Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules 44831 

IV. Statutory and Executive Order 

Review 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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 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’’ under the terms of Executive 

Order 12866 (58 FR 51735, October 4, 

1993) and is therefore not subject to 

review under Executive Orders 12866 

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 and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

V. Statutory Authority 

The statutory authority for this 

section is provided by section 110 of the 

CAA, as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: June 22, 2016. 

Mark Hague, 

Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, EPA proposes to amend 40 

CFR part 52 as set forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart R—Kansas 

■ 2. In § 52.870, the table in paragraph 

(e) is amended by adding the entry ‘‘(43) 

Section 110(a)(2) Infrastructure 

Requirements for the 2012 PM2.5

NAAQS’’ in numerical order to read as 

follows: 

§ 52.870 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED KANSAS NONREGULATORY PROVISIONS

Name of 

nonregulatory 

SIP provision 

Applicable 

geographic 

area or 

nonattainment 

area 

State submittal 

date EPA approval date Explanation 

*******

(43) Section 110(a)(2) Infrastructure Requirements for the 2012 PM2.5 NAAQS.

Statewide ........ 11/16/2015 07/11/2016, [Insert 

Federal Register 

citation].

This action addresses the following CAA 

elements 110(a)(2)(A), (B), (C), (D), 

(E), (F), (G), (H), (J), (K), (L), and (M). 

[FR Doc. 2016–16259 Filed 7–8–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2016–0315; FRL–9948–67– 

Region 4] 

Air Plan Approval; Georgia; Prong 4– 

2008 Ozone, 2010 NO2, SO2, and 2012 

PM2.5

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to 

conditionally approve the portions of 

revisions to the Georgia State 

Implementation Plan (SIP), submitted 

by the Georgia Department of Natural 

Resources (DNR), Environmental 

Protection Division (GAEPD), 

addressing the Clean Air Act (CAA or 

Act) visibility transport (prong 4) 

infrastructure SIP requirements for the 

2008 8-hour Ozone, 2010 1-hour 

Nitrogen Dioxide (NO2), 2010 1-hour 

Sulfur Dioxide (SO2), and 2012 annual 

Fine Particulate Matter (PM2.5) National 


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1Under CAA section 110(k)(4), EPA may 

conditionally approve a SIP revision based on a 

commitment from a state to adopt specific 

enforceable measures by a date certain, but not later 

than one year from the date of approval. If the state 

fails to meet the commitment within one year of the 

final conditional approval, the conditional approval 

automatically becomes a disapproval on that date 

and EPA will issue a finding of disapproval. 

Ambient Air Quality Standards 

(NAAQS). The CAA requires that each 

state adopt and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA, commonly 

referred to as an ‘‘infrastructure SIP.’’ 

Specifically, EPA is proposing to 

conditionally approve the prong 4 

portions of Georgia’s March 6, 2012, 8- 

hour Ozone infrastructure SIP 

submission; March 25, 2013, 2010 1- 

hour NO2 infrastructure SIP submission; 

October 22, 2013, 2010 1-hour SO2

infrastructure SIP submission; and 

December 14, 2015, 2012 annual PM2.5

infrastructure SIP submission. All other 

applicable infrastructure requirements 

for these SIP submissions have been or 

will be addressed in separate 

rulemakings. 

DATES: Comments must be received on 

or before August 10, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No EPA–R04– 

OAR–2016–0315 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: 

Sean Lakeman of 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. Mr. 

Lakeman can be reached by telephone at 

(404) 562–9043 or via electronic mail at 

lakeman.sean@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) of the CAA are to be submitted by 

states within three years after 

promulgation of a new or revised 

NAAQS to provide for the 

implementation, maintenance, and 

enforcement of the new or revised 

NAAQS. EPA has historically referred to 

these SIP submissions made for the 

purpose of satisfying the requirements 

of sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Sections 110(a)(1) and (2) require states 

to address basic SIP elements such as 

the requirements for monitoring, basic 

program requirements, and legal 

authority that are designed to assure 

attainment and maintenance of the 

newly established or revised NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for infrastructure SIPs. 

Section 110(a)(2) lists specific elements 

that states must meet for the 

infrastructure SIP requirements related 

to a newly established or revised 

NAAQS. The contents of an 

infrastructure SIP submission may vary 

depending upon the data and analytical 

tools available to the state, as well as the 

provisions already contained in the 

state’s implementation plan at the time 

in which the state develops and submits 

the submission for a new or revised 

NAAQS. 

Section 110(a)(2)(D) has two 

components: 110(a)(2)(D)(i) and 

110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) 

includes 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 from 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 

from interfering with measures required 

to prevent significant deterioration of air 

quality in another state (prong 3) or 

from interfering with measures to 

protect visibility in another state (prong 

4). 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. 

Through this action, EPA is proposing 

to conditionally approve the prong 4 

portions of Georgia’s infrastructure SIP 

submissions for the 2008 8-hour Ozone, 

2010 1-hour NO2, 2010 1-hour SO2, and 

2012 annual PM2.5 NAAQS as discussed 

in section IV of this document.1 All 

other applicable infrastructure SIP 

requirements for these SIP submissions 

have been or will be addressed in 

separate rulemakings. A brief 

background regarding the NAAQS 

relevant to this proposal is provided 

below. For comprehensive information 

on these NAAQS, please refer to the 

Federal Register notices cited in the 

following subsections. 

A. 2008 8-Hour Ozone NAAQS 

On March 12, 2008, EPA revised the 

8-hour Ozone NAAQS to 0.075 parts per 

million. See 73 FR 16436 (March 27, 

2008). States were required to submit 

infrastructure SIP submissions for the 

2008 8-hour Ozone NAAQS to EPA no 

later than March 12, 2011. Georgia 

submitted its infrastructure SIP 

submission on March 6, 2012, for the 

2008 8-hour Ozone NAAQS. 

B. 2010 1-Hour NO2 NAAQS 

On January 22, 2010, EPA established 

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 (February 9, 2010). 

States were required to submit 

infrastructure SIP submissions for the 

2010 1-hour NO2 NAAQS to EPA no 

later than January 22, 2013. Georgia 

submitted its infrastructure SIP 

submission on March 25, 2013, for the 

2010 1-hour NO2 NAAQS. 

C. 2010 1-Hour SO2 NAAQS 

On June 2, 2010, EPA revised the 

primary SO2 NAAQS to an hourly 

standard of 75 parts per billion based on 

a 3-year average of the annual 99th 

percentile of 1-hour daily maximum 

concentrations. See 75 FR 35520 (June 

22, 2010). States were required to 

submit infrastructure SIP submissions 

for the 2010 1-hour SO2 NAAQS to EPA 

no later than June 2, 2013. Georgia 

submitted its infrastructure SIP 

submission on October 22, 2013, for the 

2010 1-hour SO2 NAAQS. 


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2For 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. 

3See, 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)). 

4EPA 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. 5See, 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). 

6On 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. 

D. 2012 Annual PM2.5 NAAQS 

On December 14, 2012, EPA revised 

the primary annual PM2.5 NAAQS to 12 

micrograms per cubic meter (mg/m3). 

See 78 FR 3086 (January 15, 2013). 

States were required to submit 

infrastructure SIP submissions for the 

2012 PM2.5 NAAQS to EPA no later than 

December 14, 2015. Georgia submitted 

its infrastructure SIP submission on 

December 14, 2015, for the 2012 PM2.5

NAAQS. 

II. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

The requirement for states to make a 

SIP submission of this type arises out of 

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 ‘‘each such plan’’ 

submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of section 

110(a)(1) and (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 section 169A of the 

CAA, and nonattainment new source 

review permit program submissions to 

address the permit requirements of 

CAA, Title I, part D. 

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.2 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. 

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 CAA, which specifically 

address nonattainment SIP 

requirements.3 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.4 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. 

Another example of ambiguity within 

section 110(a)(1) and (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.5 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 subelements of the same infrastructure SIP 

submission.6

Ambiguities within section 110(a)(1) 

and (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. 


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7For 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. 

8EPA 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. 

9 ‘‘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. 

10EPA’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.3d 

7 (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. 

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.7

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 

attainment plan SIP submissions 

required by part D to meet the 

‘‘applicable requirements’’ of section 

110(a)(2); thus, 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 

prevention of significant deterioration 

(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 

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.8 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).9 EPA developed this 

document to provide states with up-todate 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.10 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). EPA 

interprets section 110(a)(1) and (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. 

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 section 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 NSR 

pollutants, including Greenhouse Gases. 

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 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, inter alia, 

the requirement that states have a 

program to regulate minor new sources. 

Thus, EPA evaluates whether the state 

has an EPA-approved minor new source 

review program and whether the 

program addresses the pollutants 

relevant to that NAAQS. In the context 

of acting on an infrastructure SIP 


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11Subsequent to issuing the 2013 Guidance, 

EPA’s interpretation of the CAA with respect to the 

approvability of affirmative defense provisions in 

SIPs has changed. See ‘‘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,’’ 80 FR 33839 (June 12, 2015). As a 

result, EPA’s 2013 Guidance (p. 21 & n.30) no 

longer represents the EPA’s view concerning the 

validity of affirmative defense provisions, in light 

of the requirements of section 113 and section 304. 

12By 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 or affirmative defense 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. 

13For 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). 

14EPA 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 section 110(k)(6) of the 

CAA 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). 

15See, 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). 

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 (SSM) that 

may be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; 11 (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 SIPapproved 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 that 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.12 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. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

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 

section 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 section 110(a)(1) 

and (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.13 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.14

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.15

III. What are the prong 4 requirements? 

Section 110(a)(2)(D)(i)(II) includes a 

requirement that a state’s 

implementation plan contain provisions 

prohibiting sources in that state from 

emitting pollutants in amounts that 

interfere with any other state’s efforts to 

protect visibility under part C of Title I 

of the CAA (which includes sections 

169A and 169B). The 2013 Guidance 

states that these prong 4 requirements 

can be satisfied by approved SIP 

provisions that EPA has found to 

adequately address any contribution of 

that state’s sources to impacts on 

visibility program requirements in other 

states. The 2013 Guidance also states 

that EPA interprets this prong to be 

pollutant-specific, such that the 


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16CAIR, promulgated in 2005, required 27 states 

and the District of Columbia to reduce emissions of 

NOX and SO2 that significantly contribute to, or 

interfere with maintenance of, the 1997 NAAQS for 

fine particulates and/or ozone in any downwind 

state. CAIR imposed specified emissions reduction 

requirements on each affected State, and 

established several EPA-administered cap and trade 

programs for EGUs that States could join as a means 

to meet these requirements. 

17North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 

2008). 

18North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 

2008). 

infrastructure SIP submission need only 

address the potential for interference 

with protection of visibility caused by 

the pollutant (including precursors) to 

which the new or revised NAAQS 

applies. 

The 2013 Guidance delineates two 

ways in which a state’s infrastructure 

SIP may satisfy prong 4. The first way 

is through an air agency’s confirmation 

in its infrastructure SIP submission that 

it has an EPA-approved regional haze 

SIP that fully meets the requirements of 

40 CFR 51.308 or 51.309. 40 CFR 51.308 

and 51.309 specifically require that a 

state participating in a regional planning 

process include all measures needed to 

achieve its apportionment of emission 

reduction obligations agreed upon 

through that process. A fully approved 

regional haze SIP will ensure that 

emissions from sources under an air 

agency’s jurisdiction are not interfering 

with measures required to be included 

in other air agencies’ plans to protect 

visibility. 

Alternatively, in the absence of a fully 

approved regional haze SIP, a state may 

meet the requirements of prong 4 

through a demonstration in its 

infrastructure SIP submission that 

emissions within its jurisdiction do not 

interfere with other air agencies’ plans 

to protect visibility. Such an 

infrastructure SIP submission would 

need to include measures to limit 

visibility-impairing pollutants and 

ensure that the reductions conform with 

any mutually agreed regional haze 

reasonable progress goals for mandatory 

Class I areas in other states. 

IV. What is EPA’s analysis of how 

Georgia addressed prong 4? 

Georgia’s March 6, 2012, 2008 8-hour 

Ozone submission; March 25, 2013, 

2010 1-hour NO2 submission; October 

22, 2013, 2010 1-hour SO2 submission; 

and December 14, 2015, 2012 annual 

PM2.5 submission cite to the State’s 

regional haze SIP as satisfying prong 4 

requirements. However, as explained 

below, EPA has not yet fully approved 

Georgia’s regional haze SIP because the 

SIP relies on the Clean Air Interstate 

Rule (CAIR) to satisfy the nitrogen 

oxides (NOX) and SO2 Best Available 

Retrofit Technology (BART) 

requirements for the CAIR-subject 

electric generating units (EGUs) in the 

State and the requirement for a longterm strategy sufficient to achieve the 

state-adopted reasonable progress 

goals.16

EPA demonstrated that CAIR 

achieved greater reasonable progress 

toward the national visibility goal than 

BART for NOX and SO2 at BART-eligible 

EGUs in CAIR affected states, and 

revised the regional haze rule to provide 

that states participating in CAIR’s capand-trade programs need not require 

affected BART-eligible EGUs to install, 

operate, and maintain BART for 

emissions of SO2 and NOX. See 70 FR 

39104 (July 6, 2005). As a result, a 

number of states in the CAIR region 

designed their regional haze SIPs to rely 

on CAIR as an alternative to NOX and 

SO2 BART for CAIR-subject EGUs. 

These states also relied on CAIR as an 

element of a long-term strategy for 

achieving their reasonable progress 

goals. 

The United States Court of Appeals 

for the District of Columbia Circuit (D.C. 

Circuit) initially vacated CAIR in 

2008,17 but ultimately remanded the 

rule to EPA without vacatur to preserve 

the environmental benefits provided by 

CAIR.18 On August 8, 2011 (76 FR 

48208), acting on the D.C. Circuit’s 

remand, EPA promulgated the CrossState Air Pollution Rule (CSAPR) to 

replace CAIR and thus to address the 

interstate transport of emissions 

contributing to nonattainment and 

interfering with maintenance of the two 

air quality standards covered by CAIR as 

well as the 2006 PM2.5 NAAQS. 

Due to CAIR’s status as a temporary 

measure following the D.C. Circuit’s 

2008 ruling, EPA could not fully 

approve regional haze SIP revisions to 

the extent that they relied on CAIR to 

satisfy the BART requirement and the 

requirement for a long-term strategy 

sufficient to achieve the state-adopted 

reasonable progress goals. On these 

grounds, EPA finalized a limited 

disapproval of Georgia’s regional haze 

SIP on June 7, 2012 (77 FR 33642), 

triggering the requirement for EPA to 

promulgate a Federal Implementation 

Plan (FIP) unless Georgia submitted and 

EPA approved a SIP revision that 

corrected the deficiencies. EPA finalized 

a limited approval of Georgia’s regional 

haze SIP on June 28, 2012 (77 FR 

38501), as meeting the remaining 

applicable regional haze requirements 

set forth in the CAA and the regional 

haze rule. 

Numerous parties filed petitions for 

review of CSAPR in the D.C. Circuit, 

and on August 21, 2012, the court 

issued its ruling, vacating and 

remanding CSAPR to EPA and ordering 

continued implementation of CAIR. 

EME Homer City Generation, L.P. v. 

EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The 

D.C. Circuit’s vacatur of CSAPR was 

reversed by the United States Supreme 

Court on April 29, 2014, and the case 

was remanded to the D.C. Circuit to 

resolve remaining issues in accordance 

with the high court’s ruling. EPA v. EME 

Homer City Generation, L.P., 134 S. Ct. 

1584 (2014). On remand, the D.C. 

Circuit affirmed CSAPR in most 

respects, but invalidated without 

vacating some of the CSAPR budgets as 

to a number of states. EME Homer City 

Generation, L.P. v. EPA, 795 F.3d 118 

(D.C. Cir. 2015). The remanded budgets 

include the Phase 2 SO2 emissions 

budget for Georgia. 

Although Georgia’s infrastructure SIP 

revisions cite to the regional haze 

program as satisfying the requirements 

of Prong 4, the State may not currently 

rely on its regional haze SIP to satisfy 

these requirements because the regional 

haze SIP is not fully approved. In 

addition, these revisions do not 

otherwise demonstrate that emissions 

within the State’s jurisdiction do not 

interfere with other states’ plans to 

protect visibility. Therefore, on May 26, 

2016, Georgia submitted a commitment 

letter to EPA requesting conditional 

approval of the prong 4 portions of the 

aforementioned infrastructure SIP 

revisions. In this letter, Georgia commits 

to satisfy the prong 4 requirements for 

the 2008 8-hour ozone NAAQS, 2010 1- 

hour NO2 NAAQS, 2010 1-hour SO2

NAAQS, and 2012 PM2.5 NAAQS by 

providing a SIP revision that adopts 

provisions for participation in the 

CSAPR annual NOX and annual SO2

trading programs, including annual NOX

and annual SO2 budgets that are at least 

as stringent as the budgets codified for 

Georgia at 40 CFR 97.710(a) (SO2 Group 

2 trading budgets) and 40 CFR 97.410(a) 

(NOX Annual trading budgets). Georgia 

will rely on this SIP revision adopting 

such budgets to submit a concurrent SIP 

revision specifically addressing the 

visibility requirements of prong 4. In its 

commitment letter, Georgia commits to 

providing these two concurrent SIP 

revisions within one year of EPA’s final 

conditional approval of the prong 4 

portions of the infrastructure SIP 

revisions and provides an anticipated 

schedule for these revisions. If the 

revised infrastructure SIP revision relies 

on a fully approvable regional haze SIP, 

Georgia also commits to providing the 


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necessary regional haze SIP revision to 

EPA within one year of EPA’s final 

conditional approval. 

If Georgia meets its commitment 

within one year of final conditional 

approval, the prong 4 portions of the 

conditionally approved infrastructure 

SIP submissions will remain a part of 

the SIP until EPA takes final action 

approving or disapproving the new SIP 

revision(s). However, if the State fails to 

submit these revisions within the oneyear timeframe, the conditional 

approval will automatically become a 

disapproval one year from EPA’s final 

conditional approval and EPA will issue 

a finding of disapproval. EPA is not 

required to propose the finding of 

disapproval. If the conditional approval 

is converted to a disapproval, the final 

disapproval triggers the FIP requirement 

under CAA section 110(c). 

V. Proposed Action 

As described above, EPA is proposing 

to conditionally approve the prong 4 

portions of Georgia’s March 6, 2012, 8- 

hour Ozone infrastructure SIP 

submission; March 25, 2013, 2010 1- 

hour NO2 infrastructure SIP submission; 

October 22, 2013, 2010 1-hour SO2

infrastructure SIP submission; and 

December 14, 2015, 2012 annual PM2.5

infrastructure SIP submission. All other 

applicable infrastructure requirements 

for these SIP submissions have been or 

will be addressed in separate 

rulemakings. 

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 proposes to approve 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). 

In addition, 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, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: June 22, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–16001 Filed 7–8–16; 8:45 am] 

BILLING CODE 6560–50–P 


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