# Georgia Department of Natural Resources

August 31, 2012

MEMORANDUM Environmental Protection Division • Air Protection Branch 4244 International Parkway • Suite 120 • Atlanta • Georgia 30354 404/363-7000 • Fax: 404/363-7100 Mark Williams, Commissioner

Judson H. Turner, Director



### To: Judson Turner, Director Environmental Protection Division From: James Capp, Chief Air Protection Branch Subject: Responses to Comments Received During the Public Comment Period Regarding the Proposed Annual PM 2

### .s Maintenance Plan for the Georgia Portion ofthe Chattanooga Nonattainment Area

On May 31, 2011, EPA promulgated its determination (76 FR 31239) that the Chattanooga nonattainment area had attained the 1997 annual average PM 2.5 

### National Ambient Air Quality Standard (NAAQS). As a result, the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources is submitting to the United States Environmental Protection Agency (EPA) a State Implementation Plan (SIP) revision which incorporates a maintenance plan for the Georgia portion of the Chattanooga Nonattainment Area. On July 2, 2012, EPD issued a public notice to all persons who have requested that they be placed on a notification list and requested comments on the proposed amendments to Georgia's SIP. The amendments were described in the notice as follows: "The proposed State Implementation Plan revision includes Georgia's request under the Clean Air Act that Georgia's Portion of the Chattanooga annual PM25 

### nonattainment area (Catoosa and Walker Counties) be redesignated to attainment with respect to the 1997 National Ambient Air Quality Standard (NAAQS) for PM 2 .5 

### as well as Georgia's plan to maintain attainment of the 1997 annual PM 2.5 

### standard in Georgia's Portion of the Chattanooga area." No oral comments were received during the public hearing held on August 14, 2012. Written comments were received from EPA during the public comment period which ended August 21, 2012. Comments received and EPD's responses are included in the attached document. JC:JK:klc

### Responses to Comments Received During the Public Comment Period July 

### 2 through August 

### 21, 2012 Proposed State Implementation Plan Revision Incorporating the Maintenance Plan for the Georgia Portion ofthe Chattanooga PM2.s NonattainmentArea On July 

### 2, 2012, EPD issued a public notice requesting comments on the proposed State Implementation Plan revision incorporating the maintenance plan for the Georgia portion of the Chattanooga PM2.s Nonattainment Area. No oral comments were received during the public hearing on August 

### 14, 2012. Written comments were received during the public comment period. Comments received are summarized in this memo. Issues raised by the commenters, followed by EPD's responses to the commenters' assertions, are presented below. Public Hearing No oral comments were received during the public hearing. Written Comments Comments on the proposed Maintenance Plan were received only from the U.S. EPA. EPA's Comments to the Chattanooga Proposed PM 2.5 

### Maintenance Plan Received August 

### 16, 2012 Revisions/responses to address comments are in italics. 

### EPA notes that the plan lists the Clean Air Interstate Rule (CAIR)ICross State Air Pollution Rule (CSAPR) as federal control measures impacting ambient PM2

.5 

### levels. EPA also noted that CSAPR, which is to replace CAIR, is currently stayed by the U.S. Court ofAppeals for the D.C. Circuit Court. Therefore any emissions reductions attributable to CAIRICSAPR are not considered permanent and enforceable until the stay is lifted or emission reductions are otherwise required by an EPA-approved SIP rule or other federally-enforceable means. Response: EPA's use ofthe phrase "not consideredpermanentand enforceable" appears to be a reference to Clean AirAct (CAA) section 107(d)(3)(E)(iii), which requires "that the improvement in airquality is due to permanent and enforceable reductions in emissions resulting from implementation ofthe applicable implementation plan and applicable Federal airpollutant control regulations and otherpermanent and enforceable reductions."Responses to Comments Received -Chattanooga (GA) PM2.5 SIP

As described herein, EPD strongly disagrees with EPA's assertion that "any emissions reductions attributable to CAIRI CSAPR are not consideredpermanent and enforceable." In addition, the onlyrelevant reason forEPA to include such 

### a comment is because EPA intends to use the uncertainty ofthe status ofCAIR (and anypossible future successor) asjustification to not approve the redesignation request. Ifthis is the case, EPA should state theirposition clearly. IfEPA has 

### a different intention for the inclusion ofthis comment, EPA should communicate that intention to the state. EPA has not done so. The CAA does not allow EPA to indefinitely delay theirapproval (or disapproval) of

### a state's submittal due to the uncertainty of

### a separate federal rule. The onlyauthority EPA has with regard to the approval (or disapproval) of

### a state's redesignation request is found in CAA section 107(d)(3), "Redesignation" and the only authorityEPA has with regard to the approval (ordisapproval) of

### a maintenance plan is found in CAA section 110(k), "Environmental Protection AgencyAction on Plan Submissions." In accordance with CAA section 107(d)(3) andsection 110(k)(1) and (2), EPA shall act on the state's submission no later than 18 months aftersubmittal. There are no exceptions orextensions for EPA in 

### a situation where there is some uncertainty regarding the future of

### a particularfederal rule. This would be true even ifthe federal rule at issue had

### a materialimpact on the state's submittal. However, as described below, that is not the case in this situation. As 

### a preliminarymatter, EPA's statement regarding emissions reductions attributable to CSAPR is completely erroneous. The emission limits in CSAPR were scheduled to begin on January 1, 2012. However, before that date arrived, the D.C. Circuit Court of Appeals stayed the implementation ofthe rule. Then, on August21, 2012, the D. 

### C. Circuit Court of Appeals issued the following orderto EPA: "We vacate the Transport Rule [aka CSAPR]and the Transport Rule FIPs andremand this proceeding to EPA. EPA must continue administering CAIR pending the promulgation of

### a valid replacement." At this pointin time, EPA has not announced theirintended response to the court's ruling. So, it is unknown whetherornot EPA will appeal the decision (either to 

### a full panel ofthe D.C. Circuit orthe U.S. Supreme Court), ifit will conduct rulemaking in response to the court's decision, ortake some otherpath forward. Nonetheless, none ofthat is relevant to the approval (or disapproval) ofthis redesignation request and maintenance plan. The CSAPR was neverimplemented. There were neverany emissions reductions attributable to CSAPR. For EPA to suggest otherwise is completely erroneous. Georgia has not relied upon anypowerplant emissions reductions in Georgia that are attributable to CAIR in the implementation plan. The powerplant emissions reductions in Georgia that are documented in the implementation plan are from Georgia Rules (sss) and (uuu).

2Responses to Comments Received- Chattanooga (GA) PM2.5 SIP

Obviously, the State ofGeorgia does nothave legal authorityoveremissions that originate in anotherstate and are transported downwind into Georgia to contribute to particulate matterlevels in Georgia. However, there are two independent reasons why the emissions reductions that have occurred in upwindstates are both permanent and enforceable. First, the D. 

### C. Circuit's decisions regarding both CAIR and CSAPR are very clear that CAIR is to remain in effect until it is replaced byanotherrule that completelysatisfies the CAA section 110(a)(2)(D)(i) requirement thatprohibits emissions in upwind states from contributing significantly to nonattainment orinterfering with maintenance in a downwind state (i.e. Georgia). In the recent CSAPR decision, the court said, "EPA must continue administering CAIR pending the promulgation ofa valid replacement." Therefore, the courthas assured that the emission reductions attributable to CAIR are permanent, or, ifnot, that those emissions reductions were not necessary to prevent nonattainment orinterference with maintenance in the firstplace. Second, EPA cannot credibly claim, regardless ofwhat happens with CAIR or CSAPR, that emissions ofPM2.s and PM2.s precursors from powerplants are going to increase in the future in states that couldbe contributing to PM 2

.5 concentrations in Georgia. The following lengthy, yet certainlynot exhaustive, list ofcurrent andpending federal regulations ensures that emissions ofPM2.s andPM2 

### sprecursors from powerplants will not increase, but will instead continue to decrease substantially.

• NAAQS for S02 promulgatedin 2010 • NAAQS forN02 promulgated in 2010 • EGU MACTpromulgatedin 2012 • Regional Haze SIPs required by CAA Section 107(d)(7) • GHG NSPS fornew EGUs proposedin 2012 (This proposal effectivelyprohibits future construction ofcoalpowerplants. In addition, EPA asserted in the proposed rule that even without the proposed GHG NSPS that there would be no new coalplants due to otherfactors.) • Current NSPS forEGUs (40 CFR 60 Subparts D, Da, Db) • Prevention ofSignificant Deterioration regulation • Section 110(1) ofthe Clean AirAct (prohibiting emissions increases that would interfere with attainment) • Acid Rain provisions from Title IVofthe Clean AirAct • Title VPermitting regulation EPA cites no credible information to supportits assertion that emissions ofPM2.s and PM 2

.sprecursors from powerplants mayincrease depending upon the outcome offuture EPA actions to respond to the CAIR and CSAPR court decisions. EPA cites no such credible information because it does not exist. The public domain is filled with stories regarding current, and nearfuture, retirements ofcoal-firedpowerplants. It has been, and continues to be, EPA's position that these retirements are being driven bylong range economic factors and not CAIR and/orCSAPR. Further, EPA cannot credibly

3Responses to Comments Received -Chattanooga (GA) PM2.5 SIP claim, regardless ofwhat happens with CAIR or CSAPR, that emissions ofPM 2.5 and PM 2.5precursors from powerplants are unenforceable. As the list ofapplicable regulations above demonstrates, emissions from powerplants are heavilyregulated. And thatJist doesn't even take into account the many applicable state regulations that are federally-enforceable under the state SIPs. Because EPA's statementis so conclusive, "Therefore anyemissions reductions attributable to CAJR!CSAPR are not consideredpermanent andenforceable", it appears that EPA has alreadydetermined that Georgia redesignation request andmaintenance plan will not be approved and therefore couldbe construed as EPA having taken final agency action. Therefore that decision couldbe subject tojudicial review. Finally, while not directly relevant to the issue at hand, it is certainlynotable, andironic, that EPA is in effectpunishing the state ofGeorgia as a result ofEPA's own failure to promulgate a rule regulating interstate transport ofemissions that complies with the CAA even though the state ofGeorgia has done everything within its powerto comply with the CAA Section 107(d)(3) requirements to have this area redesignated to attainment. In conclusion, we believe that ourredesignation request andmaintenance plan meet all the requirements ofthe Clean AirAct, that any uncertaintyregarding the future ofCAIR and/or CSAPR does not compromise this conclusion, and EPA should act expeditiously to approve it. EPA notes that the Chattanooga nonattainment area is a tri-state area that is composed of portions ofAlabama, Georgia, and Tennessee and that this plan only includes emissions for the Georgia portion ofthe plan. Since the area was designated as a single area, Georgia should include some discussion regarding coordination with the other states relating to emissions and the expectations for maintenance for the entire area. Response: EPD will address the emissions from the other States'portions in the transmittal correspondence. EPA cites that if Georgia is to have a separate motor vehicle emissions budget (MVEB) for the Georgia portion ofthe area, then it should be clearly articulated in the submissions. Response: The plan has been revised to clearly state that the MVEB is for the Georgia portion ofthe area only.

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