[Federal Register Volume 80, Number 147 (Friday, July 31, 2015)]
[Proposed Rules]
[Pages 45636-45638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18754]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2010-0816; FRL-9931-63-Region 4]
Air Plan Disapproval; Georgia: Disapproval of Automatic
Rescission Clause
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove a portion of a revision to the Georgia State Implementation
Plan (SIP), submitted through the Georgia's Department of Natural
Resources Environmental Protection Division (EPD), on January 13, 2011,
that would allow for the automatic rescission of federal permitting-
related requirements in certain circumstances. EPA is proposing to
disapprove Georgia's automatic rescission provision because the Agency
has preliminarily determined that this provision is not consistent with
the Clean Air Act (CAA or Act) or federal regulations related to SIPs.
DATES: Written comments must be received on or before August 31, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-0816, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2010-0816,'' Air Regulatory Management
Section (formerly Regulatory Development 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.
5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are only accepted during the Regional
Office's normal hours of operation. The Regional Office's official
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2010-0816. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information may not be publicly available, i.e., CBI 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 in
www.regulations.gov or in hard copy at the Air Regulatory Management
Section, Air Planning and Implementation Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. 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 a.m. to 4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Sean Lakeman, 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. The telephone number is (404) 562-9043. Mr. Lakeman can be
reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background for EPA's Proposed Action
On September 8, 2011, EPA took final action to approve portions of
a requested revision to the Georgia SIP, submitted by EPD on January
13, 2011. See 76 FR 55572. Specifically, the portions of Georgia's
January 13, 2011, SIP submittal that EPA approved incorporated two
updates to the State's air quality regulations under Georgia's New
Source Review (NSR) Prevention of Significant Deterioration (PSD)
program. First, the SIP revision established appropriate emission
thresholds for determining which new stationary sources and
modification projects become subject to Georgia's PSD permitting
requirements for their greenhouse gas (GHG) emissions. Second, the SIP
revision incorporated provisions for implementing the PSD program for
the fine particulate matter (PM2.5) national ambient air
quality standards (NAAQS). EPA noted in its September 8, 2011, final
rule approving portions of Georgia's January 13, 2011, SIP submittal
that the Agency was still evaluating the portion of the SIP submittal
related to a provision (at 391-3-1-.02(7)(a)(2)(iv)) that would
automatically rescind portions of Georgia's SIP in the wake of certain
court decisions or other triggering
[[Page 45637]]
events (the automatic rescission clause), and consequently was not
taking action on that provision in that final action. See 76 FR at
55573. Today, EPA is proposing to disapprove the automatic rescission
clause at 391-3-1-.02(7)(a)(2)(iv) in Georgia's January 13, 2011, SIP
submittal.\1\ More detail on EPA's analysis of Georgia's automatic
rescission clause is provided below.
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\1\ On November 12, 2014, EPD submitted a SIP package that
included, among other things, an additional change to Georgia's PSD
rules at 391-3-1-.02(7)(a)(2)(iv), which is the provision at issue
in this notice. The revised version of Georgia Rule 391-3-
1-.02(7)(a)(2)(iv) continues to include the automatic rescission
clause at issue in today's notice. However, in its cover letter and
subsequent explanations of revisions, EPD did not address the change
made to 391-3-1-.02(7)(a)(2)(iv), nor did EPD ask the EPA to approve
any revision to this provision. Therefore, EPA does not consider the
change to 391-3-1-.02(7)(a)(2)(iv) included in the November 12,
2014, submittal to be part of an official SIP revision package.
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II. EPA's Analysis of Georgia's Submission Related to the Automatic
Rescission Clause
As mentioned above, Georgia's January 13, 2011, SIP revision
included a provision that allowed for the automatic rescission of
federal permitting-related requirements under certain circumstances.
Specifically, at 391-3-1-.02(7)(a)(2)(iv), Georgia's rules read as
follows: ``The definition and use of the term `subject to regulation'
in 40 CFR, Part 52.21, as amended June 3, 2010, is hereby incorporated
by reference; provided, however, that in the event all or any portion
of 40 CFR, Part 52.21 containing that term is: (I) Declared or adjudged
to be invalid or unconstitutional or stayed by the United States Court
of Appeals for the Eleventh Circuit or for the District of Columbia
Circuit; or (II) withdrawn, repealed, revoked or otherwise rendered of
no force and effect by the United States Environmental Protection
Agency, Congress, or Presidential Executive Order. Such action shall
render the regulation as incorporated herein, or that portion thereof
that may be affected by such action, as invalid, void, stayed, or
otherwise without force and effect for purposes of this rule upon the
date such action becomes final and effective; provided, further, that
such declaration, adjudication, stay, or other action described herein
shall not affect the remaining portions, if any, of the regulation as
incorporated herein, which shall remain of full force and effect as if
such portion so declared or adjudged invalid or unconstitutional or
stayed or otherwise invalidated or effected were not originally a part
of this rule. The Board declares that it would [not] have incorporated
the remaining parts of the federal regulation if it had known that such
portion thereof would be declared or adjudged invalid or
unconstitutional or stayed or otherwise rendered of no force and
effect.''
EPA is proposing to disapprove the portion of Georgia's January 13,
2011, SIP submittal that would add the automatic rescission clause at
Georgia Rule 391-3-1-.02(7)(a)(2)(iv) to the SIP. In assessing the
approvability of this clause, EPA considered two key factors: (1)
Whether the public will be given reasonable notice of any change to the
SIP that occurs as a result of the automatic rescission clause; and (2)
whether any future change to the SIP that occurs as a result of the
automatic rescission clause would be consistent with EPA's
interpretation of the effect of the triggering action (e.g., the extent
of an administrative or judicial stay) on federal permitting
requirements at 40 CFR 52.21. These criteria are derived from the SIP
revision procedures set forth in the CAA and federal regulations.
Regarding public notice, CAA section 110(l) provides that any
revision to a SIP submitted by a State to EPA for approval ``shall be
adopted by such State after reasonable notice and public hearing.'' See
42 U.S.C. 7410(l). Under Georgia's proposed automatic rescission
clause, the SIP would automatically be revised as a result of a
triggering action without public notice. To the extent that there is
any ambiguity regarding how a court order or other triggering action
impacts the federal permitting requirements at 40 CFR 52.21, that
ambiguity will lead to ambiguity regarding the extent to which the
triggering action results in a SIP revision (and indeed, whether a
particular court ruling or other action in fact triggers an automatic
SIP revision under Georgia's automatic rescission clause). EPA
preliminarily concludes that Georgia's proposed automatic rescission
clause would not provide reasonable public notice of a SIP revision as
required by CAA 110(l), 42 U.S.C. 7410(l).
EPA's consideration of whether any SIP change resulting from the
proposed automatic rescission clause would be consistent with EPA's
interpretation of the effect of the triggering action on federal
permitting requirements at 40 CFR 52.21 is based on 40 CFR 51.105.
Under 40 CFR 51.105, ``[r]evisions of a plan, or any portion thereof,
will not be considered part of an applicable plan until such revisions
have been approved by the Administrator in accordance with this part.''
However, the Georgia rescission clause takes effect immediately upon
certain triggering actions without any EPA intervention. The effect of
this is that EPA is not given the opportunity to determine the effect
and extent of the triggering court order or federal law change on the
federal permitting requirements at 40 CFR 52.21; instead, the SIP is
modified without EPA's approval. EPA preliminarily concludes that
Georgia's proposed automatic rescission clause is inconsistent with 40
CFR 51.105.
III. Proposed Action
EPA is proposing to disapprove the provision in Georgia's January
13, 2011, SIP submittal (at Georgia Rule 391-3-1-.02(7)(a)(2)(iv)) that
would automatically rescind permitting-related federal requirements in
certain circumstances. Previously, EPA approved the remainder of
Georgia's January 13, 2011, SIP revision, which related to PSD
requirements for GHG-emitting sources and for the PM2.5
NAAQS. See 76 FR 55572 (September, 8, 2011). Today's action does not
change what EPA previously approved. EPA notes that the State has the
option to withdraw the portion of the January 13, 2011, SIP submittal
that is the subject of this disapproval action prior to EPA taking
final action. Also, EPA notes that this disapproval action does not
trigger a requirement for a Federal Implementation Plan because this
provision is not a necessary or required element for the SIP.
IV. 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 disapproves a state law as not 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.);
[[Page 45638]]
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, Greenhouse gases,
Incorporation by reference, Intergovernmental relations, Particulate
matter, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 22, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-18754 Filed 7-30-15; 8:45 am]
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