS, to Regional Air Division
Director, Regions I-X, dated August 15, 2006.
    \10\ For 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.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the state's implementation plans for the NAAQS in
question.
---------------------------------------------------------------------------

    \11\ See ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from

the pending infrastructure SIP actions. The same holds true for this
action on the infrastructure SIPs for Florida.
---------------------------------------------------------------------------

    \15\ See ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP 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 that, 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 considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
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 SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
---------------------------------------------------------------------------

    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized 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 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 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).
    \18\ EPA has recently disapproved 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 75 FR 42342, 42344 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540
(January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how Florida Addressed the elements of
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Florida'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:
Florida's infrastructure submissions provide an overview of the
provisions of Florida's Air Pollution Control Requirements relevant to
air quality control regulations. 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 and address the required control
measures, means and techniques for compliance with the PM2.5
NAAQS respectively. EPA has made the preliminary determination that the
provisions contained in these chapters and Florida's practices are
adequate to protect the PM2.5 annual and 24-hour 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 the future. In the
meantime, EPA encourages any state having deficient SSM provisions to
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system:
Chapters 62-204, Air Pollution Control Provisions, 62-210, Stationary
Sources--General Requirements, 62-212, Stationary Sources--
Preconstruction Review, 62-296, Stationary Sources--Emissions
Standards, and 62-297, Stationary Sources--Emissions Monitoring of the
Florida SIP, along with the Florida Network Description and Ambient Air
Monitoring Network Plan, provide for an ambient air quality monitoring
system in the State. Annually, EPA approves the ambient air monitoring
network plan for the state agencies. In May 2011 Florida submitted its
plan to EPA. On October 17, 2011, EPA approved Florida's monitoring
network plan. Florida's approved monitoring network plan can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-
0382. EPA has made the preliminary determination that Florida's SIP and
practices are adequate for the ambient air quality monitoring and data
systems related to the 1997 annual and 2006 24-hour PM2.5
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 to assist in the protection of air
quality in

nonattainment, attainment or unclassifiable areas is established in
Chapters 62-210, Stationary Sources--General Requirements, and 62-212,
Stationary Sources--Preconstruction Review, Deterioration, of the
Florida SIP. Florida's regulations describe the permit requirements for
new major sources or major modifications of existing sources and set
the permitting requirements in areas classified as attainment or
unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the CAA. The
regulations are designed to prevent sources in areas attaining the
NAAQS at the time of designations from causing any significant
deterioration in air quality. Additionally, on March 15, 2012, Florida
submitted a SIP revision to its NSR/PSD and Nonattainment New Source
Review (NNSR) programs. Florida's March 15, 2012, SIP revision
incorporates NSR provisions for fine particulate matter (also known as
PM2.5) as amended in EPA's 2008 NSR PM2.5
Implementation Rule (hereafter referred to as the ``NSR
PM2.5 Rule'') into the Florida SIP. In the March 15, 2012,
SIP revision, Florida includes revisions to rules that address the
infrastructure requirements (C) and (J). EPA is proposing approval of
Florida's March 15, 2012, submission in a rulemaking separate from
today's action.
    In this action, EPA is proposing to approve Florida's
infrastructure SIP for the 1997 annual and 2006 24-hour
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA 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 1997 annual and
2006 24-hour PM2.5 NAAQS. Final action to approve this
element, however, is contingent upon the Agency first taking final
action to approve Florida's March 15, 2012, PM2.5 NSR
Update. As discussed above, such action the March 15, 2012, submission
will occur in a separate rulemaking.
    4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: Chapter 62-210, Stationary Sources--General Requirements of
Florida's SIP, outlines how Florida will notify neighboring states of
potential impacts from new or modified sources. Florida does not have
any pending obligation under sections 115 and 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
1997 annual and 2006 24-hour PM2.5 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. EPA is proposing to approve Florida's SIP as meeting the
requirements of sub-elements 110(a)(2)(E)(i) and (iii). EPA is also
proposing to approve sub-element 110(a)(2)(E)(ii) (regarding state
boards), however, final approval of this sub-element is contingent upon
the Agency first taking final action to approve proposed revisions the
Florida's SIP related to this sub-element. See 77 FR 29581. EPA's
rationale for today's proposals respecting each sub-element is
described in turn below.
    In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), Florida's submissions note that FDEP is
responsible for promulgating rules and regulations for the NAAQS,
emissions standards general policies, a system of permits, fee
schedules for the review of plans, and other planning needs. As
evidence of the adequacy of FDEP's resources with respect to sub-
elements (i) and (iii), EPA submitted a letter to Florida on March 13,
2012, outlining the 105 grant commitments and current status of these
commitments for fiscal year 2011. The letter EPA submitted to Florida
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0382. 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
2011, therefore Florida's grants were finalized and closed out. EPA has
made the preliminary determination that Florida has adequate resources
for implementation of the 1997 annual and 2006 24-hour PM2.5
NAAQS. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are
met when EPA performs a completeness determination for each SIP
submittal. This determination ensures that each submittal provides
evidence that adequate personnel, funding, and legal authority under
state law has been use to carry out the state's implementation plan and
related issues. Florida's authority is included in all prehearings and
final SIP submittal packages for approval by EPA. EPA has made the
preliminary determination that Florida has adequate resources for
implementation of the 1997 annual and 2006 24-hour PM2.5
NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that: (1) The majority of
members of any 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 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. 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) (also made applicable to the
infrastructure

SIP pursuant to section 110(a)(2)(E)(ii)), on April 19, 2012, Florida
submitted Florida Statutes112.3143(4) and 112.3144 for incorporation
into the SIP. In a separate action, EPA has proposed approval of this
revision to the Florida SIP. See 77 FR 29581. EPA is today proposing
that this revision, once finalized, will be sufficient to satisfy the
110(a)(2)(E)(ii) conflict of interest provisions applicable to the head
of FDEP and all public officers within the Department. Final approval
of today's proposed rule is contingent upon the Agency first taking
final action to approve a final SIP revision consistent with the April
19, 2012, SIP revision.
    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 DEP 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 Florida SIP Chapters 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.
    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
(EIS). States report emissions data for the six criteria pollutants and
the precursors that form them--NOX, sulfur dioxide, ammonia,
lead, carbon monoxide, particulate matter, and volatile organic
compounds (VOCs). Many states also voluntarily report emissions of
hazardous air pollutants. Florida made its latest update to the NEI on
November 22, 2011. 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 1997 annual
and 2006 24-hour PM2.5 NAAQS.
    7. 110(a)(2)(G) Emergency power: Section 110(a)(2)(G) requires
states to provide for authority to address activities causing imminent
and substantial endangerment to public health, including contingency
plans to implement the emergency episode provisions in their SIPs. On
September 25, 2009, EPA released the guidance entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particulate (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' This guidance clarified that ``to address the
section 110(a)(2)(G) element, states with air quality control regions
identified as either Priority I, IA, or Priority II by the `Prevention
of Air Pollution Emergency Episodes' rule at 40 CFR 51.150, must
develop emergency episode contingency plans.'' EPA's September 25,
2009, guidance also states that ``until the Agency finalized changes to
the emergency episode regulation to establish for PM2.5
specific levels for classifying areas as Priority I, IA, or II for
PM2.5, and to establish a significant harm level (SHL)* *
*,'' it recommends that states with a 24-Hour PM2.5
concentration above 140 [mu]g/m\3\ (using the most recent three years
of data) develop an emergency episode plan. For states where this level
has not been exceeded, the state can certify that it has appropriate
general emergency powers to address PM2.5 related episodes,
and that no specific emergency episode plans are needed at this time.
On September 19, 2009, FDEP submitted a letter to EPA verifying that it
is a Class III Priority Area and is exempt from adopting emergency
episode plan for PM2.5. On September 23, 2009, FDEP
submitted certification that its SIP adequately addressed the section
110(a)(2)(G) requirements for the 2006 PM2.5 NAAQS. Florida
had not previously public noticed its certification submissions with
regard to 110(a)(2)(G) for the PM2.5 NAAQS, so on May 20,
2011, Florida provided public notice for this element.
    EPA has reviewed Florida's April 18, 2008, and September 23, 2009,
certifications and has determined that the ambient air quality
monitoring data from 2006 to 2011 for Florida did not exceed 140 [mu]g/
m\3\. The PM2.5 levels have consistently remained below this
level (140 [mu]g/m\3\). As a result, EPA is proposing to approve
Florida's infrastructure submissions for the 1997 and 2006
PM2.5 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 1997 annual or 2006 24-hour
PM2.5 standard, but has made an infrastructure submission
for these standards, 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 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
    9. 110(a)(2)(J) (121 consultation) Consultation with government
officials: Chapters 62-204, Air Pollution Control Provisions, and 62-
212, Stationary Sources--Preconstruction Review, of the Florida SIP, 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 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 approved Florida's consultation procedures on August 11, 2003 as
part of the approval of the State's transportation conformity rule (See
68 FR 47468). EPA has made the preliminary determination that Florida's
SIP and practices adequately demonstrate consultation with government
officials related to the 1997 annual and 2006 24-hour PM2.5
NAAQS when necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification:
FDEP has public notice mechanisms in place to notify the public of
pollutant

forecasting, including an air quality monitoring Web site providing
fine particulate alerts, http://www.dep.state.fl.us/air/air_quality/countyaqi.htm. Florida Statutes, 403.131, Injunctive relief, remedies
and 120.569 Decisions which affect substantial interests (subsection
(2)(n) relating to emergency orders), provide authority for the State
to seek injunctive relief to prevent irreparable damage to air quality.
In addition Chapter 62-256.300, Prohibitions, of the Florida SIP
includes provisions to monitor air pollution episodes for ozone and
particulate matter. 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 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: Florida
demonstrates its authority to regulate new and modified sources of PM
to assist in the protection of air quality in Florida. Chapters 62-210,
Stationary Sources--General Requirements, Section 200--Definitions, and
62-212, Stationary Sources--Preconstruction Review, Section 400--
Prevention of Significant Deterioration, of Florida's SIP provide the
permitting requirements for new major sources or major modifications of
existing sources in areas classified as attainment or unclassifiable
under section 107(d)(1)(A)(ii) or (iii) of the CAA. These provisions
are designed to prevent significant deterioration in air quality in
areas that are in attainment of the NAAQS at the time of designations.
As with infrastructure element 110(a)(2)(C), infrastructure element
110(a)(2)(J) also requires compliance with applicable provisions of the
PSD program described in part C of the Act. Accordingly, the pending
EPA action on the March 15, 2012, SIP revision (NSR Revisions), is a
prerequisite to today's proposed action to approve the State's
infrastructure element 110(a)(2)(J). See the discussion for element
110(a)(2)(C) above for a description of the pending revision to the
Florida SIP. The March 15, 2012, SIP revision addresses requisite
requirements of infrastructure element 110(a)(2)(J) (PSD and visibility
protection), therefore, today's action to propose approval of
infrastructure SIP element 110(a)(2)(J) (PSD and visibility protection)
is contingent upon EPA taking final action to approve the March 15,
2012, SIP revision into the Florida SIP.
    With regard to the applicable requirements for visibility
protection, 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 is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because this NAAQS would not affect visibility requirements under part
C. EPA has made the preliminary determination that Florida's SIP and
practices adequately demonstrate the State's ability to implement PSD
programs and to provide for visibility protection related to the 1997
annual and 2006 24-hour PM2.5 NAAQS when necessary. As
discussed above, final approval of this element is contingent upon the
Agency first taking final action to approve Florida's March 15, 2012,
PM2.5 NSR Update.
    12. 110(a)(2)(K) Air quality and modeling/data: Chapter 62-204.800,
Federal Regulations Adopted by Reference, of the Florida SIP
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.'' This regulation demonstrates that
Florida has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 1997 annual and
2006 24-hour PM2.5 NAAQS. Additionally, Florida supports a
regional effort to coordinate the development of emissions inventories
and conduct regional modeling for several NAAQS, including the 1997
annual and 2006 24-hour PM2.5 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 1997 annual and
2006 24-hour PM2.5 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 1997 annual and 2006
24-hour PM2.5 NAAQS when necessary.
    13. 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 Statute
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 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local
entities: Chapter 62-204, Air Pollution Control Provisions, of the
Florida SIP 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 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.

V. Proposed Action

    As described above, FDEP has addressed the required elements of the
CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2,
2007, and September 25, 2009, guidance to ensure that the 1997 annual
and 2006 24-hour PM2.5 NAAQS are implemented, enforced, and
maintained in Florida. EPA is proposing to approve Florida's
infrastructure submissions, provided to EPA on April 18, 2008, and on
September 23, 2009, with the exception of section 110(a)(2)(E)(ii)
which will be addressed in a separate action. EPA is proposing to
determine that Florida's infrastructure submission, provided to EPA on
April 18, 2008, addressed all the required infrastructure elements for
the 1997 annual PM2.5 NAAQS and on September 23, 2009,
addressed all the required infrastructure elements for the 2006 24-hour
PM2.5 NAAQS. Final approval of this rule is contingent upon
the Agency first taking final action to approve Florida's March 15,
2012, PM2.5 NSR Update submission \19\ and May 18, 2012
proposed rule to approve Florida's

April 19, 2012, submission addressing section 110(a)(2)(E)(ii).
---------------------------------------------------------------------------

    \19\ As noted above, EPA has yet to propose action on the March
15, 2012, PM2.5 NSR Update submission. Such proposed
action will occur in a separate rulemaking.
---------------------------------------------------------------------------

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 Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this 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

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

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

    Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-14244 Filed 6-11-12; 8:45 am]
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