[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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \23\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    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