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

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 PM 2.5 NAAQS’’ in numerical order to read as
follows:

**§ 52.870 Identification of plan.**

* * * * *

(e) * * *



### EPA-A PPROVED 

### KANSAS 

### N ONREGULATORY 

### P ROVISIONS

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 PM 2.5 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 NO**  2, **SO** 2 **, and 2012**

**PM** 2.5

**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 (NO 2 ), 2010 1-hour Sulfur Dioxide (SO 2 ), and 2012 annual Fine Particulate Matter (PM 2.5 ) National


### 44832 Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

1 Under 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 NO 2 infrastructure SIP submission; October 22, 2013, 2010 1-hour SO 2 infrastructure SIP submission; and December 14, 2015, 2012 annual PM 2.5 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 NO 2 , 2010 1-hour SO 2 , and
2012 annual PM 2.5 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 NO 2 NAAQS

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO 2 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 NO 2 NAAQS to EPA no later than January 22, 2013. Georgia
submitted its infrastructure SIP submission on March 25, 2013, for the
2010 1-hour NO 2 NAAQS.

C. 2010 1-Hour SO 2 NAAQS

On June 2, 2010, EPA revised the primary SO 2 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 SO 2 NAAQS to EPA no later than June 2, 2013. Georgia
submitted its infrastructure SIP submission on October 22, 2013, for the
2010 1-hour SO 2 NAAQS.


### 44833 Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

2 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; Section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of Title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

3 See, e.g., ‘‘Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NO X 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)).

4 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note,

e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

5 See, e.g., ‘‘Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,’’ 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA’s 2008 PM 2.5 NSR rule), and ‘‘Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM 2.5 NAAQS,’’ 78 FR 4337 (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM 2.5 NAAQS).

6 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee’s December 14, 2007
submittal. D. 2012 Annual PM 2.5 NAAQS

On December 14, 2012, EPA revised the primary annual PM 2.5 NAAQS to 12 micrograms per cubic meter ( mg/m 3 ).

See 78 FR 3086 (January 15, 2013). States were required to submit
infrastructure SIP submissions for the

2012 PM 2.5 NAAQS to EPA no later than December 14, 2015. Georgia submitted
its infrastructure SIP submission on December 14, 2015, for the 2012 PM 2.5 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.


### 44834 Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

7 For example, implementation of the 1997 PM 2.5 NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new indicator species for the new NAAQS. 8 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

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.

10 EPA’s September 13, 2013, guidance did not make recommendations with respect to
infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.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 thisdocument 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 PM 2.5 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


### 44835 Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

11 Subsequent 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.

12 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption 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. 13 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM

events. See ‘‘Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,’’ 74 FR 21639 (April 18, 2011).

14 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD

programs. See ‘‘Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,’’ 75 FR 82536 (December 30, 2010). EPA has previously used its authority under 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).

15 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). 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 theypurport 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


### 44836 Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

16 CAIR, promulgated in 2005, required 27 states
and the District of Columbia to reduce emissions of

NO X and SO 2 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.

17 North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).

18 North 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 NO 2 submission; October 22, 2013, 2010 1-hour SO 2 submission; and December 14, 2015, 2012 annual

PM 2.5 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 (NO X) and SO 2 Best Available Retrofit Technology (BART) requirements for the CAIR-subject electric generating units (EGUs) in theState 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 NO X and SO 2 at BART-eligible EGUs in CAIR affected states, and revised the regional haze rule to providethat states participating in CAIR’s capand-trade programs need not require affected BART-eligible EGUs to install, operate, and maintain BART for
emissions of SO 2 and NO X
. 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 NO X and

SO 2 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’sremand, 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 PM 2.5 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 SO 2 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 NO 2 NAAQS, 2010 1-hour SO 2 NAAQS, and 2012 PM 2.5 NAAQS by providing a SIP revision that adopts provisions for participation in the
CSAPR annual NO X and annual SO 2 trading programs, including annual NO X and annual SO 2 budgets that are at least as stringent as the budgets codified for Georgia at 40 CFR 97.710(a) (SO 2 Group 2 trading budgets) and 40 CFR 97.410(a) (NO X 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


### 44837 Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

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 NO 2 infrastructure SIP submission; October 22, 2013, 2010 1-hour SO 2 infrastructure SIP submission; and December 14, 2015, 2012 annual PM 2.5 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**