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[Federal Register Volume 80, Number 147 (Friday, July 31, 2015)]
[Proposed Rules]
[Pages 45636-45638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18754]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0816; FRL-9931-63-Region 4]

Air Plan Disapproval; Georgia: Disapproval of Automatic 
Rescission Clause

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

DATES: Written comments must be received on or before August 31, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-0816, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-ARMS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2010-0816,'' Air Regulatory Management 
Section (formerly Regulatory Development Section), Air Planning and 
Implementation Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air 
Regulatory Management Section, Air Planning and Implementation Branch, 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2010-0816. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy at the Air Regulatory Management 
Section, Air Planning and Implementation Branch, Air, Pesticides and 
Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA 
requests that if at all possible, you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-9043. Mr. Lakeman can be 
reached via electronic mail at lakeman.sean@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background for EPA's Proposed Action

    On September 8, 2011, EPA took final action to approve portions of 
a requested revision to the Georgia SIP, submitted by EPD on January 
13, 2011. See 76 FR 55572. Specifically, the portions of Georgia's 
January 13, 2011, SIP submittal that EPA approved incorporated two 
updates to the State's air quality regulations under Georgia's New 
Source Review (NSR) Prevention of Significant Deterioration (PSD) 
program. First, the SIP revision established appropriate emission 
thresholds for determining which new stationary sources and 
modification projects become subject to Georgia's PSD permitting 
requirements for their greenhouse gas (GHG) emissions. Second, the SIP 
revision incorporated provisions for implementing the PSD program for 
the fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS). EPA noted in its September 8, 2011, final 
rule approving portions of Georgia's January 13, 2011, SIP submittal 
that the Agency was still evaluating the portion of the SIP submittal 
related to a provision (at 391-3-1-.02(7)(a)(2)(iv)) that would 
automatically rescind portions of Georgia's SIP in the wake of certain 
court decisions or other triggering

[[Page 45637]]

events (the automatic rescission clause), and consequently was not 
taking action on that provision in that final action. See 76 FR at 
55573. Today, EPA is proposing to disapprove the automatic rescission 
clause at 391-3-1-.02(7)(a)(2)(iv) in Georgia's January 13, 2011, SIP 
submittal.\1\ More detail on EPA's analysis of Georgia's automatic 
rescission clause is provided below.
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    \1\ On November 12, 2014, EPD submitted a SIP package that 
included, among other things, an additional change to Georgia's PSD 
rules at 391-3-1-.02(7)(a)(2)(iv), which is the provision at issue 
in this notice. The revised version of Georgia Rule 391-3-
1-.02(7)(a)(2)(iv) continues to include the automatic rescission 
clause at issue in today's notice. However, in its cover letter and 
subsequent explanations of revisions, EPD did not address the change 
made to 391-3-1-.02(7)(a)(2)(iv), nor did EPD ask the EPA to approve 
any revision to this provision. Therefore, EPA does not consider the 
change to 391-3-1-.02(7)(a)(2)(iv) included in the November 12, 
2014, submittal to be part of an official SIP revision package.
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II. EPA's Analysis of Georgia's Submission Related to the Automatic 
Rescission Clause

    As mentioned above, Georgia's January 13, 2011, SIP revision 
included a provision that allowed for the automatic rescission of 
federal permitting-related requirements under certain circumstances. 
Specifically, at 391-3-1-.02(7)(a)(2)(iv), Georgia's rules read as 
follows: ``The definition and use of the term `subject to regulation' 
in 40 CFR, Part 52.21, as amended June 3, 2010, is hereby incorporated 
by reference; provided, however, that in the event all or any portion 
of 40 CFR, Part 52.21 containing that term is: (I) Declared or adjudged 
to be invalid or unconstitutional or stayed by the United States Court 
of Appeals for the Eleventh Circuit or for the District of Columbia 
Circuit; or (II) withdrawn, repealed, revoked or otherwise rendered of 
no force and effect by the United States Environmental Protection 
Agency, Congress, or Presidential Executive Order. Such action shall 
render the regulation as incorporated herein, or that portion thereof 
that may be affected by such action, as invalid, void, stayed, or 
otherwise without force and effect for purposes of this rule upon the 
date such action becomes final and effective; provided, further, that 
such declaration, adjudication, stay, or other action described herein 
shall not affect the remaining portions, if any, of the regulation as 
incorporated herein, which shall remain of full force and effect as if 
such portion so declared or adjudged invalid or unconstitutional or 
stayed or otherwise invalidated or effected were not originally a part 
of this rule. The Board declares that it would [not] have incorporated 
the remaining parts of the federal regulation if it had known that such 
portion thereof would be declared or adjudged invalid or 
unconstitutional or stayed or otherwise rendered of no force and 
effect.''
    EPA is proposing to disapprove the portion of Georgia's January 13, 
2011, SIP submittal that would add the automatic rescission clause at 
Georgia Rule 391-3-1-.02(7)(a)(2)(iv) to the SIP. In assessing the 
approvability of this clause, EPA considered two key factors: (1) 
Whether the public will be given reasonable notice of any change to the 
SIP that occurs as a result of the automatic rescission clause; and (2) 
whether any future change to the SIP that occurs as a result of the 
automatic rescission clause would be consistent with EPA's 
interpretation of the effect of the triggering action (e.g., the extent 
of an administrative or judicial stay) on federal permitting 
requirements at 40 CFR 52.21. These criteria are derived from the SIP 
revision procedures set forth in the CAA and federal regulations.
    Regarding public notice, CAA section 110(l) provides that any 
revision to a SIP submitted by a State to EPA for approval ``shall be 
adopted by such State after reasonable notice and public hearing.'' See 
42 U.S.C. 7410(l). Under Georgia's proposed automatic rescission 
clause, the SIP would automatically be revised as a result of a 
triggering action without public notice. To the extent that there is 
any ambiguity regarding how a court order or other triggering action 
impacts the federal permitting requirements at 40 CFR 52.21, that 
ambiguity will lead to ambiguity regarding the extent to which the 
triggering action results in a SIP revision (and indeed, whether a 
particular court ruling or other action in fact triggers an automatic 
SIP revision under Georgia's automatic rescission clause). EPA 
preliminarily concludes that Georgia's proposed automatic rescission 
clause would not provide reasonable public notice of a SIP revision as 
required by CAA 110(l), 42 U.S.C. 7410(l).
    EPA's consideration of whether any SIP change resulting from the 
proposed automatic rescission clause would be consistent with EPA's 
interpretation of the effect of the triggering action on federal 
permitting requirements at 40 CFR 52.21 is based on 40 CFR 51.105. 
Under 40 CFR 51.105, ``[r]evisions of a plan, or any portion thereof, 
will not be considered part of an applicable plan until such revisions 
have been approved by the Administrator in accordance with this part.'' 
However, the Georgia rescission clause takes effect immediately upon 
certain triggering actions without any EPA intervention. The effect of 
this is that EPA is not given the opportunity to determine the effect 
and extent of the triggering court order or federal law change on the 
federal permitting requirements at 40 CFR 52.21; instead, the SIP is 
modified without EPA's approval. EPA preliminarily concludes that 
Georgia's proposed automatic rescission clause is inconsistent with 40 
CFR 51.105.

III. Proposed Action

    EPA is proposing to disapprove the provision in Georgia's January 
13, 2011, SIP submittal (at Georgia Rule 391-3-1-.02(7)(a)(2)(iv)) that 
would automatically rescind permitting-related federal requirements in 
certain circumstances. Previously, EPA approved the remainder of 
Georgia's January 13, 2011, SIP revision, which related to PSD 
requirements for GHG-emitting sources and for the PM2.5 
NAAQS. See 76 FR 55572 (September, 8, 2011). Today's action does not 
change what EPA previously approved. EPA notes that the State has the 
option to withdraw the portion of the January 13, 2011, SIP submittal 
that is the subject of this disapproval action prior to EPA taking 
final action. Also, EPA notes that this disapproval action does not 
trigger a requirement for a Federal Implementation Plan because this 
provision is not a necessary or required element for the SIP.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely disapproves a state law as not meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);

[[Page 45638]]

     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Particulate 
matter, Reporting and recordkeeping requirements.

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

    Dated: July 22, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-18754 Filed 7-30-15; 8:45 am]
 BILLING CODE 6560-50-P
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