[Federal Register Volume 81, Number 43 (Friday, March 4, 2016)]
[Rules and Regulations]
[Pages 11438-11445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04746]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0816; FRL-9943-35-Region 4]


Air Plan Disapproval; Georgia: Disapproval of Automatic 
Rescission Clause

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to disapprove a portion of a revision to the Georgia State 
Implementation Plan (SIP), submitted through the Georgia Department of 
Natural Resources Environmental Protection Division (Georgia EPD), on 
January 13, 2011, that would allow for the automatic rescission of 
federal permitting-related requirements in certain circumstances. EPA 
is disapproving Georgia's automatic rescission clause because the 
Agency has determined that this provision is not consistent with the 
Clean Air Act (CAA or Act) or federal regulations related to SIPs.

DATES: This rule will be effective April 4, 2016.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0816. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the 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. Mr. Lakeman can be reached by telephone at (404) 562-9043 
or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 8, 2011, EPA took final action to approve portions of 
a requested revision to the Georgia SIP, submitted by Georgia 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 
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 events (the automatic rescission 
clause), and consequently was not taking action on that provision in 
that final action. See 76 FR at 55573.
    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,

[[Page 11439]]

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 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. [sic] 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.''
    In a notice of proposed rulemaking (NPR) published on July 31, 
2015, EPA proposed to disapprove the portion of Georgia's January 13, 
2011, submittal that would add the automatic rescission clause at 
Georgia Rule 391-3-1-.02(7)(a)(2)(iv) to the SIP. See 80 FR 45635. EPA 
is now taking final action to disapprove this portion of Georgia's 
submittal.
    In assessing the approvability of Georgia's proposed automatic 
rescission 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 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 concludes that Georgia's 
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 
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 automatic 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.
    Comments on the NPR were due on or before August 31, 2015. EPA 
received adverse comments on our proposed action, specifically on our 
proposed disapproval of the automatic rescission clause, from Georgia 
EPD. EPA also received comments from Georgia Industry Environmental 
Coalition, Inc. (GIEC). After considering the comments, EPA has decided 
to finalize our action as proposed. A summary of the comments and EPA's 
responses follow.

II. Response to Comments

    Comment 1: Georgia EPD contends that the public notice, the comment 
period, and the public hearing held for the rule change that adopted 
the automatic rescission clause at Georgia Rule 391-3-
1-.02(7)(a)(2)(iv) satisfies CAA section 110(l) requirements. 
Specifically, Georgia EPD notes that it published public notices in 
several newspapers announcing an opportunity to comment on the proposed 
automatic rescission clause, held a public hearing, and addressed all 
comments received during the public comment period. According to 
Georgia EPD, Georgia's rescission clause already went through public 
notice and comment, and there is no reason to require another round of 
public notice and comment simply because the automatic rescission 
clause is triggered.
    GIEC likewise argues that Georgia EPD followed notice-and-comment 
procedures prior to the adoption of the automatic rescission clause 
that satisfy the requirements of CAA section 110(l). GIEC adds that the 
notice-and-comment procedures the Georgia EPD performed are 
indistinguishable from notice-and-comment procedures taken by the 
Tennessee Department of Environment and Conservation (TDEC) and the 
Louisville Metro Air Pollution Control District (LMAPCD) prior to 
enacting EPA-approved ``automatic rescission'' SIP provisions. GIEC 
contends that in approving the TDEC and LMAPCD provisions, EPA 
concluded that these agencies' respective prior notice-and-comment 
procedures satisfied CAA section 110(l) because they placed the public 
on notice that the respective SIPs would update automatically to 
reflect rescission-triggering actions. According to GIEC, because EPA 
concluded that TDEC and LMAPCD notice-and-comment procedures occurring 
prior to promulgation of their respective automatic rescission 
provisions satisfied CAA section 110(l), EPA cannot now conclude that 
the Georgia provision would not provide reasonable public notice under 
CAA section 110(l) when Georgia followed indistinguishable notice-and-
comment procedures prior to promulgating that provision. GIEC contends 
that if EPA were to finally conclude in this rulemaking that the 
provision does not satisfy CAA section 110(l), such a conclusion would 
be arbitrary, capricious, an abuse of discretion, beyond the Agency's 
statutory and Constitutional limits, and otherwise contrary to law in 
light of the Agency's final determinations concerning the TDEC and 
LMAPCD SIPs.
    Response 1: EPA disagrees with the Commenters' contention that the 
public notice and comment procedures associated with Georgia's adoption 
of the automatic rescission clause are sufficient to fulfill notice-
and-comment requirements with respect to any future SIP revision 
resulting from the rescission clause's operation. While EPA does not 
dispute that Georgia EPD provided for public comment and a hearing when 
promulgating the

[[Page 11440]]

automatic rescission clause at Georgia Rule 391-3-1-.02(7)(a)(2)(iv), 
that public comment opportunity did not--and could not--satisfy CAA 
section 110(l)'s public-notice-and-comment requirement with respect to 
future SIP revisions that would occur in the wake of a triggering 
action if EPA were to approve the automatic rescission clause into 
Georgia's SIP.
    Contrary to the GIEC's suggestion, EPA's approval of the automatic 
rescission clauses adopted by TDEC and LMAPCD does not render EPA's 
disapproval of Georgia's automatic rescission clause unlawful or 
arbitrary and capricious. This is because Georgia's automatic 
rescission clause differs substantially from the automatic rescission 
clauses adopted by TDEC and LMAPCD. First, under the automatic 
rescission clauses adopted by TDEC and LMAPCD, no change to the SIP 
will occur until EPA publishes a Federal Register notice announcing 
that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. 
See 77 FR 12484 (March 1, 2012); 77 FR 62150 (October 12, 2012). As EPA 
explained in the final actions approving these clauses, because no 
change to the SIP will occur until EPA has published a Federal Register 
notice announcing the change in federal regulations, ``the timing and 
extent of any future SIP change resulting from the automatic rescission 
clause will be clear to both the regulated community and the general 
public.'' Id. Second, unlike Georgia's proposed rescission clause, the 
automatic rescission clauses adopted by TDEC and LMAPCD make it clear 
to the public in advance that any SIP change resulting from operation 
of the automatic rescission clause will be consistent with EPA's 
interpretation of how the triggering action impacted federal 
regulations.
    In sharp contrast, the SIP changes resulting from operation of 
Georgia's proposed automatic rescission clause would happen 
automatically upon a triggering event without any public notice or EPA 
involvement. 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 would lead to ambiguity 
regarding the specific revision to Georgia's SIP resulting from the 
triggering action. Not only does the public have no assurance that 
changes resulting from operation of the rescission clause would be 
consistent with EPA's interpretation of the applicable federal 
regulations, but after a change occurs, the exact change may not be 
clear to the public.\1\ Furthermore, because ambiguity may exist 
regarding whether a particular court ruling or other action in fact 
triggers an automatic SIP revision under Georgia's automatic rescission 
clause, it may not be clear to the public whether the SIP has changed 
at all. Due to this ambiguity with respect to how the SIP might be 
revised under Georgia's proposed automatic rescission clause in the 
wake of a triggering action, EPA concludes that approval of the 
automatic rescission clause into Georgia's SIP would authorize future 
SIP revisions without reasonable public notice in violation of CAA 
section 110(l).
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    \1\ Georgia's proposed automatic rescission clause would 
invalidate affected regulatory text, but would not actually remove 
the text from the regulation. Thus, if EPA were to approve Georgia's 
automatic rescission clause, it would be left up to the public, the 
regulated community, and ultimately, the courts, to determine 
whether and how a potential triggering action changed SIP 
requirements.
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    Comment 2: Georgia EPD states that after the D.C. Circuit issued 
its Amended Judgment in Coalition for Responsible Regulation v. EPA, 
606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132 (D.C. Cir. 2015) (issued 
in response to the Supreme Court's decision in Utility Air Regulatory 
Group v. EPA, 134 S. Ct. 2427 (2014)), EPA removed the affected 
portions of the federal PSD regulations without providing an 
opportunity for public comment because EPA deemed the action to be 
ministerial. See 80 FR 50199 (August 19, 2015). According to Georgia 
EPD, its rescission clause is no different than the process utilized by 
EPA in this rule to remove vacated permitting requirements from federal 
regulations following the Supreme Court's decision.
    Likewise, GIEC states that EPA's removal of 40 CFR 52.21(b)(49)(v) 
as a ministerial act performed without notice-and-comment establishes 
that Georgia's proposed automatic rescission clause, to the extent that 
it operates to invalidate Georgia's incorporation of 40 CFR 
52.21(b)(49)(v), would not contravene the public notice requirements of 
CAA section 110(l). Quoting from EPA's Federal Register notice, GIEC 
points out that EPA characterized its removal of 40 CFR 52.21(b)(49)(v) 
from the CFR as a ``necessary ministerial act'' for which the Agency 
determined ``it was not necessary to provide a public hearing or an 
opportunity for public comment.'' GIEC further notes that EPA stated 
that ``notice-and-comment would be contrary to the public interest 
because it would unnecessarily delay the removal from the CFR of the 
Tailoring Rule Step 2 PSD permitting provisions that the Supreme Court 
held were invalid.''
    Response 2: EPA disagrees with these comments. The April 2015 EPA 
rule referenced by the Commenter did not revise a SIP submitted by a 
state for EPA approval. Thus, EPA's rule was not subject to the 
procedures applicable to the revisions of SIPs. EPA's rule revised 
section 40 CFR 51.166, which governs the content of state SIP 
submissions. But the EPA rule did not revise any SIP submitted by a 
state.
    CAA section 110(l) requires without exception that ``[e]ach 
revision'' to a SIP submitted to EPA for approval be adopted by the 
state ``after reasonable notice and public hearing.'' See 42 U.S.C. 
7410(l). Thus, there are no circumstances under which a state can 
revise its SIP without providing for public notice and comment on the 
revision.
    EPA's April 2015 action was not governed by section 110(l) of the 
CAA. That rule was promulgated under the Administrative Procedures Act 
(APA). Section 307(d) of the CAA says that the rulemaking procedures in 
that section ``shall not apply in the case of any rule or circumstance 
referred to in subparagraphs (A) and (B) of subsection 553(b) of Title 
5.'' Subparagraph (B) of this section in the APA provides that an 
agency need not provide notice of proposed rulemaking or opportunity 
for public comment when the agency for good cause finds that it is 
impracticable, unnecessary, or contrary to the public interest. See 5 
U.S.C. 553(b). The APA does not address procedures for state actions to 
revise a SIP. Such actions are addressed in section 110(l) of the CAA.
    In addition, although EPA's rule was not subject to public comment 
under an exception in the APA, EPA's action provided notice to the 
public of the change in the law. Georgia's rescission clause provides 
no mechanism for informing the public of a change in state law.
    Moreover, EPA did not deem all of the regulatory revisions needed 
to implement the D.C. Circuit's April 10, 2015, Amended Judgment in 
Coalition for Responsible Regulation v. EPA to be ministerial. To the 
contrary, EPA explained in the final rule removing certain vacated 
elements from the federal PSD and title V regulations that the action 
did not fully address all of the revisions needed to implement the 
Amended Judgment because ``[t]hose additional revisions to the PSD and 
title V regulations, although necessary to implement the Coalition 
Amended Judgment, are not purely ministerial in nature and will be 
addressed in [a] separate notice-and-comment

[[Page 11441]]

rulemaking, which will give the public an opportunity to comment on how 
the EPA proposed to address those portions of the Coalition Amended 
Judgment.'' See 80 FR 50199, 50200 (August 19, 2015) (emphasis added). 
It is unclear how these more complex regulatory changes would be 
handled under Georgia's proposed automatic rescission clause. In any 
event, even if Georgia had the authority to revise its SIP without 
providing for public notice and comment--which it does not--EPA's 
decision to provide public notice but no opportunity for public comment 
on certain regulatory changes that it considered to be ministerial in 
no way supports Georgia EPD's claim that it would be appropriate to 
deem all of the SIP revisions needed to remove vacated GHG permitting 
elements to be ministerial and to make such changes to Georgia's SIP 
without any public notice or opportunity for public comment.
    Finally, Georgia's proposed automatic rescission clause is not 
limited to GHG permitting requirements. Rather, the clause applies 
broadly to actions that affect ``all or any portion of 40 CFR 52.21'' 
that contain the term ``subject to regulation.'' See Georgia Rule 391-
3-1-.02(7)(a)(2)(iv). Thus, arguments regarding the alleged lack of 
ambiguity with respect to changes needed to address a triggering action 
pertaining to GHG permitting in particular are insufficient to support 
EPA's approval of Georgia's automatic rescission clause. Even if a 
ministerial change generally (or the particular change addressed in 
EPA's action) could be exempt from the requirements of 110(l), because 
of the broad reach of Georgia's rescission clause, it is impossible to 
conclude in advance that every automatic SIP change resulting from a 
triggering action would be ministerial.
    Comment 3: Georgia EPD states that the occurrence of a triggering 
action and the resulting rescission would not be a change to the SIP 
because the triggering action and rescission clause were already 
included in Georgia Rule 391-3-1-.02(7)(a)(2)(iv). Thus, according to 
Georgia EPD, the SIP is not being revised and therefore does not 
require approval from the Administrator.
    Response 3: EPA disagrees with this comment. Georgia's proposed 
automatic rescission clause would automatically invalidate SIP language 
in response to a triggering action. Such a change would constitute a 
SIP revision.
    Comment 4: GIEC states that ``EPA's preliminary conclusion that the 
[automatic rescission clause] is inconsistent with 40 CFR 51.105 is 
incorrect because EPA has been and will be afforded adequate 
opportunity under the CAA and through other proceedings to ensure that 
any SIP change resulting from the automatic operation of the 
[rescission clause] is consistent with EPA's interpretation of the 
effect of the triggering action on the permitting requirements at 40 
CFR 52.21.'' GIEC states that although the rescission clause is self-
executing, ``Georgia EPD would implement the effect of the provision's 
operation through permitting decisions that, under the Georgia SIP, are 
expressly subject to EPA notice, comment, and objection procedures.'' 
Specifically, GIEC contends that the ``permit notice, comment, and 
objection procedures running to EPA's benefit provide EPA with ample 
opportunity to convey its interpretation of (and ultimately object to) 
the effect of any [rescission clause] triggering action on the 
permitting requirements at 40 CFR 52.21 if EPA's interpretation of such 
an action conflicted with that of the Georgia EPD.''
    Response 4: EPA disagrees with this comment. The CAA's SIP revision 
procedures are distinct from the permit notice, comment, and EPA 
objection procedures. Indeed, section 110(i) of the Act specifically 
prohibits States and EPA, except in certain limited circumstances not 
applicable here, from taking any action to modify any requirement of a 
SIP with respect to any stationary source, except in compliance with 
the CAA's requirements for promulgation or revision of a state plan. 
See 42 U.S.C. 7410(i). Thus, contrary to the Commenter's contention, 
EPA's opportunity to object to a state permit cannot substitute for the 
state's compliance with the CAA's SIP revision requirements. Because 
Georgia's rescission clause would automatically revise the SIP in the 
wake of a triggering action, by the time EPA has the opportunity to 
review the permit for a particular source, it will be too late for EPA 
to ``object'' to a prior SIP revision brought about by a triggering 
action under Georgia's automatic rescission clause. Georgia cannot 
substitute permit review procedures for the procedural requirements 
governing SIP revisions at CAA section 110(l) and 40 CFR 51.105.
    Comment 5: GIEC states that it is ``highly unlikely'' that any 
action triggering the rescission clause's operation would be subject to 
interpretation because the provision is triggered by clear and 
unambiguous occurrences--the withdrawal, repeal, or revocation of all 
or part of the term ``subject to regulation'' in 40 CFR 52.21 by 
executive or congressional action or its invalidation or stay by the 
Eleventh Circuit or D.C. Circuit Courts of Appeal. GIEC further states 
that the triggering actions do not become operative until any such 
action is ``final and effective.'' GIEC comments that specifically with 
respect to GHG permitting requirements at 40 CFR 52.21(b)(49)(v), there 
was no ambiguity regarding the impact of the D.C. Circuit's Amended 
Judgment in Coalition for Responsible Regulation, which GIEC states 
would have been the ``triggering action'' if Georgia's automatic 
rescission clause had been approved by EPA.
    According to GIEC, EPA had (and took) several opportunities to 
interpret the effect of the U.S. Supreme Court's decision in Utility 
Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014), on the permitting 
requirements at 40 CFR 52.21. GIEC points to various memoranda issued 
by EPA after the Supreme Court's decision. GIEC also notes that as 
early as July 2014, EPA was on notice that the Georgia EPD construed 
Utility Air Regulatory Group v. EPA to invalidate 40 CFR 
52.21(b)(49)(v) and, accordingly, the SIP provision adopting that 
regulation was ``no longer valid.'' GIEC states that to its knowledge, 
EPA did not object to the Georgia EPD's construction of Utility Air 
Regulatory Group v. EPA or the Division's conclusions regarding the 
validity of 40 CFR 52.21(b)(49)(v) and the Georgia SIP provision 
incorporating it. GIEC concludes that in light of the straightforward 
and unambiguous manner in which Georgia's rescission clause 
automatically operated as a result of the issuance of the D.C. 
Circuit's Amended Judgment in Coalition for Responsible Regulation and 
the opportunities EPA had and took to determine the effect of Utility 
Air Regulatory Group v. EPA on the permitting requirements at 40 CFR 
52.21, it is incorrect and appears somewhat disingenuous for EPA to 
preliminarily conclude that the rescission clause is inconsistent with 
40 CFR 51.105.
    Response 5: EPA disagrees with this comment. Contrary to GIEC's 
contention, it is not ``highly unlikely'' that any action triggering 
operation of Georgia's automatic rescission clause would be subject to 
interpretation. Among other actions, the automatic rescission clause 
would be triggered by a decision by the U.S. Court of Appeals for the 
Eleventh Circuit or the District of Columbia Circuit that declares a 
portion of 40 CFR 52.21 to be ``invalid.'' It is sometimes the case 
that the precise regulatory changes needed to address a court decision 
involve more than simply removing the provision at issue. Under such 
circumstances, the exact changes to SIP requirements brought about by a 
triggering action under Georgia's

[[Page 11442]]

automatic rescission clause would be unclear.
    Rather than support GIEC's argument, the D.C. Circuit's Amended 
Judgment in Coalition for Responsible Regulation v. EPA, 606 Fed. Appx. 
6; 2015 U.S. App. LEXIS 11132 (D.C. Cir. 2015) provides a useful 
example of a triggering action that involves some degree of ambiguity 
with respect to how it impacts regulatory requirements. The D.C. 
Circuit ordered, among other things, that ``the regulations under 
review . . . be vacated to the extent they require a stationary source 
to obtain a PSD permit if greenhouse gases are the only pollutant (i) 
that the source emissions or has the potential to emit above the 
applicable major source thresholds, or (ii) for which there is a 
significant emissions increase from a modification.'' 2015 U.S. App. 
LEXIS 11132, at 130-131. The Court further ordered ``that EPA take 
steps to rescind and/or revise the applicable provisions of the Code of 
Federal Regulations as expeditiously as practicable to reflect the 
relief granted,'' and ``that EPA consider whether any further revisions 
to its regulations are appropriate'' in light of the Supreme Court's 
decision in Utility Air Regulatory Group v. EPA. Id. at 131. As 
explained above, EPA subsequently published a final action removing 
some, but not all, of the regulatory provisions impacted by the D.C. 
Circuit's Amended Judgment. See 80 FR at 50199. EPA explained in that 
notice that some of the regulatory changes needed to address the 
Amended Judgment are not purely ministerial. Id. at 50200. Because 
those regulatory changes involve the exercise of EPA's discretion to 
some extent, EPA intends to publish a separate Federal Register notice 
proposing those changes and soliciting public comment. Id.
    Thus, contrary to GIEC's argument, it cannot be assumed that 
Georgia's automatic rescission clause would be triggered only by 
``clear and unambiguous occurrences.'' Rather, as illustrated by EPA's 
efforts to respond to the D.C. Circuit's Amended Judgment in Coalition 
for Responsible Regulation v. EPA, there may be ambiguity with respect 
to the precise change to the permitting requirements in Georgia's SIP 
that would result from a triggering action under the automatic 
rescission clause. Because Georgia's automatic rescission clause would 
automatically change Georgia's SIP without public notice or EPA 
approval, any ambiguity regarding the regulatory impact of the 
triggering action would lead to ambiguity for regulated entities and 
the general public regarding the applicable SIP permitting 
requirements. This is especially true because while the automatic 
rescission clause would render the affected SIP provisions ``invalid,'' 
the invalid text would not be removed or otherwise identified. Thus, it 
would not necessarily be clear to the public and regulated entities 
which SIP requirements remain in effect and which have been rendered 
invalid. Significantly, Georgia EPD (and Georgia courts) may disagree 
with EPA regarding the regulatory changes brought about by a triggering 
action under Georgia's automatic rescission clause. Thus, in the wake 
of a triggering action, Georgia's SIP may not be consistent with 
federal regulations. Given the uncertainty regarding what SIP revisions 
may result from the future operation of Georgia's automatic rescission 
clause, EPA cannot at this time ``approve'' such future SIP revisions 
in accordance with 40 CFR 51.105.
    Comment 6: Georgia EPD comments that the Supreme Court issued its 
decision in Utility Air Regulatory Group v. EPA on June 23, 2014. 
Georgia EPD then states: ``Ten months later, EPA still had not made any 
revisions to the federal PSD or Title V permitting requirements. As a 
result, on April 10, 2015, the D.C. Circuit Court issued an amended 
judgment in Coalition for Responsible Regulation, Inc. v. Environmental 
Protection Agency, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132, which 
vacated the Tailoring Rule to the extent that it requires sources to 
obtain PSD or Title V permits solely due to a potential to emit GHGs. 
This prompted EPA to remove portions of those regulations from the 
Federal Register that were initially promulgated in 2010.'' According 
to Georgia EPD: ``Because EPA did not publish the Final Rule in the 
Federal Register until August 2015, without an immediate rescission 
clause, facilities would have been required to continue to follow the 
provisions in the Tailoring Rule for an additional 14 months after the 
Court vacated the rule. The [Georgia] EPD automatic rescission clause 
immediately did what it took EPA fourteen (14) months to do.''
    Response 6: EPA disagrees with this comment. First, Georgia EPD's 
comment reflects some misconceptions regarding the aftermath of the 
Supreme Court's decision in Utility Air Regulatory Group v. EPA. 
Contrary to Georgia EPD's suggestion, it was not EPA's delay in 
revising the federal permitting regulations that resulted in the D.C. 
Circuit issuing its Amended Judgment. Rather, the D.C. Circuit was 
acting in response to the Supreme Court's remand of the case back to 
the D.C. Circuit for issuance of an amended judgment and mandate 
consistent with the Supreme Court's opinion. Consistent with standard 
judicial practice, following the Supreme Court's remand of the case to 
the D.C. Circuit, EPA briefed the D.C. Circuit on what the agency 
considered to be the appropriate relief and waited for the D.C. Circuit 
to issue its Amended Judgment and mandate before taking action to 
remove provisions from the federal PSD and title V regulations. 
Notably, the parties to the litigation had differing views as to how 
the Supreme Court's decision should impact the federal regulations. The 
D.C. Circuit issued its Amended Judgment on April 10, 2015, and EPA 
published a final rule in the Federal Register on August 19, 2015, 
removing those portions of the federal permitting regulations that the 
D.C. Circuit specifically identified as vacated. See 80 FR at 50199. 
However, as discussed above, EPA concluded that some of the regulatory 
changes needed to address the D.C. Circuit's Amended Judgment are not 
purely ministerial and therefore, EPA will address these changes in a 
separate notice-and-comment rulemaking. Id. at 50200.
    Georgia EPD's comment also reflects some confusion regarding how 
Georgia's automatic rescission clause operates. Specifically, Georgia 
EPD apparently believes that the Supreme Court's decision, itself, was 
the triggering action under the automatic rescission clause. See 
Georgia EPD Comments at 2-3. Industry commenters, on the other hand, 
take the position that it was the D.C. Circuit's Amended Judgment that 
served as the triggering action. See GIEC Comments at 5. This 
disagreement between Georgia EPD and industry commenters underscores 
EPA's statement in the NPR that in addition to ambiguity regarding how 
the SIP might be revised in the future by operation of the automatic 
rescission clause, there may also be confusion regarding ``whether a 
court ruling or other action in fact triggers an automatic SIP revision 
under Georgia's automatic rescission clause.'' See 80 FR at 45637. In 
contrast, when a SIP revision is made in accordance with statutory and 
regulatory requirements, there is no ambiguity regarding how and when 
the SIP is changed.
    Regarding Georgia EPD's comment that without the automatic 
rescission clause, ``facilities would have been required to continue to 
follow the provisions in the Tailoring Rule for an additional 14 months 
after the [Supreme] Court vacated the rule,'' EPA notes that shortly 
after the Supreme Court issued its decision, EPA announced that it 
would no longer

[[Page 11443]]

apply or enforce federal regulatory provisions or the EPA-approved PSD 
SIP provisions that require a stationary source to obtain a PSD permit 
if greenhouse gases are the only pollutant: (i) That the source emits 
or has the potential to emit above the major source thresholds, or (ii) 
for which there is a significant emissions increase and a significant 
net emissions increase from a modification (e.g., 40 CFR 
52.21(b)(49)(v)). Memorandum from Janet G. McCabe, Acting Asst. Adm'r, 
Office of Air & Radiation, to Regional Administrators, Regions 1-10, 
Next Steps and Preliminary Views on the Application of Clean Air Act 
Permitting Programs to Greenhouse Gases Following the Supreme Court's 
Decision in Utility Air Regulatory Group v. EPA (July 24, 2014), at 2 
(available at http://www3.epa.gov/nsr/documents/20140724memo.pdf). EPA 
further announced that it did not intend to continue applying 
regulations that would require that states include in their SIP a 
requirement that such sources obtain PSD permits.'' Id. Georgia can 
exercise this same discretion with respect to enforcement of state GHG 
permitting requirements affected by the Supreme Court's decision that 
the State has not yet had the opportunity to revise.
    EPA appreciates Georgia's desire to enable its SIP to automatically 
update to reflect actions that invalidate federal regulatory 
requirements. As Georgia EPD noted in its comments, there are some 
types of automatic updating provisions that EPA has found to be 
approvable. Specifically, EPA concluded that the automatic rescission 
clauses adopted by TDEC and LMAPCD were approvable because under those 
provisions, no change to the SIP will occur until EPA publishes a  
Federal Register document announcing that a portion of 40 CFR 52.21 has 
been stayed, vacated, or withdrawn. See 77 FR at 12485 (TDEC 
provision); 77 FR at 62153 (LMAPCD provision). Another acceptable 
approach would be to enable the SIP to automatically update to reflect 
revisions to 40 CFR 52.21.
    Comment 7: Georgia EPD states that EPA has itself adopted a similar 
automatic rescission clause in a note to paragraph (b)(2)(iii)(a) of 40 
CFR 52.21, which states: ``By court order on December 24, 2003, the 
second sentence of this paragraph (b)(2)(iii)(a) is stayed 
indefinitely. The stayed provisions will become effective immediately 
if the court terminates the stay.''
    Response 7: EPA disagrees with this comment. The language in 40 CFR 
52.21 cited by Georgia EPD has no substantive effect on the regulations 
and therefore is not an automatic rescission clause. It was added by 
EPA to clarify for the public that paragraph (b)(2)(iii)(a) was stayed 
indefinitely by the D.C. Circuit in State of New York v. EPA, No. 03-
1380 and consolidated cases. As EPA explained in the Federal Register 
notice promulgating this language, ``this rule is merely a housekeeping 
measure that reflects the court order. The action does not have any 
substantive effect.'' 69 FR 40274, 40275. In any event, as discussed 
above, EPA's procedural obligations derive from the APA, not the CAA. 
While the APA provides some exceptions from public notice requirements, 
CAA section 110(l) does not.
    Comment 8: GIEC states that EPA's August 19, 2015 promulgation of 
the Final Rule entitled ``Prevention of Significant Deterioration and 
Title V Permitting for Greenhouse Gases: Removal of Certain Vacated 
Elements,'' 80 FR 501999, compels the Agency to take final action to 
approve Georgia's rescission clause to the extent that it operates to 
invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v) and to 
effectively remove the paragraph from the Georgia SIP. According to 
GIEC, the automatic operation of the rescission clause to invalidate 
Georgia's incorporation of 40 CFR 52.21(b)(49)(v) is functionally 
identical to, and cannot be distinguished from, the ministerial action 
EPA performed in its August 19, 2015 Final Rule. Accordingly, GIEC 
contends that EPA's August 19, 2015 Final Rule rendered moot any 
grounds on which EPA could rely to disapprove Georgia's automatic 
rescission clause to the extent it operates to invalidate Georgia's 
incorporation of now-vacated and removed 40 CFR 52.21(b)(49)(v). GIEC 
further claims that EPA's final rule removing 40 CFR 52.21(b)(49)(v) 
establishes that the rescission clause's invalidation of Georgia's 
incorporation of 40 CFR 52.21(b)(49)(v) would not contravene 40 CFR 
51.105 because such invalidation is consistent with EPA's 
interpretation of the triggering action on federal permitting 
requirements at 40 CFR 52.21.
    Response 8: EPA disagrees with this comment. It is not possible for 
EPA to approve Georgia's automatic rescission clause only for the 
limited purpose of enabling the automatic rescission of Georgia's 
incorporation by reference of 40 CFR 52.21(b)(49)(v). The plain 
language of the rescission clause extends well beyond the GHG 
permitting requirements to encompass ``all of any portion of 40 CFR 
52.21'' that contains the term ``subject to regulation'' that is 
impacted by a triggering action. See Georgia Rule 391-3-
1-.02(7)(a)(2)(iv). As explained above, EPA concludes that it cannot 
approve this language into Georgia's SIP because it would allow for 
future automatic SIP revisions without reasonable public notice as 
required by CAA 110(l) and without EPA approval as required by 40 CFR 
51.105.
    Comment 9: GIEC states that EPA's approval of the rescission clause 
to the extent that it operates to invalidate 40 CFR 52.21(b)(49)(v) 
would avoid unnecessary delay in removal of this provision from the 
Georgia SIP, and that such delay could likely result in confusion on 
the part of the regulated industry about how the D.C. Circuit's Amended 
Judgment affects the PSD and Title V regulations and PSD permitting 
requirements administered by the Georgia EPD.
    Response 9: With respect to GIEC's concern that any delay in 
removing Georgia's incorporation of 40 CFR 52.21(b)(49)(v) into its SIP 
could likely result in confusion on the part of the regulated industry 
regarding applicable PSD permitting requirements, as acknowledged by 
the commenter, EPA has issued several memoranda explaining how EPA 
interprets the effect of the U.S. Supreme Court's decision on PSD 
permitting requirements, and these memoranda are available on EPA's Web 
site. Further information regarding EPA's interpretation of the impact 
of the Court's decision appears in the August 19, 2015, Federal 
Register notice removing certain vacated provisions from the CFR. See 
80 FR at 50199. Finally, as discussed above, EPA has announced that it 
will no longer apply or enforce federal regulatory provisions or the 
EPA-approved PSD SIP provisions that require a stationary source to 
obtain a PSD permit if greenhouse gases are the only pollutant (i) that 
the source emits or has the potential to emit above the major source 
thresholds, or (ii) for which there is a significant emissions increase 
and a significant net emissions increase from a modification (e.g., 40 
CFR 52.21(b)(49)(v)). Georgia can exercise this same discretion with 
respect to enforcement of state GHG permitting requirements affected by 
the Supreme Court's decision (and the D.C. Circuit's subsequent Amended 
Judgment) that the State has not yet had the opportunity to revise. 
Regarding GIEC's concerns with respect to the Title V operating permit 
regulations, EPA notes that today's final action does not impact 
Georgia's approved Title V program because a state's title V 
regulations are not incorporated into the SIP and are not subject to 
SIP revision procedures.

[[Page 11444]]

    Comment 10: Georgia EPD states that ``if the federal GHG rule (or 
part of the federal rule) is vacated and considered invalid or stayed 
by the Courts, it should be immediately removed from the Georgia SIP. 
The state rulemaking process can be time consuming and may not be 
capable of responding to judicial, executive (including EPA), or 
congressional action in time to allow the permitting process to remain 
consistent with federal requirements. Therefore, Georgia EPD created 
the rescission clause to ensure that Georgia's PSD rule will be 
consistent with federal requirements at all times.''
    Response 10: EPA appreciates Georgia's desire to ensure that the 
permitting requirements in its SIP remain consistent with federal 
requirements. However, Georgia's proposed automatic rescission clause 
would create the possibility that Georgia's SIP would be inconsistent 
with federal requirements in the wake of a triggering action. 
Specifically, Georgia's proposed rescission clause would revise 
Georgia's SIP automatically following a triggering action, without 
waiting for EPA's public notice explaining how exactly the triggering 
action impacts federal requirements. Georgia EPD (and Georgia courts) 
may disagree with EPA regarding the regulatory changes brought about by 
a triggering action under Georgia's automatic rescission clause, 
resulting in confusion for regulated entities and the general public. 
This possibility of inconsistency between the Georgia SIP and federal 
regulatory requirements, and the lack of public notice regarding such 
inconsistency, makes Georgia's proposed automatic SIP revision 
different from other automatic updating mechanisms that EPA has found 
to be approvable. For example, as Georgia EPD noted in its comments, 
EPA concluded that the automatic rescission clauses adopted by TDEC and 
LMAPCD were approvable because under those provisions, no change to the 
SIP will occur until EPA publishes a Federal Register notice announcing 
that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. 
See 77 FR at 12485; 77 FR at 62153. Another acceptable approach would 
be to enable the SIP to automatically update to reflect to the most 
recent version of 40 CFR 52.21, which is the approach that EPA takes 
with respect to Federal Implementation Plans (FIPs) that apply 40 CFR 
52.21 in states that have not adopted PSD permitting requirements into 
their SIP. Under these alternative approaches, regulated entities and 
the public can be certain that any changes to the SIP resulting from 
automatic updating will simply reflect express changes to the federal 
requirements in 40 CFR 52.21, and that there will be no inconsistency 
between the SIP and federal permitting regulations.
    Comment 11: Georgia EPD notes that EPA stated in its proposed 
action that disapproval of Georgia's proposed automatic rescission 
clause ``does not impose additional requirements beyond those imposed 
by state law'' and ``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.).'' However, Georgia EPD believes 
that requiring PSD permitting requirements for facilities that a court 
has vacated and considered invalid or stayed does impose additional 
requirements beyond those imposed by state law and does have a 
significant economic impact on a substantial number of small entities.
    Response 11: EPA disagrees with this comment. EPA's disapproval of 
Georgia's automatic rescission clause does not itself impose any 
additional requirement on any regulated entity beyond those 
requirements imposed by state law. In particular, the rescission clause 
is merely a procedural mechanism by which requirements that EPA 
previously approved into Georgia's SIP at Georgia's request would be 
automatically invalidated in the wake of a triggering action. As 
discussed above, EPA has determined that it cannot approve this 
procedural mechanism because it contravenes CAA and regulatory 
requirements governing SIP revisions. This action does not impair 
Georgia's existing ability to request a SIP revision in accordance with 
the procedures set forth in the CAA and federal regulations. Because 
EPA's disapproval of Georgia's automatic rescission clause does not 
impose any additional requirement on any regulated entity, this final 
action will not have a significant economic impact on a substantial 
number of small entities. Accordingly, EPA concludes pursuant to 
section 605 of the Regulatory Flexibility Act, 5 U.S.C. 605, that a 
regulatory flexibility analysis is unnecessary.

III. Final Action

    EPA is taking final action 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). This 
action does not change what EPA previously approved. EPA notes that 
this disapproval action does not obligate Georgia in any way to make a 
new SIP submittal and does not create any potential for sanctions 
because this provision is not a required element of 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. This action 
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 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

[[Page 11445]]

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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 3, 2016. 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 
enforce its requirements. See section 307(b)(2).

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.

    Dated: February 23, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42.U.S.C. 7401 et seq.

Subpart L--Georgia

0
2. Amend Sec.  52.572 by designating the existing undesignated 
paragraph as paragraph (a) and adding paragraph (b) to read as follows:


Sec.  52.572  Approval status.

* * * * *
    (b) Disapproval. Submittal from the State of Georgia, 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 disapproving a 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 State Implementation Plan 
in the wake of certain court decisions or other triggering events (the 
automatic rescission clause).

[FR Doc. 2016-04746 Filed 3-3-16; 8:45 am]
 BILLING CODE 6560-50-P