Air Plan Approval; Georgia; Prong 4-2008 Ozone, 2010 NO2,, 44831-44837 [2016-16001]
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Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules
IV. Statutory and Executive Order
Review
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this 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’’ under the terms of Executive
Order 12866 (58 FR 51735, October 4,
1993) and is therefore not subject to
review under Executive Orders 12866
and 13563 (76 FR 3821, January 21,
2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications 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).
V. Statutory Authority
The statutory authority for this
section is provided by section 110 of the
CAA, as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
Dated: June 22, 2016.
Mark Hague,
Regional Administrator, Region 7.
For the reasons stated in the
preamble, EPA proposes to amend 40
CFR part 52 as set forth below:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart R—Kansas
2. In § 52.870, the table in paragraph
(e) is amended by adding the entry ‘‘(43)
Section 110(a)(2) Infrastructure
Requirements for the 2012 PM2.5
NAAQS’’ in numerical order to read as
follows:
■
§ 52.870
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED KANSAS NONREGULATORY PROVISIONS
Applicable
geographic
area or
nonattainment
area
Name of
nonregulatory
SIP provision
*
*
(43) Section 110(a)(2) Infrastructure Requirements for the 2012 PM2.5 NAAQS.
[FR Doc. 2016–16259 Filed 7–8–16; 8:45 am]
BILLING CODE 6560–50–P
*
Statewide ........
State submittal
date
EPA approval date
Explanation
*
11/16/2015
*
07/11/2016, [Insert
Federal Register
citation].
*
*
This action addresses the following CAA
elements 110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J), (K), (L), and (M).
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R04–OAR–2016–0315; FRL–9948–67–
Region 4]
Air Plan Approval; Georgia; Prong 4–
2008 Ozone, 2010 NO2, SO2, and 2012
PM2.5
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
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The Environmental Protection
Agency (EPA) is proposing to
conditionally approve the portions of
revisions to the Georgia State
Implementation Plan (SIP), submitted
by the Georgia Department of Natural
Resources (DNR), Environmental
Protection Division (GAEPD),
addressing the Clean Air Act (CAA or
Act) visibility transport (prong 4)
infrastructure SIP requirements for the
2008 8-hour Ozone, 2010 1-hour
Nitrogen Dioxide (NO2), 2010 1-hour
Sulfur Dioxide (SO2), and 2012 annual
Fine Particulate Matter (PM2.5) National
SUMMARY:
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Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules
Ambient Air Quality Standards
(NAAQS). The CAA requires that each
state adopt and submit a SIP for the
implementation, maintenance, and
enforcement of each NAAQS
promulgated by EPA, commonly
referred to as an ‘‘infrastructure SIP.’’
Specifically, EPA is proposing to
conditionally approve the prong 4
portions of Georgia’s March 6, 2012, 8hour Ozone infrastructure SIP
submission; March 25, 2013, 2010 1hour NO2 infrastructure SIP submission;
October 22, 2013, 2010 1-hour SO2
infrastructure SIP submission; and
December 14, 2015, 2012 annual PM2.5
infrastructure SIP submission. All other
applicable infrastructure requirements
for these SIP submissions have been or
will be addressed in separate
rulemakings.
Comments must be received on
or before August 10, 2016.
DATES:
Submit your comments,
identified by Docket ID No EPA–R04–
OAR–2016–0315 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
ADDRESSES:
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FOR FURTHER INFORMATION CONTACT:
Sean Lakeman of the Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr.
Lakeman can be reached by telephone at
(404) 562–9043 or via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by
states within three years after
promulgation of a new or revised
NAAQS to provide for the
implementation, maintenance, and
enforcement of the new or revised
NAAQS. EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Sections 110(a)(1) and (2) require states
to address basic SIP elements such as
the requirements for monitoring, basic
program requirements, and legal
authority that are designed to assure
attainment and maintenance of the
newly established or revised NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for infrastructure SIPs.
Section 110(a)(2) lists specific elements
that states must meet for the
infrastructure SIP requirements related
to a newly established or revised
NAAQS. The contents of an
infrastructure SIP submission may vary
depending upon the data and analytical
tools available to the state, as well as the
provisions already contained in the
state’s implementation plan at the time
in which the state develops and submits
the submission for a new or revised
NAAQS.
Section 110(a)(2)(D) has two
components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
includes four distinct components,
commonly referred to as ‘‘prongs,’’ that
must be addressed in infrastructure SIP
submissions. The first two prongs,
which are codified in section
110(a)(2)(D)(i)(I), are provisions that
prohibit any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (prong 1) and from interfering with
maintenance of the NAAQS in another
state (prong 2). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (prong 3) or
from interfering with measures to
protect visibility in another state (prong
4). Section 110(a)(2)(D)(ii) requires SIPs
to include provisions ensuring
compliance with sections 115 and 126
of the Act, relating to interstate and
international pollution abatement.
Through this action, EPA is proposing
to conditionally approve the prong 4
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portions of Georgia’s infrastructure SIP
submissions for the 2008 8-hour Ozone,
2010 1-hour NO2, 2010 1-hour SO2, and
2012 annual PM2.5 NAAQS as discussed
in section IV of this document.1 All
other applicable infrastructure SIP
requirements for these SIP submissions
have been or will be addressed in
separate rulemakings. A brief
background regarding the NAAQS
relevant to this proposal is provided
below. For comprehensive information
on these NAAQS, please refer to the
Federal Register notices cited in the
following subsections.
A. 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA revised the
8-hour Ozone NAAQS to 0.075 parts per
million. See 73 FR 16436 (March 27,
2008). States were required to submit
infrastructure SIP submissions for the
2008 8-hour Ozone NAAQS to EPA no
later than March 12, 2011. Georgia
submitted its infrastructure SIP
submission on March 6, 2012, for the
2008 8-hour Ozone NAAQS.
B. 2010 1-Hour NO2 NAAQS
On January 22, 2010, EPA established
a new 1-hour primary NAAQS for NO2
at a level of 100 parts per billion, based
on a 3-year average of the 98th
percentile of the yearly distribution of 1hour daily maximum concentrations.
See 75 FR 6474 (February 9, 2010).
States were required to submit
infrastructure SIP submissions for the
2010 1-hour NO2 NAAQS to EPA no
later than January 22, 2013. Georgia
submitted its infrastructure SIP
submission on March 25, 2013, for the
2010 1-hour NO2 NAAQS.
C. 2010 1-Hour SO2 NAAQS
On June 2, 2010, EPA revised the
primary SO2 NAAQS to an hourly
standard of 75 parts per billion based on
a 3-year average of the annual 99th
percentile of 1-hour daily maximum
concentrations. See 75 FR 35520 (June
22, 2010). States were required to
submit infrastructure SIP submissions
for the 2010 1-hour SO2 NAAQS to EPA
no later than June 2, 2013. Georgia
submitted its infrastructure SIP
submission on October 22, 2013, for the
2010 1-hour SO2 NAAQS.
1 Under CAA section 110(k)(4), EPA may
conditionally approve a SIP revision based on a
commitment from a state to adopt specific
enforceable measures by a date certain, but not later
than one year from the date of approval. If the state
fails to meet the commitment within one year of the
final conditional approval, the conditional approval
automatically becomes a disapproval on that date
and EPA will issue a finding of disapproval.
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D. 2012 Annual PM2.5 NAAQS
On December 14, 2012, EPA revised
the primary annual PM2.5 NAAQS to 12
micrograms per cubic meter (mg/m3).
See 78 FR 3086 (January 15, 2013).
States were required to submit
infrastructure SIP submissions for the
2012 PM2.5 NAAQS to EPA no later than
December 14, 2015. Georgia submitted
its infrastructure SIP submission on
December 14, 2015, for the 2012 PM2.5
NAAQS.
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II. What is EPA’s approach to the
review of infrastructure SIP
submissions?
The requirement for states to make a
SIP submission of this type arises out of
section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘each such plan’’
submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of section
110(a)(1) and (2) as ‘‘infrastructure SIP’’
submissions. Although the term
‘‘infrastructure SIP’’ does not appear in
the CAA, EPA uses the term to
distinguish this particular type of SIP
submission from submissions that are
intended to satisfy other SIP
requirements under the CAA, such as
‘‘nonattainment SIP’’ or ‘‘attainment
plan SIP’’ submissions to address the
nonattainment planning requirements of
part D of Title I of the CAA, ‘‘regional
haze SIP’’ submissions required by EPA
rule to address the visibility protection
requirements of section 169A of the
CAA, and nonattainment new source
review permit program submissions to
address the permit requirements of
CAA, Title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
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required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.2 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
Title I of the CAA, which specifically
address nonattainment SIP
requirements.3 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years or in some cases three years,
for such designations to be
promulgated.4 This ambiguity illustrates
2 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; Section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of
Title I of the CAA; and section 110(a)(2)(G) provides
that states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
3 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
4 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
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that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertains to whether
states must meet all of the infrastructure
SIP requirements in a single SIP
submission, and whether EPA must act
upon such SIP submission in a single
action. Although section 110(a)(1)
directs states to submit ‘‘a plan’’ to meet
these requirements, EPA interprets the
CAA to allow states to make multiple
SIP submissions separately addressing
infrastructure SIP elements for the same
NAAQS. If states elect to make such
multiple SIP submissions to meet the
infrastructure SIP requirements, EPA
can elect to act on such submissions
either individually or in a larger
combined action.5 Similarly, EPA
interprets the CAA to allow it to take
action on the individual parts of one
larger, comprehensive infrastructure SIP
submission for a given NAAQS without
concurrent action on the entire
submission. For example, EPA has
sometimes elected to act at different
times on various elements and subelements of the same infrastructure SIP
submission.6
Ambiguities within section 110(a)(1)
and (2) may also arise with respect to
infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
necessarily later than three years after promulgation
of the new or revised NAAQS.
5 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
4337 (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
6 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
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The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.7
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
attainment plan SIP submissions
required by part D to meet the
‘‘applicable requirements’’ of section
110(a)(2); thus, attainment plan SIP
submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the
prevention of significant deterioration
(PSD) program required in part C of
Title I of the CAA, because PSD does
not apply to a pollutant for which an
area is designated nonattainment and
thus subject to part D planning
requirements. As this example
illustrates, each type of SIP submission
may implicate some elements of section
110(a)(2) but not others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
7 For example, implementation of the 1997 PM
2.5
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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infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.8 EPA most recently
issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).9 EPA developed this
document to provide states with up-todate guidance for infrastructure SIPs for
any new or revised NAAQS. Within this
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.10 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets section 110(a)(1) and (2) such
that infrastructure SIP submissions need
to address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
8 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
9 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
10 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However they are addressed by
the state, the substantive requirements
of section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and NSR
pollutants, including Greenhouse Gases.
By contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the PM2.5
NAAQS. Accordingly, the latter
optional provisions are types of
provisions EPA considers irrelevant in
the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s
implementation plan meets basic
structural requirements. For example,
section 110(a)(2)(C) includes, inter alia,
the requirement that states have a
program to regulate minor new sources.
Thus, EPA evaluates whether the state
has an EPA-approved minor new source
review program and whether the
program addresses the pollutants
relevant to that NAAQS. In the context
of acting on an infrastructure SIP
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submission, however, EPA does not
think it is necessary to conduct a review
of each and every provision of a state’s
existing minor source program (i.e.,
already in the existing SIP) for
compliance with the requirements of the
CAA and EPA’s regulations that pertain
to such programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction (SSM) that
may be contrary to the CAA and EPA’s
policies addressing such excess
emissions; 11 (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that may be
contrary to the CAA because they
purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
further approval by EPA; and (iii)
existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (NSR Reform).
Thus, EPA believes that it may approve
an infrastructure SIP submission
without scrutinizing the totality of the
existing SIP for such potentially
deficient provisions and may approve
the submission even if it is aware of
such existing provisions.12 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
11 Subsequent to issuing the 2013 Guidance,
EPA’s interpretation of the CAA with respect to the
approvability of affirmative defense provisions in
SIPs has changed. See ‘‘State Implementation Plans:
Response to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP
Calls To Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and
Malfunction,’’ 80 FR 33839 (June 12, 2015). As a
result, EPA’s 2013 Guidance (p. 21 & n.30) no
longer represents the EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
12 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA
would need to evaluate that provision for
compliance against the rubric of applicable CAA
requirements in the context of the action on the
infrastructure SIP.
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EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
section 110(a)(2) as requiring review of
each and every provision of a state’s
existing SIP against all requirements in
the CAA and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of section 110(a)(1)
and (2) because the CAA provides other
avenues and mechanisms to address
specific substantive deficiencies in
existing SIPs. These other statutory tools
allow EPA to take appropriately tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s implementation
plan is substantially inadequate to attain
or maintain the NAAQS, to mitigate
interstate transport, or to otherwise
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44835
comply with the CAA.13 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.14
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.15
III. What are the prong 4 requirements?
Section 110(a)(2)(D)(i)(II) includes a
requirement that a state’s
implementation plan contain provisions
prohibiting sources in that state from
emitting pollutants in amounts that
interfere with any other state’s efforts to
protect visibility under part C of Title I
of the CAA (which includes sections
169A and 169B). The 2013 Guidance
states that these prong 4 requirements
can be satisfied by approved SIP
provisions that EPA has found to
adequately address any contribution of
that state’s sources to impacts on
visibility program requirements in other
states. The 2013 Guidance also states
that EPA interprets this prong to be
pollutant-specific, such that the
13 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
14 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under section 110(k)(6) of the
CAA to remove numerous other SIP provisions that
the Agency determined it had approved in error.
See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American
Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062, November 16, 2004 (corrections
to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
15 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
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infrastructure SIP submission need only
address the potential for interference
with protection of visibility caused by
the pollutant (including precursors) to
which the new or revised NAAQS
applies.
The 2013 Guidance delineates two
ways in which a state’s infrastructure
SIP may satisfy prong 4. The first way
is through an air agency’s confirmation
in its infrastructure SIP submission that
it has an EPA-approved regional haze
SIP that fully meets the requirements of
40 CFR 51.308 or 51.309. 40 CFR 51.308
and 51.309 specifically require that a
state participating in a regional planning
process include all measures needed to
achieve its apportionment of emission
reduction obligations agreed upon
through that process. A fully approved
regional haze SIP will ensure that
emissions from sources under an air
agency’s jurisdiction are not interfering
with measures required to be included
in other air agencies’ plans to protect
visibility.
Alternatively, in the absence of a fully
approved regional haze SIP, a state may
meet the requirements of prong 4
through a demonstration in its
infrastructure SIP submission that
emissions within its jurisdiction do not
interfere with other air agencies’ plans
to protect visibility. Such an
infrastructure SIP submission would
need to include measures to limit
visibility-impairing pollutants and
ensure that the reductions conform with
any mutually agreed regional haze
reasonable progress goals for mandatory
Class I areas in other states.
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IV. What is EPA’s analysis of how
Georgia addressed prong 4?
Georgia’s March 6, 2012, 2008 8-hour
Ozone submission; March 25, 2013,
2010 1-hour NO2 submission; October
22, 2013, 2010 1-hour SO2 submission;
and December 14, 2015, 2012 annual
PM2.5 submission cite to the State’s
regional haze SIP as satisfying prong 4
requirements. However, as explained
below, EPA has not yet fully approved
Georgia’s regional haze SIP because the
SIP relies on the Clean Air Interstate
Rule (CAIR) to satisfy the nitrogen
oxides (NOX) and SO2 Best Available
Retrofit Technology (BART)
requirements for the CAIR-subject
electric generating units (EGUs) in the
State and the requirement for a longterm strategy sufficient to achieve the
state-adopted reasonable progress
goals.16
16 CAIR, promulgated in 2005, required 27 states
and the District of Columbia to reduce emissions of
NOX and SO2 that significantly contribute to, or
interfere with maintenance of, the 1997 NAAQS for
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EPA demonstrated that CAIR
achieved greater reasonable progress
toward the national visibility goal than
BART for NOX and SO2 at BART-eligible
EGUs in CAIR affected states, and
revised the regional haze rule to provide
that states participating in CAIR’s capand-trade programs need not require
affected BART-eligible EGUs to install,
operate, and maintain BART for
emissions of SO2 and NOX. See 70 FR
39104 (July 6, 2005). As a result, a
number of states in the CAIR region
designed their regional haze SIPs to rely
on CAIR as an alternative to NOX and
SO2 BART for CAIR-subject EGUs.
These states also relied on CAIR as an
element of a long-term strategy for
achieving their reasonable progress
goals.
The United States Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit) initially vacated CAIR in
2008,17 but ultimately remanded the
rule to EPA without vacatur to preserve
the environmental benefits provided by
CAIR.18 On August 8, 2011 (76 FR
48208), acting on the D.C. Circuit’s
remand, EPA promulgated the CrossState Air Pollution Rule (CSAPR) to
replace CAIR and thus to address the
interstate transport of emissions
contributing to nonattainment and
interfering with maintenance of the two
air quality standards covered by CAIR as
well as the 2006 PM2.5 NAAQS.
Due to CAIR’s status as a temporary
measure following the D.C. Circuit’s
2008 ruling, EPA could not fully
approve regional haze SIP revisions to
the extent that they relied on CAIR to
satisfy the BART requirement and the
requirement for a long-term strategy
sufficient to achieve the state-adopted
reasonable progress goals. On these
grounds, EPA finalized a limited
disapproval of Georgia’s regional haze
SIP on June 7, 2012 (77 FR 33642),
triggering the requirement for EPA to
promulgate a Federal Implementation
Plan (FIP) unless Georgia submitted and
EPA approved a SIP revision that
corrected the deficiencies. EPA finalized
a limited approval of Georgia’s regional
haze SIP on June 28, 2012 (77 FR
38501), as meeting the remaining
applicable regional haze requirements
set forth in the CAA and the regional
haze rule.
fine particulates and/or ozone in any downwind
state. CAIR imposed specified emissions reduction
requirements on each affected State, and
established several EPA-administered cap and trade
programs for EGUs that States could join as a means
to meet these requirements.
17 North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008).
18 North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir.
2008).
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Numerous parties filed petitions for
review of CSAPR in the D.C. Circuit,
and on August 21, 2012, the court
issued its ruling, vacating and
remanding CSAPR to EPA and ordering
continued implementation of CAIR.
EME Homer City Generation, L.P. v.
EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The
D.C. Circuit’s vacatur of CSAPR was
reversed by the United States Supreme
Court on April 29, 2014, and the case
was remanded to the D.C. Circuit to
resolve remaining issues in accordance
with the high court’s ruling. EPA v. EME
Homer City Generation, L.P., 134 S. Ct.
1584 (2014). On remand, the D.C.
Circuit affirmed CSAPR in most
respects, but invalidated without
vacating some of the CSAPR budgets as
to a number of states. EME Homer City
Generation, L.P. v. EPA, 795 F.3d 118
(D.C. Cir. 2015). The remanded budgets
include the Phase 2 SO2 emissions
budget for Georgia.
Although Georgia’s infrastructure SIP
revisions cite to the regional haze
program as satisfying the requirements
of Prong 4, the State may not currently
rely on its regional haze SIP to satisfy
these requirements because the regional
haze SIP is not fully approved. In
addition, these revisions do not
otherwise demonstrate that emissions
within the State’s jurisdiction do not
interfere with other states’ plans to
protect visibility. Therefore, on May 26,
2016, Georgia submitted a commitment
letter to EPA requesting conditional
approval of the prong 4 portions of the
aforementioned infrastructure SIP
revisions. In this letter, Georgia commits
to satisfy the prong 4 requirements for
the 2008 8-hour ozone NAAQS, 2010 1hour NO2 NAAQS, 2010 1-hour SO2
NAAQS, and 2012 PM2.5 NAAQS by
providing a SIP revision that adopts
provisions for participation in the
CSAPR annual NOX and annual SO2
trading programs, including annual NOX
and annual SO2 budgets that are at least
as stringent as the budgets codified for
Georgia at 40 CFR 97.710(a) (SO2 Group
2 trading budgets) and 40 CFR 97.410(a)
(NOX Annual trading budgets). Georgia
will rely on this SIP revision adopting
such budgets to submit a concurrent SIP
revision specifically addressing the
visibility requirements of prong 4. In its
commitment letter, Georgia commits to
providing these two concurrent SIP
revisions within one year of EPA’s final
conditional approval of the prong 4
portions of the infrastructure SIP
revisions and provides an anticipated
schedule for these revisions. If the
revised infrastructure SIP revision relies
on a fully approvable regional haze SIP,
Georgia also commits to providing the
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necessary regional haze SIP revision to
EPA within one year of EPA’s final
conditional approval.
If Georgia meets its commitment
within one year of final conditional
approval, the prong 4 portions of the
conditionally approved infrastructure
SIP submissions will remain a part of
the SIP until EPA takes final action
approving or disapproving the new SIP
revision(s). However, if the State fails to
submit these revisions within the oneyear timeframe, the conditional
approval will automatically become a
disapproval one year from EPA’s final
conditional approval and EPA will issue
a finding of disapproval. EPA is not
required to propose the finding of
disapproval. If the conditional approval
is converted to a disapproval, the final
disapproval triggers the FIP requirement
under CAA section 110(c).
V. Proposed Action
As described above, EPA is proposing
to conditionally approve the prong 4
portions of Georgia’s March 6, 2012, 8hour Ozone infrastructure SIP
submission; March 25, 2013, 2010 1hour NO2 infrastructure SIP submission;
October 22, 2013, 2010 1-hour SO2
infrastructure SIP submission; and
December 14, 2015, 2012 annual PM2.5
infrastructure SIP submission. All other
applicable infrastructure requirements
for these SIP submissions have been or
will be addressed in separate
rulemakings.
VI. Statutory and Executive Order
Reviews
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Under the CAA, the Administrator is
required to approve a SIP submission
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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 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:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
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44837
• 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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 22, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–16001 Filed 7–8–16; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Proposed Rules]
[Pages 44831-44837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16001]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2016-0315; FRL-9948-67-Region 4]
Air Plan Approval; Georgia; Prong 4-2008 Ozone, 2010 NO2, SO2,
and 2012 PM2.5
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
conditionally approve the portions of revisions to the Georgia State
Implementation Plan (SIP), submitted by the Georgia Department of
Natural Resources (DNR), Environmental Protection Division (GAEPD),
addressing the Clean Air Act (CAA or Act) visibility transport (prong
4) infrastructure SIP requirements for the 2008 8-hour Ozone, 2010 1-
hour Nitrogen Dioxide (NO2), 2010 1-hour Sulfur Dioxide
(SO2), and 2012 annual Fine Particulate Matter
(PM2.5) National
[[Page 44832]]
Ambient Air Quality Standards (NAAQS). The CAA requires that each state
adopt and submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by EPA, commonly referred to as
an ``infrastructure SIP.'' Specifically, EPA is proposing to
conditionally approve the prong 4 portions of Georgia's March 6, 2012,
8-hour Ozone infrastructure SIP submission; March 25, 2013, 2010 1-hour
NO2 infrastructure SIP submission; October 22, 2013, 2010 1-
hour SO2 infrastructure SIP submission; and December 14,
2015, 2012 annual PM2.5 infrastructure SIP submission. All
other applicable infrastructure requirements for these SIP submissions
have been or will be addressed in separate rulemakings.
DATES: Comments must be received on or before August 10, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2016-0315 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Sean Lakeman of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043
or via electronic mail at lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by states within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and
(2) require states to address basic SIP elements such as the
requirements for monitoring, basic program requirements, and legal
authority that are designed to assure attainment and maintenance of the
newly established or revised NAAQS. More specifically, section
110(a)(1) provides the procedural and timing requirements for
infrastructure SIPs. Section 110(a)(2) lists specific elements that
states must meet for the infrastructure SIP requirements related to a
newly established or revised NAAQS. The contents of an infrastructure
SIP submission may vary depending upon the data and analytical tools
available to the state, as well as the provisions already contained in
the state's implementation plan at the time in which the state develops
and submits the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit
any source or other type of emissions activity in one state from
contributing significantly to nonattainment of the NAAQS in another
state (prong 1) and from interfering with maintenance of the NAAQS in
another state (prong 2). The third and fourth prongs, which are
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit
emissions activity in one state from interfering with measures required
to prevent significant deterioration of air quality in another state
(prong 3) or from interfering with measures to protect visibility in
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Through this action, EPA is proposing to conditionally approve the
prong 4 portions of Georgia's infrastructure SIP submissions for the
2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour
SO2, and 2012 annual PM2.5 NAAQS as discussed in
section IV of this document.\1\ All other applicable infrastructure SIP
requirements for these SIP submissions have been or will be addressed
in separate rulemakings. A brief background regarding the NAAQS
relevant to this proposal is provided below. For comprehensive
information on these NAAQS, please refer to the Federal Register
notices cited in the following subsections.
---------------------------------------------------------------------------
\1\ Under CAA section 110(k)(4), EPA may conditionally approve a
SIP revision based on a commitment from a state to adopt specific
enforceable measures by a date certain, but not later than one year
from the date of approval. If the state fails to meet the commitment
within one year of the final conditional approval, the conditional
approval automatically becomes a disapproval on that date and EPA
will issue a finding of disapproval.
---------------------------------------------------------------------------
A. 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA revised the 8-hour Ozone NAAQS to 0.075
parts per million. See 73 FR 16436 (March 27, 2008). States were
required to submit infrastructure SIP submissions for the 2008 8-hour
Ozone NAAQS to EPA no later than March 12, 2011. Georgia submitted its
infrastructure SIP submission on March 6, 2012, for the 2008 8-hour
Ozone NAAQS.
B. 2010 1-Hour NO2 NAAQS
On January 22, 2010, EPA established a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion, based on a 3-year
average of the 98th percentile of the yearly distribution of 1-hour
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). States
were required to submit infrastructure SIP submissions for the 2010 1-
hour NO2 NAAQS to EPA no later than January 22, 2013.
Georgia submitted its infrastructure SIP submission on March 25, 2013,
for the 2010 1-hour NO2 NAAQS.
C. 2010 1-Hour SO2 NAAQS
On June 2, 2010, EPA revised the primary SO2 NAAQS to an
hourly standard of 75 parts per billion based on a 3-year average of
the annual 99th percentile of 1-hour daily maximum concentrations. See
75 FR 35520 (June 22, 2010). States were required to submit
infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS
to EPA no later than June 2, 2013. Georgia submitted its infrastructure
SIP submission on October 22, 2013, for the 2010 1-hour SO2
NAAQS.
[[Page 44833]]
D. 2012 Annual PM2.5 NAAQS
On December 14, 2012, EPA revised the primary annual
PM2.5 NAAQS to 12 micrograms per cubic meter ([mu]g/m\3\).
See 78 FR 3086 (January 15, 2013). States were required to submit
infrastructure SIP submissions for the 2012 PM2.5 NAAQS to
EPA no later than December 14, 2015. Georgia submitted its
infrastructure SIP submission on December 14, 2015, for the 2012
PM2.5 NAAQS.
II. What is EPA's approach to the review of infrastructure SIP
submissions?
The requirement for states to make a SIP submission of this type
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within 3 years (or such shorter period as
the Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``each such
plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of Title I of the CAA,
``regional haze SIP'' submissions required by EPA rule to address the
visibility protection requirements of section 169A of the CAA, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, Title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\2\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\2\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; Section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of Title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of Title I of the
CAA, which specifically address nonattainment SIP requirements.\3\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years or in some cases three years, for such designations to be
promulgated.\4\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\4\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\5\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\6\
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\5\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\6\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS.
[[Page 44834]]
The states' attendant infrastructure SIP submissions for each NAAQS
therefore could be different. For example, the monitoring requirements
that a state might need to meet in its infrastructure SIP submission
for purposes of section 110(a)(2)(B) could be very different for
different pollutants, because the content and scope of a state's
infrastructure SIP submission to meet this element might be very
different for an entirely new NAAQS than for a minor revision to an
existing NAAQS.\7\
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\7\ 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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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, attainment plan SIP submissions must meet the
requirements of section 110(a)(2)(A) regarding enforceable emission
limits and control measures and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By contrast, it is clear that
attainment plan SIP submissions required by part D would not need to
meet the portion of section 110(a)(2)(C) that pertains to the
prevention of significant deterioration (PSD) program required in part
C of Title I of the CAA, because PSD does not apply to a pollutant for
which an area is designated nonattainment and thus subject to part D
planning requirements. As this example illustrates, each type of SIP
submission may implicate some elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\8\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\9\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\10\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (2) such that
infrastructure SIP submissions need to address certain issues and need
not address others. Accordingly, EPA reviews each infrastructure SIP
submission for compliance with the applicable statutory provisions of
section 110(a)(2), as appropriate.
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\8\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\9\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\10\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
Greenhouse Gases. By contrast, structural PSD program requirements do
not include provisions that are not required under EPA's regulations at
40 CFR 51.166 but are merely available as an option for the state, such
as the option to provide grandfathering of complete permit applications
with respect to the PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of provisions EPA considers irrelevant in
the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, inter alia, the requirement
that states have a program to regulate minor new sources. Thus, EPA
evaluates whether the state has an EPA-approved minor new source review
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
[[Page 44835]]
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the existing SIP) for compliance with the
requirements of the CAA and EPA's regulations that pertain to such
programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; \11\ (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR
Reform). Thus, EPA believes that it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\12\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\11\ Subsequent to issuing the 2013 Guidance, EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``State
Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\12\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA would need to evaluate
that provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in section 110(a)(2) as requiring
review of each and every provision of a state's existing SIP against
all requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's implementation
plan is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or to otherwise comply with the CAA.\13\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\14\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\15\
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\13\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\14\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under section 110(k)(6) of the CAA to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
\15\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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III. What are the prong 4 requirements?
Section 110(a)(2)(D)(i)(II) includes a requirement that a state's
implementation plan contain provisions prohibiting sources in that
state from emitting pollutants in amounts that interfere with any other
state's efforts to protect visibility under part C of Title I of the
CAA (which includes sections 169A and 169B). The 2013 Guidance states
that these prong 4 requirements can be satisfied by approved SIP
provisions that EPA has found to adequately address any contribution of
that state's sources to impacts on visibility program requirements in
other states. The 2013 Guidance also states that EPA interprets this
prong to be pollutant-specific, such that the
[[Page 44836]]
infrastructure SIP submission need only address the potential for
interference with protection of visibility caused by the pollutant
(including precursors) to which the new or revised NAAQS applies.
The 2013 Guidance delineates two ways in which a state's
infrastructure SIP may satisfy prong 4. The first way is through an air
agency's confirmation in its infrastructure SIP submission that it has
an EPA-approved regional haze SIP that fully meets the requirements of
40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require
that a state participating in a regional planning process include all
measures needed to achieve its apportionment of emission reduction
obligations agreed upon through that process. A fully approved regional
haze SIP will ensure that emissions from sources under an air agency's
jurisdiction are not interfering with measures required to be included
in other air agencies' plans to protect visibility.
Alternatively, in the absence of a fully approved regional haze
SIP, a state may meet the requirements of prong 4 through a
demonstration in its infrastructure SIP submission that emissions
within its jurisdiction do not interfere with other air agencies' plans
to protect visibility. Such an infrastructure SIP submission would need
to include measures to limit visibility-impairing pollutants and ensure
that the reductions conform with any mutually agreed regional haze
reasonable progress goals for mandatory Class I areas in other states.
IV. What is EPA's analysis of how Georgia addressed prong 4?
Georgia's March 6, 2012, 2008 8-hour Ozone submission; March 25,
2013, 2010 1-hour NO2 submission; October 22, 2013, 2010 1-
hour SO2 submission; and December 14, 2015, 2012 annual
PM2.5 submission cite to the State's regional haze SIP as
satisfying prong 4 requirements. However, as explained below, EPA has
not yet fully approved Georgia's regional haze SIP because the SIP
relies on the Clean Air Interstate Rule (CAIR) to satisfy the nitrogen
oxides (NOX) and SO2 Best Available Retrofit
Technology (BART) requirements for the CAIR-subject electric generating
units (EGUs) in the State and the requirement for a long-term strategy
sufficient to achieve the state-adopted reasonable progress goals.\16\
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\16\ CAIR, promulgated in 2005, required 27 states and the
District of Columbia to reduce emissions of NOX and
SO2 that significantly contribute to, or interfere with
maintenance of, the 1997 NAAQS for fine particulates and/or ozone in
any downwind state. CAIR imposed specified emissions reduction
requirements on each affected State, and established several EPA-
administered cap and trade programs for EGUs that States could join
as a means to meet these requirements.
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EPA demonstrated that CAIR achieved greater reasonable progress
toward the national visibility goal than BART for NOX and
SO2 at BART-eligible EGUs in CAIR affected states, and
revised the regional haze rule to provide that states participating in
CAIR's cap-and-trade programs need not require affected BART-eligible
EGUs to install, operate, and maintain BART for emissions of
SO2 and NOX. See 70 FR 39104 (July 6, 2005). As a
result, a number of states in the CAIR region designed their regional
haze SIPs to rely on CAIR as an alternative to NOX and
SO2 BART for CAIR-subject EGUs. These states also relied on
CAIR as an element of a long-term strategy for achieving their
reasonable progress goals.
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008,\17\ but
ultimately remanded the rule to EPA without vacatur to preserve the
environmental benefits provided by CAIR.\18\ On August 8, 2011 (76 FR
48208), acting on the D.C. Circuit's remand, EPA promulgated the Cross-
State Air Pollution Rule (CSAPR) to replace CAIR and thus to address
the interstate transport of emissions contributing to nonattainment and
interfering with maintenance of the two air quality standards covered
by CAIR as well as the 2006 PM2.5 NAAQS.
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\17\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
\18\ North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008).
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Due to CAIR's status as a temporary measure following the D.C.
Circuit's 2008 ruling, EPA could not fully approve regional haze SIP
revisions to the extent that they relied on CAIR to satisfy the BART
requirement and the requirement for a long-term strategy sufficient to
achieve the state-adopted reasonable progress goals. On these grounds,
EPA finalized a limited disapproval of Georgia's regional haze SIP on
June 7, 2012 (77 FR 33642), triggering the requirement for EPA to
promulgate a Federal Implementation Plan (FIP) unless Georgia submitted
and EPA approved a SIP revision that corrected the deficiencies. EPA
finalized a limited approval of Georgia's regional haze SIP on June 28,
2012 (77 FR 38501), as meeting the remaining applicable regional haze
requirements set forth in the CAA and the regional haze rule.
Numerous parties filed petitions for review of CSAPR in the D.C.
Circuit, and on August 21, 2012, the court issued its ruling, vacating
and remanding CSAPR to EPA and ordering continued implementation of
CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir.
2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United
States Supreme Court on April 29, 2014, and the case was remanded to
the D.C. Circuit to resolve remaining issues in accordance with the
high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct.
1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most
respects, but invalidated without vacating some of the CSAPR budgets as
to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d
118 (D.C. Cir. 2015). The remanded budgets include the Phase 2
SO2 emissions budget for Georgia.
Although Georgia's infrastructure SIP revisions cite to the
regional haze program as satisfying the requirements of Prong 4, the
State may not currently rely on its regional haze SIP to satisfy these
requirements because the regional haze SIP is not fully approved. In
addition, these revisions do not otherwise demonstrate that emissions
within the State's jurisdiction do not interfere with other states'
plans to protect visibility. Therefore, on May 26, 2016, Georgia
submitted a commitment letter to EPA requesting conditional approval of
the prong 4 portions of the aforementioned infrastructure SIP
revisions. In this letter, Georgia commits to satisfy the prong 4
requirements for the 2008 8-hour ozone NAAQS, 2010 1-hour
NO2 NAAQS, 2010 1-hour SO2 NAAQS, and 2012
PM2.5 NAAQS by providing a SIP revision that adopts
provisions for participation in the CSAPR annual NOX and
annual SO2 trading programs, including annual NOX
and annual SO2 budgets that are at least as stringent as the
budgets codified for Georgia at 40 CFR 97.710(a) (SO2 Group
2 trading budgets) and 40 CFR 97.410(a) (NOX Annual trading
budgets). Georgia will rely on this SIP revision adopting such budgets
to submit a concurrent SIP revision specifically addressing the
visibility requirements of prong 4. In its commitment letter, Georgia
commits to providing these two concurrent SIP revisions within one year
of EPA's final conditional approval of the prong 4 portions of the
infrastructure SIP revisions and provides an anticipated schedule for
these revisions. If the revised infrastructure SIP revision relies on a
fully approvable regional haze SIP, Georgia also commits to providing
the
[[Page 44837]]
necessary regional haze SIP revision to EPA within one year of EPA's
final conditional approval.
If Georgia meets its commitment within one year of final
conditional approval, the prong 4 portions of the conditionally
approved infrastructure SIP submissions will remain a part of the SIP
until EPA takes final action approving or disapproving the new SIP
revision(s). However, if the State fails to submit these revisions
within the one-year timeframe, the conditional approval will
automatically become a disapproval one year from EPA's final
conditional approval and EPA will issue a finding of disapproval. EPA
is not required to propose the finding of disapproval. If the
conditional approval is converted to a disapproval, the final
disapproval triggers the FIP requirement under CAA section 110(c).
V. Proposed Action
As described above, EPA is proposing to conditionally approve the
prong 4 portions of Georgia's March 6, 2012, 8-hour Ozone
infrastructure SIP submission; March 25, 2013, 2010 1-hour
NO2 infrastructure SIP submission; October 22, 2013, 2010 1-
hour SO2 infrastructure SIP submission; and December 14,
2015, 2012 annual PM2.5 infrastructure SIP submission. All
other applicable infrastructure requirements for these SIP submissions
have been or will be addressed in separate rulemakings.
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 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:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
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 as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 22, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-16001 Filed 7-8-16; 8:45 am]
BILLING CODE 6560-50-P
