Proposed Rule2023-16966
Air Plan Approval; FL; Noninterference Demonstrations for Removal of CAIR and Obsolete Rules in the Florida SIP
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 11, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a portion of a State Implementation Plan (SIP) revision submitted by the Florida Department of Environmental Protection (FDEP) on April 1, 2022, for the purpose of removing several rules from the Florida SIP. EPA is proposing to remove the State's Clean Air Interstate Rule (CAIR) rules from the Florida SIP as well as several Reasonably Available Control Technology (RACT) rules for particulate matter (PM) because these rules have become obsolete. The State has provided a non-interference demonstration to support the removal of these rules from the Florida SIP pursuant to the Clean Air Act (CAA or Act).
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 154 (Friday, August 11, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Proposed Rules]
[Pages 54534-54537]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16966]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2022-0608; FRL-10387-01-R4]
Air Plan Approval; FL; Noninterference Demonstrations for Removal
of CAIR and Obsolete Rules in the Florida SIP
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a portion of a State Implementation Plan (SIP) revision
submitted by the Florida Department of Environmental Protection (FDEP)
on April 1, 2022, for the purpose of removing several rules from the
Florida SIP. EPA is proposing to remove the State's Clean Air
Interstate Rule (CAIR) rules from the Florida SIP as well as several
Reasonably Available Control Technology (RACT) rules for particulate
matter (PM) because these rules have become obsolete. The State has
provided a non-interference demonstration to support the removal of
these rules from the Florida SIP pursuant to the Clean Air Act (CAA or
Act).
DATES: Comments are due on or before September 11, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0608 at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from <a href="http://Regulations.gov">Regulations.gov</a>. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Evan Adams, Air Regulatory Management
Section, Air Planning and Implementation Branch, Air and Radiation
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9009. Mr. Adams can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#1e7f7a7f736d307b687f705e7b6e7f30797168"><span class="__cf_email__" data-cfemail="89e8ede8e4faa7ecffe8e7c9ecf9e8a7eee6ff">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on 62-296.470, F.A.C., Implementation of Federal Clean
Air Interstate Rule
Under CAA section 110(a)(2)(D)(i)(I), which EPA has traditionally
termed the good neighbor provision, States are required to address the
interstate transport of air pollution. Specifically, the good neighbor
provision requires that each State's implementation plan contain
adequate provisions to prohibit air pollutant emissions from within the
State that will contribute significantly to nonattainment in, or
interfere with maintenance by, any other State with respect to any
national ambient air quality standard (NAAQS).
In 2005, EPA published CAIR to limit the interstate transport of
ozone and fine particulate matter (PM<INF>2.5</INF>) under the CAA's
good neighbor provision. See 70 FR 25162 (May 12, 2005). CAIR
originally required twenty-eight eastern States, including Florida, to
submit SIPs prohibiting emissions that exceeded:
(1) Annual budgets specific to each State for nitrogen oxides
(NO<INF>X</INF>)--an ozone precursor;
(2) ozone season budgets specific to each State for NO<INF>X</INF>;
and
(3) annual budgets specific to each State for sulfur dioxide
(SO<INF>2</INF>)--a PM<INF>2.5</INF> precursor. CAIR also established
several \1\ trading programs for these pollutants that EPA implemented
through Federal implementation plans (FIPs) for electric generating
units (EGUs) greater than 25 megawatts in each affected State.\2\
However, these trading programs did not apply to large non-EGUs. States
could then submit SIPs to replace the FIPs to achieve the required
emission reductions from EGUs and could choose to opt in non-EGU
sources.
---------------------------------------------------------------------------
\1\ CAIR had separate trading programs for annual SO<INF>2</INF>
emissions, ozone season NO<INF>X</INF> emissions, and annual
NO<INF>X</INF> emissions.
\2\ For additional background regarding these FIPs, including
details specific to Florida, see Proposed Approval of Implementation
Plans of Florida: Clean Air Interstate Rule, 72 FR 42344 (August 2,
2007).
---------------------------------------------------------------------------
On October 12, 2007, EPA approved a SIP revision for Florida
implementing the requirements of CAIR. See 72 FR 58016. That revision
to Florida's SIP included Rule 62-296.470, which, as discussed later in
this notice, EPA is now proposing to remove from Florida's SIP as
obsolete.
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896,
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling
allowed CAIR to remain in effect temporarily until a replacement rule
consistent with the court's opinion was developed. While EPA worked on
developing a replacement rule, the CAIR program continued to be
implemented with the NO<INF>X</INF> annual and ozone season trading
programs beginning in 2009 and the SO<INF>2</INF> annual trading
program beginning in 2010.
In response to the D.C. Circuit's remand of CAIR, EPA promulgated
the Cross-State Air Pollution Rule (CSAPR) to address the good neighbor
provision for the 1997 ozone NAAQS, the 1997 PM<INF>2.5</INF> NAAQS,
and the 2006 PM<INF>2.5</INF> NAAQS. See 76 FR 48208 (August 8, 2011).
CSAPR requires EGUs in many eastern States to meet annual and ozone
[[Page 54535]]
season NO<INF>X</INF> emission budgets and annual SO<INF>2</INF>
emission budgets implemented through new trading programs.
CSAPR also contained provisions that would sunset CAIR-related
obligations on a schedule coordinated with the implementation of CSAPR
compliance requirements. CSAPR was to become effective January 1, 2012;
however, the timing of CSAPR's implementation was impacted by a number
of court actions.
On December 30, 2011, the D.C. Circuit stayed CSAPR prior to its
implementation, and EPA was ordered to continue administering CAIR on
an interim basis.\3\ In a subsequent decision on the merits, the court
vacated CSAPR based on a subset of petitioners' claims.\4\ However, on
April 29, 2014, the U.S. Supreme Court reversed that decision and
remanded the case to the D.C. Circuit for further proceedings.\5\
Throughout the initial round of D.C. Circuit proceedings and the
ensuing Supreme Court proceedings, the stay on CSAPR remained in place,
and EPA continued to implement CAIR.
---------------------------------------------------------------------------
\3\ Order of December 30, 2011, in EME Homer City Generation,
L.P. v. EPA, D.C. Cir. No. 11-1302.
\4\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.
Cir. 2012), cert. granted 133 U.S. 2857 (2013).
\5\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584,
1600-01 (2014).
---------------------------------------------------------------------------
Following the April 2014 Supreme Court decision, EPA filed a motion
asking the D.C. Circuit to lift the stay in order to allow CSAPR to
replace CAIR in an equitable and orderly manner while further D.C.
Circuit proceedings were held to resolve remaining claims from
petitioners. Additionally, EPA's motion requested to toll, by three
years, all CSAPR compliance deadlines that had not passed as of the
approval date of the stay. On October 23, 2014, the D.C. Circuit
granted EPA's request, and on December 3, 2014 (79 FR 71663), in an
interim final rule, EPA set the updated effective date of CSAPR as
January 1, 2015, and tolled the implementation of CSAPR Phase 1 to 2015
and CSAPR Phase 2 to 2017.
In accordance with the interim final rule, the sunset date for CAIR
was December 31, 2014, and EPA began implementing CSAPR on January 1,
2015.\6\ However, EPA determined that CSAPR does not apply to Florida
after demonstrating that Florida does not contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
with respect to the covered NAAQS. See 81 FR 74505, 74506.\7\ Because
CSAPR replaced CAIR and EPA previously determined that CSAPR does not
apply to Florida, neither of these rules have any applicability in
Florida today.
---------------------------------------------------------------------------
\6\ See 40 CFR 51.123(ff) (sunsetting CAIR requirements related
to NO<INF>X</INF>); 40 CFR 51.124(s) (sunsetting CAIR requirements
related to SO<INF>2</INF>).
\7\ Additional updates were made to the CSAPR trading program
following its original approval on August 8, 2011, including the
CSAPR Update on October 26, 2016 (81 FR 74504) and Revised CSAPR
Update on April 30, 2021 (86 FR 23054) for ozone interstate
transport. These subsequent CSAPR rules continued to demonstrate
that sources in Florida were not significantly contributing to any
maintenance or nonattainment area, therefore, the CSAPR Update and
the Revised CSAPR Update do not apply for the State.
---------------------------------------------------------------------------
II. EPA's Analysis of the Removal of 62-296.470, F.A.C., Implementation
of Federal Clean Air Interstate Rule
Rule 62-296.470 was approved by EPA into the Florida SIP on October
12, 2007 (72 FR 58016). Florida repealed this rule on August 14, 2019,
through a State regulatory action because CAIR has sunset and, under
CSAPR, EPA determined that sources in Florida do not contribute
significantly to nonattainment in, or interfere with maintenance by,
any other State with respect to the covered NAAQS. The State has now
requested that EPA remove Rule 62-296.470 from the SIP.\8\ EPA proposes
to remove this rule from Florida's SIP because CAIR was remanded and
eventually replaced by the CSAPR which does not apply to Florida. For
these reasons, EPA believes the removal of this rule is appropriate and
consistent with all applicable requirements, including CAA section
110(l).\9\
---------------------------------------------------------------------------
\8\ In Florida's April 1, 2022, submittal, the State includes
other requested SIP revisions that EPA will address in subsequent
rulemakings.
\9\ CAA section 110(l) provides that EPA cannot ``approve a [SIP
revision] if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress .
. . or any other applicable requirement'' of the CAA. EPA has
reviewed Florida's CAA section 110(l) demonstration and
preliminarily agrees that removal of Rule 62-296.470 is compliant
with CAA section 110(l).
---------------------------------------------------------------------------
III. Background on 62-296.701, F.A.C., Portland Cement Plants; 62-
296.703, F.A.C., Carbonaceous Fuel Burners; 62-296.706, F.A.C., Glass
Manufacturing Process; 62-296.709, F.A.C., Lime Kilns; and 62-296.710,
F.A.C., Smelt Dissolving Tanks
On March 3, 1978, EPA designated all areas of the country for the
1971 total suspended particulates (TSP) NAAQS. Duval, Seminole, Polk,
and Hillsborough Counties in Florida were designated as not meeting the
secondary TSP standards. See 43 FR 8962, 8980 (March 3, 1978). After
several modifications to the designations, EPA determined that portions
of Seminole and Polk Counties were two full-county nonattainment areas
for the 1971 TSP standard.\10\ Because these two areas were in
nonattainment for the 1971 TSP standard, the State was required to
develop and submit to EPA plans to attain the standard, including
reasonably available control technology (RACT) regulations in the
Florida SIP to control TSP. Five of those RACT rules were the
predecessor rules to F.A.C. 62-296.701, 62-296.703, 62-296.706, 62-
296.709, and 62-296.710, which were approved into the Florida SIP on
May 2, 1983 (48 FR 19715).\11\
---------------------------------------------------------------------------
\10\ On September 11, 1978 (43 FR 40412), EPA completed a
modified designation following comment on the March 3, 1978, final
rule, revising the TSP nonattainment areas for Duval and
Hillsborough Counties to be partial counties and changing the
designation of Polk County to ``cannot be classified.'' On April 27,
1979 (44 FR 24845), EPA changed the designation of Seminole County
to ``cannot be classified'' for the TSP NAAQS. On November 18, 1982
(47 FR 51866), EPA changed the designation of part of Duval County
to attainment for the TSP NAAQS.
\11\ EPA later promulgated standards more stringent than the
prior TSP standards when it adopted the PM<INF>10</INF> NAAQS and
the PM<INF>2.5</INF> NAAQS. PM<INF>10</INF> is particulate matter
with an aerodynamic diameter of 10 microns or less, also referred to
as coarse PM; PM<INF>2.5</INF> is particulate matter with an
aerodynamic diameter of 2.5 microns or less, also referred to as
fine PM. All areas in Florida have been designated unclassifiable/
attainment for the primary and secondary 1987 annual and 24-hour
PM<INF>10</INF> NAAQS, 1997 annual and 24-hour PM<INF>2.5</INF>
NAAQS, 2006 annual and 24-hour PM<INF>2.5</INF> NAAQS, and 2012
annual and 24-hour PM<INF>2.5</INF> NAAQS. The 2012 PM<INF>2.5</INF>
NAAQS is the most recent revision to the suite of PM NAAQS,
published on January 15, 2013. The primary annual standard was
strengthened from 15.0 micrograms per cubic meter ([mu]g/m3) to 12.0
[mu]g/m3. See 78 FR 3086.
---------------------------------------------------------------------------
On February 1, 1990, as part of implementation of the
PM<INF>10</INF> NAAQS, EPA approved portions of Florida's
PM<INF>10</INF> SIP. See 55 FR 3403. Additionally, and of relevance to
this Notice, EPA explained that regarding Rule 17-2.650--Reasonably
Available Control Technology (RACT) (state effective May 30, 1988),
``[r]evisions have been made such that RACT for existing sources will
continue to be applied in the areas which are presently nonattainment
for TSP. The portion addressing RACT for new and modified sources has
been rescinded since the areas where this has been applied will have no
classification for PM<INF>10</INF>.'' Id. at 3406. Rule 17-2.650 was
later recodified to become Rules 62-296.700 through 62-296.712.\12\ In
that same February 1, 1990 rulemaking, EPA designated all remaining TSP
nonattainment areas within Florida as
[[Page 54536]]
unclassifiable.\13\ As FDEP notes elsewhere in its SIP submittal in
support of proposed revisions to Rule 62-296.700,\14\ Florida's PM RACT
rules only apply to emission units that have been issued an air permit
on or before May 30, 1988.<SUP>15 16</SUP>
---------------------------------------------------------------------------
\12\ For additional detail, please see the Florida rule history
posted at <a href="https://www.flrules.org/">https://www.flrules.org/</a>. For example, the historical
notes for Rule 62-296.701 are available at <a href="https://www.flrules.org/gateway/ruleno.asp?id=62-296.701">https://www.flrules.org/gateway/ruleno.asp?id=62-296.701</a>; see also 64 FR 32346 (June 16,
1999).
\13\ EPA approved a recodification to the 62-296.700 rules on
October 20, 1994 (59 FR 52916).
\14\ EPA will address revisions to this rule in a separate
notice.
\15\ On May 19, 1988, Florida submitted revisions to the SIP
regarding particulate matter. The rules submitted under the May 19,
1988, date were state effective on May 30, 1988. In these revisions,
which were approved by EPA on February 1, 1990 (55 FR 3403), EPA
approved Florida's changes to its particulate matter SIP that
clarify what areas of the state were covered by the PM RACT rules
and the location of PM (TSP) air quality maintenance areas and areas
of influence (areas within 50 kilometers outside the boundary of an
air quality maintenance area).
\16\ EPA will address Florida's proposed updates to F.A.C. 62-
296.700 in a separate rulemaking.
---------------------------------------------------------------------------
IV. EPA's Analysis of the Removal of 62-296.701, F.A.C., Portland
Cement Plants; 62-296.703, F.A.C., Carbonaceous Fuel Burners; 62-
296.706, F.A.C., Glass Manufacturing Process; 62-296.709, F.A.C., Lime
Kilns; and 62-296.710, F.A.C., Smelt Dissolving Tanks
According to Florida's submittal, there are no longer any units in
the State still in operation covered by Rules 62-296.701, 62-296.703,
62-296.706, 62-296.709, and 62-296.710. Because these rules only apply
to existing sources permitted on or before May 30, 1988, and FDEP
determined that there are no longer any existing sources subject to
these rules, FDEP likewise determined that removing these rules from
the SIP will not interfere with attainment or maintenance of the NAAQS,
prevention of significant deterioration increments, reasonable further
progress, or protection of visibility. FDEP repealed these rules at the
State level, effective on February 8, 2017. Because these rules only
apply to units that were permitted on or before May 30, 1988, and there
are no longer any existing sources subject to these rules, removing
these rules from the SIP will have no air quality impacts and is
consistent with CAA section 110(l). Therefore, EPA proposes to remove
these obsolete rules from the Florida SIP.
V. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
amended regulatory text that includes incorporation by reference. EPA
is proposing to remove Rules 62-296.470, F.A.C., Implementation of
Federal Clean Air Interstate Rule, 62-296.701, F.A.C., Portland Cement
Plants, 62-296.703, F.A.C., Carbonaceous Fuel Burners, 62-296.706,
F.A.C., Glass Manufacturing Process, 62-296.709, F.A.C., Lime Kilns,
and 62-296.710, F.A.C., Smelt Dissolving Tanks from the Florida SIP
which are incorporated by reference in accordance with the requirements
of 1 CFR part 51, and as discussed in Sections I through IV of this
preamble. EPA has made, and will continue to make the SIP generally
available at the EPA Region 4 Office (please contact the person
identified in the ``For Further Information Contact'' section of this
preamble for more information).
VI. Proposed Action
EPA is proposing to approve that portion of the April 1, 2022,
Florida SIP revision consisting of the removal of Rules 62-296.470,
F.A.C., Implementation of Federal Clean Air Interstate Rule, 62-
296.701, Portland Cement Plants, 62-296.703, Carbonaceous Fuel Burners,
62-296.706, Glass Manufacturing Process, 62-296.709, Lime Kilns, and
62-296.710, Smelt Dissolving Tanks, from the Florida SIP.
VII. Statutory and Executive Language
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air 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 Clean Air Act.
Accordingly, this proposed action merely proposes to approve State law
as meeting Federal requirements and does not impose additional
requirements beyond those imposed by State law. For that reason, this
proposed action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have Tribal implications and will not impose
substantial direct costs on Tribal governments or preempt Tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The FDEP did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this proposed action. Consideration
of EJ is not required as part of this proposal, and there is no
information in the record inconsistent with the stated goal of E.O.
12898 of achieving EJ for people of color, low-income populations, and
Indigenous peoples.
[[Page 54537]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2023-16966 Filed 8-10-23; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 11, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.