[Federal Register Volume 81, Number 124 (Tuesday, June 28, 2016)]
[Proposed Rules]
[Pages 41905-41914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15136]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2015-0250; FRL-9948-40-Region 4]
Air Plan Approval; GA Infrastructure Requirements for the 2010
Nitrogen Dioxide National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the State Implementation Plan (SIP) submission,
submitted by the State of Georgia, through the Georgia Department of
Natural Resources (DNR), Environmental Protection Division (GAEPD), on
March 25, 2013, to demonstrate that the State meets the infrastructure
requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour
nitrogen dioxide (NO2) national ambient air quality standard
(NAAQS). The CAA requires that each state adopt and submit a SIP for
the implementation, maintenance and enforcement of each NAAQS
promulgated by EPA, which is commonly referred to as an
``infrastructure'' SIP. GAEPD certified that the Georgia SIP contains
provisions that ensure the 2010 1-hour NO2 NAAQS is
implemented, enforced, and maintained in Georgia. EPA is proposing to
determine that portions of Georgia's infrastructure submission,
submitted on March 25, 2013, addresses certain required infrastructure
elements for the 2010 1-hour NO2 NAAQS.
DATES: Written comments must be received on or before July 28, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0250 at http://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 http://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 [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On February 9, 2010, EPA promulgated a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion, based on a 3-year
average of the 98th percentile of the yearly distribution of 1-hour
daily maximum concentrations. See 75 FR 6474. Pursuant to section
110(a)(1) of the CAA, states are required to submit SIPs meeting the
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS. Section 110(a)(2) requires states to address
basic SIP requirements, including emissions inventories,
[[Page 41906]]
monitoring, and modeling to assure attainment and maintenance of the
NAAQS. States were required to submit such SIPs for the 2010 1-hour
NO2 NAAQS to EPA no later than January 22, 2013.\1\
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\1\ In these infrastructure SIP submissions States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. Additionally, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, unless otherwise
indicated, the term ``Georgia Rule'' indicates that the cited
regulation has been approved into Georgia's federally-approved SIP.
The term ``Georgia statute'' indicates cited statutes in Georgia Air
Quality Act, Official Code of Georgia Annotated (O.C.G.A.) Section
12-9, et seq., which are not a part of the SIP unless otherwise
indicated.
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Today's action is proposing to approve Georgia's infrastructure SIP
submission for the applicable requirements of the 2010 1-hour
NO2 NAAQS, with the exception of the PSD permitting
requirements for major sources of sections 110(a)(2)(C), prong 3 of
D(i), and (J) and the interstate transport requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4). On March 18, 2015,
EPA approved Georgia's March 25, 2013, infrastructure SIP submission
regarding the PSD permitting requirements for major sources of sections
110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour
NO2 NAAQS. See 80 FR 14019. Therefore, EPA is not proposing
any action pertaining to these requirements. EPA is not proposing any
action today regarding the interstate transport requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4). For the aspects of
Georgia's submittal proposed for approval today, EPA notes that the
Agency is not approving any specific rule, but rather proposing that
Georgia's already approved SIP meets certain CAA requirements.
II. What elements are required under sections 110(a)(1) and (2)?
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 submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, 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 2010 1-hour NO2 NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
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 mentioned above, these
requirements include basic SIP 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
proposed rulemaking are listed below and in EPA's September 13, 2013,
memorandum entitled ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2).'' \2\
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\2\ 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 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 proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)(2)(C): Programs for Enforcement of Control Measures
and for Construction or Modification of Stationary Sources \3\
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\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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\4\ As mentioned above, this element is not relevant to today's
proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
110(a)(2)(L): Permitting Fees
110(a)(2)(M): Consultation and Participation by Affected Local
Entities
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Georgia that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2010 1-hour NO2 NAAQS. The requirement for states to
make a SIP submission of this type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states must make SIP submissions
``within 3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and these SIP submissions
are to provide for the ``implementation, maintenance, and enforcement''
of such NAAQS. The statute directly imposes on states the duty to make
these SIP submissions, and the requirement to make the submissions is
not conditioned upon EPA's taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review (NNSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
[[Page 41907]]
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\5\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\10\
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\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
[[Page 41908]]
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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\11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHGs). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, among other things, the
requirement that states have a program to regulate minor new sources.
Thus, EPA evaluates whether the state has an EPA-approved minor NSR
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the existing SIP) for compliance with the
requirements of the CAA and EPA's regulations that pertain to such
programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission.
[[Page 41909]]
EPA believes that this approach to the review of a particular
infrastructure SIP submission is appropriate, because it would not be
reasonable to read the general requirements of section 110(a)(1) and
the list of elements in 110(a)(2) as requiring review of each and every
provision of a state's existing SIP against all requirements in the CAA
and EPA regulations merely for purposes of assuring that the state in
question has the basic structural elements for a functioning SIP for a
new or revised NAAQS. Because SIPs have grown by accretion over the
decades as statutory and regulatory requirements under the CAA have
evolved, they may include some outmoded provisions and historical
artifacts. These provisions, while not fully up to date, nevertheless
may not pose a significant problem for the purposes of
``implementation, maintenance, and enforcement'' of a new or revised
NAAQS when EPA evaluates adequacy of the infrastructure SIP submission.
EPA believes that a better approach is for states and EPA to focus
attention on those elements of section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to the promulgation of a new or
revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach
with respect to infrastructure SIP requirements is based on a
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA
provides other avenues and mechanisms to address specific substantive
deficiencies in existing SIPs. These other statutory tools allow EPA to
take appropriately tailored action, depending upon the nature and
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes
EPA to issue a ``SIP call'' whenever the Agency determines that a
state's implementation plan is substantially inadequate to attain or
maintain the NAAQS, to mitigate interstate transport, or to otherwise
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct
errors in past actions, such as past approvals of SIP submissions.\16\
Significantly, EPA's determination that an action on a state's
infrastructure SIP submission is not the appropriate time and place to
address all potential existing SIP deficiencies does not preclude EPA's
subsequent reliance on provisions in section 110(a)(2) as part of the
basis for action to correct those deficiencies at a later time. For
example, although it may not be appropriate to require a state to
eliminate all existing inappropriate director's discretion provisions
in the course of acting on an infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that EPA relies upon in the course of addressing such deficiency in a
subsequent action.\17\
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\15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\16\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\17\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Georgia addressed the elements of the
sections 110(a)(1) and (2) ``infrastructure'' provisions?
Georgia's infrastructure submission addresses the provisions of
sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A): Emission limits and other control measures:
Section 110(a)(2)(A) requires that each implementation plan 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. Several regulations within Georgia's SIP
are relevant to air quality control regulations. The following State
regulations include enforceable emission limitations and other control
measures: 391-3-1-.01, Definitions. Amended.; 391-3-1-.02, Provisions.
Amended.; and 391-3-1-.3, Permits. Amended. These regulations
collectively establish enforceable emissions limitations and other
control measures, means or techniques for activities that contribute to
NO2 concentrations in the ambient air, and provide authority
for GAEPD to establish such limits and measures as well as schedules
for compliance through SIP-approved permits to meet the applicable
requirements of the CAA. EPA has made the preliminary determination
that the cited provisions are adequate to protect the 2010 1-hour
NO2 NAAQS in the State.
In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during start
up, shut down, and malfunction (SSM) operations at a facility. EPA
believes that a number of states have SSM provisions which are contrary
to the CAA and existing EPA guidance, ``State Implementation Plans:
Policy Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown'' (September 20, 1999), and the Agency is addressing such
state regulations in a separate action.\18\
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\18\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, 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. Georgia's
authority to monitor ambient air quality is found in the Georgia Air
Quality Act Article 1:
[[Page 41910]]
Air Quality, Powers and duties of director as to air quality generally
(O.C.G.A. Section 12-9-6). Annually, states develop and submit to EPA
for approval statewide ambient monitoring network plans consistent with
the requirements of 40 CFR parts 50, 53, and 58. The annual network
plan involves an evaluation of any proposed changes to the monitoring
network, includes the annual ambient monitoring network design plan,
and includes a certified evaluation of the agency's ambient monitors
and auxiliary support equipment.\19\ On June 15, 2015, EPA received
Georgia's plan for 2015. On October 13, 2015, EPA approved Georgia's
monitoring network plan. Georgia's approved monitoring network plan can
be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2015-0152. The Georgia statute, along with Georgia's Ambient Air
Monitoring Network Plan, provide for the establishment and operation of
ambient air quality monitors, the compilation and analysis of ambient
air quality data, and the submission of these data to EPA upon request.
No specific statutory or regulatory authority is necessary for GAEPD to
authorize data analysis or to submit such data to EPA, and that data
submissions are provided in response to Federal regulations. EPA has
made the preliminary determination that Georgia's SIP and practices are
adequate for the ambient air quality monitoring and data system
requirements related to the 2010 1-hour NO2 NAAQS.
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\19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Program for Enforcement of Control Measures and for
Construction or Modification of Stationary Sources: Section
110(a)(2)(C) consists of three sub-elements; enforcement, state-wide
regulation of new and modified minor sources and minor modifications of
major sources; and preconstruction permitting of major sources and
major modifications in areas designated attainment or unclassifiable
for the subject NAAQS as required by CAA title I part C (i.e., the
major source PSD program).
Enforcement: GAEPD's Enforcement Program covers mobile and
stationary sources, consumer products, and fuels. The enforcement
requirements are met through two Georgia Rules for Air Quality: 391-3-
1-.07, Inspections and Investigations. Amended. and 391-3-1-.09
Enforcement. Amended. Georgia also cites to enforcement authority found
in Georgia Air Quality Act Article 1: Air Quality (O.C.G.A. Section 12-
9-13) in its submittal. Collectively, these regulations and State
statute provide for enforcement of NO2 emission limits and
control measures.
Preconstruction PSD Permitting for Major Sources: With respect to
Georgia's March 25, 2013, infrastructure SIP submission related to the
PSD permitting requirements for major sources of section 110(a)(2)(C),
EPA took final action to approve these provisions for the 2010 1-hour
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program that regulates emissions of the 2010 1-hour
NO2 NAAQS. Georgia's federally approved SIP contains its
minor NSR permitting program at Georgia Rule 391-3-1-.03(1),
Construction (SIP)Permit, which governs the preconstruction permitting
of modifications, construction of minor stationary sources, and minor
modifications of major stationary sources.
EPA has made the preliminary determination that Georgia's SIP and
practices are adequate for program enforcement of control measures and
regulation of minor sources and modifications related to the 2010 1-
hour NO2 NAAQS.
4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components have two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state interfering
with measures required to prevent significant deterioration of air
quality in another state (``prong 3''), or to protect visibility in
another state (``prong 4'').
110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2) because Georgia's 2010 1-hour NO2 NAAQS infrastructure
submissions did not address prongs 1 and 2.
110(a)(2)(D)(i)(II)--prong 3: With respect to Georgia's
infrastructure SIP submission related to the interstate transport
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took
final action to approve Georgia's March 25, 2013, infrastructure SIP
submission regarding prong 3 of D(i) for the 2010 1-hour NO2
NAAQS on March 18, 2015. See 80 FR 14019.
110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to visibility protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in
relation to Georgia's 2010 1-hour NO2 NAAQS infrastructure
submissions in a separate rulemaking.
5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement. The
following two Georgia Rules for Air Quality provide Georgia the
authority to conduct certain actions in support of this infrastructure
element related to PSD and permitting regulations. Specifically,
Georgia Rules for Air Quality 391-3-1-.02. Provisions. Amended and 391-
3-1-.03. Permits. Amended collectively require any new major source or
major modification to undergo PSD or NNSR permitting and thereby
provide notification to other potentially affected Federal, state, and
local government agencies.
Additionally, Georgia does not have any pending obligation under
section 115 and 126 of the CAA. EPA has made the preliminary
determination that Georgia's SIP and practices are adequate for
ensuring compliance with the applicable requirements relating to
interstate and international pollution abatement for the 2010 1-hour
NO2 NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide (i)
necessary assurances that the State will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the State comply with the requirements respecting State
Boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the State has relied on a local or
[[Page 41911]]
regional government, agency, or instrumentality for the implementation
of any plan provision, the State has responsibility for ensuring
adequate implementation of such plan provisions. EPA is proposing to
approve Georgia's SIP as meeting the requirements of sections
110(a)(2)(E). EPA's rationale for today's proposals respecting each
section of 110(a)(2)(E) is described in turn below.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), GAEPD's infrastructure SIP demonstrates that
it is responsible for promulgating rules and regulations for the NAAQS,
emissions standards and general policies, a system of permits, fee
schedules for the review of plans, and other planning needs. In its SIP
submittal, Georgia describes its authority for Section 110(a)(2)(E)(i)
as the CAA section l05 grant process, the Georgia Air Quality Act
Article 1: Air Quality (O.C.G.A. 12-9-10), and Georgia Rule for Air
Quality 391-3-1-.03(9) which establishes Georgia's Air Permit Fee
System. For Section 110(a)(2)(E)(iii), the State does not rely on
localities in Georgia for specific SIP implementation. As evidence of
the adequacy of GAEPD's resources with respect to sub-elements (i) and
(iii), EPA submitted a letter to Georgia on April 19, 2016, outlining
CAA section 105 grant commitments and the current status of these
commitments for fiscal year 2015. The letter EPA submitted to GAEPD can
be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2015-0520. Annually, states update these grant commitments based on
current SIP requirements, air quality planning, and applicable
requirements related to the NAAQS. There were no outstanding issues in
relation to the SIP for fiscal year 2015, therefore, GAEPD's grants
were finalized and closed out. EPA has made the preliminary
determination that Georgia has adequate resources for implementation of
the 2010 1-hour NO2 NAAQS.
Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that the SIP provide: (1)
The majority of members of the state board or body which approves
permits or enforcement orders represent the public interest and do not
derive any significant portion of their income from persons subject to
permitting or enforcement orders under the CAA; and (2) any potential
conflicts of interest by such board or body, or the head of an
executive agency with similar powers be adequately disclosed. With
respect to the requirements of section 110(a)(2)(E)(ii) pertaining the
state board requirements of CAA section 128, Georgia's infrastructure
SIP submission cites Georgia Air Quality Act Article 1: Air Quality
(O.C.G.A. Section 12-9-5) Powers and duties of Board of Natural
Resources as to air quality generally) which provides the powers and
duties of the Board of Natural Resources as to air quality and provides
that at least a majority of members of this board represent the public
interest and not derive any significant portion of income from persons
subject to permits or enforcement orders and that potential conflicts
of interest will be adequately disclosed. This provision has been
incorporated into the federally approved SIP.
EPA has made the preliminary determination that the State has
adequately addressed the requirements of section 128(a), and
accordingly has met the requirements of section 110(a)(2)(E)(ii) with
respect to infrastructure SIP requirements. Therefore, EPA is proposing
to approve GAEPD's infrastructure SIP submissions as meeting the
requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
7. 110(a)(2)(F) Stationary source monitoring system: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing:
(i) The installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. GAEPD's infrastructure
submission identifies how the major source and minor source emission
inventory programs collect emission data throughout the State and
ensure the quality of such data. These data are used to compare against
current emission limits and to meet requirements of EPA's Air Emissions
Reporting Rule (AERR). The following State rules enable Georgia to meet
the requirements of this element: Georgia Rule for Air Quality 391-3-
1-.02(3), Sampling; 391-3-1-.02(6)(b), Source Monitoring; 391-3-
1-.02(7), Prevention of Significant Deterioration of Air Quality; 391-
3-1-.02(8), New Source Performance Standards; 391-3-1-.02(9), Emission
Standards for Hazardous Air Pollutants; 391-3-1-.02(11), Compliance
Assurance Monitoring; and 391-3-1-.03, Permits. Amended. Also, the
Georgia Air Quality Act Article I: Air Quality (O.C.G.A. 12-9-5(b)(6))
provides the State with the authority to conduct actions regarding
stationary source emissions monitoring and reporting in support of this
infrastructure element. These rules collectively require emissions
monitoring and reporting for activities that contribute to
NO2 concentrations in the air, including requirements for
the installation, calibration, maintenance, and operation of equipment
for continuously monitoring or recording emissions, or provide
authority for GAEPD to establish such emissions monitoring and
reporting requirements through SIP-approved permits and require
reporting of NO2 emissions.
Georgia Rule for Air Quality 391-3-1-.02(3), ``Sampling,'' \20\
specifically, in ``Procedures for Testing and Monitoring Sources of Air
Pollutants'' under Compliance with Standards and Maintenance
Requirements allows the use of all available information to determine
compliance,\21\ and EPA is unaware of any provision preventing the use
of credible evidence in the Georgia SIP.
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\20\ Georgia Rule for Air Quality 391-3-1-.02(3) Sampling is not
approved into Georgia's federally-approved SIP.
\21\ ``Credible Evidence,'' makes allowances for owners and/or
operators to utilize ``any credible evidence or information
relevant'' to demonstrate compliance with applicable requirements if
the appropriate performance or compliance test had been performed,
for the purpose of submitting compliance certification, and can be
used to establish whether or not an owner or operator has violated
or is in violation of any rule or standard.
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Additionally, Georgia is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--nitrogen oxides, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Georgia made its latest update to the 2011
NEI on December 12, 2014. EPA compiles the
[[Page 41912]]
emissions data, supplementing it where necessary, and releases it to
the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that
Georgia's SIP and practices are adequate for the stationary source
monitoring systems related to the 2010 1-hour NO2 NAAQS.
Accordingly, EPA is proposing to approve Georgia's infrastructure SIP
submission with respect to section 110(a)(2)(F).
8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) of the Act
requires that states demonstrate authority comparable with section 303
of the CAA and adequate contingency plans to implement such authority.
Georgia's infrastructure SIP submission cites air pollution emergency
episodes and preplanned abatement strategies in the Georgia Air Quality
Act: Article 1: Air Quality (O.C.G.A. Sections 12-9-2 Declaration of
public policy, 12-9-6 Powers and duties of director as to air quality
generally, 12-9-12 Injunctive relief, 12-9-13 Proceedings for
enforcement, and 12-9-14 Powers of director in situations involving
imminent and substantial danger to public health), and Rule 391-3-1-.04
``Air Pollution Episodes.'' O.C.G.A. Section 12-9-2 provides ``[i]t is
declared to be the public policy of the state of Georgia to preserve,
protect, and improve air quality . . . to attain and maintain ambient
air quality standards so as to safeguard the public health, safety, and
welfare.'' O.C.G.A. Section 12-9-6(b)(10) provides the Director of EPD
authority to ``issue orders as may be necessary to enforce compliance
with [the Georgia Air Quality Act Article 1: Air Quality (O.C.G.A)] and
all rules and regulations of this article.'' O.C.G.A. Section 12-9-12
provides that ``[w]henever in the judgment of the director any person
has engaged in or is about to engage in any act or practice which
constitutes or will constitute an unlawful action under [the Georgia
Air Quality Act Article 1: Air Quality (O.C.G.A)], he may make
application to the superior court of the county in which the unlawful
act or practice has been or is about to be engaged in, or in which
jurisdiction is appropriate, for an order enjoining such act or
practice or for an order requiring compliance with this article. Upon a
showing by the director that such person has engaged in or is about to
engage in any such act or practice, a permanent or temporary
injunction, restraining order, or other order shall be granted without
the necessity of showing lack of an adequate remedy of law.'' O.C.G.A.
Section 12-19-13 specifically pertains to enforcement proceedings when
the Director of EPD has reason to believe that a violation of any
provision of the Georgia Air Quality Act Article 1: Air Quality
(O.C.G.A), or environmental rules, regulations or orders have occurred.
O.C.G.A. Section 12-9-14 also provides that the Governor, may issue
orders as necessary to protect the health of persons who are, or may
be, affected by a pollution source or facility after ``consult[ation]
with local authorities in order to confirm the correctness of the
information on which action proposed to be taken is based and to
ascertain the action which such authorities are or will be taking.''
Rule 391-3-1-.04 ``Air Pollution Episodes'' provides that the
Director of EPD ``will proclaim that an Air Pollution Alert, Air
Pollution Warning, or Air Pollution Emergency exists when the
meteorological conditions are such that an air stagnation condition is
in existence and/or the accumulation of air contaminants in any place
is attaining or has attained levels which could, if such levels are
sustained or exceeded, lead to a substantial threat to the health of
persons in the specific area affected.'' Collectively the cited
provisions provide that Georgia EPD demonstrate authority comparable
with section 303 of the CAA and adequate contingency plans to implement
such authority in the state. EPA has made the preliminary determination
that Georgia's SIP, and State laws are adequate for emergency powers
related to the 2010 1-hour SO2 NAAQS. Accordingly, EPA is
proposing to approve Georgia's infrastructure SIP submission with
respect to section 110(a)(2)(G).
9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in
summary, requires each SIP to provide for revisions of such plan (i) as
may be necessary to take account of revisions of such national primary
or secondary ambient air quality standard or the availability of
improved or more expeditious methods of attaining such standard, and
(ii) whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. GAEPD is responsible for adopting
air quality rules and revising SIPs as needed to attain or maintain the
NAAQS in Georgia. The State has the ability and authority to respond to
calls for SIP revisions, and has provided a number of SIP revisions
over the years for implementation of the NAAQS. Georgia has no areas
that have been designated as nonattainment for the 2010 1-hour
NO2 NAAQS. See 77 FR 9532 (February 17, 2012).
The Georgia Air Quality Act Article 1: Air Quality (O.C.G.A.
Section 12-9-6(b)(12) provide Georgia the authority to conduct certain
actions in support of this infrastructure element. Section 12-9-
6(b)(l2) of the Georgia Air Quality Act requires GAEPD to submit SIP
revisions whenever revised air quality standards are promulgated by
EPA. EPA has made the preliminary determination that Georgia adequately
demonstrates a commitment to provide future SIP revisions related to
the 2010 1-hour NO2 NAAQS when necessary. Accordingly, EPA
is proposing to approve Georgia's infrastructure SIP submission for the
2010 1-hour NO2 NAAQS with respect to section 110(a)(2)(H).
10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve Georgia's infrastructure SIP submission for the 2010 1-hour
NO2 NAAQS with respect to the general requirement in section
110(a)(2)(J) to include a program in the SIP that complies with the
applicable consultation requirements of section 121, the public
notification requirements of section 127, and visibility protection.
With respect to Georgia's infrastructure SIP submission related to the
preconstruction PSD permitting requirements of section 110(a)(2)(J),
EPA took final action to approve Georgia's March 25, 2013, 2010 1-hour
NO2 NAAQS infrastructure SIP for these requirements on March
18, 2015. See 80 FR 14019. EPA's rationale for its proposed action
regarding applicable consultation requirements of section 121, the
public notification requirements of section 127, and visibility
protection requirements is described below.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations, and
Federal Land Managers carrying out NAAQS implementation requirements
pursuant to section 121 relative to consultation. The following State
rules and statutes, as well as the State's Regional Haze Implementation
Plan (which allows for consultation between appropriate state, local,
and tribal air pollution control agencies as well as the corresponding
Federal Land Managers), provide for consultation with government
officials whose jurisdictions might be affected by SIP development
activities: Georgia Air Quality Act Article 1: Air Quality (O.C.G.A.
Section 12-9-5(b)(17)); Georgia Administrative Procedures Act
[[Page 41913]]
(O.C.G.A. Sec. 50-13-4); and Georgia Rule 391-3-1-.02(7) as it relates
to Class I areas. Section 12-9-5(b)(l7) of the Georgia Air Quality Act
states that the DNR Board is to ``establish satisfactory processes of
consultation and cooperation with local governments or other designated
organizations of elected officials or federal agencies for the purpose
of planning, implementing, and determining requirements under this
article to the extent required by the federal act.''
Additionally, Georgia adopted state-wide consultation procedures
for the implementation of transportation conformity which includes the
development of mobile inventories for SIP development.\22\ Required
partners covered by Georgia's consultation procedures include Federal,
state and local transportation and air quality agency officials. EPA
has made the preliminary determination that Georgia's SIP and practices
adequately demonstrate consultation with government officials related
to the 2010 1-hour SO2 NAAQS when necessary. Accordingly,
EPA is proposing to approve Georgia's infrastructure SIP submission
with respect to section 110(a)(2)(J) consultation with government
officials.
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\22\ Georgia rule 391-3-1-.15, Georgia Transportation Conformity
and Consultation Interagency Rule, is approved into the State's SIP.
See 77 FR 35866.
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Public notification (127 public notification): GAEPD has public
notice mechanisms in place to notify the public of instances or areas
exceeding the NAAQS along with associated health effects through the
Air Quality Index reporting system in required areas. GAEPD's Ambient
Monitoring Web page (www.georgiaair.org/amp) provides information
regarding current and historical air quality across the State. Daily
air quality forecasts may be disseminated to the public in Atlanta
through the Georgia Department of Transportation's electronic
billboards. In its SIP submission, Georgia also notes that the non-
profit organization in Georgia, ``Clean Air Campaign,'' disseminates
statewide air quality information and ways to reduce air pollution.
Georgia rule 391-3-1-.04, Air Pollution Episodes enables the State to
conduct certain actions in support of this infrastructure element. In
addition, the following State statutes provide Georgia the authority to
conduct certain actions in support of this infrastructure element. OCGA
12-9-6(b)(8) provides authority to the Georgia Board of Natural
Resources ``To collect and disseminate information and to provide for
public notification in matters relating to air quality. . .''. EPA has
made the preliminary determination that Georgia's SIP and practices
adequately demonstrate the State's ability to provide public
notification related to the 2010 1-hour NO2 NAAQS when
necessary. Accordingly, EPA is proposing to approve Georgia's
infrastructure SIP submission with respect to section 110(a)(2)(J)
public notification.
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process. EPA
recognizes that states are subject to visibility protection and
regional haze program requirements under part C of the Act (which
includes sections 169A and 169B). However, there are no newly
applicable visibility protection obligations after the promulgation of
a new or revised NAAQS. Thus, EPA has determined that states do not
need to address the visibility component of 110(a)(2)(J) in
infrastructure SIP submittals to fulfill its obligations under section
110(a)(2)(J). As such, EPA has made the preliminary determination that
it does not need to address the visibility protection element of
section 110(a)(2)(J) related to Georgia's infrastructure SIP submission
related to the 2010 1-hour NO2 NAAQS.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to the EPA can be made. The Georgia Air Quality Act Article 1: Air
Quality (O.C.G.A. Section 12-9-6(b)(2)) provides GAEPD the authority to
conduct modeling actions and to submit air quality modeling data to EPA
in support of this element. GAEPD maintains personnel with training and
experience to conduct source-oriented dispersion modeling with models
such as AERMOD that would likely be used for modeling NO2
emissions from sources. The State also notes that its SIP-approved PSD
program, which includes specific (dispersion) modeling provisions,
provides further support of GAEPD's ability to address this element.
All such modeling is conducted in accordance with the provisions of 40
CFR part 51, Appendix W, ``Guideline on Air Quality Models.''
Additionally, Georgia participates in a regional effort to
coordinate the development of emissions inventories and conduct
regional modeling for several NAAQS, including the 2010 1-hour
SO2 NAAQS, for the Southeastern states. Taken as a whole,
Georgia's air quality regulations and practices demonstrate that GAEPD
has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 1-hour
NO2 NAAQS. EPA has made the preliminary determination that
Georgia's SIP and practices adequately demonstrate the State's ability
to provide for air quality modeling, along with analysis of the
associated data, related to the 2010 1-hour NO2 NAAQS.
Accordingly, EPA is proposing to approve Georgia's infrastructure SIP
submission with respect to section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: Section 110(a)(2)(L) requires the
owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under the
CAA, a fee sufficient to cover (i) the reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not including any court costs or other costs associated
with any enforcement action), until such fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V.
Georgia's PSD and NNSR permitting programs are funded with title V
fees. Georgia Rule 391-3-1-.03(9), Permit Fees incorporates the EPA-
approved title V fee program and fees for synthetic minor sources.
Georgia's authority to mandate funding for processing PSD and NNSR
permits is found in Georgia Air Quality Act Article 1: Air Quality
(O.C.G.A. 12-9-10). Additionally, Georgia's approved title V operating
permit program at 391-3-1-.03(10), Title V Operating Permits,\23\
covers the cost of implementation and enforcement of PSD and NNSR
permits after they have been issued. EPA has made the preliminary
determination that Georgia's SIP and practices adequately provide for
permitting fees related to the 2010 NO2 NAAQS, when
necessary. Accordingly, EPA is proposing to approve Georgia's
infrastructure SIP submission with respect to section 110(a)(2)(L).
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\23\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
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13. 110(a)(2)(M) Consultation/participation by affected local
entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and
[[Page 41914]]
participation in SIP development by local political subdivisions
affected by the SIP. Consultation and participation by affected local
entities is authorized by the Georgia Air Quality Act: Article 1: Air
Quality (O.C.G.A. 12-9-5(b)(17)) and the Georgia Rule for Air Quality
391-3-1-.15, Transportation Conformity, which defines the consultation
procedures for areas subject to transportation conformity. Furthermore,
GAEPD has demonstrated consultation with, and participation by,
affected local entities through its work with local political
subdivisions during the developing of its Transportation Conformity SIP
and has worked with the Federal Land Managers as a requirement of the
regional haze rule. EPA has made the preliminary determination that
Georgia's SIP and practices adequately demonstrate consultation with
affected local entities related to the 2010 1-hour NO2 NAAQS
when necessary.
V. Proposed Action
With the exception of the preconstruction PSD permitting
requirements for major sources of section 110(a)(2)(C), prong 3 of
(110(a)(2)D(i) and 110(a)(2)(J), and the interstate transport
provisions pertaining to the contribution to nonattainment or
interference with maintenance in other states and visibility of prongs
1, 2, and 4 of section 110(a)(2)(D)(i), EPA is proposing to approve
that Georgia's March 25, 2013, SIP submission for the 2010 1-hour
NO2 NAAQS has met the above-described infrastructure SIP
requirements because these aspects of the submission are consistent
with section 110 of the CAA. This proposed action, however, does not
include the preconstruction PSD permitting requirements for major
sources of section 110(a)(2)(C), prong 3 of (D)(i), and (J), which have
been approved in a separate action, or the interstate transport
provisions pertaining to the contribution to nonattainment or
interference with maintenance in other states of prongs 1, 2 and 4 of
section 110(a)(2)(D)(i), which will be addressed by EPA in a separate
action.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely 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 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, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 10, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-15136 Filed 6-27-16; 8:45 am]
BILLING CODE 6560-50-P