Daily Rules, Proposed Rules, and Notices of the Federal Government
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 PM
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
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
• 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.
• 110(a)(2)(D): Interstate transport.
• 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.
• 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.
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 PM
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.
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 PM
First, the Commenter contends that Georgia's SIP does not currently provide adequate enforceable limitations for PM
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 PM
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 PM
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 PM
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 NO
EPA disagrees with the Commenter's position that emissions reductions associated with the NO
EPA also disagrees with the Commenter's second argument—that the reductions associated with the NO
In addition, the case cited by the Commenter,
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.
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 PM
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 PM
EPA also notes that major sources in Georgia are subject to the PM
As the Commenter notes, Georgia did not finalize one of its sixty-three 2011 grant commitments.
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 PM
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
• 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
• 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 Congressional Review Act, 5 U.S.C. 801
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
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate Matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *