Approval and Promulgation of Air Quality Implementation Plan; Georgia; Disapproval of Interstate Transport Submission for the 2006 24-Hour PM2.5, 43159-43167 [2011-17998]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43159-43167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17998]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1012-201130; FRL-9438-2]


Approval and Promulgation of Air Quality Implementation Plan; 
Georgia; Disapproval of Interstate Transport Submission for the 2006 
24-Hour PM2.5 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to disapprove the portion of 
Georgia's October 21, 2009, submission which was intended to meet the 
requirement to address interstate transport for the 2006 24-hour fine 
particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). Additionally, EPA is responding to comments received 
on EPA's January 26, 2011, proposed disapproval of the aforementioned 
portion of Georgia's October 21, 2009, submission. On October 21, 2009, 
the State of Georgia, through the Georgia Environmental Protection 
Division (GA EPD), provided a letter to EPA certifying that the Georgia 
state implementation plan (SIP) meets the interstate transport 
requirements with regard to the 2006 24-hour PM2.5 NAAQS. 
Specifically, the interstate transport requirements under the Clean Air 
Act (CAA or Act) prohibit a state's emissions from significantly 
contributing to nonattainment or interfering with the maintenance of 
the NAAQS in any other state. The effect of today's action will be the 
promulgation of a Federal Implementation Plan (FIP) for Georgia no 
later than two years from the date of disapproval. The proposed 
Transport Rule, when final, is the FIP that EPA intends to implement 
for Georgia.

DATES: Effective Date: This rule will be effective August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-1012. All documents in the docket 
are listed on the https://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through https://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: For information regarding the Georgia 
SIP, contact Mr. Zuri Farngalo, 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. Mr. Farngalo's telephone number is (404) 
562-9152; e-mail address: farngalo.zuri@epa.gov. For information 
regarding the PM2.5 interstate transport requirements under 
section 110(a)(2)(D)(i), contact Mr. Steven Scofield, Regulatory 
Development Section, at the same address above. Mr. Scofield's 
telephone number is (404) 562-9034; e-mail address: 
scofield.steve@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. EPA's Responses to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that NAAQS. On December 18, 2006, EPA 
revised the 24-hour average PM2.5 primary and secondary 
NAAQS from 65 micrograms per cubic meter ([micro]g/m \3\) to 35 
[micro]g/m \3\, thus states were required to provide submissions to 
address section 110(a)(1) and (2) of the CAA (infrastructure SIPs) for 
this revised NAAQS. Georgia provided its infrastructure submission for 
the 2006 PM2.5 NAAQS on October 21, 2009. On January 26, 
2011, EPA proposed to disapprove the portion of Georgia's October 21, 
2009, infrastructure submission related to interstate transport (i.e., 
110(a)(2)(D)(i)(I)) for the 2006 PM2.5 NAAQS. See 76 FR 
4584. A summary of the background for this final action is provided 
below.
    Section 110(a)(2) lists the elements that infrastructure SIPs must 
address, as applicable, including section 110(a)(2)(D)(i), which 
pertains to interstate transport of certain emissions. States were 
required to provide submissions to address the applicable 110(a)(2) 
infrastructure requirements, including section 110(a)(2)(D)(i), by 
September 21, 2009.\1\
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    \1\ The rule for the revised PM2.5 NAAQS was signed 
by the Administrator and publically disseminated on September 21, 
2006. Because EPA did not prescribe a shorter period for 110(a) SIP 
submittals, the submittals for the 2006 24-hour NAAQS were due on 
September 21, 2009, three years from the September 21, 2006, 
signature date.
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    On September 25, 2009, EPA issued a guidance entitled ``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)'' (2006 PM2.5 NAAQS Infrastructure 
Guidance). EPA developed the 2006 PM2.5 NAAQS Infrastructure 
Guidance to make additional recommendations to states for making 
submissions to meet the requirements of section 110, including 
110(a)(2)(D)(i) for the revised 2006 24-hour PM2.5 NAAQS.
    As identified in the 2006 PM2.5 NAAQS Infrastructure 
Guidance, the ``good neighbor'' provisions in section 110(a)(2)(D)(i) 
require each state to submit a SIP that prohibits emissions that 
adversely affect another state in the ways contemplated in the CAA. 
Section 110(a)(2)(D)(i) contains four distinct requirements related to 
the impacts of interstate transport. Specifically, the SIP must prevent 
sources in the state from emitting pollutants in amounts which will: 
(1) Contribute significantly to nonattainment of the NAAQS in other 
states; (2) interfere with maintenance of the NAAQS in other states; 
(3) interfere with provisions to prevent significant deterioration of 
air quality in other states; or (4) interfere with efforts to protect 
visibility in other states.
    In the 2006 PM2.5 NAAQS Infrastructure Guidance, EPA 
explained that submissions from states pertaining to the ``significant 
contribution'' and ``interfere with maintenance'' requirements in 
section 110(a)(2)(D)(i)(I) must contain adequate provisions to prohibit 
air pollutant emissions from within the state that contribute 
significantly to nonattainment or

[[Page 43160]]

interfere with maintenance of the NAAQS in any other state. EPA 
described a number of considerations for states for providing an 
adequate demonstration to address interstate transport requirements in 
the 2006 PM2.5 NAAQS Infrastructure Guidance. First, EPA 
noted that the state's submission should explain whether or not 
emissions from the state contribute significantly to nonattainment or 
interfere with maintenance of the NAAQS in any other state and, if so, 
address the impact. EPA stated that the state's conclusion should be 
supported by an adequate technical analysis. Second, EPA recommended 
the various types of information that could be relevant to support the 
state's submission, such as information concerning emissions in the 
state, meteorological conditions in the state and the potentially 
impacted states, monitored ambient concentrations in the state, and air 
quality modeling. Third, EPA explained that states should address the 
``interfere with maintenance'' requirement independently which requires 
an evaluation of impacts on areas of other states that are meeting the 
2006 24-hour PM2.5 NAAQS, not merely areas designated 
nonattainment. Lastly, EPA explained that states could not rely on the 
Clean Air Interstate Rule (CAIR) to comply with CAA section 
110(a)(2)(D)(i) requirements for the 2006 24-hour PM2.5 
NAAQS because CAIR does not address this NAAQS. CAIR, promulgated by 
EPA on May 12, 2005 (see 70 FR 25162), required states to reduce 
emissions of sulfur dioxide and nitrogen oxides that significantly 
contribute to, and interfere with maintenance of the 1997 
PM2.5 NAAQS and/or ozone in any downwind state. CAIR was 
intended to provide states covered by the rule with a mechanism to 
satisfy their CAA section 110(a)(2)(D)(i)(I) obligations to address 
significant contribution to downwind nonattainment and interference 
with maintenance in another state with respect to the 1997 ozone and 
PM2.5 NAAQS. Many states adopted the CAIR provisions and 
submitted SIPs to EPA to demonstrate compliance with the CAIR 
requirements in satisfaction of their 110(a)(2)(D)(i)(I) obligations 
for those two pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit (DC Circuit or Court) issued its decision to vacate 
and remand both CAIR and the associated CAIR FIPs in their entirety. 
North Carolina v. EPA, 531 F.3d 836 (DC Circuit, July 11, 2008). 
However, in response to EPA's petition for rehearing, the Court issued 
an order remanding CAIR to EPA without vacating either CAIR or the CAIR 
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Circuit, December 23, 
2008). The Court thereby left CAIR in place in order to ``temporarily 
preserve the environmental values covered by CAIR'' until EPA replaces 
it with a rule consistent with the Court's opinion. Id. at 1178. The 
Court directed EPA to ``remedy CAIR's flaws'' consistent with its July 
11, 2008, opinion, but declined to impose a schedule on EPA for 
completing that action. Id.
    In order to address the judicial remand of CAIR, EPA has proposed a 
new rule to address interstate transport pursuant to section 
110(a)(2)(D)(i), the ``Federal Implementation Plans to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport 
Rule).\2\ As part of the proposed Transport Rule, EPA specifically 
examined the section 110(a)(2)(D)(i) requirements that emissions from 
sources in a state must not ``significantly contribute to 
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour 
PM2.5 NAAQS by other states. The modeling performed for the 
proposed Transport Rule shows that Georgia significantly contributes to 
nonattainment or interferes with maintenance of the 2006 24-hour 
PM2.5 NAAQS in downwind areas. EPA has now completed the 
modeling for the final Transport Rule and, as indicated by the 
technical support documents for this action, Georgia in fact 
contributes to downwind nonattainment in another state or interferes 
with maintenance of the 2006 24-hour PM2.5 NAAQS in another 
state.
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    \2\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
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    On October 21, 2009, the State of Georgia, through GA EPD, provided 
a letter to EPA certifying that the Georgia SIP meets the interstate 
transport requirements with regard to the 2006 24-hour PM2.5 
NAAQS.\3\ Specifically, Georgia certified that its current SIP 
adequately addresses the elements of CAA section 110(a)(2)(D)(i)(I) for 
the 2006 24-hour PM2.5 NAAQS. CAA section 110(a)(2)(D)(i)(I) 
requires that implementation plans for each state contain adequate 
provisions to prohibit air pollutant emissions from sources within a 
state from significantly contributing to nonattainment in or 
interfering with maintenance of the NAAQS (in this case the 2006 24-
hour PM2.5 NAAQS) in any other state. On January 26, 2011, 
EPA proposed to disapprove the portion of Georgia's October 21, 2009, 
submission related to interstate transport for the 2006 24-hour 
PM2.5 NAAQS because EPA made the preliminary determination 
that Georgia's October 21, 2009, submission does not meet the 
requirements of section 110(a)(2)(D)(i)(I) of the CAA for this NAAQS. 
This action is finalizing EPA's disapproval of Georgia's October 21, 
2009, submission with regard to section 110(a)(2)(D)(i)(I) of the CAA 
for the 2006 24-hour PM2.5 NAAQS. See EPA's January 26, 
2011, proposed disapproval rulemaking at 76 FR 4584 for further 
information on EPA's rationale for this final action.
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    \3\ Georgia's October 21, 2009, certification letter also 
explained that Georgia's current SIP sufficiently addresses other 
requirements of section 110(a)(2) for the 2006 24-hour 
PM2.5 NAAQS; however, today's final rulemaking only 
relates to the section 110(a)(2)(D)(i)(I) requirements for the 2006 
24-hour PM2.5 NAAQS. EPA will address the other section 
110(a)(2) requirements for the 2006 24-hour PM2.5 NAAQS 
in relation to Georgia's SIP in a rulemaking separate from today's 
final rulemaking.
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II. EPA's Responses to Comments

    EPA received three sets of adverse comments on the January 26, 
2011, proposed rulemaking to disapprove the portion of Georgia's 
October 21, 2009, infrastructure submission on the interstate transport 
requirements of sections 110(a)(2)(D)(i)(I) of the CAA for the 2006 24-
hour PM2.5 NAAQS. A full set of the comments provided by GA 
EPD, the North Carolina Department of Environment and Natural 
Resources, and Georgia Power (hereinafter referred to as ``the 
Commenters'') are provided in the docket for this final action. As a 
general matter, the comments overlapped on some issues, and as a 
result, EPA has organized the response to comments by issue. In 
addition, EPA acknowledges Georgia's comments regarding SIP processing 
in general. As Georgia is aware, EPA is considering improvements to the 
SIP process and appreciates Georgia's comments in that regard.
    For the most part, the Commenters oppose EPA's proposed disapproval 
action for the interstate portion of Georgia's October 21, 2009, 
infrastructure submission for the 2006 24-hour PM2.5 NAAQS. 
The comments fall generally into the following categories: (1) 
Correction for reference to ``CSA''; (2) concerns regarding states' 
inability to rely on CAIR to satisfy the 110(a)(2)(D)(i)(I) 
requirements for the 2006 24-hour PM2.5 NAAQS; (3) apparent 
lack of guidance from EPA on how states should meet the requirements; 
(4) concerns regarding the procedure of taking action to disapprove

[[Page 43161]]

Georgia's submittal; (5) acknowledgement of states' efforts and air 
quality conditions; and (6) concerns related to the Transport Rule. A 
summary of the comments and EPA's responses are provided below.

Correction for Inadvertent Reference to ``CSA'' in Georgia Rulemaking

    Comment 1: One Commenter states that on page 4586 of the Federal 
Register notice of EPA's January 26, 2011, proposed disapproval, that 
``EPA makes a reference to `CSA' that appears to be completely out of 
place.'' The Commenter goes on to state that ``[t]here appears to be no 
basis for this reference and certainly has no relation to anything that 
Georgia included in our SIP submittal.''
    Response 1: EPA agrees with this comment, and notes that the 
reference to ``CSA'' in EPA's January 26, 2009, proposed disapproval 
action related to a portion of Georgia's October 21, 2009, submission 
was a typographical error. ``CSA'' should be replaced with ``Georgia 
Multi-pollutant Rule'' and as such is being corrected in this final 
rule. In reviewing Georgia's SIP revision, EPA was aware of Georgia's 
multi-pollutant rule.

States' Inability To Rely on CAIR To Satisfy the 110(a)(2)(D)(i)(I) 
Requirements for the 2006 24-Hour PM2.5 NAAQS

    Comment 2: All Commenters express concern with EPA's proposed 
disapproval and assert that states should be able to rely on the Clean 
Air Interstate Rule (CAIR) to address the transport requirements in 
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. 
The Commenters explain that the Court left CAIR in place and opine that 
states should be able to rely on emissions reductions from CAIR to 
address transport. One Commenter also mentions that ``[t]he Court did 
not impose a schedule on EPA for completing the Transport Rule; 
therefore, states have no assurances that EPA will ever replace the 
CAIR rule. Since there is no guarantee that the Transport Rule will be 
promulgated in a timely manner, states cannot rely on the reductions in 
the proposed Transport Rule and must rely on the CAIR reductions, which 
are permanent and enforceable.'' Another Commenter states: ``[b]ased on 
the belated guidance, EPA prohibits the states from relying in any way 
on emission reductions required under CAIR even though the rule remains 
in place today, is federally enforceable and is achieving the 
anticipated emissions reductions.''
    Response 2: As discussed in EPA's September 25, 2009, guidance, 
``Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for 
the 24-Hour Fine Particle (PM2.5) National Ambient Air 
Quality Standards (NAAQS)'' (hereinafter referred to as ``EPA's 2009 
Guidance''), states cannot rely on the CAIR rule for the submission for 
the 2006 24-hour PM2.5 NAAQS because CAIR does not address 
this NAAQS, and was never intended to address this NAAQS. CAIR was 
originally put in place to address the 1997 8-hour ozone and 
PM2.5 NAAQS. In order to adequately address the requirements 
of section 110(a)(2)(D)(i)(I), states can only rely on permanent 
emission reductions to address transport for the 2006 24-hour 
PM2.5 NAAQS, and must include an appropriate technical 
demonstration.

Comments Regarding Guidance From EPA on How States Should Meet the 
Requirements

    Comment 3: Two Commenters note that that 110(a)(2) infrastructure 
SIPs for the 24-hour PM2.5 NAAQS were due September 21, 
2009, but EPA's guidance was not released to the states until September 
25, 2009.
    Response 3: While EPA's 2009 Guidance regarding the 110(a)(2) 
infrastructure SIPs for the 2006 24-hour PM2.5 NAAQS was 
released on September 25, 2009, this guidance did not establish new 
requirements beyond those already required by section 
110(a)(2)(D)(i)(I) of the CAA. Relevant portions of section 110(a)(2) 
require, as follows, ``Each [implementation plan submitted by a State 
under this chapter] shall * * * contain adequate provisions--(i) 
prohibiting, consistent with the provisions of this subchapter, any 
source or other type of emissions activity within the State from 
emitting any air pollutant in amounts which will--contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other State with respect to any such national primary or secondary 
ambient air quality standard * * * '' States are statutorily obligated 
to address the requirements of section 110(a)(2)(D)(i)(I) for the 2006 
24-hour PM2.5 NAAQS. This above-quoted provision provides 
States with the requirement.
    Comment 4: Two Commenters express concern about communication in 
the SIP process. The Commenters go on to say that ``[e]ven though EPA's 
guidance was released only a short time later, EPA Region 4 gave 
absolutely no indication to its co-regulators that there would be a 
fatal flaw with the submittal.'' The commenter further states that, 
``it wasn't until a year later that states were informed via an e-mail 
on August 27, 2010, that `All Region 4 states submitted complete 
infrastructure SIPs for the 2006 PM2.5 NAAQS, and our 
intention is to disapprove the 110(a)(2)(D)(i)(I) portion of those 
unless it is withdrawn by the state.' ''
    Response 4: EPA disagrees with the Commenters' assertion that they 
were initially notified in an August 27, 2010, e-mail about EPA's 
expectations and concerns with states' submissions reliance on CAIR to 
meet the requirements for section 110(a)(2)(D)(i)(I) for the 2006 24-
hour PM2.5 NAAQS. As was explained above, Georgia's 
obligation stems from the CAA. As is EPA's practice, EPA reminded the 
States on a number of occasions of the interstate transport obligations 
in 110(a)(2)(D)(i)(I). In addition to the informal reminders (via e-
mail and teleconferences, among other avenues), EPA's January 2011 
proposal served as a formal, legal notification and provided for a 
formal opportunity for public comment.
    Although EPA reminded states of EPA's expectations and concerns 
with states' reliance on CAIR to meet the requirements for section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS in an 
August 27, 2010, e-mail, EPA formally notified states of the 
expectations and concerns in the EPA's 2009 Guidance. Specifically, EPA 
noted that SIP submissions that relied on CAIR for satisfying the 
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5 
NAAQS would be inadequate, as CAIR did not address this NAAQS. EPA's 
proposed disapproval of the portion of Georgia's October 21, 2009, 
submission did not occur until January 2011, which was over a year 
after EPA's notification (through the release of the 2006 
PM2.5 NAAQS Infrastructure Guidance) of any states' 
deficiency for meeting the 110(a)(2)(D)(i)(I) requirement for the 2006 
24-hr PM2.5 NAAQS had that state relied on CAIR. Thus, 
Georgia had notification and an opportunity to provide supplemental 
information between the release of EPA's 2009 Guidance and EPA's 
proposed disapproval action in January 2011.
    Georgia did provide some information in its comment letter on the 
January 2011 proposal. This information was also provided to EPA as 
part of Georgia's comments on the proposed Transport Rule. EPA's 
Transport Rule is expected to address those issues as part of the 
Federal Implementation Plan included as part of the Transport Rule. 
However, the information provided in Georgia's comment letter is not 
adequate to meet the requirements of section

[[Page 43162]]

110(a)(2)(D)(i)(I) as a formal SIP submittal.
    Comment 5: One Commenter raises concerns with EPA treating its 2009 
Guidance as ``binding'' and suggests that this action is contrary to 
statements made by EPA in support of EPA and states being ``co-
regulators.''
    Response 5: EPA disagrees with the Commenter's assertion that the 
proposed disapproval is contrary to EPA treating the states as co-
regulators. As was explained earlier, EPA has regular contact with its 
state co-regulators. With regard to the proposed disapproval action, 
EPA corresponded with Georgia regarding the October 21, 2009, submittal 
prior to the proposed disapproval. In the past several months, EPA has 
corresponded with Georgia on a number of occasions regarding other SIP 
revisions and EPA's consideration of those revisions--as is EPA's 
typical practice to support the co-regulator relationship.
    Further, EPA notes that the January 26, 2011, proposed disapproval 
of Georgia's October 21, 2009, submission as it relates to satisfying 
the 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour 
PM2.5 NAAQS is based on EPA's determination that Georgia did 
not provide adequate information to demonstrate compliance with the 
requirements of section 110(a)(2)(D)(i)(I) for the 2006 24-hour 
PM2.5 NAAQS for Georgia. No new requirements were introduced 
in EPA's 2009 Guidance. This guidance simply provided additional 
clarifications but the CAA requirements existed long before Georgia's 
September 21, 2009, deadline for a SIP submission. Notably, Georgia's 
submission was provided after EPA's 2009 Guidance.
    Comment 6: One Commenter mentions that ``EPA has not stated the 
amount of reduction they believe is needed to satisfy the transport 
requirements. Not only is this a situation where EPA moves the finish 
line (by releasing guidance AFTER the due date), the finish line isn't 
even knowable (because EPA refuses to inform the states how much 
reduction is enough to satisfy the requirements). EPA seems to say that 
it has to be whatever the final Transport Rule says, even though there 
is no final Transport Rule.''
    Response 6: EPA disagrees with this comment. As was explained 
earlier, the state obligation stems from the CAA itself. As co-
regulators, EPA makes efforts to assist states in submitting approvable 
revisions--and EPA took such action with EPA's 2009 Guidance. States 
had an opportunity to conduct their own analyses regarding interstate 
transport. Section 110(a)(2) requires that the state's submission 
contain adequate provisions prohibiting emissions from the state that 
contribute significantly to nonattainment of or interfere with 
maintenance of the NAAQS in any other state. In order to ensure 
compliance with the CAA's mandate of ``adequate'' provisions, the 
state's SIP revision must be supported by an adequate technical 
analysis, including, but not limited to, information concerning 
emissions in the state, meteorological conditions in the state and the 
potentially impacted states, monitored ambient concentrations in the 
state and the potentially impacted states, the distance to the nearest 
area that is not attaining the NAAQS in another state, and air quality 
modeling. EPA appreciates that Georgia has initiated the process of 
such an analysis (which is included in Georgia's comment letter).
    Comment 7: One Commenter notes EPA's statement in the January 26, 
2011, proposed disapproval where the Agency states: ``* * * without an 
adequate technical analysis EPA does not believe that states can 
sufficiently address the section 110(a)(2)(D)(i)(I) requirement for the 
2006 PM2.5 NAAQS.'' The Commenter mentions that they, and possibly 
other states, were precluded from providing the necessary technical 
analysis by EPA because EPA did not release the guidance until after 
the SIP submission deadline. Further, the Commenter notes that EPA did 
not provide specific criteria for the technical analysis in the 2006 
PM2.5 Infrastructure Guidance, and mentions that ``[h]ad EPA 
provided adequate criteria for an approvable SIP in a timely manner, it 
is likely that [the state] would have been able to submit an approvable 
SIP by the statutory deadline.'' Another Commenter states: ``EPA has 
not provided Georgia and other similarly situated states with a 
meaningful opportunity to develop the required SIP.'' Further, the 
Commenter mentions that ``States cannot possibly be expected to develop 
approvable SIPs without knowing in advance the standards against which 
those SIPs will be judged.''
    Response 7: EPA does not agree with the Commenter's assertions. As 
was explained earlier, the SIP submission requirement is identified in 
the CAA. EPA provided guidance before Georgia submitted its October 21, 
2009, SIP revision. In addition, States were alerted that a technical 
analysis that involved modeling and permanent, enforceable emission 
reductions could be used to make an adequate demonstration to satisfy 
the 110(a)(2)(D)(i)(I) requirement for the 1997 PM2.5 and 
ozone NAAQS when EPA promulgated CAIR in 2005. Due to the legal status 
of CAIR, states relying on CAIR as permanent were taking a risk given 
EPA's proposed Transport Rule and the court decision on CAIR. Further, 
states were officially informed that the 110(a)(2)(D)(i)(I) requirement 
for the 2006 24-hour PM2.5 NAAQS could not be satisfied by 
reliance on CAIR (since that rule did not consider the 2006 24-hour 
PM2.5 NAAQS) when EPA released EPA's 2009 Guidance . The 
submittal by Georgia relied on CAIR and it did not include a technical 
analysis--despite EPA's efforts to alert states that mere reliance on 
CAIR, on its own, would not meet the CAA requirements. EPA appreciates 
that Georgia's comment letter on the January 2011 proposal did provide 
additional technical support. As Georgia itself noted, some of the 
information provided by Georgia on the January 2011 disapproval 
proposal was also provided to EPA in response to the proposed Transport 
Rule. As was discussed in an earlier response, the technical 
information provided is not adequate to meet section 110(a)(2)(D)(i)(I) 
requirements.
    Comment 8: One Commenter mentions that ``Georgia learned for the 
first time in this proposed disapproval that the only thing preventing 
us from having our SIP approved is an adequate technical analysis.'' 
The Commenter then asserts that ``* * * since EPA has not provided a 
`reasonable deadline' to correct the deficiency, we are including our 
technical analysis as part of our comments on this proposal.''
    Response 8: Consistent with section 110 of the CAA and implementing 
regulations at 40 CFR part 51, and as a general matter, ``adequate 
technical analyses'' are a cornerstone of ensuring that SIP revisions 
are approvable. EPA has addressed the timing of information in previous 
comments, but to underscore that point, EPA alerted states formally 
upon the release of the 2006 PM2.5 NAAQS Infrastructure 
Guidance that CAIR could not be used to meet the 110(a)(2)(D)(i)(I) 
requirement for the 2006 PM2.5 NAAQS. Georgia acknowledges 
as such in the October 21, 2009, infrastructure submission. With regard 
to the latter point in the comment and the technical analysis, see 
Response 7, above. In addition, there are formal SIP revision 
requirements described in 40 CFR part 51, subpart F. EPA does not agree 
that Georgia's comments on the January 2011 disapproval proposal may be 
considered a ``SIP revision;'' nonetheless, EPA did review the comments 
as was described in Response 7, above. Further information regarding 
the path forward

[[Page 43163]]

following today's action is described below.
    Upon disapproval of Georgia's submittal, EPA has a legal 
obligation, pursuant to the Act, to promulgate a FIP. Section 110(a)(1) 
of the Act requires states to submit SIPs that meet certain 
requirements within three years of promulgation of a NAAQS. These SIPs 
are required to contain, among other things, adequate provisions 
``prohibiting, consistent with the provisions of this subchapter, any 
source or other type of emissions activity within the state from 
emitting any air pollutant in amounts which will--(I) contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other state with respect to any such national primary or secondary 
ambient air quality standard.'' Section 110(a)(1) gives the 
Administrator authority to prescribe a period shorter than three years 
for the states to adopt and submit such SIPs, but does not give the 
Administrator authority to lengthen the time allowed for submission.
    Section 110(c)(1) of the Act, in turn, requires EPA to promulgate 
FIPs if EPA has found that the state has failed to make a required 
submission or if EPA has disapproved a state submission our found it to 
be incomplete. Specifically, section 110(c)(1) requires EPA to 
promulgate a FIP within two years after the Administrator ``(A) finds 
that a state has failed to make a required submission or finds that the 
plan or plan revision submitted by the state does not satisfy the 
minimum criteria established under subsection (k)(1)(A) of this section 
or (B) disapproves a state implementation plan submission in whole or 
in part.'' The Act uses mandatory language, finding that EPA shall 
promulgate a FIPs at any time within 2 years after the actions 
identified 110(c)(1)(A) or 110(c)(1)(B) have occurred. EPA's legal 
obligation to promulgate FIPs arises when those actions occur without 
regard to the underlying reason for the underlying state SIP 
deficiency. The obligation to promulgate a FIP must be discharged by 
EPA unless two conditions are met: (1) The state corrects the 
deficiency; and (2) the Administrator approves the plan or plan 
revision, before the Administrator promulgates the FIP.
    Under this statutory scheme, EPA has authority and an obligation to 
promulgate a FIP to correct a SIP deficiency if the actions identified 
in section 110(c)(1)(A) or (B) have been taken, and the two conditions 
identified in 110(c)(1) have not been met. The question of whether EPA 
has authority to promulgate any particular FIP, therefore, must be 
considered on a state specific basis.
    EPA disagrees with the Commenter's suggestion that the rule is 
inconsistent with the CAA because it does not give states time to 
develop, submit and receive EPA approval of SIPs before the FIP goes 
into effect. Section 110(a)(2) calls on states to submit SIPs that 
contain adequate provisions prohibiting the emissions proscribed by 
section 110(a)(2)(D)(i)(I). However, when EPA has not received such SIP 
submission or has disapproved a SIP submission, it has an obligation 
created by section 110(c)(1) to promulgate a FIP that meets the 
requirements of section 110(a)(2)(D)(i)(I). EPA does not believe it has 
authority to adjust the deadlines established in the Act in order to 
give states additional time, after promulgation of the Transport Rule, 
to submit SIPs that comply with section 110(a)(2)(D)(i)(I). EPA does 
not believe it has authority to alter the statutory requirement that it 
promulgate FIPs within two years of making a finding of failure to 
submit. EPA sought to discharge this duty with respect to the states 
covered by CAIR for the PM2.5 NAAQS by promulgating CAIR; 
however, the Court found that rule unlawful and not sufficiently 
related to the statutory mandate of section 110(a)(2)(D)(i)(I). For 
this reason, EPA does not believe it could argue that the CAIR FIPs 
completely discharged its duty to promulgate FIPs with respect to the 
states whose section 110(a)(2)(D)(i)(I) SIPs are disapproved.
    EPA is following the SIP process established in the statute. The 
110(a) SIPs for the 2006 PM2.5 standard were due in 2009. In 
each case, states were given the full 3 years to meet the requirement. 
The Transport Rule provides the FIP to fulfill the requirement that was 
unmet by the states through SIPs. EPA is required to promulgate a FIP 
within 2 years of a state's failure to have an approved SIP. States 
were in fact given the first chance to fulfill the requirement of 
Section 100(a)(2)(D)(i)(I). EPA's action is subsequent to the State's 
opportunity to first fulfill the requirement.
    EPA has made every attempt to smooth the transition between the 
requirements of CAIR and those of the forthcoming Transport Rule. For 
future requirements, EPA will also make every effort to address 
transition issues. However, EPA cannot ignore its statutory obligations 
and therefore cannot ensure that no new requirements will be placed on 
the sources being regulated by this action. Every time a NAAQS is 
revised, there is a statutory obligation for states to submit SIPs to 
address certain CAA requirements. If states fail to meet the deadlines 
or submit incomplete or inadequate SIPs, EPA must act to ensure that 
the requirements are put into place.
    Even though EPA is issuing a FIP, the State still has the 
opportunity to submit a SIP that can tailor requirements to the 
specific needs and concerns of the State in order to meet the 
applicable state budgets. Prior to this action, states had ample time 
under the provisions of the CAA to develop and submit approvable SIPs 
and did not. No state affected by the Transport Rule has submitted a 
SIP to replace the emission reductions that were required by CAIR, 
despite the North Carolina opinion issued in December 2008 that clearly 
said CAIR did not adequately address 110(a)(2)(D)(i)(I). While the 
remand left CAIR in place and states and sources were required to 
continue to comply with it, states had the opportunity to develop 
replacement measures to ensure that 110(a)(2)(D)(i)(I) components of 
their SIPs would continue to be fulfilled in the future.

Objection to the Use of Disapproval Actions for States' Implementation 
Plans

    Comment 9: Three Commenters express concerns about EPA's proposed 
disapproval and indicate that EPA had an obligation to use section 
110(k)(5) of the CAA. One Commenter states: ``EPA continues to be 
resistant to exploring a legislative approach to fixing some of the SIP 
issues, yet the correct process under the existing Clean Air Act to 
appropriately address this issue is not being used.'' The Commenter 
goes on to state: ``Section 110(k) requires that when EPA finds a plan 
to be inadequate, EPA shall (1) require the state to revise the plan, 
(2) notify the state of the inadequacy, and (3) may establish 
reasonable deadlines not to exceed 18 months.'' Additionally, the 
Commenter mentions that in their opinion, ``The proposed disapproval 
completely ignores 1 and 3 and only partially 
satisfies 2. Regarding 2, the EPA proposal simply 
states EPA's position that the SIP is inadequate, but fails to notify 
us `of the inadequacy.' '' The Commenter asserts that ``* * * EPA still 
has failed to provide any specificity on what is required of a state to 
submit an approvable SIP,'' and mentions that ``These Clean Air Act 
requirements are not discretionary, and that `EPA must comply with the 
provisions of Section 110(k)(5) by providing a reasonable period of 
time to allow [the state] to satisfy the inadequacy and sufficient and 
timely instructions on what is required to revise the plan instead of

[[Page 43164]]

relying on a theoretical FIP as the sole remedy.' '' The Commenter 
concludes by stating that ``EPA may not take final action on this 
proposal until it complies with Section 110(k)(5) of the Clean Air 
Act.'' Another Commenter states ``[s]ection 110(k)(5) requires EPA to 
notify the State of the inadequacies and authorizes the Agency to 
establish reasonable deadlines for the submission of such plan 
revisions.'' That Commenter goes on to conclude that ``[t]he proposed 
disapproval of Georgia's SIP in combination with the proposed FIP 
violates these requirements.''
    Response 9: The issues raised in this comment are also addressed by 
Response 8, above. To further clarify what is included in Response 8, 
Georgia's October 21, 2009, submission relating to section 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS is being 
disapproved pursuant to sections 110(k)(2) and (3) of the CAA, not 
section 110(k)(5). Section 110(k)(5) is applicable to SIPs that have 
been federally-approved, and are subsequently found to be substantially 
inadequate. This is not the case for Georgia's October 21, 2009, 
submission relating to section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS. The October 21, 2009, submission was provided 
to EPA for a new requirement that was triggered by the promulgation of 
the 24-hour PM2.5 NAAQS in 2006. EPA is required under 
section 110(k)(3) to act upon a state submittal with an approval or 
disapproval, within the time period designated under section 110(k)(2). 
With this action, EPA is disapproving Georgia's October 21, 2009, 
submission relating to section 110(a)(2)(D)(i)(I), because EPA has made 
the determination that the Georgia SIP does not satisfy these 
requirements for the 2006 PM2.5 NAAQS. Georgia's submission 
is inadequate for its failure to meet the statutory requirements of 
110(a)(2)(D)(i)(I) as noted above. The State can correct the deficiency 
by submitting a transport SIP that meets the provisions of the final 
Transport Rule or otherwise eliminates significant contribution and 
interference with maintenance. See Response to Comment 8.
    Comment 10: One Commenter expresses concern about EPA's statement 
in the January 26, 2011, proposed disapprovals regarding the Agency not 
taking action on some elements of the states' 2006 24-hour 
PM2.5 infrastructure submissions, and notes the Agency's 
statutory timeframe for taking action on SIP submissions. Specifically, 
the Commenter cites the following statement from EPA's January 26, 
2011, proposed rule: ``[t]herefore, EPA is proposing to disapprove 
those provisions which relate to the 110(a)(2)(D)(i)(I) demonstration 
and to take no action on the remainder of the demonstration at this 
time.'' The Commenter mentions that EPA is ``clearly in violation of 
Clean Air Act Section 110(k)(2)'' by not taking action on the remainder 
of the states' submissions.
    Response 10: In this action, EPA is disapproving certain elements 
of the State's submission related to the requirements under section 
110(a)(2)(D)(i)(I). EPA has also determined that these elements are 
severable from the rest of the submission. Comments on elements that 
are not being addressed here are not relevant to this action and have 
no bearing on the appropriateness of this disapproval. As noted herein, 
EPA intends to act on those elements in a subsequent action.
    Comment 11: One Commenter indicates that EPA could use section 
110(k)(4) to conditionally approve the states' implementation plans for 
the transport requirements related to the 2006 24-hour PM2.5 
NAAQS in anticipation of the promulgation of the final Transport Rule, 
``[a]ssuming EPA adequately addresses modeling and emissions inventory 
concerns raised during the comment period* * *''
    Response 11: EPA does not agree that the use of 110(k)(4) for a 
conditional approval is appropriate in this circumstance. Conditional 
approvals may be used to approve a plan revision based on a written 
commitment of the State to adopt specific enforceable measures by a 
date certain, but not later than 1 year after the date of approval of 
the plan revision. If the State does not adopt specific enforceable 
measures within a year, the conditional approval automatically converts 
to a disapproval. The forthcoming Transport Rule is an action that is 
being promulgated from EPA and not the State, so it is unclear what 
``condition'' the State would be responsible for satisfying by relying 
on the final promulgation of the Transport Rule. Further, as the 
Commenter implies, use of 110(k)(4) is optional.
    Comment 12: One Commenter states: ``EPA's disapproval of SIPs is 
part of a larger effort by EPA to bypass the states in addressing 
interstate transport under the 1997 ozone and annual PM2.5 
standards and the 2006 24-hour PM2.5 standard.'' The 
Commenter goes on to state that ``[i]n EPA's proposed Transport Rule 
and in the proposed disapproval of the interstate transport portions of 
states' 24-hour PM2.5 infrastructure SIPs, EPA is usurping 
states' rights to address air quality issues within their borders.''
    Response 12: EPA disagrees with this comment. The forthcoming 
Transport Rule will help to protect downwind states from adverse 
impacts of emissions from upwind states. Otherwise, the remedy for such 
downwind states would be to individually petition the Administrator for 
a finding that any major source or group of stationary sources emits or 
would emit any air pollutant in violation of the prohibition of section 
110(a)(2)(D)(ii). Further, the October 21, 2009, SIP revision submitted 
by Georgia was not adequate to meet the requirements of section 
110(a)(2)(D)(i)(I). (Similar issues are also discussed in Response 8, 
above.)
    Comment 13: One Commenter mentions that ``[g]iven the role reserved 
to states by Congress, EPA must afford the states a meaningful 
opportunity to develop SIPs before EPA issues a federal implementation 
plan (FIP).''
    Response 13: EPA disagrees with the Commenter's assertion that the 
State did not have meaningful opportunity to develop a SIP revision 
(i.e., in this case, to meet the 110(a)(2)(D)(i)(I) requirements for 
the 2006 24-hour PM2.5 NAAQS). To the contrary, states had 
three years from the time the 2006 24-hour PM2.5 NAAQS were 
promulgated to develop a SIP revision to meet the 110(a)(2)(D)(i)(I) 
requirements for this NAAQS. Specifically, the 2006 24-hour 
PM2.5 NAAQS was promulgated on September 21, 2006, and thus 
submissions to address the 110(a)(2)(D)(i)(I) requirements for the 2006 
24-hour PM2.5 NAAQS were due from the states on September 
21, 2009. EPA released its guidance in September 2009 and did not 
propose disapproval of the Georgia's October 21, 2009, SIP revision 
until January 26, 2011, which was more than a year after the State was 
formally made aware that the State could not rely on CAIR to meet the 
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5 
NAAQS. See also Response to comment 8.
    Comment 14: One Commenter states: ``[w]hile the courts have 
recognized that EPA has a role to play in resolving interstate 
transport issues, the Agency has no `roving commission' to effectively 
leapfrog over the SIP process and impose its own choices on states and 
regulated parties.'' The Commenter indicates that EPA is circumventing 
the SIP process with the proposed disapproval action, and cites 
Michigan v. EPA, 268 F.3d 1075, 1084 (DC Cir. 2001) for support of its 
proposition. Specifically, the Commenter mentions ``EPA's disapproval 
of Georgia's SIP combined with the impending FIP

[[Page 43165]]

usurps the role of the states in the federal-state partnership.'' 
Further, the Commenter states ``[t]he proposed disapproval and the 
proposed transport rule both suggest that EPA intends to supplant the 
SIP process with its own Transport Rule FIP this year.''
    Response 14: First, EPA disagrees with the Commenter's suggestion 
that the proposed disapproval action for the portion of Georgia's 
October 21, 2009, SIP revision and the Agency's option to put the 
forthcoming Transport Rule in place as a FIP is circumventing the SIP 
process. As noted in previous responses in this rulemaking (such as 
Response 8 and 13), states had three years from the date of 
promulgation of the 2006 24-hour PM2.5 NAAQS to develop an 
adequate submission to meet the requirements of section 
110(a)(2)(D)(i)(I) for this NAAQS. Specifically, the 2006 24-hour 
PM2.5 NAAQS were promulgated on September 21, 2006, and thus 
submissions to address the 110(a)(2)(D)(i)(I) requirements for the 2006 
24-hour PM2.5 NAAQS were due from the states on September 
21, 2009. While EPA did not release the 2006 PM2.5 NAAQS 
Infrastructure Guidance until September 25, 2009, EPA also did not 
propose disapproval of the Georgia's October 21, 2009, SIP revision 
until January 26, 2011, which was more than a year after the State was 
formally made aware that the State could not rely on CAIR to meet the 
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5 
NAAQS. EPA notes that CAIR was not intended to meet the transport 
requirements for the 2006 24-hour PM2.5 NAAQS. As was 
discussed at length in Response 8 above, EPA's process with regard to 
today's disapproval and the forthcoming Transport Rule follow clear 
processes described in the CAA. EPA appreciates that commenter would 
have preferred that another approach be utilized; however, EPA's action 
today followed an established process for such actions. Lastly, the 
Michigan v. EPA case cited to by the commenter simply does not apply to 
the current action. That case involved EPA's implementation of a 
permitting program (not a SIP action) where there were complicating 
questions of Indian Law and jurisdiction. In today's action, EPA is 
acting consistent with the procedures set forth in the CAA, as was 
described in detail in Response 8.

Acknowledgement of States' Efforts and Air Quality Conditions

    Comment 15: Two Commenters mention innovative air pollution control 
strategies that states have implemented to reduce emissions, and seem 
to indicate that the adoption of those strategies, in-and-of itself, 
complies with the interstate transport provisions of section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. The 
Commenters opine that state laws and rules have resulted in enormous 
reductions of pollutants that are key pollutants to interstate 
transport.
    Response 15: EPA agrees that states have implemented innovative air 
pollution control strategies that have provided significant reductions 
in emissions, and the Agency commends states for their efforts. 
However, today's action relates to whether Georgia has provided an 
adequate technical analysis and emissions reductions to show compliance 
with the 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour 
PM2.5 NAAQS for Georgia. It is EPA's final determination 
that Georgia's October 21, 2009, submission (as well as the technical 
analysis provided in the public comments) do not provide an adequate 
technical analysis and emissions reductions for this determination and 
thus EPA is disapproving the portion of Georgia's October 21, 2009, 
submission as it relates to the 110(a)(2)(D)(i)(I) requirements for the 
2006 24-hour PM2.5 NAAQS for Georgia.

Concerns Related to the Transport Rule

    Comment 16: One Commenter expresses concern regarding EPA's 
statement in the January 26, 2011, proposed disapproval regarding the 
modeling used to support the proposed Transport Rule, and the findings 
in relation to whether states significantly contribute to nonattainment 
or interfere with maintenance of the 2006 24-hour PM2.5 
NAAQS in downwind areas. The Commenter states that ``based on 2007-2009 
monitoring data, all of these areas are currently meeting the 2006 24-
hour PM2.5 NAAQS'' and expresses concern that EPA did not 
note the area's status with regard to the 2006 24-hour PM2.5 
NAAQS in the proposal. The Commenter goes on to say ``we noted in our 
official comments on the proposed Transport Rule, EPA had numerous 
errors in the modeling inputs and failed to ensure that the model 
performance was acceptable. This may explain the disparity between 
EPA's modeling results and the real world monitors.''
    Response 16: Today's action relates to whether the State provided 
an adequate technical analysis and emissions reductions to show 
compliance with the 110(a)(2)(D)(i)(I) requirements for the 2006 24-
hour PM2.5 NAAQS for Georgia, and is not based on the 
attainment status of Georgia areas. Georgia did not provide adequate 
technical analysis to EPA to demonstrate compliance with the 
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5 
NAAQS. With regard to the Commenter's concern about the forthcoming 
Transport Rule, EPA notes that the Agency received numerous comments on 
the proposed Transport Rule and is considering those comments as it 
works toward promulgation of a final Transport Rule. All comments on 
the Transport Rule will be addressed in that context.
    Comment 17: All Commenters assert that EPA's proposed finding of 
significant contribution for the proposed Transport Rule is based on an 
inaccurate emissions inventory, fails to take into account all of the 
reductions required by the state rules already in effect, and contains 
numerous other errors that only compound these problems.
    Response 17: EPA received numerous comments on the proposed 
Transport Rule and is considering those comments as it works toward 
promulgation of a final Transport Rule. All comments on the Transport 
Rule will be addressed in that context.

III. Final Action

    EPA is taking final action to disapprove the portion of Georgia's 
October 21, 2009, submission, relating to section 110(a)(2)(D)(i)(I), 
because EPA has made the determination that Georgia's SIP does not 
satisfy the requirements for the 2006 24-hour PM2.5 NAAQS. 
Although EPA is taking final action to disapprove the portion of 
Georgia's October 21, 2009, submission relating to section 
110(a)(2)(D)(i)(I), EPA acknowledges the State's efforts to address 
this requirement in its October 21, 2009, submission. Unfortunately, 
the submittal relies on CAIR and without an adequate technical analysis 
EPA does not believe that states can adequately address the section 
110(a)(2)(D)(i)(I) requirement for the 2006 PM2.5 NAAQS. The 
purpose of the Transport Rule that EPA is developing and has proposed 
is to respond to the remand of CAIR by the Court and address the 
section 110(a)(2)(D)(i)(I) requirements for the 2006 PM2.5 
NAAQS for the affected states. In today's action, EPA is not taking any 
disapproval action on the remaining elements of the submission, 
including other section 110(a)(2) infrastructure elements, and 
specifically the section 110(a)(2)(D)(i)(II) portion regarding 
interference with measures required in the applicable SIP for another 
state designed to prevent significant deterioration of air quality and 
protect visibility but instead will act on those provisions in a 
separate rulemaking.

[[Page 43166]]

    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C.A. section 
7501-7515) or is required in response to a finding of substantial 
inadequacy as described in section 7410(k)(5) (SIP call) starts a 
sanctions clock. Section 110(a)(2)(D)(i)(I) provisions (the provisions 
being disapproved in today's notice) were not submitted to meet 
requirements for Part D, and therefore, no sanctions will be triggered. 
This final action triggers the requirement under section 110(c) that 
EPA promulgate a FIP no later than 2 years from the date of the 
disapproval unless the State corrects the deficiency, and the 
Administrator approves the plan or plan revision before the 
Administrator promulgates such FIP. The proposed Transport Rule, when 
final, is the FIP that EPA intends to implement to satisfy the 
110(a)(2)(D)(i)(I) requirement for Georgia for the 2006 
PM2.5 NAAQS.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to act on state law as meeting 
federal requirements and does not impose additional requirements beyond 
those imposed by state law.

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this SIP disapproval under section 110 and subchapter I, part D 
of the CAA will not in-and-of itself create any new information 
collection burdens but simply disapproves certain state requirements 
for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. For purposes of 
assessing the impacts of today's rule on small entities, small entity 
is defined as: (1) A small business as defined by the Small Business 
Administration's regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This SIP 
disapproval under section 110 and subchapter I, part D of the CAA will 
not in-and-of itself create any new requirements but simply disapproves 
certain state requirements for inclusion into the SIP. Accordingly, it 
affords no opportunity for EPA to fashion for small entities less 
burdensome compliance or reporting requirements or timetables or 
exemptions from all or part of the rule. The fact that the CAA 
prescribes that various consequences (e.g., higher offset requirements) 
may or will flow from this disapproval does not mean that EPA either 
can or must conduct a regulatory flexibility analysis for this action. 
Therefore, this action will not have a significant economic impact on a 
substantial number of small entities. EPA continues to be interested in 
the potential impacts of this proposed rule on small entities and 
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. EPA has determined that the disapproval action does not include 
a federal mandate that may result in estimated costs of $100 million or 
more to either state, local, or tribal governments in the aggregate, or 
to the private sector. This action disapproves pre-existing 
requirements under state or local law, and imposes no new requirements. 
Accordingly, no additional costs to state, local, or tribal 
governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is disapproving would not 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. Thus, Executive Order 
13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This SIP disapproval under section 110 and subchapter I, part

[[Page 43167]]

D of the CAA will not in-and-of itself create any new regulations but 
simply disapproves certain state requirements for inclusion into the 
SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA, Public Law 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. EPA believes that this action 
is not subject to requirements of Section 12(d) of NTTAA because 
application of those requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the CAA. Accordingly, this action merely proposes to disapprove 
certain state requirements for inclusion into the SIP under section 110 
and subchapter I, part D of the CAA and will not in-and-of itself 
create any new requirements. Accordingly, it 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.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 19, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and record