Air Plan Approval; Georgia; Cross-State Air Pollution Rule, 38866-38874 [2017-17227]
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38866
Federal Register / Vol. 82, No. 157 / Wednesday, August 16, 2017 / Proposed Rules
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. Akers
can be reached via telephone at (404)
562–9089 or via electronic mail at
akers.brad@epa.gov.
SUPPLEMENTARY INFORMATION: In the
Final Rules Section of this Federal
Register, EPA is approving the State’s
SIP revision as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period
on this document. Any parties
interested in commenting on this
document should do so at this time.
Dated: August 3, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17245 Filed 8–15–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0452; FRL–9966–43–
Region 4]
Air Plan Approval; Georgia; CrossState Air Pollution Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
portions of a revision to the Georgia
State Implementation Plan (SIP)
concerning the Cross-State Air Pollution
Rule (CSAPR) and the Clean Air
Interstate Rule (CAIR) that was
submitted by Georgia on July 26, 2017.
Under CSAPR, large electricity
generating units (EGUs) in Georgia are
subject to Federal Implementation Plans
(FIPs) requiring the units to participate
in CSAPR’s federal trading program for
annual emissions of nitrogen oxides
(NOX), one of CSAPR’s two federal
trading programs for annual emissions
of sulfur dioxide (SO2), and one of
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SUMMARY:
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CSAPR’s two federal trading programs
for ozone season emissions of NOX. This
action would approve the State’s
regulations requiring large Georgia
EGUs to participate in new CSAPR state
trading programs for annual NOX,
annual SO2, and ozone season NOX
emissions integrated with the CSAPR
federal trading programs, replacing the
corresponding FIP requirements. EPA is
proposing to approve the portions of the
SIP revision concerning these CSAPR
state trading programs because these
portions of the SIP revision meet the
requirements of the Clean Air Act (CAA
or Act) and EPA’s regulations for
approval of a CSAPR full SIP revision
replacing the requirements of a CSAPR
FIP. Under the CSAPR regulations,
approval of these portions of the SIP
revision would automatically eliminate
Georgia’s units’ obligations under the
corresponding CSAPR FIPs addressing
interstate transport requirements for the
1997 Annual Fine Particulate Matter
(PM2.5) National Ambient Air Quality
Standards (NAAQS), the 2006 24-hour
PM2.5 NAAQS, and the 1997 8-hour
Ozone NAAQS. Approval of these
portions of the SIP revision would
satisfy Georgia’s good neighbor
obligation for the 1997 Annual PM2.5
NAAQS, the 2006 24-hour PM2.5
NAAQS, and the 1997 8-hour Ozone
NAAQS. In addition, approval of this
revision would remove from Georgia’s
SIP those state trading program rules
adopted to comply with CAIR.
DATES: Comments must be received on
or before September 15, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2017–0452 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
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https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Ashten Bailey, Air Regulatory
Management Section, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Ms. Bailey
can be reached by telephone at (404)
562–9164 or via electronic mail at
bailey.ashten@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary
EPA is proposing to approve the
portions of the July 26, 2017, revision to
the Georgia SIP concerning CSAPR 1
trading programs for annual emissions
of NOX and SO2 and ozone season
emissions of NOX. Large EGUs in
Georgia are subject to CSAPR FIPs that
require the units to participate in the
federal CSAPR NOX Annual Trading
Program, the federal CSAPR SO2 Group
2 Trading Program, and the federal
CSAPR NOX Ozone Season Group 1
Trading Program. CSAPR also provides
a process for the submission and
approval of SIP revisions to replace the
requirements of CSAPR FIPs with SIP
requirements under which a state’s
units participate in CSAPR state trading
programs that are integrated with and,
with certain permissible exceptions,
substantively identical to the CSAPR
federal trading programs.
The portions of the SIP revision
proposed for approval would
incorporate into Georgia’s SIP state
trading program regulations for annual
NOX and SO2 and ozone season NOX
emissions that would replace EPA’s
federal trading program regulations for
those emissions from Georgia units.2
EPA is proposing to approve these
portions of the SIP revision because
they meet the requirements of the CAA
and EPA’s regulations for approval of a
CSAPR full SIP revision replacing a
federal trading program with a state
trading program that is integrated with
and substantively identical to the
federal trading program. Under the
CSAPR regulations, approval of these
portions of the SIP revision would
automatically eliminate the obligations
of large EGUs in Georgia to participate
1 Federal Implementation Plans; Interstate
Transport of Fine Particulate Matter and Ozone and
Correction of SIP Approvals, 76 FR 48208 (August
8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through EEEEE of 40
CFR part 97).
2 Under Georgia’s regulations, the State will retain
EPA’s default allowance allocation methodology
and EPA will remain the implementing authority
for administration of the trading program. See
sections IV and V.B.2, below.
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in CSAPR’s federal trading programs for
annual NOX, annual SO2 and ozone
season NOX emissions under the
corresponding CSAPR FIPs. EPA
proposes to find that approval of these
portions of the SIP revision would
satisfy Georgia’s obligation pursuant to
CAA section 110(a)(2)(D)(i)(I) to prohibit
emissions which will significantly
contribute to nonattainment or interfere
with maintenance of the 1997 Annual
PM2.5 NAAQS, the 2006 24-hour PM2.5
NAAQS, and the 1997 8-hour Ozone
NAAQS in any other state.
The Phase 2 SO2 budget established
for Georgia in the CSAPR rulemaking
has been remanded to EPA for
reconsideration.3 If EPA finalizes
approval of the portions of the SIP
revision as proposed, Georgia will have
fulfilled its obligations to provide a SIP
that addresses the interstate transport
provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS and the
2006 24-hour PM2.5 NAAQS. Thus, EPA
would no longer be under an obligation
to (nor would EPA have the authority
to) address those interstate transport
requirements through implementation
of a FIP, and approval of these portions
of the SIP revision would eliminate
Georgia units’ obligations to participate
in the federal CSAPR NOX Annual
Trading Program and the federal CSAPR
SO2 Group 2 Trading Program.
Elimination of Georgia units’ obligations
to participate in the federal trading
programs would include elimination of
the federally-established Phase 2
budgets capping allocations of CSAPR
NOX Annual allowances and CSAPR
SO2 Group 2 allowances to Georgia
units under those federal trading
programs. As approval of these portions
of the SIP revision would eliminate
Georgia’s remanded federallyestablished Phase 2 SO2 budget and
eliminate EPA’s authority to subject
units in Georgia to a FIP, it is EPA’s
opinion that finalization of approval of
this SIP action would address the
judicial remand of Georgia’s federallyestablished Phase 2 SO2 budget.4
In addition, approval of the portions
of the SIP revision identified above
would remove Georgia’s state trading
programs provisions adopted to
implement CAIR. EPA is proposing
3 EME Homer City Generation, L.P. v. EPA (EME
Homer City II), 795 F.3d 118, 138 (D.C. Cir. 2015).
4 Although the court in EME Homer City II
remanded Georgia’s Phase 2 SO2 budget because it
determined that the budget may be too stringent,
nothing in the court’s decision affects Georgia’s
authority to seek incorporation into its SIP of a
state-established budget as stringent as the
remanded federally-established budget or limits
EPA’s authority to approve such a SIP revision. See
42 U.S.C. 7416, 7410(k)(3).
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approval of this removal because CAIR
is no longer in effect and has been
replaced by CSAPR. As a result, the
removal of CAIR is consistent with the
CAA.
At this time, EPA is not acting on the
portions of the submittal related to
Georgia’s Regional Haze SIP under the
Clean Air Act or the visibility transport
(prong 4) infrastructure SIP.
Section II provides background
information on CAIR. Section III of this
document summarizes the relevant
aspects of the CSAPR federal trading
programs and FIPs as well as the range
of opportunities states have to submit
SIP revisions to modify or replace the
FIP requirements while continuing to
rely on CSAPR’s trading programs to
address the states’ obligations to
mitigate interstate air pollution. Section
IV describes the specific conditions for
approval of such SIP revisions. Section
V contains EPA’s analysis of Georgia’s
SIP submittal, and Section VI sets forth
EPA’s proposed action on the submittal.
Section VII addresses statutory and
Executive Order reviews.
II. Background on CAIR
To help reduce interstate transport of
ozone and PM2.5 pollution in the eastern
half of the United States, EPA finalized
CAIR in May 2005.5 CAIR addressed
both the 1997 Ozone and PM2.5 NAAQS
and required 28 states, including
Georgia, and the District of Columbia to
limit emissions of NOX and SO2. For
CAIR, EPA developed three separate cap
and trade programs that could be used
to achieve the required reductions: the
CAIR NOX ozone season trading
program, the CAIR NOX annual trading
program, and the CAIR SO2 trading
program. Georgia was subject to CAIR
requirements only with respect to
annual NOX and SO2 emissions.
On December 23, 2008, CAIR was
remanded to EPA by the United States
Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) in North
Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), modified on rehearing, 550 F.3d
1176. This ruling allowed CAIR to
remain in effect until a new interstate
transport rule consistent with the
Court’s opinion was developed. While
EPA worked on developing a new rule
to address the interstate transport of air
pollution, the CAIR program continued
as planned with the NOX annual and
ozone season programs beginning in
2009 and the SO2 annual program
beginning in 2010.
In response to the remand of CAIR,
EPA promulgated CSAPR on July 6,
5 70
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FR 25172 (May 12, 2005).
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2011.6 Along with provisions discussed
more fully in the following section, the
rule contained provisions that would
sunset CAIR-related obligations on a
schedule coordinated with the
implementation of CSAPR compliance
requirements. CSAPR was to become
effective January 1, 2012; however, the
timing of CSAPR’s implementation was
impacted by a number of court actions.
On December 30, 2011, the D.C. Circuit
stayed CSAPR prior to its
implementation, and EPA was ordered
to continue administering CAIR on an
interim basis.7 In a subsequent decision
on the merits, the Court vacated CSAPR
based on a subset of petitioners’ claims.8
However, on April 29, 2014, the U.S.
Supreme Court reversed that decision
and remanded the case to the D.C.
Circuit for further proceedings.9
Throughout the initial round of D.C.
Circuit proceedings and the ensuing
Supreme Court proceedings, the stay on
CSAPR remained in place, and EPA
continued to implement CAIR.
Following the April 2014 Supreme
Court decision, EPA filed a motion
asking the D.C. Circuit to lift the stay in
order to allow CSAPR to replace CAIR
in an equitable and orderly manner
while further D.C. Circuit proceedings
were held to resolve remaining claims
from petitioners. Additionally, EPA’s
motion requested to toll, by three years,
all CSAPR compliance deadlines that
had not passed as of the approval date
of the stay. On October 23, 2014, the
D.C. Circuit granted EPA’s request, and
on December 3, 2014 (79 FR 71663), in
an interim final rule, EPA set the
updated effective date of CSAPR as
January 1, 2015, and tolled the
implementation of CSAPR Phase 1 to
2015 and CSAPR Phase 2 to 2017. In
accordance with the interim final rule,
the sunset date for CAIR was December
31, 2014, and EPA began implementing
CSAPR on January 1, 2015.10
III. Background on CSAPR and CSAPRRelated SIP Revisions
As discussed above, EPA issued
CSAPR in July 2011 to address the
requirements of CAA section
110(a)(2)(D)(i)(I) concerning interstate
transport of air pollution. As amended
(including by the 2016 CSAPR
6 See
76 FR 48208 (August 8, 2011).
of December 30, 2011, in EME Homer City
Generation, L.P. v. EPA, D.C. Cir. No. 11–1302.
8 EME Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012), cert. granted 133 U.S. 2857
(2013).
9 EPA v. EME Homer City Generation, L.P., 134 S.
Ct. 1584, 1600–01 (2014).
10 See 40 CFR 51.123(ff) (sunsetting CAIR
requirements related to NOX); 40 CFR 51.124(s)
(sunsetting CAIR requirements related to SO2).
7 Order
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Update 11), CSAPR requires 27 Eastern
states to limit their statewide emissions
of SO2 and/or NOX in order to mitigate
transported air pollution unlawfully
impacting other states’ ability to attain
or maintain four NAAQS: The 1997
Annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, the 1997 8-hour Ozone
NAAQS, and the 2008 8-hour Ozone
NAAQS. The CSAPR emissions
limitations are defined in terms of
maximum statewide ‘‘budgets’’ for
emissions of annual SO2, annual NOX,
and/or ozone season NOX by each
covered state’s large EGUs. The CSAPR
state budgets are implemented in two
phases of generally increasing
stringency, with the Phase 1 budgets
applying to emissions in 2015 and 2016
and the Phase 2 (and CSAPR Update)
budgets applying to emissions in 2017
and later years. As a mechanism for
achieving compliance with the
emissions limitations, CSAPR
establishes five federal emissions
trading programs: a program for annual
NOX emissions, two geographically
separate programs for annual SO2
emissions, and two geographically
separate programs for ozone-season NOX
emissions. CSAPR also establishes FIP
requirements applicable to the large
EGUs in each covered state.12 Currently,
the CSAPR FIP provisions require each
11 See 81 FR 74504 (October 26, 2016). The
CSAPR Update was promulgated to address
interstate pollution with respect to the 2008 8-hour
Ozone NAAQS and to address a judicial remand of
certain original CSAPR ozone season NOX budgets
promulgated with respect to the 1997 8-hour Ozone
NAAQS. See 81 FR at 74505. The CSAPR Update
established new emission reduction requirements
addressing the more recent NAAQS and
coordinated them with the remaining emission
reduction requirements addressing the older ozone
NAAQS, so that starting in 2017, CSAPR includes
two geographically separate trading programs for
ozone season NOX emissions covering EGUs in a
total of 23 states. See 40 CFR 52.38(b)(1)–(2).
12 States are required to submit good neighbor
SIPs within three years (or less, if the Administrator
so prescribes) after a NAAQS is promulgated. CAA
section 110(a)(1) and (2). Where EPA finds that a
state fails to submit a required SIP or disapproves
a SIP, EPA is obligated to promulgate a FIP
addressing the deficiency. CAA section 110(c). EPA
found that Georgia failed to make timely
submissions required to address the good neighbor
provision with respect to the 1997 Annual PM2.5
and 8-hour Ozone NAAQS (70 FR 21147, April 25,
2005), and the 2008 8-hour Ozone NAAQS (80 FR
39961, June 13, 2015). In addition, EPA
disapproved Georgia’s SIP revision submitted to
address the good neighbor provision with respect to
the 2006 24-hour PM2.5 NAAQS. 76 FR 43159 (July
20, 2011). Accordingly, as a part of CSAPR and the
CSAPR Update, EPA promulgated FIPs applicable
to sources in Georgia addressing the good neighbor
provision with respect to the 1997 annual PM2.5,
1997 8-hour Ozone NAAQS, and the 2006 24-hour
PM2.5 NAAQS. As discussed below, when EPA
finalized the CSAPR Update, EPA determined that
Georgia did not interfere with nonattainment or
maintenance for the 2008 8-hour Ozone NAAQS.
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state’s units to participate in up to three
of the five CSAPR trading programs.
CSAPR includes provisions under
which states may submit and EPA will
approve SIP revisions to modify or
replace the CSAPR FIP requirements
while allowing states to continue to
meet their transport-related obligations
using either CSAPR’s federal emissions
trading programs or state emissions
trading programs integrated with the
federal programs, provided that the SIP
revisions meet all relevant criteria.13
Through such a SIP revision, a state may
replace EPA’s default provisions for
allocating emission allowances among
the state’s units, employing any stateselected methodology to allocate or
auction the allowances, subject to
timing conditions and limits on overall
allowance quantities. In the case of
CSAPR’s federal trading programs for
ozone season NOX emissions (or an
integrated state trading program), a state
may also expand trading program
applicability to include certain smaller
EGUs.14 If a state wants to replace
CSAPR FIP requirements with SIP
requirements under which the state’s
units participate in a state trading
program that is integrated with and
identical to the federal trading program
even as to the allocation and
applicability provisions, the state may
submit a SIP revision for that purpose
as well. However, no emissions budget
increases or other substantive changes
to the trading program provisions are
allowed. A state whose units are subject
to multiple CSAPR FIPs and federal
trading programs may submit SIP
revisions to modify or replace either
some or all of those FIP requirements.
States can submit two basic forms of
CSAPR-related SIP revisions effective
for emissions control periods in 2017 or
later years.15 Specific conditions for
approval of each form of SIP revision
are set forth in the CSAPR regulations,
as described in section IV below. Under
the first alternative—an ‘‘abbreviated’’
SIP revision—a state may submit a SIP
revision that upon approval replaces the
default allowance allocation and/or
applicability provisions of a CSAPR
13 See 40 CFR 52.38, 52.39. States also retain the
ability to submit SIP revisions to meet their
transport-related obligations using mechanisms
other than the CSAPR federal trading programs or
integrated state trading programs.
14 States covered by both the CSAPR Update and
the NOX SIP Call have the additional option to
expand applicability under the CSAPR NOX Ozone
Season Group 2 Trading Program to include nonEGUs that would have participated in the former
NOX Budget Trading Program.
15 CSAPR also provides for a third, more
streamlined form of SIP revision that is effective
only for control periods in 2016 and is not relevant
here. See 40 CFR 52.38(a)(3), (b)(3), (b)(7); 52.39(d),
(g).
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federal trading program for the state.16
Approval of an abbreviated SIP revision
leaves the corresponding CSAPR FIP
and all other provisions of the relevant
federal trading program in place for the
state’s units.
Under the second alternative—a
‘‘full’’ SIP revision—a state may submit
a SIP revision that upon approval
replaces a CSAPR federal trading
program for the state with a state trading
program integrated with the federal
trading program, so long as the state
trading program is substantively
identical to the federal trading program
or does not substantively differ from the
federal trading program except as
discussed above with regard to the
allowance allocation and/or
applicability provisions.17 For purposes
of a full SIP revision, a state may either
adopt state rules with complete trading
program language, incorporate the
federal trading program language into its
state rules by reference (with
appropriate conforming changes), or
employ a combination of these
approaches.
The CSAPR regulations identify
several important consequences and
limitations associated with approval of
a full SIP revision. First, upon EPA’s
approval of a full SIP revision as
correcting the deficiency in the state’s
implementation plan that was the basis
for a particular set of CSAPR FIP
requirements, the obligation to
participate in the corresponding CSAPR
federal trading program is automatically
eliminated for units subject to the state’s
jurisdiction without the need for a
separate EPA withdrawal action, so long
as EPA’s approval of the SIP is full and
unconditional.18 Second, approval of a
full SIP revision does not terminate the
obligation to participate in the
corresponding CSAPR federal trading
program for any units located in any
Indian country within the borders of the
state, and if and when a unit is located
in Indian country within a state’s
borders, EPA may modify the SIP
approval to exclude from the SIP, and
include in the surviving CSAPR FIP
instead, certain trading program
provisions that apply jointly to units in
the state and to units in Indian country
within the state’s borders.19 Finally, if at
the time a full SIP revision is approved
EPA has already started recording
allocations of allowances for a given
control period to a state’s units, the
16 40
CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
18 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
19 40 CFR 52.38(a)(5)(iv)–(v), (a)(6), (b)(5)(v)–(vi),
(b)(9)(vi)–(vii), (b)(10)(i); 52.39(f)(4)–(5), (i)(4)–(5),
(j).
17 40
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federal trading program provisions
authorizing EPA to complete the process
of allocating and recording allowances
for that control period to those units
will continue to apply, unless EPA’s
approval of the SIP revision provides
otherwise.20
On July 28, 2015, the D.C. Circuit
issued a decision on a number of
petitions related to CSAPR, which
found that EPA required more emissions
reductions than may have been
necessary to address the downwind air
quality problems to which some states
contribute. The Court remanded several
CSAPR emission budgets to EPA for
reconsideration, including the Phase 2
SO2 trading budget for Georgia.21
However, Georgia has proposed to
voluntarily adopt into their SIP a
CSAPR state trading program that is
integrated with the federal trading
program and includes a stateestablished SO2 budget equal to the
state’s remanded Phase 2 SO2 emission
budget.22 EPA notes that nothing in the
Court’s decision affects Georgia’s
authority to seek incorporation into its
SIP of a state-established budget as
stringent as the remanded federallyestablished budget or limits EPA’s
authority to approve such a SIP
revision. The CSAPR regulations
provide each covered state with the
option to meet its transport obligations
through SIP revisions replacing the
federal trading programs and requiring
the state’s EGUs to participate in
integrated CSAPR state trading
programs that apply emissions budgets
of the same or greater stringency. Under
the CSAPR regulations, when such a SIP
revision is approved, the corresponding
FIP provisions are automatically
withdrawn.
IV. Conditions for Approval of CSAPRRelated SIP Revisions
Each CSAPR-related abbreviated or
full SIP revision must meet the
following general submittal conditions:
• Timeliness and completeness of SIP
submittal. The SIP submittal
20 40
CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
Homer City II, 795 F.3d 118; See also EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7
(D.C. Cir. 2012), EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014). The D.C.
Circuit also remanded SO2 budgets for Alabama,
South Carolina, and Texas. The court also
remanded Phase 2 ozone-season NOX budgets for
eleven states, which did not include Georgia.
22 See memo entitled ‘‘The U.S. Environmental
Protection Agency’s Plan for Responding to the
Remand of the Cross-State Air Pollution Rule Phase
2 SO2 Budgets for Alabama, Georgia, South Carolina
and Texas’’ from Janet G. McCabe, EPA Acting
Assistant Administrator for Air and Radiation, to
EPA Regional Air Division Directors (June 27,
2016), available at https://www.regulations.gov/
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completeness criteria in section 2.1 of
appendix V to 40 CFR part 51 apply. In
addition, if a state wants to replace the
default allowance allocation or
applicability provisions of a CSAPR
federal trading program, the complete
SIP revision must be submitted to EPA
by December 1 of the year before the
deadlines described below for
submitting allocation or auction
amounts to EPA for the first control
period for which the state wants to
replace the default allocation and/or
applicability provisions.23 This SIP
submission deadline is inoperative in
the case of a SIP revision that seeks only
to replace a CSAPR FIP and federal
trading program with a SIP and a
substantively identical state trading
program integrated with the federal
trading program.
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP seeking to address the
allocation or auction of emission
allowances must meet the following
further conditions:
• Methodology covering all
allowances potentially requiring
allocation. For each federal trading
program addressed by a SIP revision,
the SIP revision’s allowance allocation
or auction methodology must replace
both the federal program’s default
allocations to existing units 24 at 40 CFR
97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a) as applicable,
and the federal trading program’s
provisions for allocating allowances
from the new unit set-aside (NUSA) for
the state at 40 CFR 97.411(b)(1) and
97.412(a), 97.511(b)(1) and 97.512(a),
97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and
97.812(a), as applicable.25 In the case of
a state with Indian country within its
borders, while the SIP revision may
neither alter nor assume the federal
program’s provisions for administering
the Indian country NUSA for the state,
the SIP revision must include
procedures addressing the disposition of
any otherwise unallocated allowances
from an Indian country NUSA that may
be made available for allocation by the
state after EPA has carried out the
Indian country NUSA allocation
procedures.26
• Assurance that total allocations will
not exceed the state budget. For each
federal trading program addressed by a
SIP revision, the total amount of
allowances auctioned or allocated for
each control period under the SIP
revision (prior to the addition by EPA of
any unallocated allowances from any
Indian country NUSA for the state)
generally may not exceed the state’s
emissions budget for the control period
less the sum of the amount of any
Indian country NUSA for the state for
the control period and any allowances
already allocated to the state’s units for
the control period and recorded by
EPA.27 Under its SIP revision, a state is
free to not allocate allowances to some
or all potentially affected units, to
allocate or auction allowances to
entities other than potentially affected
units, or to allocate or auction fewer
than the maximum permissible quantity
of allowances and retire the remainder.
Under the CSAPR NOX Ozone Season
Group 2 Trading Program only,
additional allowances may be allocated
if the state elects to expand applicability
to non-EGUs that would have been
subject to the NOX Budget Trading
Program established for compliance
with the NOX SIP Call.28
• Timely submission of statedetermined allocations to EPA. The SIP
revision must require the state to submit
to EPA the amounts of any allowances
allocated or auctioned to each unit for
each control period (other than
allowances initially set aside in the
state’s allocation or auction process and
later allocated or auctioned to such
units from the set-aside amount) by the
following deadlines.29 Note that the
submission deadlines differ for amounts
allocated or auctioned to units
considered existing units for CSAPR
purposes and amounts allocated or
auctioned to other units.
document?D=EPA-HQ-OAR-2016-0598-0003. The
memo directs the Regional Air Division Directors to
share the memo with state officials. The EPA also
communicated orally with officials in Alabama,
Georgia, South Carolina, and Texas in advance of
the memo.
23 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); 52.39(e)(2), (f)(6),
(h)(2), (i)(6).
24 In the context of the approval conditions for
CSAPR-related SIP revisions, an ‘‘existing unit’’ is
a unit for which EPA has determined default
allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing
and amending CSAPR. A document describing
EPA’s default allocations to existing units is
available at https://www.epa.gov/sites/production/
files/2017-05/documents/csapr_allowance_
allocations_final_rule_tsd.pdf.
25 40 CFR 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii),
(b)(5)(ii), (b)(8)(iii), (b)(9)(iii); 52.39(e)(1), (f)(1),
(h)(1), (i)(1).
26 See 40 CFR 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
27 40 CFR 52.38(a)(4)(i)(A), (a)(5)(i)(A),
(b)(4)(ii)(A), (b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A);
52.39(e)(1)(i), (f)(1)(i), (h)(1)(i), (i)(1)(i).
28 40 CFR 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
29 40 CFR 52.38(a)(4)(i)(B)–(C), (a)(5)(i)(B)–(C),
(b)(4)(ii)(B)–(C), (b)(5)(ii)(B)–(C), (b)(8)(iii)(B)–(C),
(b)(9)(iii)(B)–(C); 52.39(e)(1)(ii)–(iii), (f)(1)(ii)–(iii),
(h)(1)(ii)–(iii), (i)(1)(ii)–(iii).
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Units
Deadline for submission to EPA of allocations or
auction results
Year of the control period
CSAPR NOX Annual, CSAPR NOX Ozone Season Group 1, CSAPR SO2 Group 1, and CSAPR SO2 Group 2 Trading Programs:
Existing ..................
2017
2019
2021
2023
and
and
and
and
2018 .......................................................................
2020 .......................................................................
2022 .......................................................................
later years ..............................................................
Other ......................
All years ..................................................................................
June 1, 2016.
June 1, 2017.
June 1, 2018.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
CSAPR NOX Ozone Season Group 2 Trading Program:
2019
2021
2023
2025
Other ......................
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Existing ..................
and
and
and
and
2020 .......................................................................
2022 .......................................................................
2024 .......................................................................
later years ..............................................................
All years ..................................................................................
• No changes to allocations already
submitted to EPA or recorded. The SIP
revision must not provide for any
change to the amounts of allowances
allocated or auctioned to any unit after
those amounts are submitted to EPA or
any change to any allowance allocation
determined and recorded by EPA under
the federal trading program
regulations.30
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also expands program
applicability as described below.31 Any
new definitions adopted in the SIP
revision (in addition to the federal
trading program’s definitions) may
apply only for purposes of the SIP
revision’s allocation or auction
provisions.32
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP revision seeking to expand
applicability under the CSAPR NOX
Ozone Season Group 1 or CSAPR NOX
Ozone Season Group 2 Trading
Programs (or an integrated state trading
program) must meet the following
further conditions:
• Only electricity generating units
with nameplate capacity of at least 15
MWe. The SIP revision may expand
applicability only to additional fossil
fuel-fired boilers or combustion turbines
serving generators producing electricity
for sale, and only by lowering the
generator nameplate capacity threshold
used to determine whether a particular
30 40 CFR 52.38(a)(4)(i)(D), (a)(5)(i)(D),
(b)(4)(ii)(D), (b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D);
52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
31 40 CFR 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8),
(b)(9); 52.39(e), (f), (h), (i).
32 40 CFR 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii),
(b)(5)(iii), (b)(8)(iii), (b)(9)(iv); 52.39(e)(1), (f)(2),
(h)(1), (i)(2).
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June 1, 2018.
June 1, 2019.
June 1, 2020.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
boiler or combustion turbine serving a
particular generator is a potentially
affected unit. The nameplate capacity
threshold adopted in the SIP revision
may not be less than 15 MWe.33 In
addition or alternatively, applicability
under the CSAPR NOX Ozone Season
Group 2 Trading Program may be
expanded to non-EGUs that would have
been subject to the NOX Budget Trading
Program established for compliance
with the NOX SIP Call.34
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also addresses the
allocation or auction of emission
allowances as described above.35
In addition to the general submittal
conditions and the other applicable
conditions described above, a CSAPRrelated full SIP revision must meet the
following further conditions:
• Complete, substantively identical
trading program provisions. The SIP
revision must adopt complete state
trading program regulations
substantively identical to the complete
federal trading program regulations at
40 CFR 97.402 through 97.435, 97.502
through 97.535, 97.602 through 97.635,
97.702 through 97.735, or 97.802
through 97.835, as applicable, except as
described above in the case of a SIP
revision that seeks to replace the default
allowance allocation and/or
applicability provisions.36
• Only non-substantive substitutions
for the term ‘‘State.’’ The SIP revision
may substitute the name of the state for
the term ‘‘State’’ as used in the federal
trading program regulations, but only to
33 40
CFR 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
CFR 52.38(b)(8)(ii), (b)(9)(ii).
35 40 CFR 52.38(b)(4), (b)(5), (b)(8), (b)(9).
36 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
34 40
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the extent that EPA determines that the
substitutions do not substantively
change the trading program
regulations.37
• Exclusion of provisions addressing
units in Indian country. The SIP
revision may not impose requirements
on any unit in any Indian country
within the state’s borders and must not
include the federal trading program
provisions governing allocation of
allowances from any Indian country
NUSA for the state.38
V. Georgia’s SIP Submittal and EPA’s
Analysis
A. Georgia’s SIP Submittal as It Relates
to CSAPR
In the CSAPR rulemaking, EPA
determined that air pollution
transported from EGUs in Georgia
would unlawfully affect other states’
ability to attain or maintain the 1997 8hour Ozone NAAQS, the 1997 Annual
PM2.5 NAAQS, and the 2006 24-hour
PM2.5 NAAQS, and included Georgia in
the CSAPR ozone season NOX trading
program and the annual SO2 and NOX
trading programs.39 In the CSAPR
Update rulemaking, EPA determined
that Georgia was not linked to any
identified downwind nonattainment or
maintenance receptors for the 2008 8hour Ozone NAAQS.40 Georgia’s units
meeting the CSAPR applicability criteria
are consequently currently subject to
CSAPR FIPs that require participation in
37 40 CFR 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
38 40 CFR 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi);
52.39(f)(4), (i)(4).
39 76 FR 48208, 48213 (August 8, 2011).
40 81 FR 74504, 74506 (October 26, 2016). EPA
also determined in the CSAPR Update rulemaking
that Georgia had no further transport obligation
under CAA section 110(a)(2)(D)(i)(I) with respect to
the 1997 Ozone NAAQS beyond the ozone season
NOX emission reduction requirements established
in the original CSAPR rulemaking. Id. at 74525.
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the CSAPR NOX Annual Trading
Program, the CSAPR NOX Ozone Season
Group 1 Trading Program, and the
CSAPR SO2 Group 2 Trading Program.41
Georgia’s July 26, 2017, SIP revision
incorporates into the SIP CSAPR state
trading program regulations that would
replace the CSAPR federal trading
program regulations with regard to
Georgia units’ SO2 and NOX emissions.
The SIP submittal includes revisions to
two Georgia rules: Rule 391–3–1–
.02(12), ‘‘Clean Air Interstate Rule NOX
Annual Trading Program,’’ is replaced
by ‘‘Cross State Air Pollution Rule NOX
Annual Trading Program;’’ and Rule
391–3–1–.02(13), ‘‘Clean Air Interstate
Rule SO2 Annual Trading Program,’’ is
replaced by ‘‘Cross State Air Pollution
Rule SO2 Annual Trading Program.’’ In
addition, the submittal adds Rule 391–
3–1–.02(14), ‘‘Cross State Air Pollution
Rule NOX Ozone Season Trading
Program.’’ In general, each rule in
Georgia’s CSAPR state trading program
rule is designed to replace the
corresponding federal trading program
regulations. For example, Georgia Rule
391–3–1–.02(12), Cross State Air
Pollution Rule NOX Annual Trading
Program, is designed to replace subpart
AAAAA of 40 CFR part 97 (i.e., 40 CFR
97.401 through 97.435).
With regard to form, some of the
individual rules for each Georgia
CSAPR state trading program are set
forth as full regulatory text—notably the
rules identifying the trading budgets,
NUSA, Indian country NUSA, and the
definition of ‘‘Permitting Authority’’—
but most of the rules incorporate the
corresponding federal trading program
section or sections by reference.
With regard to substance, the rules for
each Georgia CSAPR state trading
program differ from the corresponding
CSAPR federal trading program
regulations in two main ways. First, the
term permitting authority is defined as
the Georgia Environmental Protection
Division of the Georgia Department of
Natural Resources for units in Georgia
only. Second, the Georgia rules omit
some federal trading program provisions
not applicable to Georgia’s state trading
programs, including provisions setting
forth the amounts of emissions budgets,
NUSAs, Indian country NUSAs, and
variability limits for other states and
provisions relating to EPA’s
administration of Indian country
NUSAs.
The Georgia rules adopt the Phase 2
annual NOX and SO2 budgets and the
Group 1 ozone season NOX budgets
found at 40 CFR 97.410(a)(2)(iv),
41 40 CFR 52.38(a)(2), (b)(2); 52.39(c); 52.584(a),
(b); 52.585.
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97.710(a)(2)(iv), and 97.510(a)(4)(iv),
respectively. Accordingly, EPA will
evaluate the approvability of the Georgia
SIP submission consistent with these
budgets.
At this time, EPA is proposing to take
action on the portions of Georgia’s SIP
submission designed to replace the
federal CSAPR NOX Annual Trading
Program, the federal CSAPR SO2 Group
2 Trading Program, and the federal
CSAPR NOX Ozone Season Group 1
Trading Program with regard to Georgia
units.42
allowance allocations to EPA and is
therefore inoperative in the case of a SIP
revision that does not seek to replace
the EPA-administered allowance
allocation methodology and process set
forth in the federal trading program
rules. Because Georgia is seeking to
replace the federal trading program
rules with substantively identical state
trading program rules and is not seeking
to replace the EPA-administered
allowance allocation methodology and
process, the SIP submission deadline
does not apply.45
B. EPA’s Analysis of Georgia’s SIP
Submittal as It Relates to CSAPR
As described in section V.A above, at
this time EPA is proposing to take
action on the portions of Georgia’s SIP
submittal designed to replace the federal
CSAPR NOX Annual Trading Program,
the federal CSAPR SO2 Group 2 Trading
Program, and the federal CSAPR NOX
Ozone Season Group 1 Trading
Program 43 for Georgia units.44 The
analysis discussed in this section
addresses only the portions of Georgia’s
SIP submittal related to CSAPR on
which EPA is taking action at this time.
For simplicity, throughout this section
EPA refers to the portions of the
submittal on which EPA is proposing to
take action as ‘‘the submittal’’ or ‘‘the
SIP revision’’ without repeating the
qualification that at this time EPA is
analyzing and proposing to act on only
portions of the SIP submittal.
2. Complete, Substantively Identical
Trading Program Provisions
1. Timeliness and Completeness of SIP
Submittal
Georgia submitted its SIP revision to
EPA on July 26, 2017, and EPA has
determined that the submittal complies
with the applicable minimum
completeness criteria in section 2.1 of
appendix V to 40 CFR part 51. The SIP
submission deadline specified in 40
CFR 52.38(a)(5)(vi) and (b)(5)(vii) and
52.39(i)(6) is defined with reference to
certain separate CSAPR deadlines for
submission of state-determined
42 In addition and as discussed above, the EPA is
also proposing to take action on the portions of the
SIP submittal related to removal of CAIR.
43 Georgia’s rules incorporate the provisions of,
and, if approved, would replace the federal CSAPR
NOX Ozone Season Group 1 Trading Program. See
40 CFR 52.38(b)(5). Following the CSAPR Update,
Georgia is the only state whose units participate in
this trading program; units in other states
participate in the CSAPR NOX Ozone Season Group
2 Trading Program. See 40 CFR 52.38(b)(2)(i);
CSAPR Update, 81 FR at 74509. As a result, Georgia
units will be unable to trade allowances with units
in other states. See CSAPR Update, 81 FR at 74509.
EPA notes that federal regulations provide an
option for Georgia to join the Group 2 trading
program. 40 CFR 52.38(b)(6); CSAPR Update, 81 FR
at 74509.
44 The other portions of the state submittal will
be addressed in separate actions.
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As discussed above, the Georgia SIP
revision adopts state budgets identical
to the Phase 2 budgets for Georgia under
the federal trading programs and adopts
almost all of the provisions of the
federal CSAPR NOX Annual Trading
Program, CSAPR SO2 Group 2 Trading
Program, and CSAPR NOX Ozone
Season Group 1 Trading Program,
including the default allocation
provisions. Under the State’s rules, EPA
will administer the programs and will
retain the authority to allocate and
record allowances.
With a few exceptions, the Georgia
rules comprising Georgia’s CSAPR state
trading program for annual NOX
emissions either incorporate by
reference or adopt full-text replacements
for all of the provisions of 40 CFR
97.401 through 97.435; the Georgia rules
comprising Georgia’s CSAPR state
trading program for SO2 emissions
either incorporate by reference or adopt
full-text replacements for all of the
provisions of 40 CFR 97.701 through
97.735; and the Georgia rules
comprising Georgia’s CSAPR state
trading program for NOX ozone season
emissions either incorporate by
reference or adopt full-text replacements
for all of the provisions of 40 CFR
97.501 through 97.535.
The first exception is that paragraphs
391–3–1–.02(12)(a), 391–3–1–.02(13)(a),
and 391–3–1–.02(14)(a) of the Georgia
rules substitute ‘‘Environmental
Protection Division of the Georgia
Department of Natural Resources’’ for
the term ‘‘permitting authority’’ for
units located within the state of Georgia.
This substitution properly retains the
definition in 40 CFR 97.402 46 for units
45 See 40 CFR 52.38(a)(5)(vi), (b)(5)(vii);
52.39(i)(6).
46 As clarified in a letter from Georgia dated July
21, 2017, there is a typographical error such that
each of Georgia’s three CSAPR rules references 40
CFR 97.402, instead of referencing 40 CFR 97.702
in 391–3–1–.02(13)(a) and 40 CFR 97.502 in
paragraph 391–3–1–.02(14)(a). See July 21, 2017
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outside of the State’s jurisdiction. This
modification of the federal trading
program rules merely provides clarity to
Georgia sources, and these substitutions
do not substantively change the
provisions of CSAPR’s federal trading
program regulations. As a result, this
change is permitted under 40 CFR
52.38(a)(5), 52.38(b)(5) and 52.39(i).
The second exception is that
paragraphs 391–3–1–.02(12), 391–3–1–
.02(13), and 391–3–1–.02(14) of the
Georgia rules omit the provisions of 40
CFR 97.410(a) and (b), 97.710(a) and (b),
and 97.510(a) and (b), setting forth the
amounts of the Phase 1 emissions
budgets, NUSAs, and variability limits
for Georgia and the amounts of the
Phase 1 and Phase 2 emissions budgets,
NUSAs, Indian country NUSAs, and
variability limits for other states.
Omission of the Georgia Phase 1
emissions budget, NUSA, and
variability limit amounts is appropriate
because Georgia’s state trading programs
do not apply to emissions occurring in
Phase 1 of CSAPR. Omission of the
Phase 1 and Phase 2 budget, NUSA,
Indian country NUSA, and variability
limit amounts for other states from state
trading programs in which only Georgia
units participate does not undermine
the completeness of the state trading
programs. Georgia’s rules include fulltext replacement provisions for the
remaining provisions of 40 CFR 97.410,
97.710, and 97.510 that are relevant to
trading programs applicable only to
Georgia units during Phase 2 of CSAPR.
The third exception is that Georgia
Rules 391–3–1–.02(12), 391–3–1–
.02(13), and 391–3–1–.02(14) omit 40
CFR 97.411(b)(2), 97.411(c)(5)(iii),
97.412(b), 97.421(h), 97.421(j),
97.711(b)(2), 97.711(c)(5)(iii), 97.712(b),
97.721(h), 97.721(j), 97.511(b)(2),
97.511(c)(5)(iii), 97.512(b), 97.521(h),
and 97.521(j) concerning EPA’s
administration of Indian country
NUSAs. Omission of these provisions
from Georgia’s state trading program
rules is required, as discussed in section
V.B.4 below.
None of the omissions undermine the
completeness of Georgia’s state trading
programs, and EPA has preliminarily
Letter from Karen Hayes (Director, Air Protection
Division, Georgia EPD) to V. Anne Heard (Acting
Regional Administrator, EPA Region 4), available in
the docket to this action. EPA views this
typographical error as non-substantive because the
underlying definition for the term ‘‘permitting
authority’’ is the same for all three trading
programs. Compare, e.g., 40 CFR 97.402 (Permitting
authority means ‘‘permitting authority’’ as defined
in 40 CFR 70.2 and 71.2) with 40 CFR 97.502
(Permitting authority means ‘‘permitting authority’’
as defined in 40 CFR 70.2 and 71.2). Regardless,
Georgia has committed to fixing this error in the
future.
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determined that Georgia’s SIP revision
makes no substantive changes to the
provisions of the federal trading
program regulations. Thus, Georgia’s
SIP revision meets the condition under
40 CFR 52.38(a)(5), 52.39(i), and
52.38(b)(5) that the SIP revision must
adopt complete state trading program
regulations substantively identical to
the complete federal trading program
regulations at 40 CFR 97.402 through
97.435, 97.702 through 97.735, and
97.502 through 97.535, respectively,
except to the extent permitted in the
case of a SIP revision that seeks to
replace the default allowance allocation
and/or applicability provisions.
3. Only Non-Substantive Substitutions
for the Term ‘‘State’’
The Georgia rules do not make any
substitutions for the term ‘‘State.’’
4. Exclusion of Provisions Addressing
Units in Indian Country
Georgia Rules 391–3–1–.02(12)(b),
391–3–1–.02(13)(b), and 391–3–1–
.02(14)(b) incorporate by reference the
applicability provisions of the federal
trading program rules at 40 CFR 97.402,
97.702, and 97.502, respectively. There
is no Indian country (as defined for
purposes of CSAPR) within Georgia’s
borders, so the applicability provisions
of the Georgia rules necessarily do not
extend to any units in Indian country.
In addition, as required under 40 CFR
52.38(a)(5)(iv), 52.39(i)(4) and
52.38(b)(5)(v), Georgia’s SIP revision
excludes federal trading program
provisions related to EPA’s process for
allocating and recording allowances
from Indian country NUSAs (i.e., 40
CFR 97.411(b)(2), 97.411(c)(5)(iii),
97.412(b), 97.421(h), 97.421(j),
97.711(b)(2), 97.711(c)(5)(iii), 97.712(b),
97.721(h), 97.721(j), 97.511(b)(2),
97.511(c)(5)(iii), 97.512(b), 97.521(h)
and 40 CFR 97.521(j)). Georgia’s SIP
revision therefore meets the conditions
under 52.38(a)(5)(iv), 52.39(i)(4) and
52.38(b)(5)(v) that a SIP submittal must
not impose any requirement on any unit
in Indian country within the borders of
the State and must exclude certain
provisions related to administration of
Indian country NUSAs.
C. Georgia’s SIP Submittal as It Relates
to CAIR, and EPA’s Analysis
In addition, Georgia’s July 26, 2017,
submittal seeks to remove state trading
program rules adopted to comply with
the CAIR from Georgia’s SIP at 391–3–
1–.02(12), ‘‘Clean Air Interstate Rule
NOX Annual Trading Program,’’ and
Rule 391–3–1–.02(13), ‘‘Clean Air
Interstate Rule SO2 Annual Trading
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Program,’’ because the CAIR program
has been replaced by CSAPR.47
In this action, EPA proposes to
approve the removal of these CAIRrelated provisions from Georgia’s SIP.
As explained above, the D.C. Circuit
remanded CAIR to EPA in 2008;
however, the Court left CAIR in place
while EPA worked to develop a new
interstate transport rule. CSAPR was
promulgated to respond to the Court’s
concerns and to replace CAIR. The
implementation of CSAPR was delayed
for several years beyond its originally
expected implementation timeframe of
2012, and therefore, the sunsetting of
CAIR was also deferred. CAIR was
implemented through the 2014
compliance periods and was replaced
by CSAPR on January 1, 2015. EPA
promulgated regulations to sunset the
CAIR program and it is no longer in
effect.48 EPA therefore proposes to
approve the removal of Georgia’s SIP
provisions related to CAIR.
VI. Incorporation by Reference
In this rule, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
Georgia Rules for Air Quality Control,
Rule 391–3–1–.02(12), Rule 391–3–1–
.02(13), and Rule 391–3–1–.02(14), state
effective on July 20, 2017, comprising
Georgia’s Cross State Air Pollution Rule
NOX Annual Trading Program, Georgia’s
Cross State Air Pollution Rule SO2
Annual Trading Program, and Georgia’s
Cross State Air Pollution Rule NOX
Ozone Season Trading Program,
respectively. EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and/or at the EPA
Region 4 office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
VII. EPA’s Proposed Action on
Georgia’s Submittal
EPA is proposing to approve the
portions of Georgia’s July 26, 2017, SIP
submittal concerning the establishment
for Georgia units of CSAPR state trading
programs for annual NOX, annual SO2
emissions and ozone season NOX
emissions. The proposed revision would
revise Georgia Rules for Air Quality
Control to include CSAPR as follows:
47 As discussed above in section V.A., the State
seeks to replace these provisions with state rules
related to CSAPR.
48 40 CFR 51.123(ff) (requirements related to
NOX); 40 CFR 51.124(s) (requirements related to
SO2).
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391–3–1–.02(12) will be revised to
include Georgia’s ‘‘Cross State Air
Pollution Rule NOX Annual Trading
Program;’’ 391–3–1–.02(13) will be
revised to include Georgia’s ‘‘Cross State
Air Pollution Rule SO2 Annual Trading
Program;’’ and 391–3–1–.02(14) will be
added to include ‘‘Georgia’s Cross State
Air Pollution Rule NOX Ozone Season
Trading Program.’’ These Georgia
CSAPR state trading programs would be
integrated with the federal CSAPR NOX
Annual Trading Program, the federal
CSAPR SO2 Group 2 Trading Program,
and the federal CSAPR NOX Ozone
Season Group 1 Trading Program,
respectively, and would be
substantively identical to the federal
trading programs.49 If EPA approves
these portions of the SIP revision,
Georgia units would generally be
required to meet requirements under
Georgia’s CSAPR state trading programs
equivalent to the requirements the units
otherwise would have been required to
meet under the corresponding CSAPR
federal trading programs. EPA is
proposing to approve these portions of
the SIP revision because they meet the
requirements of the CAA and EPA’s
regulations for approval of a CSAPR full
SIP revision replacing a federal trading
program with a state trading program
that is integrated with and substantively
identical to the federal trading program
except for permissible differences, as
discussed in section V above.
EPA promulgated FIPs requiring
Georgia units to participate in the
federal CSAPR NOX Annual Trading
Program, the federal CSAPR SO2 Group
2 Trading Program, and the federal
CSAPR NOX Ozone Season Group 1
Trading Program in order to address
Georgia’s obligations under CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS, the 2006
24-hour PM2.5 NAAQS, and the 1997 8hour Ozone NAAQS in the absence of
SIP provisions addressing those
requirements. Approval of the portions
of Georgia’s SIP submittal adopting
CSAPR state trading program rules for
annual NOX, annual SO2, and ozone
season NOX substantively identical to
the corresponding CSAPR federal
trading program regulations (or differing
only with respect to the allowance
allocation methodology) would satisfy
Georgia’s obligation pursuant to CAA
section 110(a)(2)(D)(i)(I) to prohibit
emissions which will significantly
contribute to nonattainment or interfere
49 As previously discussed in sections IV and
V.B.2, under Georgia’s regulations, the State will
retain EPA’s default allowance allocation
methodology and EPA will remain the
implementing authority for administration of the
trading program.
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with maintenance of the 1997 Annual
PM2.5 NAAQS, the 2006 24-hour PM2.5
NAAQS, and the 1997 8-hour Ozone
NAAQS in any other state and therefore
would correct the same deficiency in
the SIP that otherwise would be
corrected by those CSAPR FIPs. Under
the CSAPR regulations, upon EPA’s full
and unconditional approval of a SIP
revision as correcting the SIP’s
deficiency that is the basis for a
particular CSAPR FIP, the obligation to
participate in the corresponding CSAPR
federal trading program is automatically
eliminated for units subject to the state’s
jurisdiction (but not for any units
located in any Indian country within the
state’s borders).50 Approval of the
portions of Georgia’s SIP submittal
establishing CSAPR state trading
program rules for annual NOX, annual
SO2, and ozone season NOX emissions
therefore would result in automatic
termination of the obligations of Georgia
units to participate in the federal
CSAPR NOX Annual Trading Program,
the federal CSAPR SO2 Group 2 Trading
Program, and the federal CSAPR NOX
Ozone Season Group 1 Trading
Program.
As noted in section III above, the
Phase 2 SO2 budget established for
Georgia in the CSAPR rulemaking has
been remanded to EPA for
reconsideration. If EPA finalizes
approval of these portions of the SIP
revision as proposed, Georgia will have
fulfilled its obligations to provide a SIP
that addresses the interstate transport
provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS, the 2006
24-hour PM2.5 NAAQS, and the 1997 8hour Ozone NAAQS. Thus, EPA would
no longer be under an obligation to (nor
would EPA have the authority to)
address those transport requirements
through implementation of a FIP, and
approval of these portions of the SIP
revision would eliminate Georgia units’
obligations to participate in the federal
CSAPR NOX Annual Trading Program,
the federal CSAPR SO2 Group 2 Trading
Program, and the federal CSAPR NOX
Ozone Season Group 1 Trading
Program. Elimination of Georgia units’
obligations to participate in the federal
trading programs would include
elimination of the federally-established
Phase 2 budgets capping allocations of
CSAPR NOX Annual allowances,
CSAPR SO2 Group 2 allowances, and
CSAPR NOX Ozone Season Group 1
allowances to Georgia units under those
federal trading programs. As approval of
these portions of the SIP revision would
50 40
CFR 52.38(a)(6), (b)(10), 52.39(j); see also
52.584(a)(1), 52.584(b)(1); 52.585(a).
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eliminate Georgia’s remanded federallyestablished Phase 2 SO2 budget and
eliminate EPA’s authority to subject
units in Georgia to a FIP, it is EPA’s
opinion that finalization of approval of
this SIP action would address the
judicial remand of Georgia’s federallyestablished Phase 2 SO2 budget.
In addition, EPA is proposing to
approve the portions of Georgia’s July
26, 2017, SIP revision removing
Georgia’s state trading provisions
adopted to implement CAIR: Georgia
Rules for Air Quality control at
provisions 391–3–1–.02(12), ‘‘Clean Air
Interstate Rule NOX Annual Trading
Program’’ and 391–3–1–.02(13) ‘‘Clean
Air Interstate Rule SO2 Annual Trading
Program.’’ If EPA finalizes approval of
the proposed SIP revision, these CAIR
provisions will be removed from the
SIP. As explained above, CAIR was
implemented through the 2014
compliance periods and was replaced
by CSAPR on January 1, 2015. EPA has
promulgated regulations to sunset the
CAIR program and it is no longer in
effect.51 EPA therefore proposes to
approve the removal of Georgia’s SIP
provisions related to CAIR.
VIII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submittal 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 submittals,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive 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
51 40 CFR 51.123(ff) (requirements related to
NOX); 40 CFR 51.124(s) (requirements related to
SO2).
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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 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,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
Matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 7, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17227 Filed 8–15–17; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0385; FRL–9966–19–
Region 4]
Air Plan Approval; SC: Multiple
Revisions to Air Pollution Control
Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
changes to the South Carolina State
Implementation Plan (SIP) to revise
several miscellaneous rules covering air
pollution control standards. EPA is
proposing to approve portions of SIP
revisions submitted by the State of
South Carolina, through the South
Carolina Department of Health and
Environmental Control on the following
dates: October 1, 2007, July 18, 2011,
June 17, 2013, August 8, 2014, August
12, 2015, July 27, 2016, and November
4, 2016. These actions are being
proposed pursuant to the Clean Air Act.
DATES: Written comments must be
received on or before September 15,
2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2017–0385 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
SUMMARY:
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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:
Richard Wong, 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. Wong
can be reached via telephone at (404)
562–8726 or via electronic mail at
wong.richard@epa.gov.
In the
Final Rules section of this issue of the
Federal Register, EPA is approving the
State’s implementation plan revisions as
a direct final rule without prior proposal
because the Agency views these as
noncontroversial submittals and
anticipates no adverse comments. A
detailed rationale for the approval is set
forth in the direct final rule. If no
adverse comments are received in
response to this rule, no further activity
is contemplated. If EPA receives adverse
comments, the direct final rule will be
withdrawn and all public comments
received will be addressed in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period on this
document. Any parties interested in
commenting on this document should
do so at this time.
SUPPLEMENTARY INFORMATION:
Dated: August 4, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17228 Filed 8–15–17; 8:45 am]
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[Federal Register Volume 82, Number 157 (Wednesday, August 16, 2017)]
[Proposed Rules]
[Pages 38866-38874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17227]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0452; FRL-9966-43-Region 4]
Air Plan Approval; Georgia; Cross-State Air Pollution Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of a revision to the Georgia State Implementation Plan
(SIP) concerning the Cross-State Air Pollution Rule (CSAPR) and the
Clean Air Interstate Rule (CAIR) that was submitted by Georgia on July
26, 2017. Under CSAPR, large electricity generating units (EGUs) in
Georgia are subject to Federal Implementation Plans (FIPs) requiring
the units to participate in CSAPR's federal trading program for annual
emissions of nitrogen oxides (NOX), one of CSAPR's two
federal trading programs for annual emissions of sulfur dioxide
(SO2), and one of CSAPR's two federal trading programs for
ozone season emissions of NOX. This action would approve the
State's regulations requiring large Georgia EGUs to participate in new
CSAPR state trading programs for annual NOX, annual
SO2, and ozone season NOX emissions integrated
with the CSAPR federal trading programs, replacing the corresponding
FIP requirements. EPA is proposing to approve the portions of the SIP
revision concerning these CSAPR state trading programs because these
portions of the SIP revision meet the requirements of the Clean Air Act
(CAA or Act) and EPA's regulations for approval of a CSAPR full SIP
revision replacing the requirements of a CSAPR FIP. Under the CSAPR
regulations, approval of these portions of the SIP revision would
automatically eliminate Georgia's units' obligations under the
corresponding CSAPR FIPs addressing interstate transport requirements
for the 1997 Annual Fine Particulate Matter (PM2.5) National
Ambient Air Quality Standards (NAAQS), the 2006 24-hour
PM2.5 NAAQS, and the 1997 8-hour Ozone NAAQS. Approval of
these portions of the SIP revision would satisfy Georgia's good
neighbor obligation for the 1997 Annual PM2.5 NAAQS, the
2006 24-hour PM2.5 NAAQS, and the 1997 8-hour Ozone NAAQS.
In addition, approval of this revision would remove from Georgia's SIP
those state trading program rules adopted to comply with CAIR.
DATES: Comments must be received on or before September 15, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0452 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: Ashten Bailey, Air Regulatory
Management Section, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. Ms. Bailey can be reached by telephone at
(404) 562-9164 or via electronic mail at bailey.ashten@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary
EPA is proposing to approve the portions of the July 26, 2017,
revision to the Georgia SIP concerning CSAPR \1\ trading programs for
annual emissions of NOX and SO2 and ozone season
emissions of NOX. Large EGUs in Georgia are subject to CSAPR
FIPs that require the units to participate in the federal CSAPR
NOX Annual Trading Program, the federal CSAPR SO2
Group 2 Trading Program, and the federal CSAPR NOX Ozone
Season Group 1 Trading Program. CSAPR also provides a process for the
submission and approval of SIP revisions to replace the requirements of
CSAPR FIPs with SIP requirements under which a state's units
participate in CSAPR state trading programs that are integrated with
and, with certain permissible exceptions, substantively identical to
the CSAPR federal trading programs.
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\1\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through EEEEE of 40 CFR part 97).
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The portions of the SIP revision proposed for approval would
incorporate into Georgia's SIP state trading program regulations for
annual NOX and SO2 and ozone season
NOX emissions that would replace EPA's federal trading
program regulations for those emissions from Georgia units.\2\ EPA is
proposing to approve these portions of the SIP revision because they
meet the requirements of the CAA and EPA's regulations for approval of
a CSAPR full SIP revision replacing a federal trading program with a
state trading program that is integrated with and substantively
identical to the federal trading program. Under the CSAPR regulations,
approval of these portions of the SIP revision would automatically
eliminate the obligations of large EGUs in Georgia to participate
[[Page 38867]]
in CSAPR's federal trading programs for annual NOX, annual
SO2 and ozone season NOX emissions under the
corresponding CSAPR FIPs. EPA proposes to find that approval of these
portions of the SIP revision would satisfy Georgia's obligation
pursuant to CAA section 110(a)(2)(D)(i)(I) to prohibit emissions which
will significantly contribute to nonattainment or interfere with
maintenance of the 1997 Annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, and the 1997 8-hour Ozone NAAQS in any other
state.
---------------------------------------------------------------------------
\2\ Under Georgia's regulations, the State will retain EPA's
default allowance allocation methodology and EPA will remain the
implementing authority for administration of the trading program.
See sections IV and V.B.2, below.
---------------------------------------------------------------------------
The Phase 2 SO2 budget established for Georgia in the
CSAPR rulemaking has been remanded to EPA for reconsideration.\3\ If
EPA finalizes approval of the portions of the SIP revision as proposed,
Georgia will have fulfilled its obligations to provide a SIP that
addresses the interstate transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the 1997 Annual PM2.5
NAAQS and the 2006 24-hour PM2.5 NAAQS. Thus, EPA would no
longer be under an obligation to (nor would EPA have the authority to)
address those interstate transport requirements through implementation
of a FIP, and approval of these portions of the SIP revision would
eliminate Georgia units' obligations to participate in the federal
CSAPR NOX Annual Trading Program and the federal CSAPR
SO2 Group 2 Trading Program. Elimination of Georgia units'
obligations to participate in the federal trading programs would
include elimination of the federally-established Phase 2 budgets
capping allocations of CSAPR NOX Annual allowances and CSAPR
SO2 Group 2 allowances to Georgia units under those federal
trading programs. As approval of these portions of the SIP revision
would eliminate Georgia's remanded federally-established Phase 2
SO2 budget and eliminate EPA's authority to subject units in
Georgia to a FIP, it is EPA's opinion that finalization of approval of
this SIP action would address the judicial remand of Georgia's
federally-established Phase 2 SO2 budget.\4\
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\3\ EME Homer City Generation, L.P. v. EPA (EME Homer City II),
795 F.3d 118, 138 (D.C. Cir. 2015).
\4\ Although the court in EME Homer City II remanded Georgia's
Phase 2 SO2 budget because it determined that the budget
may be too stringent, nothing in the court's decision affects
Georgia's authority to seek incorporation into its SIP of a state-
established budget as stringent as the remanded federally-
established budget or limits EPA's authority to approve such a SIP
revision. See 42 U.S.C. 7416, 7410(k)(3).
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In addition, approval of the portions of the SIP revision
identified above would remove Georgia's state trading programs
provisions adopted to implement CAIR. EPA is proposing approval of this
removal because CAIR is no longer in effect and has been replaced by
CSAPR. As a result, the removal of CAIR is consistent with the CAA.
At this time, EPA is not acting on the portions of the submittal
related to Georgia's Regional Haze SIP under the Clean Air Act or the
visibility transport (prong 4) infrastructure SIP.
Section II provides background information on CAIR. Section III of
this document summarizes the relevant aspects of the CSAPR federal
trading programs and FIPs as well as the range of opportunities states
have to submit SIP revisions to modify or replace the FIP requirements
while continuing to rely on CSAPR's trading programs to address the
states' obligations to mitigate interstate air pollution. Section IV
describes the specific conditions for approval of such SIP revisions.
Section V contains EPA's analysis of Georgia's SIP submittal, and
Section VI sets forth EPA's proposed action on the submittal. Section
VII addresses statutory and Executive Order reviews.
II. Background on CAIR
To help reduce interstate transport of ozone and PM2.5
pollution in the eastern half of the United States, EPA finalized CAIR
in May 2005.\5\ CAIR addressed both the 1997 Ozone and PM2.5
NAAQS and required 28 states, including Georgia, and the District of
Columbia to limit emissions of NOX and SO2. For
CAIR, EPA developed three separate cap and trade programs that could be
used to achieve the required reductions: the CAIR NOX ozone
season trading program, the CAIR NOX annual trading program,
and the CAIR SO2 trading program. Georgia was subject to
CAIR requirements only with respect to annual NOX and
SO2 emissions.
---------------------------------------------------------------------------
\5\ 70 FR 25172 (May 12, 2005).
---------------------------------------------------------------------------
On December 23, 2008, CAIR was remanded to EPA by the United States
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on
rehearing, 550 F.3d 1176. This ruling allowed CAIR to remain in effect
until a new interstate transport rule consistent with the Court's
opinion was developed. While EPA worked on developing a new rule to
address the interstate transport of air pollution, the CAIR program
continued as planned with the NOX annual and ozone season
programs beginning in 2009 and the SO2 annual program
beginning in 2010.
In response to the remand of CAIR, EPA promulgated CSAPR on July 6,
2011.\6\ Along with provisions discussed more fully in the following
section, the rule contained provisions that would sunset CAIR-related
obligations on a schedule coordinated with the implementation of CSAPR
compliance requirements. CSAPR was to become effective January 1, 2012;
however, the timing of CSAPR's implementation was impacted by a number
of court actions. On December 30, 2011, the D.C. Circuit stayed CSAPR
prior to its implementation, and EPA was ordered to continue
administering CAIR on an interim basis.\7\ In a subsequent decision on
the merits, the Court vacated CSAPR based on a subset of petitioners'
claims.\8\ However, on April 29, 2014, the U.S. Supreme Court reversed
that decision and remanded the case to the D.C. Circuit for further
proceedings.\9\ Throughout the initial round of D.C. Circuit
proceedings and the ensuing Supreme Court proceedings, the stay on
CSAPR remained in place, and EPA continued to implement CAIR.
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\6\ See 76 FR 48208 (August 8, 2011).
\7\ Order of December 30, 2011, in EME Homer City Generation,
L.P. v. EPA, D.C. Cir. No. 11-1302.
\8\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.
Cir. 2012), cert. granted 133 U.S. 2857 (2013).
\9\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584,
1600-01 (2014).
---------------------------------------------------------------------------
Following the April 2014 Supreme Court decision, EPA filed a motion
asking the D.C. Circuit to lift the stay in order to allow CSAPR to
replace CAIR in an equitable and orderly manner while further D.C.
Circuit proceedings were held to resolve remaining claims from
petitioners. Additionally, EPA's motion requested to toll, by three
years, all CSAPR compliance deadlines that had not passed as of the
approval date of the stay. On October 23, 2014, the D.C. Circuit
granted EPA's request, and on December 3, 2014 (79 FR 71663), in an
interim final rule, EPA set the updated effective date of CSAPR as
January 1, 2015, and tolled the implementation of CSAPR Phase 1 to 2015
and CSAPR Phase 2 to 2017. In accordance with the interim final rule,
the sunset date for CAIR was December 31, 2014, and EPA began
implementing CSAPR on January 1, 2015.\10\
---------------------------------------------------------------------------
\10\ See 40 CFR 51.123(ff) (sunsetting CAIR requirements related
to NOX); 40 CFR 51.124(s) (sunsetting CAIR requirements
related to SO2).
---------------------------------------------------------------------------
III. Background on CSAPR and CSAPR-Related SIP Revisions
As discussed above, EPA issued CSAPR in July 2011 to address the
requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate
transport of air pollution. As amended (including by the 2016 CSAPR
[[Page 38868]]
Update \11\), CSAPR requires 27 Eastern states to limit their statewide
emissions of SO2 and/or NOX in order to mitigate
transported air pollution unlawfully impacting other states' ability to
attain or maintain four NAAQS: The 1997 Annual PM2.5 NAAQS,
the 2006 24-hour PM2.5 NAAQS, the 1997 8-hour Ozone NAAQS,
and the 2008 8-hour Ozone NAAQS. The CSAPR emissions limitations are
defined in terms of maximum statewide ``budgets'' for emissions of
annual SO2, annual NOX, and/or ozone season
NOX by each covered state's large EGUs. The CSAPR state
budgets are implemented in two phases of generally increasing
stringency, with the Phase 1 budgets applying to emissions in 2015 and
2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions
in 2017 and later years. As a mechanism for achieving compliance with
the emissions limitations, CSAPR establishes five federal emissions
trading programs: a program for annual NOX emissions, two
geographically separate programs for annual SO2 emissions,
and two geographically separate programs for ozone-season
NOX emissions. CSAPR also establishes FIP requirements
applicable to the large EGUs in each covered state.\12\ Currently, the
CSAPR FIP provisions require each state's units to participate in up to
three of the five CSAPR trading programs.
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\11\ See 81 FR 74504 (October 26, 2016). The CSAPR Update was
promulgated to address interstate pollution with respect to the 2008
8-hour Ozone NAAQS and to address a judicial remand of certain
original CSAPR ozone season NOX budgets promulgated with
respect to the 1997 8-hour Ozone NAAQS. See 81 FR at 74505. The
CSAPR Update established new emission reduction requirements
addressing the more recent NAAQS and coordinated them with the
remaining emission reduction requirements addressing the older ozone
NAAQS, so that starting in 2017, CSAPR includes two geographically
separate trading programs for ozone season NOX emissions
covering EGUs in a total of 23 states. See 40 CFR 52.38(b)(1)-(2).
\12\ States are required to submit good neighbor SIPs within
three years (or less, if the Administrator so prescribes) after a
NAAQS is promulgated. CAA section 110(a)(1) and (2). Where EPA finds
that a state fails to submit a required SIP or disapproves a SIP,
EPA is obligated to promulgate a FIP addressing the deficiency. CAA
section 110(c). EPA found that Georgia failed to make timely
submissions required to address the good neighbor provision with
respect to the 1997 Annual PM2.5 and 8-hour Ozone NAAQS
(70 FR 21147, April 25, 2005), and the 2008 8-hour Ozone NAAQS (80
FR 39961, June 13, 2015). In addition, EPA disapproved Georgia's SIP
revision submitted to address the good neighbor provision with
respect to the 2006 24-hour PM2.5 NAAQS. 76 FR 43159
(July 20, 2011). Accordingly, as a part of CSAPR and the CSAPR
Update, EPA promulgated FIPs applicable to sources in Georgia
addressing the good neighbor provision with respect to the 1997
annual PM2.5, 1997 8-hour Ozone NAAQS, and the 2006 24-
hour PM2.5 NAAQS. As discussed below, when EPA finalized
the CSAPR Update, EPA determined that Georgia did not interfere with
nonattainment or maintenance for the 2008 8-hour Ozone NAAQS.
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CSAPR includes provisions under which states may submit and EPA
will approve SIP revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's federal emissions trading
programs or state emissions trading programs integrated with the
federal programs, provided that the SIP revisions meet all relevant
criteria.\13\ Through such a SIP revision, a state may replace EPA's
default provisions for allocating emission allowances among the state's
units, employing any state-selected methodology to allocate or auction
the allowances, subject to timing conditions and limits on overall
allowance quantities. In the case of CSAPR's federal trading programs
for ozone season NOX emissions (or an integrated state
trading program), a state may also expand trading program applicability
to include certain smaller EGUs.\14\ If a state wants to replace CSAPR
FIP requirements with SIP requirements under which the state's units
participate in a state trading program that is integrated with and
identical to the federal trading program even as to the allocation and
applicability provisions, the state may submit a SIP revision for that
purpose as well. However, no emissions budget increases or other
substantive changes to the trading program provisions are allowed. A
state whose units are subject to multiple CSAPR FIPs and federal
trading programs may submit SIP revisions to modify or replace either
some or all of those FIP requirements.
---------------------------------------------------------------------------
\13\ See 40 CFR 52.38, 52.39. States also retain the ability to
submit SIP revisions to meet their transport-related obligations
using mechanisms other than the CSAPR federal trading programs or
integrated state trading programs.
\14\ States covered by both the CSAPR Update and the
NOX SIP Call have the additional option to expand
applicability under the CSAPR NOX Ozone Season Group 2
Trading Program to include non-EGUs that would have participated in
the former NOX Budget Trading Program.
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States can submit two basic forms of CSAPR-related SIP revisions
effective for emissions control periods in 2017 or later years.\15\
Specific conditions for approval of each form of SIP revision are set
forth in the CSAPR regulations, as described in section IV below. Under
the first alternative--an ``abbreviated'' SIP revision--a state may
submit a SIP revision that upon approval replaces the default allowance
allocation and/or applicability provisions of a CSAPR federal trading
program for the state.\16\ Approval of an abbreviated SIP revision
leaves the corresponding CSAPR FIP and all other provisions of the
relevant federal trading program in place for the state's units.
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\15\ CSAPR also provides for a third, more streamlined form of
SIP revision that is effective only for control periods in 2016 and
is not relevant here. See 40 CFR 52.38(a)(3), (b)(3), (b)(7);
52.39(d), (g).
\16\ 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
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Under the second alternative--a ``full'' SIP revision--a state may
submit a SIP revision that upon approval replaces a CSAPR federal
trading program for the state with a state trading program integrated
with the federal trading program, so long as the state trading program
is substantively identical to the federal trading program or does not
substantively differ from the federal trading program except as
discussed above with regard to the allowance allocation and/or
applicability provisions.\17\ For purposes of a full SIP revision, a
state may either adopt state rules with complete trading program
language, incorporate the federal trading program language into its
state rules by reference (with appropriate conforming changes), or
employ a combination of these approaches.
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\17\ 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
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The CSAPR regulations identify several important consequences and
limitations associated with approval of a full SIP revision. First,
upon EPA's approval of a full SIP revision as correcting the deficiency
in the state's implementation plan that was the basis for a particular
set of CSAPR FIP requirements, the obligation to participate in the
corresponding CSAPR federal trading program is automatically eliminated
for units subject to the state's jurisdiction without the need for a
separate EPA withdrawal action, so long as EPA's approval of the SIP is
full and unconditional.\18\ Second, approval of a full SIP revision
does not terminate the obligation to participate in the corresponding
CSAPR federal trading program for any units located in any Indian
country within the borders of the state, and if and when a unit is
located in Indian country within a state's borders, EPA may modify the
SIP approval to exclude from the SIP, and include in the surviving
CSAPR FIP instead, certain trading program provisions that apply
jointly to units in the state and to units in Indian country within the
state's borders.\19\ Finally, if at the time a full SIP revision is
approved EPA has already started recording allocations of allowances
for a given control period to a state's units, the
[[Page 38869]]
federal trading program provisions authorizing EPA to complete the
process of allocating and recording allowances for that control period
to those units will continue to apply, unless EPA's approval of the SIP
revision provides otherwise.\20\
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\18\ 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
\19\ 40 CFR 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi),
(b)(9)(vi)-(vii), (b)(10)(i); 52.39(f)(4)-(5), (i)(4)-(5), (j).
\20\ 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
---------------------------------------------------------------------------
On July 28, 2015, the D.C. Circuit issued a decision on a number of
petitions related to CSAPR, which found that EPA required more
emissions reductions than may have been necessary to address the
downwind air quality problems to which some states contribute. The
Court remanded several CSAPR emission budgets to EPA for
reconsideration, including the Phase 2 SO2 trading budget
for Georgia.\21\ However, Georgia has proposed to voluntarily adopt
into their SIP a CSAPR state trading program that is integrated with
the federal trading program and includes a state-established
SO2 budget equal to the state's remanded Phase 2
SO2 emission budget.\22\ EPA notes that nothing in the
Court's decision affects Georgia's authority to seek incorporation into
its SIP of a state-established budget as stringent as the remanded
federally-established budget or limits EPA's authority to approve such
a SIP revision. The CSAPR regulations provide each covered state with
the option to meet its transport obligations through SIP revisions
replacing the federal trading programs and requiring the state's EGUs
to participate in integrated CSAPR state trading programs that apply
emissions budgets of the same or greater stringency. Under the CSAPR
regulations, when such a SIP revision is approved, the corresponding
FIP provisions are automatically withdrawn.
---------------------------------------------------------------------------
\21\ EME Homer City II, 795 F.3d 118; See also EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 1584 (2014). The D.C.
Circuit also remanded SO2 budgets for Alabama, South
Carolina, and Texas. The court also remanded Phase 2 ozone-season
NOX budgets for eleven states, which did not include
Georgia.
\22\ See memo entitled ``The U.S. Environmental Protection
Agency's Plan for Responding to the Remand of the Cross-State Air
Pollution Rule Phase 2 SO2 Budgets for Alabama, Georgia,
South Carolina and Texas'' from Janet G. McCabe, EPA Acting
Assistant Administrator for Air and Radiation, to EPA Regional Air
Division Directors (June 27, 2016), available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0598-0003. The memo
directs the Regional Air Division Directors to share the memo with
state officials. The EPA also communicated orally with officials in
Alabama, Georgia, South Carolina, and Texas in advance of the memo.
---------------------------------------------------------------------------
IV. Conditions for Approval of CSAPR-Related SIP Revisions
Each CSAPR-related abbreviated or full SIP revision must meet the
following general submittal conditions:
Timeliness and completeness of SIP submittal. The SIP
submittal completeness criteria in section 2.1 of appendix V to 40 CFR
part 51 apply. In addition, if a state wants to replace the default
allowance allocation or applicability provisions of a CSAPR federal
trading program, the complete SIP revision must be submitted to EPA by
December 1 of the year before the deadlines described below for
submitting allocation or auction amounts to EPA for the first control
period for which the state wants to replace the default allocation and/
or applicability provisions.\23\ This SIP submission deadline is
inoperative in the case of a SIP revision that seeks only to replace a
CSAPR FIP and federal trading program with a SIP and a substantively
identical state trading program integrated with the federal trading
program.
---------------------------------------------------------------------------
\23\ 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); 52.39(e)(2), (f)(6), (h)(2),
(i)(6).
---------------------------------------------------------------------------
In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP seeking to address the allocation or auction of
emission allowances must meet the following further conditions:
Methodology covering all allowances potentially requiring
allocation. For each federal trading program addressed by a SIP
revision, the SIP revision's allowance allocation or auction
methodology must replace both the federal program's default allocations
to existing units \24\ at 40 CFR 97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a) as applicable, and the federal trading
program's provisions for allocating allowances from the new unit set-
aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a),
97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.\25\ In the
case of a state with Indian country within its borders, while the SIP
revision may neither alter nor assume the federal program's provisions
for administering the Indian country NUSA for the state, the SIP
revision must include procedures addressing the disposition of any
otherwise unallocated allowances from an Indian country NUSA that may
be made available for allocation by the state after EPA has carried out
the Indian country NUSA allocation procedures.\26\
---------------------------------------------------------------------------
\24\ In the context of the approval conditions for CSAPR-related
SIP revisions, an ``existing unit'' is a unit for which EPA has
determined default allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing and amending
CSAPR. A document describing EPA's default allocations to existing
units is available at https://www.epa.gov/sites/production/files/2017-05/documents/csapr_allowance_allocations_final_rule_tsd.pdf.
\25\ 40 CFR 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii),
(b)(8)(iii), (b)(9)(iii); 52.39(e)(1), (f)(1), (h)(1), (i)(1).
\26\ See 40 CFR 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
---------------------------------------------------------------------------
Assurance that total allocations will not exceed the state
budget. For each federal trading program addressed by a SIP revision,
the total amount of allowances auctioned or allocated for each control
period under the SIP revision (prior to the addition by EPA of any
unallocated allowances from any Indian country NUSA for the state)
generally may not exceed the state's emissions budget for the control
period less the sum of the amount of any Indian country NUSA for the
state for the control period and any allowances already allocated to
the state's units for the control period and recorded by EPA.\27\ Under
its SIP revision, a state is free to not allocate allowances to some or
all potentially affected units, to allocate or auction allowances to
entities other than potentially affected units, or to allocate or
auction fewer than the maximum permissible quantity of allowances and
retire the remainder. Under the CSAPR NOX Ozone Season Group
2 Trading Program only, additional allowances may be allocated if the
state elects to expand applicability to non-EGUs that would have been
subject to the NOX Budget Trading Program established for
compliance with the NOX SIP Call.\28\
---------------------------------------------------------------------------
\27\ 40 CFR 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A); 52.39(e)(1)(i),
(f)(1)(i), (h)(1)(i), (i)(1)(i).
\28\ 40 CFR 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
---------------------------------------------------------------------------
Timely submission of state-determined allocations to EPA.
The SIP revision must require the state to submit to EPA the amounts of
any allowances allocated or auctioned to each unit for each control
period (other than allowances initially set aside in the state's
allocation or auction process and later allocated or auctioned to such
units from the set-aside amount) by the following deadlines.\29\ Note
that the submission deadlines differ for amounts allocated or auctioned
to units considered existing units for CSAPR purposes and amounts
allocated or auctioned to other units.
---------------------------------------------------------------------------
\29\ 40 CFR 52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C),
(b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C), (b)(8)(iii)(B)-(C),
(b)(9)(iii)(B)-(C); 52.39(e)(1)(ii)-(iii), (f)(1)(ii)-(iii),
(h)(1)(ii)-(iii), (i)(1)(ii)-(iii).
[[Page 38870]]
------------------------------------------------------------------------
Deadline for
Year of the control submission to EPA of
Units period allocations or
auction results
------------------------------------------------------------------------
CSAPR NO Annual, CSAPR NO Ozone Season Group 1, CSAPR SO Group 1, and
CSAPR SO Group 2 Trading Programs:
------------------------------------------------------------------------
Existing................. 2017 and 2018......... June 1, 2016.
2019 and 2020......... June 1, 2017.
2021 and 2022......... June 1, 2018.
2023 and later years.. June 1 of the fourth
year before the year
of the control
period.
Other.................... All years............. July 1 of the year of
the control period.
------------------------------------------------------------------------
CSAPR NO Ozone Season Group 2 Trading Program:
------------------------------------------------------------------------
Existing................. 2019 and 2020......... June 1, 2018.
2021 and 2022......... June 1, 2019.
2023 and 2024......... June 1, 2020.
2025 and later years.. June 1 of the fourth
year before the year
of the control
period.
Other.................... All years............. July 1 of the year of
the control period.
------------------------------------------------------------------------
No changes to allocations already submitted to EPA or
recorded. The SIP revision must not provide for any change to the
amounts of allowances allocated or auctioned to any unit after those
amounts are submitted to EPA or any change to any allowance allocation
determined and recorded by EPA under the federal trading program
regulations.\30\
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\30\ 40 CFR 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D); 52.39(e)(1)(iv),
(f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also expands program applicability as described below.\31\ Any new
definitions adopted in the SIP revision (in addition to the federal
trading program's definitions) may apply only for purposes of the SIP
revision's allocation or auction provisions.\32\
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\31\ 40 CFR 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8), (b)(9);
52.39(e), (f), (h), (i).
\32\ 40 CFR 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii),
(b)(8)(iii), (b)(9)(iv); 52.39(e)(1), (f)(2), (h)(1), (i)(2).
---------------------------------------------------------------------------
In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP revision seeking to expand applicability under
the CSAPR NOX Ozone Season Group 1 or CSAPR NOX
Ozone Season Group 2 Trading Programs (or an integrated state trading
program) must meet the following further conditions:
Only electricity generating units with nameplate capacity
of at least 15 MWe. The SIP revision may expand applicability only to
additional fossil fuel-fired boilers or combustion turbines serving
generators producing electricity for sale, and only by lowering the
generator nameplate capacity threshold used to determine whether a
particular boiler or combustion turbine serving a particular generator
is a potentially affected unit. The nameplate capacity threshold
adopted in the SIP revision may not be less than 15 MWe.\33\ In
addition or alternatively, applicability under the CSAPR NOX
Ozone Season Group 2 Trading Program may be expanded to non-EGUs that
would have been subject to the NOX Budget Trading Program
established for compliance with the NOX SIP Call.\34\
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\33\ 40 CFR 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
\34\ 40 CFR 52.38(b)(8)(ii), (b)(9)(ii).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also addresses the allocation or auction of emission allowances as
described above.\35\
---------------------------------------------------------------------------
\35\ 40 CFR 52.38(b)(4), (b)(5), (b)(8), (b)(9).
---------------------------------------------------------------------------
In addition to the general submittal conditions and the other
applicable conditions described above, a CSAPR-related full SIP
revision must meet the following further conditions:
Complete, substantively identical trading program
provisions. The SIP revision must adopt complete state trading program
regulations substantively identical to the complete federal trading
program regulations at 40 CFR 97.402 through 97.435, 97.502 through
97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through
97.835, as applicable, except as described above in the case of a SIP
revision that seeks to replace the default allowance allocation and/or
applicability provisions.\36\
---------------------------------------------------------------------------
\36\ 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
---------------------------------------------------------------------------
Only non-substantive substitutions for the term ``State.''
The SIP revision may substitute the name of the state for the term
``State'' as used in the federal trading program regulations, but only
to the extent that EPA determines that the substitutions do not
substantively change the trading program regulations.\37\
---------------------------------------------------------------------------
\37\ 40 CFR 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
---------------------------------------------------------------------------
Exclusion of provisions addressing units in Indian
country. The SIP revision may not impose requirements on any unit in
any Indian country within the state's borders and must not include the
federal trading program provisions governing allocation of allowances
from any Indian country NUSA for the state.\38\
---------------------------------------------------------------------------
\38\ 40 CFR 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi); 52.39(f)(4),
(i)(4).
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V. Georgia's SIP Submittal and EPA's Analysis
A. Georgia's SIP Submittal as It Relates to CSAPR
In the CSAPR rulemaking, EPA determined that air pollution
transported from EGUs in Georgia would unlawfully affect other states'
ability to attain or maintain the 1997 8-hour Ozone NAAQS, the 1997
Annual PM2.5 NAAQS, and the 2006 24-hour PM2.5
NAAQS, and included Georgia in the CSAPR ozone season NOX
trading program and the annual SO2 and NOX
trading programs.\39\ In the CSAPR Update rulemaking, EPA determined
that Georgia was not linked to any identified downwind nonattainment or
maintenance receptors for the 2008 8-hour Ozone NAAQS.\40\ Georgia's
units meeting the CSAPR applicability criteria are consequently
currently subject to CSAPR FIPs that require participation in
[[Page 38871]]
the CSAPR NOX Annual Trading Program, the CSAPR
NOX Ozone Season Group 1 Trading Program, and the CSAPR
SO2 Group 2 Trading Program.\41\
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\39\ 76 FR 48208, 48213 (August 8, 2011).
\40\ 81 FR 74504, 74506 (October 26, 2016). EPA also determined
in the CSAPR Update rulemaking that Georgia had no further transport
obligation under CAA section 110(a)(2)(D)(i)(I) with respect to the
1997 Ozone NAAQS beyond the ozone season NOX emission
reduction requirements established in the original CSAPR rulemaking.
Id. at 74525.
\41\ 40 CFR 52.38(a)(2), (b)(2); 52.39(c); 52.584(a), (b);
52.585.
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Georgia's July 26, 2017, SIP revision incorporates into the SIP
CSAPR state trading program regulations that would replace the CSAPR
federal trading program regulations with regard to Georgia units'
SO2 and NOX emissions. The SIP submittal includes
revisions to two Georgia rules: Rule 391-3-1-.02(12), ``Clean Air
Interstate Rule NOX Annual Trading Program,'' is replaced by
``Cross State Air Pollution Rule NOX Annual Trading
Program;'' and Rule 391-3-1-.02(13), ``Clean Air Interstate Rule
SO2 Annual Trading Program,'' is replaced by ``Cross State
Air Pollution Rule SO2 Annual Trading Program.'' In
addition, the submittal adds Rule 391-3-1-.02(14), ``Cross State Air
Pollution Rule NOX Ozone Season Trading Program.'' In
general, each rule in Georgia's CSAPR state trading program rule is
designed to replace the corresponding federal trading program
regulations. For example, Georgia Rule 391-3-1-.02(12), Cross State Air
Pollution Rule NOX Annual Trading Program, is designed to
replace subpart AAAAA of 40 CFR part 97 (i.e., 40 CFR 97.401 through
97.435).
With regard to form, some of the individual rules for each Georgia
CSAPR state trading program are set forth as full regulatory text--
notably the rules identifying the trading budgets, NUSA, Indian country
NUSA, and the definition of ``Permitting Authority''--but most of the
rules incorporate the corresponding federal trading program section or
sections by reference.
With regard to substance, the rules for each Georgia CSAPR state
trading program differ from the corresponding CSAPR federal trading
program regulations in two main ways. First, the term permitting
authority is defined as the Georgia Environmental Protection Division
of the Georgia Department of Natural Resources for units in Georgia
only. Second, the Georgia rules omit some federal trading program
provisions not applicable to Georgia's state trading programs,
including provisions setting forth the amounts of emissions budgets,
NUSAs, Indian country NUSAs, and variability limits for other states
and provisions relating to EPA's administration of Indian country
NUSAs.
The Georgia rules adopt the Phase 2 annual NOX and
SO2 budgets and the Group 1 ozone season NOX
budgets found at 40 CFR 97.410(a)(2)(iv), 97.710(a)(2)(iv), and
97.510(a)(4)(iv), respectively. Accordingly, EPA will evaluate the
approvability of the Georgia SIP submission consistent with these
budgets.
At this time, EPA is proposing to take action on the portions of
Georgia's SIP submission designed to replace the federal CSAPR
NOX Annual Trading Program, the federal CSAPR SO2
Group 2 Trading Program, and the federal CSAPR NOX Ozone
Season Group 1 Trading Program with regard to Georgia units.\42\
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\42\ In addition and as discussed above, the EPA is also
proposing to take action on the portions of the SIP submittal
related to removal of CAIR.
---------------------------------------------------------------------------
B. EPA's Analysis of Georgia's SIP Submittal as It Relates to CSAPR
As described in section V.A above, at this time EPA is proposing to
take action on the portions of Georgia's SIP submittal designed to
replace the federal CSAPR NOX Annual Trading Program, the
federal CSAPR SO2 Group 2 Trading Program, and the federal
CSAPR NOX Ozone Season Group 1 Trading Program \43\ for
Georgia units.\44\ The analysis discussed in this section addresses
only the portions of Georgia's SIP submittal related to CSAPR on which
EPA is taking action at this time. For simplicity, throughout this
section EPA refers to the portions of the submittal on which EPA is
proposing to take action as ``the submittal'' or ``the SIP revision''
without repeating the qualification that at this time EPA is analyzing
and proposing to act on only portions of the SIP submittal.
---------------------------------------------------------------------------
\43\ Georgia's rules incorporate the provisions of, and, if
approved, would replace the federal CSAPR NOX Ozone
Season Group 1 Trading Program. See 40 CFR 52.38(b)(5). Following
the CSAPR Update, Georgia is the only state whose units participate
in this trading program; units in other states participate in the
CSAPR NOX Ozone Season Group 2 Trading Program. See 40
CFR 52.38(b)(2)(i); CSAPR Update, 81 FR at 74509. As a result,
Georgia units will be unable to trade allowances with units in other
states. See CSAPR Update, 81 FR at 74509. EPA notes that federal
regulations provide an option for Georgia to join the Group 2
trading program. 40 CFR 52.38(b)(6); CSAPR Update, 81 FR at 74509.
\44\ The other portions of the state submittal will be addressed
in separate actions.
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1. Timeliness and Completeness of SIP Submittal
Georgia submitted its SIP revision to EPA on July 26, 2017, and EPA
has determined that the submittal complies with the applicable minimum
completeness criteria in section 2.1 of appendix V to 40 CFR part 51.
The SIP submission deadline specified in 40 CFR 52.38(a)(5)(vi) and
(b)(5)(vii) and 52.39(i)(6) is defined with reference to certain
separate CSAPR deadlines for submission of state-determined allowance
allocations to EPA and is therefore inoperative in the case of a SIP
revision that does not seek to replace the EPA-administered allowance
allocation methodology and process set forth in the federal trading
program rules. Because Georgia is seeking to replace the federal
trading program rules with substantively identical state trading
program rules and is not seeking to replace the EPA-administered
allowance allocation methodology and process, the SIP submission
deadline does not apply.\45\
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\45\ See 40 CFR 52.38(a)(5)(vi), (b)(5)(vii); 52.39(i)(6).
---------------------------------------------------------------------------
2. Complete, Substantively Identical Trading Program Provisions
As discussed above, the Georgia SIP revision adopts state budgets
identical to the Phase 2 budgets for Georgia under the federal trading
programs and adopts almost all of the provisions of the federal CSAPR
NOX Annual Trading Program, CSAPR SO2 Group 2
Trading Program, and CSAPR NOX Ozone Season Group 1 Trading
Program, including the default allocation provisions. Under the State's
rules, EPA will administer the programs and will retain the authority
to allocate and record allowances.
With a few exceptions, the Georgia rules comprising Georgia's CSAPR
state trading program for annual NOX emissions either
incorporate by reference or adopt full-text replacements for all of the
provisions of 40 CFR 97.401 through 97.435; the Georgia rules
comprising Georgia's CSAPR state trading program for SO2
emissions either incorporate by reference or adopt full-text
replacements for all of the provisions of 40 CFR 97.701 through 97.735;
and the Georgia rules comprising Georgia's CSAPR state trading program
for NOX ozone season emissions either incorporate by
reference or adopt full-text replacements for all of the provisions of
40 CFR 97.501 through 97.535.
The first exception is that paragraphs 391-3-1-.02(12)(a), 391-3-
1-.02(13)(a), and 391-3-1-.02(14)(a) of the Georgia rules substitute
``Environmental Protection Division of the Georgia Department of
Natural Resources'' for the term ``permitting authority'' for units
located within the state of Georgia. This substitution properly retains
the definition in 40 CFR 97.402 \46\ for units
[[Page 38872]]
outside of the State's jurisdiction. This modification of the federal
trading program rules merely provides clarity to Georgia sources, and
these substitutions do not substantively change the provisions of
CSAPR's federal trading program regulations. As a result, this change
is permitted under 40 CFR 52.38(a)(5), 52.38(b)(5) and 52.39(i).
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\46\ As clarified in a letter from Georgia dated July 21, 2017,
there is a typographical error such that each of Georgia's three
CSAPR rules references 40 CFR 97.402, instead of referencing 40 CFR
97.702 in 391-3-1-.02(13)(a) and 40 CFR 97.502 in paragraph 391-3-
1-.02(14)(a). See July 21, 2017 Letter from Karen Hayes (Director,
Air Protection Division, Georgia EPD) to V. Anne Heard (Acting
Regional Administrator, EPA Region 4), available in the docket to
this action. EPA views this typographical error as non-substantive
because the underlying definition for the term ``permitting
authority'' is the same for all three trading programs. Compare,
e.g., 40 CFR 97.402 (Permitting authority means ``permitting
authority'' as defined in 40 CFR 70.2 and 71.2) with 40 CFR 97.502
(Permitting authority means ``permitting authority'' as defined in
40 CFR 70.2 and 71.2). Regardless, Georgia has committed to fixing
this error in the future.
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The second exception is that paragraphs 391-3-1-.02(12), 391-3-
1-.02(13), and 391-3-1-.02(14) of the Georgia rules omit the provisions
of 40 CFR 97.410(a) and (b), 97.710(a) and (b), and 97.510(a) and (b),
setting forth the amounts of the Phase 1 emissions budgets, NUSAs, and
variability limits for Georgia and the amounts of the Phase 1 and Phase
2 emissions budgets, NUSAs, Indian country NUSAs, and variability
limits for other states. Omission of the Georgia Phase 1 emissions
budget, NUSA, and variability limit amounts is appropriate because
Georgia's state trading programs do not apply to emissions occurring in
Phase 1 of CSAPR. Omission of the Phase 1 and Phase 2 budget, NUSA,
Indian country NUSA, and variability limit amounts for other states
from state trading programs in which only Georgia units participate
does not undermine the completeness of the state trading programs.
Georgia's rules include full-text replacement provisions for the
remaining provisions of 40 CFR 97.410, 97.710, and 97.510 that are
relevant to trading programs applicable only to Georgia units during
Phase 2 of CSAPR.
The third exception is that Georgia Rules 391-3-1-.02(12), 391-3-
1-.02(13), and 391-3-1-.02(14) omit 40 CFR 97.411(b)(2),
97.411(c)(5)(iii), 97.412(b), 97.421(h), 97.421(j), 97.711(b)(2),
97.711(c)(5)(iii), 97.712(b), 97.721(h), 97.721(j), 97.511(b)(2),
97.511(c)(5)(iii), 97.512(b), 97.521(h), and 97.521(j) concerning EPA's
administration of Indian country NUSAs. Omission of these provisions
from Georgia's state trading program rules is required, as discussed in
section V.B.4 below.
None of the omissions undermine the completeness of Georgia's state
trading programs, and EPA has preliminarily determined that Georgia's
SIP revision makes no substantive changes to the provisions of the
federal trading program regulations. Thus, Georgia's SIP revision meets
the condition under 40 CFR 52.38(a)(5), 52.39(i), and 52.38(b)(5) that
the SIP revision must adopt complete state trading program regulations
substantively identical to the complete federal trading program
regulations at 40 CFR 97.402 through 97.435, 97.702 through 97.735, and
97.502 through 97.535, respectively, except to the extent permitted in
the case of a SIP revision that seeks to replace the default allowance
allocation and/or applicability provisions.
3. Only Non-Substantive Substitutions for the Term ``State''
The Georgia rules do not make any substitutions for the term
``State.''
4. Exclusion of Provisions Addressing Units in Indian Country
Georgia Rules 391-3-1-.02(12)(b), 391-3-1-.02(13)(b), and 391-3-
1-.02(14)(b) incorporate by reference the applicability provisions of
the federal trading program rules at 40 CFR 97.402, 97.702, and 97.502,
respectively. There is no Indian country (as defined for purposes of
CSAPR) within Georgia's borders, so the applicability provisions of the
Georgia rules necessarily do not extend to any units in Indian country.
In addition, as required under 40 CFR 52.38(a)(5)(iv), 52.39(i)(4) and
52.38(b)(5)(v), Georgia's SIP revision excludes federal trading program
provisions related to EPA's process for allocating and recording
allowances from Indian country NUSAs (i.e., 40 CFR 97.411(b)(2),
97.411(c)(5)(iii), 97.412(b), 97.421(h), 97.421(j), 97.711(b)(2),
97.711(c)(5)(iii), 97.712(b), 97.721(h), 97.721(j), 97.511(b)(2),
97.511(c)(5)(iii), 97.512(b), 97.521(h) and 40 CFR 97.521(j)).
Georgia's SIP revision therefore meets the conditions under
52.38(a)(5)(iv), 52.39(i)(4) and 52.38(b)(5)(v) that a SIP submittal
must not impose any requirement on any unit in Indian country within
the borders of the State and must exclude certain provisions related to
administration of Indian country NUSAs.
C. Georgia's SIP Submittal as It Relates to CAIR, and EPA's Analysis
In addition, Georgia's July 26, 2017, submittal seeks to remove
state trading program rules adopted to comply with the CAIR from
Georgia's SIP at 391-3-1-.02(12), ``Clean Air Interstate Rule
NOX Annual Trading Program,'' and Rule 391-3-1-.02(13),
``Clean Air Interstate Rule SO2 Annual Trading Program,''
because the CAIR program has been replaced by CSAPR.\47\
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\47\ As discussed above in section V.A., the State seeks to
replace these provisions with state rules related to CSAPR.
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In this action, EPA proposes to approve the removal of these CAIR-
related provisions from Georgia's SIP. As explained above, the D.C.
Circuit remanded CAIR to EPA in 2008; however, the Court left CAIR in
place while EPA worked to develop a new interstate transport rule.
CSAPR was promulgated to respond to the Court's concerns and to replace
CAIR. The implementation of CSAPR was delayed for several years beyond
its originally expected implementation timeframe of 2012, and
therefore, the sunsetting of CAIR was also deferred. CAIR was
implemented through the 2014 compliance periods and was replaced by
CSAPR on January 1, 2015. EPA promulgated regulations to sunset the
CAIR program and it is no longer in effect.\48\ EPA therefore proposes
to approve the removal of Georgia's SIP provisions related to CAIR.
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\48\ 40 CFR 51.123(ff) (requirements related to NOX);
40 CFR 51.124(s) (requirements related to SO2).
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VI. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Georgia Rules for Air Quality Control, Rule 391-3-1-.02(12),
Rule 391-3-1-.02(13), and Rule 391-3-1-.02(14), state effective on July
20, 2017, comprising Georgia's Cross State Air Pollution Rule
NOX Annual Trading Program, Georgia's Cross State Air
Pollution Rule SO2 Annual Trading Program, and Georgia's
Cross State Air Pollution Rule NOX Ozone Season Trading
Program, respectively. EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and/or at the
EPA Region 4 office (please contact the person identified in the For
Further Information Contact section of this preamble for more
information).
VII. EPA's Proposed Action on Georgia's Submittal
EPA is proposing to approve the portions of Georgia's July 26,
2017, SIP submittal concerning the establishment for Georgia units of
CSAPR state trading programs for annual NOX, annual
SO2 emissions and ozone season NOX emissions. The
proposed revision would revise Georgia Rules for Air Quality Control to
include CSAPR as follows:
[[Page 38873]]
391-3-1-.02(12) will be revised to include Georgia's ``Cross State Air
Pollution Rule NOX Annual Trading Program;'' 391-3-1-.02(13)
will be revised to include Georgia's ``Cross State Air Pollution Rule
SO2 Annual Trading Program;'' and 391-3-1-.02(14) will be
added to include ``Georgia's Cross State Air Pollution Rule
NOX Ozone Season Trading Program.'' These Georgia CSAPR
state trading programs would be integrated with the federal CSAPR
NOX Annual Trading Program, the federal CSAPR SO2
Group 2 Trading Program, and the federal CSAPR NOX Ozone
Season Group 1 Trading Program, respectively, and would be
substantively identical to the federal trading programs.\49\ If EPA
approves these portions of the SIP revision, Georgia units would
generally be required to meet requirements under Georgia's CSAPR state
trading programs equivalent to the requirements the units otherwise
would have been required to meet under the corresponding CSAPR federal
trading programs. EPA is proposing to approve these portions of the SIP
revision because they meet the requirements of the CAA and EPA's
regulations for approval of a CSAPR full SIP revision replacing a
federal trading program with a state trading program that is integrated
with and substantively identical to the federal trading program except
for permissible differences, as discussed in section V above.
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\49\ As previously discussed in sections IV and V.B.2, under
Georgia's regulations, the State will retain EPA's default allowance
allocation methodology and EPA will remain the implementing
authority for administration of the trading program.
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EPA promulgated FIPs requiring Georgia units to participate in the
federal CSAPR NOX Annual Trading Program, the federal CSAPR
SO2 Group 2 Trading Program, and the federal CSAPR
NOX Ozone Season Group 1 Trading Program in order to address
Georgia's obligations under CAA section 110(a)(2)(D)(i)(I) with respect
to the 1997 Annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, and the 1997 8-hour Ozone NAAQS in the absence
of SIP provisions addressing those requirements. Approval of the
portions of Georgia's SIP submittal adopting CSAPR state trading
program rules for annual NOX, annual SO2, and
ozone season NOX substantively identical to the
corresponding CSAPR federal trading program regulations (or differing
only with respect to the allowance allocation methodology) would
satisfy Georgia's obligation pursuant to CAA section 110(a)(2)(D)(i)(I)
to prohibit emissions which will significantly contribute to
nonattainment or interfere with maintenance of the 1997 Annual
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and
the 1997 8-hour Ozone NAAQS in any other state and therefore would
correct the same deficiency in the SIP that otherwise would be
corrected by those CSAPR FIPs. Under the CSAPR regulations, upon EPA's
full and unconditional approval of a SIP revision as correcting the
SIP's deficiency that is the basis for a particular CSAPR FIP, the
obligation to participate in the corresponding CSAPR federal trading
program is automatically eliminated for units subject to the state's
jurisdiction (but not for any units located in any Indian country
within the state's borders).\50\ Approval of the portions of Georgia's
SIP submittal establishing CSAPR state trading program rules for annual
NOX, annual SO2, and ozone season NOX
emissions therefore would result in automatic termination of the
obligations of Georgia units to participate in the federal CSAPR
NOX Annual Trading Program, the federal CSAPR SO2
Group 2 Trading Program, and the federal CSAPR NOX Ozone
Season Group 1 Trading Program.
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\50\ 40 CFR 52.38(a)(6), (b)(10), 52.39(j); see also
52.584(a)(1), 52.584(b)(1); 52.585(a).
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As noted in section III above, the Phase 2 SO2 budget
established for Georgia in the CSAPR rulemaking has been remanded to
EPA for reconsideration. If EPA finalizes approval of these portions of
the SIP revision as proposed, Georgia will have fulfilled its
obligations to provide a SIP that addresses the interstate transport
provisions of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997
Annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS,
and the 1997 8-hour Ozone NAAQS. Thus, EPA would no longer be under an
obligation to (nor would EPA have the authority to) address those
transport requirements through implementation of a FIP, and approval of
these portions of the SIP revision would eliminate Georgia units'
obligations to participate in the federal CSAPR NOX Annual
Trading Program, the federal CSAPR SO2 Group 2 Trading
Program, and the federal CSAPR NOX Ozone Season Group 1
Trading Program. Elimination of Georgia units' obligations to
participate in the federal trading programs would include elimination
of the federally-established Phase 2 budgets capping allocations of
CSAPR NOX Annual allowances, CSAPR SO2 Group 2
allowances, and CSAPR NOX Ozone Season Group 1 allowances to
Georgia units under those federal trading programs. As approval of
these portions of the SIP revision would eliminate Georgia's remanded
federally-established Phase 2 SO2 budget and eliminate EPA's
authority to subject units in Georgia to a FIP, it is EPA's opinion
that finalization of approval of this SIP action would address the
judicial remand of Georgia's federally-established Phase 2
SO2 budget.
In addition, EPA is proposing to approve the portions of Georgia's
July 26, 2017, SIP revision removing Georgia's state trading provisions
adopted to implement CAIR: Georgia Rules for Air Quality control at
provisions 391-3-1-.02(12), ``Clean Air Interstate Rule NOX
Annual Trading Program'' and 391-3-1-.02(13) ``Clean Air Interstate
Rule SO2 Annual Trading Program.'' If EPA finalizes approval
of the proposed SIP revision, these CAIR provisions will be removed
from the SIP. As explained above, CAIR was implemented through the 2014
compliance periods and was replaced by CSAPR on January 1, 2015. EPA
has promulgated regulations to sunset the CAIR program and it is no
longer in effect.\51\ EPA therefore proposes to approve the removal of
Georgia's SIP provisions related to CAIR.
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\51\ 40 CFR 51.123(ff) (requirements related to NOX);
40 CFR 51.124(s) (requirements related to SO2).
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VIII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submittal 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 submittals, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive 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
[[Page 38874]]
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 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, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 7, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017-17227 Filed 8-15-17; 8:45 am]
BILLING CODE 6560-50-P