[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Proposed Rules]
[Pages 72941-72946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25917]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R4-OAR-2022-0294; FRL-10440-01-R4]
Disapproval of Air Quality Implementation Plans; Georgia;
Proposed Revisions to Georgia's Rules for Air Quality Control
Pertaining to Startup, Shutdown and Malfunction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove a State Implementation Plan (SIP) revision submitted by the
State of Georgia through the Georgia Environmental Protection Division
(GA EPD) on November 17, 2016. The revision was submitted by Georgia in
response to a finding of substantial inadequacy and SIP call published
on June 12, 2015, for a provision in the Georgia SIP related to excess
emissions during startup, shutdown, and malfunction (SSM) events. EPA
is proposing to disapprove the SIP revision and to determine that the
SIP revision fails to correct the deficiencies identified in the June
12, 2015, SIP call in accordance with the requirements for SIP
provisions under the Clean Air Act (CAA or Act).
DATES: Comments must be received on or before December 28, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R4-
OAR-2022-0294 at https://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 electronically submit any
information you consider to be Confidential Business Information (CBI)
or other information, the disclosure of which 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 https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Planning and
Implementation Branch, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. Mr. Akers can be reached by telephone at (404) 562-9089 or
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On February 22, 2013, EPA published in the Federal Register a
notice of proposed rulemaking that outlined EPA's policy at the time
with respect to SIP provisions related to periods of SSM.\1\ In that
notice, EPA analyzed specific SSM SIP provisions and explained how each
one either did or did not comply with the CAA with regard to excess
emission events. For each SIP provision that EPA determined to be
inconsistent with the CAA, EPA proposed to find that the existing SIP
provision was substantially inadequate to meet CAA requirements and
thus proposed to issue a SIP call under CAA section 110(k)(5). On
September 17, 2014, EPA issued a document supplementing and revising
what the Agency had previously proposed on February 22, 2013, in light
of a United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) decision \2\ that determined the CAA precludes
authority of EPA to create affirmative defense provisions applicable to
private civil suits. EPA outlined its updated policy that affirmative
defense SIP provisions are not consistent with CAA requirements. EPA
proposed in the supplemental proposal document to apply its revised
interpretation of the CAA to specific affirmative defense SIP
provisions and proposed SIP calls for those provisions where
appropriate. See 79 FR 55920 (September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
\2\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``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,'' hereinafter referred to as the ``2015 SSM SIP Action.''
See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016.
Georgia submitted a SIP revision to EPA on November 17, 2016, in
response to the SIP call issued in the 2015 SSM SIP Action. In its
submission, the State is requesting that EPA approve two new paragraphs
into Ga. Comp. R. & Regs. (hereinafter Rule) 391-3-1-.02(2)(a) of the
Georgia SIP that would allow sources to comply with certain work
practice standards as alternative emission limitations (AELs) during
periods of SSM and would describe requirements for minimizing excess
emissions during periods of SSM.
EPA issued a memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\3\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Georgia in 2015. The 2020 Memorandum did,
however, indicate
[[Page 72942]]
EPA's intent at the time to review SIP calls that were issued in the
2015 SSM SIP Action to determine whether EPA should maintain, modify,
or withdraw particular SIP calls through future agency actions.
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\3\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income, and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\5\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
Agency acts on SIP submissions, including Georgia's SIP submittal
provided in response to the 2015 SIP call.
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\4\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\5\ See 80 FR 33985.
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Regarding the Georgia SIP, in the 2015 SSM SIP Action, EPA
determined that paragraph 7, ``Excess Emissions,'' of Rule 391-3-
1-.02(2)(a) (paragraph 391-3-1-.02(2)(a)7) (hereinafter referred to as
paragraph 7), is substantially inadequate to meet CAA requirements. See
80 FR 33962. Paragraph 7, which has three parts, provides, first, that
excess emissions which occur during periods of SSM despite ordinary
diligence by the source are allowed provided that best operational
practices to minimize emissions are adhered to, all associated air
pollution control equipment is operated in a manner consistent with
good air pollution control practice for minimizing emissions, and the
duration of excess emissions is minimized. Second, paragraph 7 provides
that excess emissions which are caused entirely or in part by poor
maintenance, poor operation, or any other equipment or process failure
which may reasonably be prevented during periods of SSM are prohibited
and are violations of Georgia's Air Quality Control rules. Third,
paragraph 7 specifies that the provisions therein apply only to those
sources which are not subject to any requirement of 40 CFR part 60, as
amended, concerning New Source Performance Standards. The rationale
underlying EPA's determination that paragraph 7 of section 391-3-
1-.02(2)(a) is substantially inadequate to meet CAA requirements, and
therefore to issue a SIP call to Georgia to remedy the provision, is
detailed in the 2015 SSM SIP Action and the accompanying proposals. EPA
is not soliciting comment on its rationale for issuing the 2015 SIP
call to Georgia.
II. Analysis of Georgia's SIP Submission
As noted above, Georgia's November 17, 2016, SIP revision requests
that EPA approve two new paragraphs into Rule 391-3-1-.02(2)(a) of the
Georgia SIP at 391-3-1-.02(2)(a)11, ``Startup and Shutdown Emissions
for SIP-Approved Rules'' (paragraph 11) and at 391-3-1-.02(2)(a)12,
``Malfunction Emissions'' (paragraph 12).
A. Rule 391-3-1-.02(2)(a)11, ``Startup and Shutdown Emissions for SIP-
Approved Rules''
For periods of startup and shutdown, new paragraph 11 would apply
in lieu of the existing SIP-called paragraph 7 upon the effective date
of EPA's final approval of the rule. Paragraph 11 would require sources
to comply with applicable SIP emission limitations and standards by
either: (1) complying with the applicable emission limitations and
standards at all times, including periods of startup and shutdown, or
(2) complying with the applicable emission limitations and standards
during ``normal operations'' and complying with AELs in the form of
certain work practice standards during periods of startup and shutdown.
Thus, owners and operators of sources that elect not to comply with the
numeric emission limitations during periods of startup and shutdown
would be allowed to comply with certain alternative work practice
standards.\6\
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\6\ New paragraph 391-3-1-.02(2)(a)11 also includes language at
paragraph 11.(iii) that would void 391-3-1-.02(2)(a)11.(ii), which
provide for compliance options during periods of SSM, if EPA's 2015
SSM Action is (1) ``Declared or adjudged to be invalid or
unconstitutional or stayed by the United States Court of Appeals for
the Eleventh Circuit, the District of Columbia Circuit, or the
United States Supreme Court,'' or (2) ``Withdrawn, repealed,
revoked, or otherwise rendered of no force and effect by the United
States Environmental Protection Agency, Congress, or Presidential
Executive Order.'' EPA notes, however, that Georgia's SIP submission
does not ask EPA to approve this automatic rescission language into
the SIP. See the submittal at pages 15/63, 22/63, and 23/63, where
Georgia indicates that these provisions are not intended for
incorporation into the Georgia SIP.
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EPA previously identified several deficiencies in paragraph 11, as
outlined in EPA Region 4's August 1, 2016, and September 30, 2016,
comment letters to GA EPD regarding Georgia's July 1, 2016, and August
31, 2016, prehearing submissions transmitting the State's proposed
response to the 2015 SSM SIP Action for public review.\7\ In this
notice of proposed rulemaking (NPRM), EPA proposes to find that
paragraph 11, which generally was not changed from the version in the
pre-hearing submissions except for renumbering, does not adequately
address the 2015 SSM SIP Action and does not comport with EPA's SSM
policy, as outlined in that action.
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\7\ EPA's comment letters are part of Georgia's complete
November 17, 2016, submittal, available in the docket for this
proposed action.
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As submitted, subparagraph (ii)(I)I.B of paragraph 11 provides
that, during periods of startup and shutdown, sources subject to any of
the SIP emission limitations identified in subparagraph 11.(ii) may
choose to comply with ``general alternative work practice standards''
identified at 11.(ii)(I)IV; work practice standards which are in
federal rules as noted at 11.(ii)(I)V; or source-specific work practice
standards established in permits at 11.(ii)(I)VI. Subparagraph
(ii)(I)IV.B of paragraph 11 provides that sources may choose to comply
with generally available work practice standards at provisions
(ii)(I)IV.B.(A)-(M), as applicable, for fuel burning sources and
pollution control devices installed to meet applicable emission
limitations, as applicable. The Georgia rules, which would function as
AELs to otherwise applicable numeric emission limits in the SIP during
periods of startup and shutdown, do not reflect consideration of the
seven specific criteria that EPA recommends, per Agency guidance, for
developing AELs that apply during startup and shutdown. See 80 FR
33980-82.\8\ For example, and as discussed in more detail below, the
generally available work practice standards apply to a general type of
source, i.e., ``fuel burning sources,'' and are not limited to
specific, narrowly
[[Page 72943]]
defined source categories (e.g., cogeneration facilities burning
natural gas, steam generating units burning fossil fuel, stationary gas
turbines, etc.) using specific control strategies.
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\8\ See also EPA's 1999 SSM Guidance (Memorandum to EPA Regional
Administrators, Regions I-X from Steven A. Herman and Robert
Perciasepe, USEPA, Subject: State Implementation Plans: Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown, dated September 20, 1999), available as Document ID EPA-
HQ-OAR-2012-0322-0007 at https://www.regulations.gov.
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The Georgia rules also seem to have been developed without
consideration of whether sources are capable of complying with
otherwise applicable numeric emission limitations. EPA does not
recommend establishing AELs for sources that are capable of meeting
their existing emission limitations at all times. See id. at 33913. As
part of the November 17, 2016, SIP revision, GA EPD responded to EPA's
comments on the draft regulatory changes. GA EPD notes in its response
that sources that are capable of meeting their numeric emission
limitations at all times have the option to comply with those limits at
all times in lieu of the additional burden of complying with work
practice standards during periods of startup and shutdown.
Specifically, paragraph 11 at 11.(ii)(I)I. allows compliance with
emission limitations to be achieved by either complying with the
applicable emission limitations at all times or by complying with the
AELs during periods of startup and shutdown as outlined in the
remainder of subparagraph 11(ii). This means that sources which are
capable of meeting the original emission limitations and standards at
all times, even during periods of startup and shutdown, have the option
of complying with AELs such as work practice standards in lieu of
meeting those original limitations. Accordingly, EPA views this option
as inconsistent with the 2015 SSM SIP Action.
Moreover, the requirements at 11.(ii)(I)IV.B.(A)-(M) have not been
sufficiently tailored for specific sources or source categories.
Control requirements that apply during startup and shutdown must be
clearly stated as components of the emission limitation and must meet
the applicable level of control required for the type of SIP provision
(e.g., must be reasonably available control technology (RACT) for
sources subject to a RACT requirement). See 80 FR 33890, 33912-13.
Alternative requirements applicable to a source during startup and
shutdown should be narrowly tailored and take into account
considerations such as the technological limitations of the specific
source category and the control technology that is feasible during
startup and shutdown. See id. at 33912-13, 33980.
The November 17, 2016, submittal indicates that the State made use
of EPA's work practice standards at 40 CFR part 63, subpart DDDDD,
known as the boiler Maximum Achievable Control Technology (MACT) rule
(Boiler MACT Rule), and other federal regulations in developing its
work practice standards (e.g., the general work practice standard at
11.(ii)(I)IV.B.(H)). EPA acknowledges that certain federal rules may
provide useful examples of approaches for appropriate and feasible AELs
for states to apply during startup and shutdown in a SIP provision (in
particular those federal rules that have been revised or newly
promulgated since 2008).\9\ However, it should not be assumed that
emission limitation requirements in recent National Emission Standards
for Hazardous Air Pollutants (NESHAP) and New Source Performance
Standards (NSPS) are appropriate for all sources regulated by the SIP.
The universe of sources regulated by the federal NSPS and NESHAP
programs is not identical to the universe of sources regulated by
states for purposes of the national ambient air quality standards
(NAAQS). Moreover, the pollutants regulated under the NESHAP program
(i.e., hazardous air pollutants) are in many cases different than those
that would be regulated for purposes of attaining and maintaining the
NAAQS, protecting prevention of significant deterioration (PSD)
increments, improving visibility, and meeting other CAA requirements.
See 80 FR 33916. Therefore, the work practice standards which the State
wants to include as components of a continuously applicable emission
limitation would need to be evaluated on a case-by-case basis as to
their appropriateness as AELs for SIP purposes.
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\9\ Specifically, EPA is referring to federal rules for the New
Source Performance Standards and National Emission Standards for
Hazardous Air Pollutants that have been issued since the D.C.
Circuit's decision of December 19, 2008, Sierra Club v. Johnson, 551
F.3d 1019 (D.C. Cir. 2008).
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Regarding the example included in GA EPD's response in its November
17, 2016, submittal, the general work practice standard at
11.(ii)(I)IV.B.(H) is available to all fuel burning equipment and
requires sources to burn a ``clean fuel'' as defined in the Boiler MACT
Rule or to burn ``the cleanest fuel the unit is permitted to burn, as
practicable.'' The submittal does not explain why startup and shutdown
work practice standards that were developed for boilers are necessarily
appropriate as AELs for all types of fuel-burning sources. This general
work practice standard is not sufficiently specific in its
applicability, nor is it sufficiently specific as to which fuels are
acceptable to burn during startup to be considered an appropriate AEL.
See 80 FR 33912-13, 33916. Additionally, if certain sources can meet
their existing numeric emission limitations and standards, then those
sources do not need AELs. In those cases, there should be a distinction
between which sources are required to comply with their existing
numeric emission limitations or standards and which sources need AELs
for periods of startup or shutdown.
Additionally, EPA notes that many of the work practice standards
listed in 11.(ii)(I)IV.B. appear to contain exempt periods, presumably
due to technological limitations of the control equipment. Some of the
standards also require operation ``as specified by the manufacturer,''
which makes these standards difficult or impractical to enforce and may
also result in exempt periods. For example, for units using baghouses,
no emission limitation would apply whenever ``the inlet gas temperature
is below the dew point, outside the manufacturer's recommended
operating temperature range, or if the pressure differential across the
baghouse exceeds the manufacturer's recommended maximum pressure
differential.'' Rule 391-3-1-.02(2)(a)11.(ii)(I)IV.B.(A). While EPA
agrees that emission control devices should be utilized to the maximum
extent practicable, the Agency disagrees that sources should be exempt
from any sort of emission limitation during times in which full use of
control devices might not be possible. As discussed in the 2015 SSM SIP
Action, in accordance with the CAA, some emission limitation must apply
at all times. Examples of potential AELs that may be applied include
the use of additional emission controls, use of cleaner burning fuels,
and establishment of higher numeric emission limitations that are still
protective of the NAAQS and otherwise meet the requirements of the CAA.
Thus, for the reasons discussed above, EPA is proposing to disapprove
the AEL approach established at 11.(ii)(I)IV.
Next, paragraph 11 at 11.(ii)(I)V provides that, in lieu of the
general alternative work practice standards option at 11.(ii)(I)IV, the
owner or operator of a source may follow the startup and shutdown work
practice standards in federal rules included in 40 CFR part 60 (NSPS)
or 40 CFR part 63 (NESHAP) so long as the rule contains specific work
practice standards for startup and shutdown periods. The provision also
notes that those federal rules are adopted by Georgia as Rules 391-3-
1-.02(8) and (9). As discussed above, while EPA acknowledges that
certain federal rules may provide good examples of approaches for
appropriate and feasible AELs for states to apply during startup and
shutdown in a SIP provision (in particular, those federal
[[Page 72944]]
rules that have been revised or newly promulgated since 2008),\10\ the
SIP must be clear as to what the applicable limitations are for each
source at all times. Therefore, this provision does not constitute a
component of an emission limitation for a specific source or source
category, as it does not specify which sources or source categories
will comply with the startup and shutdown procedures contained in
federal rules and which provisions from those federal rules are
applicable.
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\10\ See supra n.9.
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As noted above, control requirements that apply during startup and
shutdown must be clearly stated as components of the emission
limitation and must meet the applicable level of control required for
the type of SIP provision. Since the purpose of the NSPS and NESHAP
programs is not identical to that of the SIPs, the provisions intended
to apply to specific source categories should be evaluated on a case-
by-case basis to ensure their appropriateness for the purposes of the
SIP. See 80 FR 33916. EPA also recommends giving consideration to the
seven specific criteria delineated in the 2015 SSM SIP Action for
developing AELs in SIP provisions that apply during startup and
shutdown. See id. at 33980. Therefore, EPA is proposing to disapprove
the AEL approach established in 11.(ii)(I)V.
Rule 11.(ii)(I)VI provides that in lieu of options 11.(ii)(l)IV or
11.(ii)(l)V discussed above, the owner or operator of a source may
choose to comply with a source-specific alternative work practice
standard for startup and shutdown periods that has been incorporated
into a federally enforceable permit. EPA notes, however, that emission
limitations that are specified only in a permit are not part of the SIP
unless and until they are submitted to EPA and federally approved into
the SIP. The fact that EPA has approved the permitting program itself
into the SIP does not mean that EPA has approved the actual contents of
each permit issued or has made such contents an approved part of the
SIP. See 80 FR 33915-16, 33922. In the context of emission limitations
contained in a SIP, EPA views the approach of establishing AELs through
a permit that does not involve submitting the relevant permit
requirements to the EPA for inclusion in the SIP as a form of
``director's discretion,'' a type of provision that, as explained in
the 2015 SSM SIP Action, is inconsistent with CAA requirements because
it would allow the state to create alternatives to SIP emission
limitations without complying with the CAA's SIP revision requirements.
Among other things, a permit-based approach to establishing an AEL
(that does not involve submitting the relevant permit requirements to
the EPA for inclusion in the SIP) would bypass EPA's role in reviewing
and approving the AEL to ensure that it is enforceable pursuant to CAA
section 110(a)(2)(A) (i.e., that emission limitations are sufficiently
specific regarding the source's obligations and include adequate
monitoring, recordkeeping, and reporting requirements). Accordingly, a
permitting process cannot be used to create alternatives to SIP
emission limitations for sources during startup and shutdown in lieu of
a SIP revision. The State may use the permit development process as a
means to evaluate and establish AELs for periods of startup and
shutdown for a specific source, but such permit conditions would not
negate or replace applicable SIP limits without being approved as a
source-specific SIP revision.
Georgia's November 17, 2016, submittal suggests that the
``director's discretion'' issue is not implicated in the approach
delineated in 11.(ii)(I)VI because EPA and the public would have an
opportunity to comment on the permit. This opportunity for public
comment is not a substitute for a source-specific SIP revision, which
is needed to alter otherwise applicable SIP emission limitations. As
noted above, treating conditions in a permit as AELs that apply instead
of SIP-approved emission limitations effectively revises otherwise
applicable SIP requirements without going through a SIP revision.
Therefore, EPA is proposing to disapprove the AEL approach established
in paragraph 11.(ii)(I)VI.
Subparagraph 11.(ii) also states that ``[t]he provisions of this
subparagraph 11.(ii) shall also apply to emission limitations
established in accordance with the new source review requirements in
391-3-1-.02(7)(b) and/or 391-3-1-.03(8) unless startup and shutdown
emissions have already been specifically addressed via a federally
enforceable permit.'' Paragraph 11 at 11.(ii)(I)I.B provides that
compliance with those emission limitations may be achieved by one of
the alternative work practice standards during startup and shutdown. In
addition to the other concerns noted previously regarding subparagraph
11.(ii), allowing the alternative compliance options for startup and
shutdown to be available for limitations established for a source
through the State's new source review (NSR) program may result in
emission limitations that do not comply with that program. A fully
approvable SIP emission limitation, including periods of startup and
shutdown, must meet all substantive requirements of the CAA applicable
to such a SIP provision. For purposes of nonattainment NSR (NNSR) and
PSD permitting, any AEL applicable to startup and shutdown periods must
constitute the lowest achievable emissions rate (LAER) for NNSR or must
reflect the use of best available control technology (BACT) for PSD.
See 80 FR 33893. To satisfy CAA requirements, such AELs must be
established on a source-specific basis through the NNSR and PSD
permitting process rather than in a static rule. The process identified
in 11.(ii) is also open-ended and not sufficiently specific to
determine what applies to specific permitted sources during periods of
startup and shutdown.
EPA understands from GA EPD's response to comments in the November
17, 2016, submittal that this provision is specifically intended to
apply to sources with existing permits issued pursuant to Rules 391-3-
1-.02(7)(b) (PSD) and 391-3-1-.03(8) (NNSR), which did not include
emission limitations for periods of startup and shutdown at the time
the permits were issued, while permits issued pursuant to the PSD and
NNSR program today would consider startup and shutdown in the
permitting process. However, the same issues remain with this approach
even for the more limited universe of existing permits. Furthermore,
for the reasons described previously, EPA is proposing to disapprove
the underlying regulations at paragraph 11. Therefore, EPA is also
proposing to disapprove this provision at 11.(ii) establishing the AEL
``options'' approaches for existing PSD and NNSR permits.
B. Rule 391-3-1-.02(2)(a)12, ``Malfunction Emissions''
For periods of malfunction, new paragraph 12 would allow compliance
with source-specific AELs in the form of work practice standards.
Owners and operators of sources that elect not to comply with the
numeric emission limitations during periods of malfunction may choose
to propose source-specific alternative work practice standards. As with
new paragraph 391-3-1-.02(2)(a)11 discussed above, this provision would
apply in lieu of the existing SIP-called paragraph 391-3-1-.02(2)(a)7
upon EPA's approval into the SIP, and it also includes automatic
rescission language regarding the effectiveness of subparagraph 12.(ii)
in the event that legal challenges to the 2015 SSM SIP Action are
successful.\11\
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\11\ The rescission language at Rule 391-3-1-.02(2)(a)12.(iii)
is not submitted for approval into the SIP in the November 17, 2016,
SIP revision. See the submittal at pages 15/63, 22/63, and 23/63.
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[[Page 72945]]
As with new subparagraph 11, EPA identified several deficiencies in
new subparagraph 12 previously, as outlined in EPA Region 4's August 1,
2016, and September 30, 2016, comment letters to GA EPD regarding
Georgia's July 1, 2016, and August 31, 2016, prehearing submissions
transmitting GA EPD's proposed response to the 2015 SSM SIP Action for
public review.\12\ In this NPRM, EPA proposes to find that paragraph
12, which generally was not changed from the pre-hearing submission
except for renumbering, contains deficiencies such that the rule does
not adequately address the 2015 SSM SIP Action and does not comport
with EPA's SSM policy, as outlined in that action.
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\12\ See supra n.6.
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The SIP must require sources to comply with applicable emission
limitations, which may include AELs approved into the SIP for certain
periods of operation. As submitted, subparagraph 12.(ii)(I)II. provides
that, during periods of malfunction, sources subject to any of the SIP
emission limitations and standards identified in paragraph 12.(i) may
choose to comply with a ``source specific malfunction work practice
standard approved into a federally enforceable air quality operating
permit,'' and this process is outlined further at 12.(ii)(IV).
Subparagraph 12.(ii) does not require the AELs to be approved into the
SIP, and likewise does not specify that such AELs are not effective for
SIP purposes until they are approved by the EPA as part of the SIP. As
discussed above in relation to paragraph 11, a permitting process
cannot be used to create alternatives to SIP emission limitations
unless such alternative limitations are incorporated into the SIP.
EPA further notes that, unlike AELs specific to periods of startup
and/or shutdown, it is likely not feasible for the State to develop
approvable AELs that apply specifically to malfunctions. As EPA
explained in the 2015 SSM SIP Action, a malfunction is unpredictable as
to the timing of the start of the malfunction event, its duration, and
its exact nature. The effect of a malfunction on emissions is therefore
unpredictable and variable, making the development of AELs for
malfunctions problematic. There may be rare instances in which certain
types of malfunctions at certain types of sources are foreseeable and
foreseen and thus are an expected mode of source operation. In such
circumstances, EPA believes that sources should be expected to meet the
otherwise applicable emission limitation to encourage sources to be
properly designed, maintained, and operated to prevent or minimize any
such malfunctions. To the extent that a given type of malfunction is so
foreseeable and foreseen that a state considers it a normal mode of
operation that is appropriate for a specifically designed AEL, then
such alternative should be developed in accordance with EPA's
recommended criteria for AELs. See 80 FR 33979. However, should there
be a demonstrated need for source-specific AELs for malfunctions, such
AELs would not negate otherwise applicable SIP emission limitations
unless submitted to EPA and approved into the SIP. For these reasons,
EPA is proposing to disapprove the AEL approach for malfunctions
established at 12.(ii)(I)II.
Paragraph 12 at 12.(ii)(V) provides that ``[m]alfunctions that are
not specifically included in an approved source specific work practice,
or are the result of poor maintenance, poor operation, or otherwise
reasonably preventable control equipment or process failure, are
prohibited and shall be considered violations . . . if the malfunction
continues for 4 hours or more.'' EPA notes that a standard duration for
determining whether a malfunction is a violation across the wide array
of rules and sources listed in subparagraph 12.(i) does not
appropriately consider source-specific requirements, such as the
averaging time of applicable emission limitations or the total amount
of pollutants released in that time. Thus, EPA believes that the 4-hour
period can serve as an improper exempt period for malfunctions in
certain circumstances. As discussed above, an emission limitation must
apply at all times. Therefore, EPA is proposing to disapprove
12.(ii)(V).
Additionally, subparagraph 12.(i) provides that ``[t]his paragraph
12. also applies to emission limitations established in accordance with
the new source review requirements in 391-3-1-.02(7)(b) and/or 391-3-
1-.03(8) unless malfunction emissions have already been specifically
addressed via a federally enforceable permit.'' EPA acknowledges that
there are not open-ended, generally available work practice standards
for malfunctions in paragraph 12 as in 11.(ii)(I)IV.B. for startup and
shutdown, and 12.(ii)(IV) requires a permit application and for any
sources without source-specific work practice standards approved in a
permit to comply with the applicable emission limitation (i.e.,
existing BACT or LAER, as issued) during malfunctions. However, EPA
also notes that, as discussed above, it may not be feasible to
establish AELs that are specifically applicable to malfunctions and
that are consistent with EPA's SSM policy. Additionally, because EPA is
proposing to disapprove the underlying regulations at paragraph 12, the
Agency is likewise proposing to disapprove this provision related to
existing PSD and NNSR permits at 12.(i).\13\
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\13\ New paragraph 391-3-1-.02(2)(a)13, ``Startup, Shutdown, and
Malfunction Emissions for Certain Rules'' (paragraph 13), would
describe requirements for minimizing excess emissions during periods
of startup, shutdown and malfunction for rules adopted by Georgia
but that are not in the State's SIP. The rule would provide that
emissions in excess of an applicable standard resulting from SSM
events are allowed under certain conditions if appropriate actions
are taken to minimize those emissions. Paragraph 13 is not submitted
for EPA approval into the SIP. See the cover letter of the November
16, 2017, SIP submittal, and pages 20/63, 37/63, 41/63, and 43/63 in
the submittal, available in the docket for this proposed action.
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C. Summary of EPA's Analysis
For the reasons discussed above, EPA is proposing to disapprove
Georgia's November 17, 2016, SIP submission, which would establish
options for complying with existing SIP emission limitations and
standards or alternatives for periods of SSM. Specifically, during
periods of startup and shutdown, the SIP revision would allow sources
to either comply with existing numeric emission limitations or elect to
comply with AELs generally available, comply with AELs listed in
federal rules, or to establish source-specific AELs in permits which
are not incorporated in the SIP. Further, the SIP revision would also
allow sources, during periods of malfunction, to either comply with
existing numeric emission limitations or elect to comply with source-
specific AELs established in permits which are not incorporated in the
SIP. EPA proposes to find that the State's November 17, 2016, SIP
revision is not consistent with CAA requirements and does not
adequately address the specific deficiencies EPA identified in the 2015
SSM SIP Action with respect to the Georgia SIP.
III. Proposed Action
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is
proposing to disapprove Georgia's November 17, 2016, SIP submission
requesting approval of new paragraphs 391-3-1-.02(2)(a)11.(i) and (ii)
and 391-3-1-.02(2)(a)12.(i) and (ii) into the SIP. EPA is proposing
disapproval of the SIP revision because
[[Page 72946]]
the Agency has preliminarily determined that it is not consistent with
the requirements for SIP provisions under the CAA. EPA is further
proposing to determine that the SIP revision does not correct the
deficiencies identified in the June 12, 2015, SIP call. EPA is not
reopening the 2015 SSM SIP Action and is only taking comment on whether
this SIP revision is consistent with CAA requirements and whether it
addresses the substantial inadequacy in the specific Georgia SIP
provision identified in the 2015 SSM SIP Action.
If the Agency finalizes this disapproval, CAA section 110(c) would
require EPA to promulgate a federal implementation plan within 24
months of the effective date of the final action unless EPA first
approves a SIP revision that corrects the deficiencies identified in
Section II of this NPRM within such time.\14\
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\14\ In addition to a requirement for EPA to promulgate a
federal implementation plan, a final disapproval would trigger the
offset sanction in CAA section 179(b)(2) 18 months after the
effective date of a final disapproval, and the highway funding
sanction in CAA section 179(b)(1) 24 months after the effective date
of a final disapproval. Although the sanctions clock would begin to
run from the effective date of a final disapproval, mandatory
sanctions under CAA section 179 generally apply only in designated
nonattainment areas. This includes areas designated as nonattainment
after the effective date of a final disapproval. As discussed in the
2015 SSM SIP Action, EPA will evaluate the geographic scope of
potential sanctions at the time it makes a determination that the
air agency has failed to make a complete SIP submission in response
to the 2015 SIP call, or at the time it disapproves such a SIP
submission. The appropriate geographic scope for sanctions may vary
depending upon the SIP provisions at issue. See 80 FR 33839, 33930.
At this time, there are no nonattainment areas in Georgia.
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IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
The Proposed action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
The proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA (5
U.S.C. 601 et seq.). This action merely proposes to disapprove a SIP
submission as not meeting the CAA.
D. Unfunded Mandates Reform Act (UMRA)
The proposed action does not contain any unfunded mandate as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. This proposed action imposes no
enforceable duty on any State, local, or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
The proposed action does not have federalism implications. It will
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
The proposed action does not have tribal implications as specified
in Executive Order 13175. The proposed action does not apply on any
Indian reservation land, any other area where EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction, or non-reservation
areas of Indian country. Thus, Executive Order 13175 does not apply in
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definitions of ``covered regulatory action'' in section 2-202
of the Executive Order. This proposed action is not subject to
Executive Order 13045 because it merely proposes to disapprove a SIP
submission from Georgia as not meeting the CAA.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution and Use
The proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.
I. National Technology Transfer and Advancement Act
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes the human health or environmental risk address by this
proposed action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This proposed action merely proposes to
disapprove a SIP submission as not meeting the CAA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 21, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-25917 Filed 11-25-22; 8:45 am]
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