[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Rules and Regulations]
[Pages 65125-65133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25855]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2010-1012; FRL-9739-1]
Approval and Promulgation of Implementation Plans; Georgia
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006
Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve the State Implementation
Plan (SIP) submissions, submitted by the State of Georgia, through the
Georgia Department of Natural Resources' Environmental Protection
Division (EPD), as demonstrating that the State meets the SIP
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or
the Act) for the 1997 annual and 2006 24-hour fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS), with
noted exceptions. Section 110(a) of the CAA requires that each state
adopt and submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by the EPA, which is commonly
referred to as an ``infrastructure'' SIP. Georgia certified that the
Georgia SIP contains provisions that ensure the 1997 annual and 2006
24-hour PM2 NAAQS are implemented, enforced, and maintained
in Georgia (hereafter referred to as ``infrastructure submission'').
Georgia's infrastructure submissions, provided to EPA on July 23, 2008,
and supplemented on September 9, 2008 and October 21, 2009, address all
the required infrastructure elements for the 1997 annual and 2006 24-
hour PM2 NAAQS. In addition, EPA is clarifying an
inadvertent error included in the proposed approval for this rule.
DATES: This rule will be effective November 26, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2010-1012. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30 excluding federal
holidays.
FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. This Action
III. EPA's Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR
36852), EPA promulgated a new annual PM2.5 NAAQS and on
October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On
June 15, 2012, EPA proposed to approve Georgia's July 23, 2008, and
October 21, 2009, infrastructure submissions for the 1997 annual and
2006 24-hour PM2.5 NAAQS. See 77 FR 35909. A summary of the
background for today's final action is provided below. See EPA's June
15, 2012, proposed rulemaking at 77 FR 35909 for more detail.
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP
[[Page 65126]]
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. The
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 annual and 2006 24-hour
PM2.5 NAAQS, states typically have met the basic program
elements required in section 110(a)(2) through earlier SIP submissions
in connection with previous PM NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As already mentioned, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this final rulemaking are listed below \1\ and in EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards.''
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\1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather are due at the time the nonattainment
area plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA, and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's final rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) but does provide detail on how Georgia's SIP addresses
110(a)(2)(C).
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110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
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\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D): Interstate transport.\3\
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\3\ Today's final rule does not address element 110(a)(2)(D)(i)
(Interstate Transport) for the 1997 and 2006 PM2.5 NAAQS.
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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\4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' but
as mentioned above is not relevant to today's final rulemaking.
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110(a)(2)(J): Consultation with government officials;
public notification; and prevention of significant deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
II. This Action
EPA is taking final action to approve Georgia's infrastructure
submissions as demonstrating that the State meets the applicable
requirements of sections 110(a)(1) and (2) of the CAA for the 1997
annual and 2006 24-hour PM2.5 NAAQS, except for the elements
noted above on which EPA is not taking action. Section 110(a) of the
CAA requires that each state adopt and submit a SIP for the
implementation, maintenance, and enforcement of each NAAQS promulgated
by the EPA, which is commonly referred to as an ``infrastructure'' SIP.
EPD certified that the Georgia SIP contains provisions that ensure the
1997 annual and 2006 24-hour PM2.5 NAAQS are implemented,
enforced, and maintained in Georgia. Additionally, EPA is now
clarifying an inadvertent error made in the proposed rule.
In the proposal, EPA inadvertently stated that Georgia had met each
of its 105 grant commitments for fiscal year 2011. Georgia did not
complete one of its 63 grant commitments from fiscal year 2011--its
commitment to develop and submit a National Emissions Inventory Quality
Assurance Project Plan (QAPP). Nonetheless, as was explained in the
proposed rule, EPA has determined that Georgia has provided necessary
assurances that its SIP contains the adequate infrastructure
requirements to address these types of issues as they arise, consistent
with the obligation in CAA Section 110(a)(2)(E)(i). Further, EPA has a
process to ensure such issues are addressed and EPA is currently
working with Georgia to ensure that the State meets all of its
commitments, including the outstanding 2011 grant commitment.
EPA received adverse comments on its June 15, 2012, proposed
approval of portions of Georgia's July 23, 2008, and on October 21,
2009, infrastructure submissions (hereafter ``Georgia's infrastructure
submissions''). Today's final action includes a response to adverse
comments.
III. EPA's Response to Comments
EPA received one set of comments on the June 15, 2012, proposed
rulemaking to approve Georgia's infrastructure submissions as meeting
the requirements of sections 110(a)(1) and (2) of the CAA for the 1997
annual and 2006 24-hour PM2.5 NAAQS. A summary of the
comments and EPA's response are provided below.
Comment 1: The Commenter contends that Georgia's SIP does not
contain the requisite enforceable limits for PM2.5, and
therefore, EPA cannot approve the State's infrastructure SIP submission
with respect to section 110(a)(2)(A). The Commenter cites two primary
reasons supporting this contention.
First, the Commenter contends that Georgia's SIP does not currently
provide adequate enforceable limitations for PM2.5 emissions
from existing stationary sources. In support of this proposition, the
Commenter notes a number of existing Georgia SIP provisions that
address emissions of particulate matter generally or PM10,
but not PM2.5. The Commenter further asserts that in the
title V context, the State has concluded that at the time of the
evaluation of the permit application, the source did not need to
address PM2.5 emissions. Similarly, the Commenter states
that existing stationary sources permitted prior to January 1, 2011, do
not adequately control condensable PM2.5, and implies that
this should be addressed in the context of acting on the State's
infrastructure submittal. Finally, the Commenter contends that even in
the case of a source permitted after January 1, 2011, the State has not
required specific limitations on condensable PM and thus fails to
control direct PM2.5 emissions at that source in a way that
is relevant to action on the State's infrastructure SIP. The Commenter
appears to be suggesting that this example evinces a SIP deficiency
germane to EPA's determination respecting the sufficiency of the
State's infrastructure SIP for purposes of section 110(a)(2)(A).
Second, the Commenter argues that EPA should not approve the
State's infrastructure submittal because it contained references to
several regional cap and trade rules as measures that would impose
emissions limitations on PM2.5 precursors within the State.
The Commenter raised three objections: (1) The Commenter argued that
the Nitrogen Oxide (NOX) SIP Call, Clean
[[Page 65127]]
Air Interstate Rule (CAIR), and Cross State Air Pollution Rule (CSAPR)
cannot be considered enforceable emissions limitations because of their
status; (2) the Commenter argued that cap and trade programs cannot be
considered permanent and enforceable because they allow sources to
purchase allowances or used banked credits rather than reducing
emissions; and (3) the Commenter argued that the D.C. Circuit has held
that regional cap and trade programs cannot ``satisfy an area-specific
statutory mandate.'' \5\
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\5\ The Commenter cites NRDC v. EPA, 571 F.3d 1245 (DC Cir.
2009).
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Response 1: EPA disagrees with the Commenter's contention that the
State's infrastructure SIP submission is not approvable with respect to
section 110(a)(2)(A) because it does not contain adequate enforceable
emissions limitations on PM2.5 and PM2.5
precursors.
With respect to the Commenter's specific concerns about the
adequacy of emissions limitations at stationary sources, the Commenter
is incorrect with respect both to the scope of what is germane to an
action on an infrastructure SIP and with respect to when certain
regulatory requirements for stationary sources became operative. This
comment pertains to EPA's action on an infrastructure SIP, which must
meet the general structural requirements described in section
110(a)(2)(A). Section 110(a)(2)(A) of the CAA states that each
implementation plan submitted by a State under the Act shall be adopted
by the State after reasonable notice and public hearing. Each such plan
shall include enforceable emission limitations and other control
measures, means, or techniques (including economic incentives such as
fees, marketable permits, and auctions of emissions rights), as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of the Act.
The Commenter seems to believe that in the context of an
infrastructure SIP submission, section 110(a)(2)(A) explicitly requires
that a State adopt all possible new enforceable emission limits,
control measures and other means developed specifically for attaining
and maintaining the new NAAQS within the State. EPA does not believe
that this is a reasonable interpretation of the provision with respect
to infrastructure SIP submissions. Rather, EPA believes that different
requirements for SIPs become due at different times depending on the
precise applicable requirements in the CAA. For example, some State
regulations are required pursuant to CAA section 172(b), as part of an
attainment demonstration for areas designated as nonattainment for the
standard. The timing of such an attainment demonstration would be after
promulgation of a NAAQS, after completion of designations, and after
the development of the applicable nonattainment plans. The Commenter
seems to believe that EPA should disapprove a State's infrastructure
SIP if the State has not already developed all the substantive
emissions limitations that may ultimately be required for all purposes,
such as attainment and maintenance of the NAAQS as part of an
attainment plan for a designated nonattainment area.
In particular, the Commenter focuses upon the adequacy of emissions
limitations for specific stationary sources in Georgia that arose in
permit actions--Plant Bowen's title V Permit and Plant Washington's PSD
permit--to support its argument that Georgia's SIP does not require
adequate enforceable emissions limitations for PM2.5 for
existing sources. As described above, for purposes of approving
Georgia's infrastructure submittal as it relates to section
110(a)(2)(A), EPA's evaluation is limited to whether the State has
adopted, as necessary and appropriate, enforceable emission limitations
and other control measures to meet applicable structural requirements
of the CAA. Today's action does not involve case specific evaluations
of specific permits. In this action, EPA is not evaluating whether or
not the State has correctly imposed emissions limitations on each
stationary source for purposes of meeting requirements for PSD permits
or embodied in title V permits. Moreover, EPA notes that the Commenter
is also incorrect with respect to its allegations concerning the
appropriate treatment of condensables in emissions limits for
stationary sources. In the implementation regulations for the
PM2.5 NAAQS, EPA separately authorized States to elect not
to address condensable emissions in their air pollution programs until
January 1, 2011.\6\ Thus, the State was not required to address
condensables in stationary source permits identified in the comment.
For example, the Commenter is incorrect with respect to the PSD permit
for Plant Washington because the permit for this source was issued on
April 8, 2010, prior to January 1, 2011, and thus the permit was not
required to address condensables.\7\ The State's compliance with what
EPA authorized with respect to condensables is not grounds for
disapproval of the State's infrastructure SIP submission.
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\6\ See Implementation of the New Source Review (NSR) Program
for Particulate Matter Less Than 2.5 Micrometers (PM2.5),
73 FR 28321 (May 16, 2008); 40 CFR 51.166(b)(49)(vi); 40 CFR
52.21(b)(50)(vi).
\7\ Although an amendment to the permit was issued on November
18, 2011, the purpose of the amendment was to add case-by-case
maximum achievable control technology (MACT) requirements for
organic and non-mercury metal hazardous air pollutants (HAP) under
section 112(g) of the Act. Pursuant to 40 CFR Part 63, States may
use a preconstruction review process to make a section 112(g) case-
by-case MACT determination. However, pursuant to section 112(b)(6),
the Act specifically excludes HAP from the PSD permitting
requirements. See also 40 CFR Sec. 52.21(b)(50)(v). While the State
may have subsequently added the section 112(g) determination to a
permit that included PSD requirements, the revision of the
construction permit to address the case-by-case MACT requirements
was not a revision or reopening of the PSD requirements. The
portions of the permit satisfying PSD requirements were final on
April 8, 2010, before the requirement to account for condensables
became effective.
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For purposes of section 110(a)(2)(A), and for purposes of an
infrastructure SIP submission, EPA believes that the proper inquiry is
whether the State has met the basic structural SIP requirements
appropriate at the point in time EPA is acting upon it. As stated in
EPA's proposed approval for this rule, to meet section 110(a)(2)(A),
Georgia submitted a list of existing emission reduction measures in the
SIP that control PM2.5 emissions. These include all the
required measures previously adopted for the control of
PM2.5 and PM2.5 precursor pollutants. The
Commenter identifies a number of ways in which it believes that
Georgia's SIP fails to meet such current requirements, but EPA
concludes that the Commenter has not identified any deficiency that
justifies disapproval of the infrastructure SIP submission in this
action.
With respect to the Commenter's concern about the identification of
cap and trade programs within the State's infrastructure SIP
submission, the Commenter is also incorrect with respect to the scope
of what is germane to section 110(a)(2)(A), and with respect to its
assertions about such cap and trade programs in general.
The Commenter asserts that emissions limitations of sulfur dioxide
and NOX from the NOX SIP Call, CAIR, and CSAPR
are not ``enforceable emissions limitations'' because of the legal
status of each of those rules. The Commenter asserts that the
NOX SIP call ``effectively no longer exists,'' that CAIR
``has been remanded and effectively no longer exists,'' and that at the
time of the comment, CSAPR had been stayed and was subject to
litigation. The Commenter also asserts that reductions from such cap
and trade rules cannot be
[[Page 65128]]
considered permanent and enforceable merely because they allow for the
purchase and transfer of allowances or the use of banked credits.
Finally the Commenter claims that the D.C. Circuit Court of Appeals
recently held that EPA cannot allow use of cap and trade programs to
satisfy an area-specific statutory mandate.
EPA disagrees with the Commenter's position that emissions
reductions associated with the NOX SIP Call cannot be
considered to be permanent and enforceable. The Commenter's first
argument--that the reductions are not permanent and enforceable because
the NOX SIP Call has been replaced--is based on a
misunderstanding of the relationship between CAIR and the
NOX SIP Call. While the CAIR ozone-season NOX
trading program replaced the ozone-season NOX trading
program developed in the NOX SIP Call (70 FR 25290), nothing
in CAIR relieved states of their NOX SIP Call obligations.
In fact, in the preamble to CAIR, EPA emphasized that the states and
certain units covered by the NOX SIP Call but not CAIR must
still satisfy the requirements of the NOX SIP Call. EPA
provided guidance regarding how such states could meet these
obligations.\8\ In no way did EPA suggest that states could disregard
their NOX SIP Call obligations. See 70 FR 25290. For
NOX SIP Call states, the CAIR NOX ozone program
provides a way to continue to meet the NOX SIP Call
obligations for electric generating units (EGUs) and large non-electric
generating units (non-EGUs). In addition, the antibacksliding
provisions of 40 CFR 51.905(f) specifically provide that the provisions
of the NOX SIP Call, including statewide NOX
emission budgets, continue to apply. In sum, the requirements of the
NOX SIP Call remain in force. They are permanent and
enforceable as are state regulations developed to implement the
requirements of the NOX SIP Call. Similarly, EPA disagrees
with the Commenter's characterization of the status of CAIR and CSAPR.
When the court stayed CSAPR as noted by the Commenter, it ordered EPA
to continue to administer CAIR. When the court issued its opinion to
vacate and remand CSAPR, it also ordered EPA to continue to administer
CAIR pending development of a valid replacement. Thus, at this
juncture, CAIR remains in place and EPA is continuing to implement and
enforce it. Consequently, all SIP provisions implementing CAIR also
remain enforceable at this time under the court opinion.
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\8\ EPA guidance regarding the NOX SIP Call
transition to CAIR can be found at http://www.epa.gov/airmarkets/progsregs/cair/faq10.html. EPA guidance regarding the NOX
SIP Call transition for CSAPR can be found at http://www.epa.gov/crossstaterule/faqs.html.
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EPA also disagrees with the Commenter's second argument--that the
reductions associated with the NOX SIP Call, CAIR, or CSAPR
could not be considered permanent and enforceable merely because they
are trading programs. There is no support for the Commenter's argument
that states cannot rely on such programs as a valid component of their
SIPs to achieve necessary reductions of emissions simply because the
mechanism used to achieve the reductions is an emissions trading
program. As a general matter, trading programs establish mandatory caps
on emissions and permanently reduce the total emissions allowed by
sources subject to the programs. The emission caps and associated
controls are enforced through the associated SIP rules or Federal
Implementation Plans (FIPs). Any purchase of allowances and increase in
emissions by a utility necessitates a corresponding sale of allowances
and reductions in emissions by another utility. Given the regional
nature of PM2.5, the emission reductions will have an air
quality benefit that will compensate, at least in part, for the impact
of any emission increase.
In addition, the case cited by the Commenter, NRDC v. EPA, 571 F.3d
1245 (D.C. Cir. 2009), does not support the Commenter's position. That
case addressed EPA's determination that the ``reasonably available
control technology'' (RACT) requirement for nonattainment areas was
satisfied by the NOX SIP Call trading program. The court
held that because EPA had not demonstrated that the trading program
would result in sufficient reductions within nonattainment areas to
meet the RACT requirement, its determination that the program satisfied
the RACT requirement (a specific nonattainment area requirement) was
not supported. Id, 1256-58. The court explicitly noted that EPA might
be able to reinstate the provision providing that compliance with the
NOX SIP Call satisfies NOX RACT for EGUs for
particular nonattainment areas if, upon conducting a technical
analysis, it could demonstrate that the NOX SIP Call results
in greater emission reductions in a nonattainment area than would be
achieved if RACT level controls were installed on the affected sources
within the nonattainment area. Id at 1258. Thus, EPA disagrees with the
Commenter's assertion that the case stands for the proposition that cap
and trade programs can never satisfy a statutory mandate for area-
specific emissions controls. Moreover, EPA's action on a state's
infrastructure SIP does not entail an evaluation of whether that state
has met the more specific nonattainment area requirements for RACT that
may become relevant in later actions on a SIP submission designed by
the state to meet nonattainment area requirements. For purposes of
evaluating a state's infrastructure SIP submission, EPA is limiting its
review to ensuring that the State meets basic structural SIP
requirements. In the event that a state has to develop a SIP submission
to meet nonattainment area requirements, the state and EPA will at that
time evaluate whether the submission meets the separate statutory
requirements for nonattainment areas.
Comment 2: The Commenter contends that Georgia's Ambient Air
Quality Monitoring Program is incomplete because it does not meet the
federal reporting requirements and utilizes spatial scales which could
lead to misrepresentations of PM2.5 concentrations. The
Commenter explains that Georgia fails to incorporate any micro and
middle spatial scales for PM2.5, leading to potentially
inaccurate reporting of PM2.5 concentrations. For this
reason, the Commenter states that EPA cannot make the determination
that Georgia's air quality monitoring and data systems related to the
1997 annual and 2006 24-hour PM2.5 NAAQS are adequate. The
Commenter explains that Georgia only utilizes the neighborhood spatial
scale for monitoring PM2.5, with the exception of a
PM2.5 background site. The Commenter cites to 40 CFR Part
58, Appendix D (4.7.1(c)) for the proposition that there are
circumstances where a more specific spatial scale is necessary to
accurately represent the PM2.5 concentrations. Specifically,
the Commenter explains that microscale is appropriate for ``areas such
as downtown street canyons and traffic corridors where the general
public would be exposed to maximum concentrations from mobile
sources.'' The Commenter makes certain statements about Atlanta,
including traffic and asthma issues, and concludes that microscale
would be appropriate for Atlanta. The Commenter concludes by stating
that Georgia should explore whether such downtown, high maximum
concentration areas occur and accordingly utilize the appropriate
spatial scales.
Response 2: EPA disagrees with the Commenter's assessment that
Georgia's Ambient Air Quality Monitoring Program is incomplete.
Pursuant to CAA section 110(a)(2)(B), each SIP shall ``provide for
establishment and operation of appropriate devices,
[[Page 65129]]
methods, systems, and procedures necessary to (i) monitor, compile, and
analyze data on ambient air quality, and (ii) upon request, make such
data available to the Administrator.'' Among other requirements that
EPA evaluates to determine if the infrastructure SIP submission meets
the applicable section 110(a)(2)(B) requirements, the Agency considers
whether the state has submitted the most recent annual monitoring plan,
and whether EPA has approved that monitoring plan as meeting the
applicable regulatory requirements and consistent with applicable
guidance. The latter approval addressed whether the state monitors air
quality for the relevant pollutant at appropriate locations throughout
the state using EPA approved federal reference method or equivalent
monitors, and whether it submits data to EPA's Air Quality System (AQS)
in a timely manner.
As noted in EPA's proposed rule for this action, Georgia's Rules
391-3-1-.02(3), ``Sampling,'' and 391-3-1-.02(6), ``Source
Monitoring,'' along with the Georgia Network Description and Ambient
Air Monitoring Network Plan provide for an ambient air quality
monitoring system in the State. Annually, EPA approves the ambient air
monitoring network plan for the state agencies including EPD. Prior to
submission to EPA for approval, the State makes the annual monitoring
plan available for public inspection and comment in its own
administrative process. In August 2011, Georgia submitted its
monitoring network plan to EPA, and on October 21, 2011, EPA approved
Georgia's monitoring network plan.
With regard to the Commenter's statements pertaining to the
adequacy of monitoring in the Atlanta area, today's action does not
involve specific evaluation for the Atlanta Area; but rather, Georgia's
compliance with section 110(a)(2)(B) of the CAA for monitoring
requirements statewide. As explained above, Georgia's infrastructure
SIP submission complies with section 110(a)(2)(B) because it
demonstrates that the State has met current monitoring requirements for
this NAAQS and is thus approvable. The Commenter's concerns about the
adequacy of monitoring in the Atlanta area in the future should be
raised in the appropriate context, such as during the State's
development of monitoring systems. For purposes of today's final action
on Georgia's infrastructure submission, EPA has concluded that
Georgia's monitoring program is adequate and thus consistent with the
requirements of section 110(a)(2)(B) for this type of submission.
Comment 3: The Commenter claims that Georgia's SIP does not contain
required provisions for PM2.5 PSD increments promulgated in
an October 20, 2010, EPA rule. The Commenter asserts that states are
required to include these increments in their SIPs prior to EPA
approval of their infrastructure SIP and cites 40 CFR 51.166(c) and
EPA's September 25, 2009, ``Guidance on SIP Elements Required under
Sections 110(a)(1) and (2) for the 2006 24-hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
for support. Further, the Commenter states that this ``lack of
inclusion renders Georgia's SIP inadequate to address PSD permitting,
and, thus, the EPA cannot determine that `Georgia's SIP and practices
are adequate for program enforcement of control measures including
review of proposed new sources related to the 1997 and 2006 24-hour
PM2.5 NAAQS.'''
Response 3: EPA does not agree with the Commenter's assertion that
the lack of inclusion of the updated PM2.5 increments
renders Georgia's SIP inadequate to address PSD permitting. Pursuant to
the 2010 PM2.5 New Source Review (NSR) Rule and CAA section
166(b), states were not required to submit a revised SIP addressing the
PM2.5 increments until July 20, 2012. The Agency proposed
action on the Georgia infrastructure SIP in a notice signed on June 1,
2012.\9\ Therefore, on the date that the proposed rule was signed by
the Agency, the PM2.5 increments were not required to be
included in the Georgia SIP in order for the State to meet the PSD
requirements of sections 110(a)(2)(C) and (J) of the Act.
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\9\ Although the notice was published by the Federal Register on
June 15, 2012, the notice was signed by the Acting Regional
Administrator on June 1, 2012, before the statutory deadline for
submission of the SIP revision addressing the PM2.5
increments.
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The Commenter's concerns here relate to the timing of Agency action
on collateral, yet related, SIP submissions. These concerns highlight
an important overarching question that the EPA has to confront when
assessing the various infrastructure SIP submittals addressed in the
proposed rule: how to proceed when the timing and sequencing of
multiple related SIP submissions impact the ability of the State and
the Agency to address certain substantive issues in the infrastructure
SIP submission in a reasonable fashion.
It is appropriate for EPA to take into consideration the timing and
sequence of related SIP submissions as part of determining what it is
reasonable to expect a state to have addressed in an infrastructure SIP
submission for a NAAQS at the time when the EPA acts on such
submission. EPA has historically interpreted section 110(a)(2)(C) and
section 110(a)(2)(J) as requiring EPA to assess a state's
infrastructure SIP submission with respect to the then-applicable and
federally enforceable PSD regulations required to be included in a
state's implementation plan at the time EPA takes action on the SIP.
However, EPA does not consider it reasonable to interpret section
110(a)(2)(C) and section 110(a)(2)(J) as requiring EPA to propose to
disapprove a state's infrastructure SIP submissions because the state
had not yet, at the time of proposal, made a submission that was not
yet due for the 2010 PM2.5 NSR Rule. To adopt a different
approach by which EPA could not act on an infrastructure SIP, or at
least could not approve an infrastructure SIP, whenever there was any
impending revision to the SIP required by another collateral rulemaking
action would result in regulatory gridlock and make it impracticable or
impossible for EPA to act on infrastructure SIPs if EPA is in the
process of revising collateral PSD regulations. EPA believes that such
an outcome would be an unreasonable reading of the statutory process
for the infrastructure SIPs contemplated in section 110(a)(1) and (2).
EPA acknowledges that it is important that these additional PSD
program revisions be evaluated and approved into a state's
implementation plan in accordance with the CAA, and the EPA intends to
address the PM2.5 increments in a subsequent rulemaking.
EPA also notes that major sources in Georgia are subject to the
PM2.5 increments pursuant to the version of the regulation,
GA Rule 391-3-1-.02(7)--Prevention of Significant Deterioration of Air
Quality, currently in effect in Georgia. Because the regulations
relating to PM2.5 increments are currently effective and
enforceable as a matter of State law, as of August 9, 2012, EPA in the
interim believes that proposed major sources in Georgia are being
required as a matter of State law to comply with the PSD requirements
like PM2.5 increments and thus that these sources are not
being treated differently under State law than similar sources in other
States that have adopted and submitted SIP revisions to include the
increments. Thus, EPA does not believe that approving the State's
infrastructure SIP submissions at this time will lead to major sources
in Georgia being treated differently than
[[Page 65130]]
similar sources in the other States as a factual matter. If the
Commenter determines that sources are not being evaluated in accordance
with applicable State law requirements during the interim before EPA
acts on a later SIP submission, those concerns can be addressed in the
State's permitting process.
Comment 4: The Commenter states that Georgia must provide
assurances that the State will have adequate personnel, funding, and
authority to carry out the SIP. The Commenter notes that EPD receives
money from federal grants, and from permitting fees and that EPD also
receives a significant portion of its funding from the State of
Georgia. The Commenter explains that, in recent years, the EPD's funds
from the State of Georgia have significantly declined and the Commenter
believes that continued cuts in EPD's budget cast doubt on EPD's
ability to adequately administer its air program. Further, the
Commenter states that Georgia does not seem to be completing all of the
requirements of its federal grants, putting those grants in jeopardy.
Response 4: EPA does not agree with the Commenter's contention that
Georgia does not have adequate personnel and funding to carry out its
implementation plan. Section 110(a)(2)(E)(i) requires that each
implementation plan provide necessary assurances that the State will
have adequate personnel, funding, and authority under state law to
carry out its implementation plan. EPA does not believe, and the
Commenter has not demonstrated, that the State funding levels described
in the comment contravene Georgia's assurances that the State has
adequate personnel and funding to carry out its implementation plan.
Georgia's infrastructure SIP submission indicated that the State
believes that it has sufficient resources to meet its obligations. At
this juncture, EPA does not see evidence that the State's resources are
in fact inadequate.
As the Commenter notes, Georgia did not finalize one of its sixty-
three 2011 grant commitments.\10\ Notwithstanding this fact, and as was
explained in the proposed rule, EPA has determined that Georgia has
provided necessary assurances that its SIP contains the adequate
infrastructure requirements to address these types of issues as they
arise, consistent with the obligation in CAA Section 110(a)(2)(E)(i).
EPA has a process to ensure issues such as this are addressed and the
Agency is currently working with Georgia to ensure that the State meets
all of its commitments, including the outstanding 2011 grant commitment
reference by Commenter. The fact that a process is in place to resolve
the outstanding commitment supports EPA's approval of Georgia's
infrastructure SIP.
---------------------------------------------------------------------------
\10\ EPA inadvertently stated in the proposed rule for this
action that Georgia had met each of its section 105 grant
commitments for 2011. The Agency is hereby correcting that statement
to note that Georgia did not meet its commitment to develop and
submit a National Emissions Inventory QAPP.
---------------------------------------------------------------------------
IV. Final Action
As already described, EPD has addressed the elements of the CAA
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007,
guidance to ensure that 1997 annual and 2006 24-hour PM2.5
NAAQS are implemented, enforced, and maintained in Georgia. EPA is
taking final action to approve Georgia's July 23, 2008, and October 21,
2009, submissions, with noted exceptions for 1997 annual and 2006 24-
hour PM2.5 NAAQS because these submissions are consistent
with section 110 of the CAA. Today's action is not approving any
specific rule, but rather making a determination that Georgia's already
approved SIP meets certain CAA requirements. In addition, EPA is today
clarifying the inadvertent error contained in the proposal approval for
this rule as described above.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country, and EPA notes that it
will not impose substantial direct costs on tribal governments or
preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 24, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
[[Page 65131]]
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
Matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart L--Georgia
0
2. Section 52.570(e) is revised to read as follows:
Sec. 52.570 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Georgia Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable geographic State submittal
Name of nonregulatory SIP or nonattainment date/effective EPA approval Explanation
provision area date date
----------------------------------------------------------------------------------------------------------------
1. High Occupancy Vehicle Atlanta Metropolitan 11/15/93 and 3/18/99, 4/26/
(HOV) lane on I-85 from Area. amended on 6/ 99 and 11/5/09.
Chamblee-Tucker Road to 17/96 and 2/5/
State Road 316. High 10.
Occupancy Toll (HOT) lane on
I-85 from Chamblee-Tucker
Road to State Road 316.
2. Clean Fuel Vehicles Atlanta Metropolitan 6/17/96........ 4/26/99........
Revolving Loan Program. Area.
3. Regional Commute Options Atlanta Metropolitan 6/17/96........ 4/26/99........
Program and HOV Marketing Area.
Program.
4. HOV lanes on I-75 and I-85 Atlanta Metropolitan 6/17/96........ 4/26/99........
Area.
5. Two Park and Ride Lots: Atlanta Metropolitan 6/17/96........ 4/26/99........
Rockdale County-Sigman at I- Area.
20 and Douglas County-Chapel
Hill at I-20.
6. MARTA Express Bus routes Atlanta Metropolitan 6/17/96........ 4/26/99........
(15 buses). Area.
7. Signal preemption for Atlanta Metropolitan 6/17/96........ 4/26/99........
MARTA routes 15 and Area.
23.
8. Improve and expand service Atlanta Metropolitan 6/17/96........ 4/26/99........
on MARTA's existing routes Area.
in southeast DeKalb County.
9. Acquisition of clean fuel Atlanta Metropolitan 6/17/96........ 4/26/99........
buses for MARTA and Cobb Area.
County Transit.
10. ATMS/Incident Management Atlanta Metropolitan 6/17/96........ 4/26/99........
Program on I-75/I-85 inside Area.
I-285 and northern ARC of I-
285 between I-75 and I-85.
11. Upgrading, coordination Atlanta Metropolitan 6/17/96........ 4/26/99........
and computerizing Area.
intersections.
12. [Reserved]...............
13. Atlantic Steel Atlanta Metropolitan 3/29/00........ 8/28/00........
Transportation Control Area.
Measure.
14. Procedures for Testing Atlanta Metropolitan 7/31/00........ 7/10/01........
and Monitoring Sources of Area.
Air Pollutants.
15. Enhanced Inspection/ Atlanta Metropolitan 9/20/00........ 7/10/01........
Maintenance Test Equipment, Area.
Procedures and
Specifications.
16. Preemption Waiver Request Atlanta Metropolitan 5/31/00........ 2/22/02........
for Low-RVP, Low-Sulfur Area.
Gasoline Under Air Quality
Control Rule 391-3-1-
.02(2)(bbb).
17. Technical Amendment to Atlanta Metropolitan 11/9/01........ 2/22/02........
the Georgia Fuel Waiver Area.
Request of May 31, 2000.
18. Georgia's State Atlanta Metropolitan 7/17/01........ 5/7/02.........
Implementation Plan for the Area.
Atlanta Ozone Nonattainment
Area.
19. Post-1999 Rate of Atlanta Metropolitan 12/24/03....... 7/19/04, 69 FR
Progress Plan. Area. 42884.
20. Severe Area Vehicle Miles Atlanta 1-hour ozone 6/30/04........ 6/14/05, 70 FR
Traveled (VMT SIP) for the severe nonattainment 34358.
Atlanta 1-hour severe ozone area.
nonattainment area.
21. Atlanta 1-hour ozone Atlanta severe 1-hour 2/1/05......... 6/14/05, 70 FR
attainment area 2015 ozone maintenance 34660.
maintenance plan. area.
22. Attainment Demonstration Walker and Catoosa 12/31/04....... 8/26/05, 70 FR
for the Chattanooga Early Counties. 50199.
Action Area.
[[Page 65132]]
23. Attainment Demonstration Columbia and Richmond 12/31/04....... 8/26/05, 70 FR
for the Lower Savannah- Counties. 50195.
Augusta Early Action Compact
Area.
24. Alternative Fuel Douglas County, GA... 9/19/06........ 11/28/06, 71 FR
Refueling Station/Park and 68743.
Ride Transportation Center,
Project DO-AR-211 is removed.
25. Macon 8-hour Ozone Macon, GA 6/15/07........ 9/19/07, 72 FR
Maintenance Plan. encompassing a 53432.
portion of Monroe
County.
26. Murray County 8-hour Murray County........ 6/15/07........ 10/16/07, 72 FR
Ozone Maintenance Plan. 58538.
27. Atlanta Early Progress Barrow, Bartow, 1/12/07........ 2/20/08, 73 FR
Plan. Carroll, Cherokee, 9206.
Clayton, Cobb,
Coweta, DeKalb,
Douglas, Fayette,
Forsyth, Fulton,
Gwinnett, Hall,
Henry, Newton,
Paulding, Rockdale,
Spalding and Walton
counties.
28. Rome; 1997 Fine Floyd County......... 10/27/2009..... 1/12/12, 77 FR
Particulate Matter 2002 Base 1873.
Year Emissions Inventory.
29. Chattanooga; Fine Catoosa and Walker 10/27/09....... 2/8/12; 77 FR
Particulate Matter 2002 Base Counties. 6467.
Year Emissions Inventory.
30. 110(a)(1) and (2) Georgia.............. 10/13/2007..... 2/6/2012, 77 FR
Infrastructure Requirements 5706.
for the 1997 8-Hour Ozone
National Ambient Air Quality
Standards.
31. Atlanta 1997 Fine Barrow, Bartow, 07/06/2010..... 3/1/2012, 77 FR
Particulate Matter 2002 Base Carroll, Cherokee, 12487.
Year Emissions Inventory. Clayton, Cobb,
Coweta, DeKalb,
Douglas, Fayette,
Forsyth, Fulton,
Gwinnett, Hall,
Henry, Newton,
Paulding, Rockdale,
Spalding and Walton
Counties in their
entireties and
portions of Heard
and Putnam Counties.
32. Macon 1997 Fine Bibb County and 8/17/2009...... 3/02/12, 77 FR
Particulate Matter 2002 Base Monroe County. 12724.
Year Emissions Inventory.
33. Atlanta 1997 8-Hour Ozone Barrow, Bartow, 10/21/2009..... 4/24/2012, 77
2002 Base-Year Emissions Carroll, Cherokee, FR 24399.
Inventory. Clayton, Cobb,
Coweta, DeKalb,
Douglas, Fayette,
Forsyth, Fulton,
Gwinnett, Hall,
Henry, Newton,
Paulding, Rockdale,
Spalding and Walton
Counties in their
entireties.
34. Regional Haze Plan....... Statewide............ 2/11/10........ 6/28/12, 77 FR
38501.
35. Regional Haze Plan Statewide............ 11/19/10....... 6/28/12, 77 FR
Supplement (including BART 38501.
and Reasonable Progress
emissions limits).
36. 110(a)(1) and (2) Georgia.............. 7/23/2008...... 10/25/2012 With the exception of
Infrastructure Requirements [Insert 110(a)(2)(D)(i).
for 1997 Fine Particulate citation of
Matter National Ambient Air publication].
Quality Standards.
37. 110(a)(1) and (2) Georgia.............. 10/21/2009..... 10/25/2012 With the exception of
Infrastructure Requirements [Insert 110(a)(2)(D)(i).
for 2006 Fine Particulate citation of
Matter National Ambient Air publication].
Quality Standards.
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[FR Doc. 2012-25855 Filed 10-24-12; 8:45 am]
BILLING CODE 6560-50-P