11438 Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

a segment of the Safety Zone; Brandon 

Road Lock and Dam to Lake Michigan 

including Des Plaines River, Chicago 

Sanitary and Ship Canal, Chicago River, 

Calumet-Saganashkee Channel on all 

waters of the Chicago Sanitary and Ship 

Canal between Mile Marker 296.1 to 

Mile Marker 296.7 at specified times 

from March 3, 2016 to March 11, 2016. 

This action is necessary to protect the 

waterway, waterway users, and vessels 

from the hazards associated with the 

U.S. Army Corps of Engineer’s 

underwater inspections of the electric 

dispersal system for invasive species. 

DATES: The regulations in 33 Code of 

Federal Regulations (CFR) 165.930 will 

be enforced from March 3, 2016 from 7 

a.m. until 11 a.m. and then from 1 p.m. 

until 5 p.m. In the event the work 

cannot be completed on March 3, 2016, 

the safety zone will be enforced on 

March 4, 2016 through March 11, 2016 

from 7 a.m. until 11 a.m. and from 1 

p.m. until 5 p.m. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this notice of 

enforcement, call or email LT Lindsay 

Cook, Waterways Management Division, 

Marine Safety Unit Chicago, U.S. Coast 

Guard; telephone 630–986–2155, email 

address D09-DG-MSUChicagoWaterways@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce a segment of the 

Safety Zone; Brandon Road Lock and 

Dam to Lake Michigan including Des 

Plaines River, Chicago Sanitary and 

Ship Canal, Chicago River, CalumetSaganashkee Channel, Chicago, IL, 

listed in 33 CFR 165.930. Specifically, 

the Coast Guard will enforce this safety 

zone on all waters of the Chicago 

Sanitary and Ship Canal between Mile 

Marker 296.1 to Mile Marker 296.7. 

Enforcement will occur on March 3, 

2016 from 7 a.m. until 11 a.m. and from 

1 p.m. until 5 p.m. In the event the work 

cannot be completed on March 3, 2016 

due to inclement weather or unforeseen 

circumstances this safety zone will be 

enforced on March 4, 2016 through 

March 11, 2016 from 7 a.m. until 11 

a.m. and from 1 p.m. until 5 p.m. During 

the enforcement period, no vessel may 

transit this regulated area without 

approval from the Captain of the Port 

Sector Lake Michigan (COTP) or a COTP 

designated representative. 

This notice of enforcement is issued 

under the authority of 33 CFR 165.930 

and 5 U.S.C. 552(a). In addition to this 

publication in the Federal Register, the 

Captain of the Port Lake Michigan will 

also provide notice through other 

means, which may include 

Broadcast Notice to Mariners, Local 

Notice to Mariners, local news media, 

distribution in leaflet form, and onscene oral notice. Additionally, the 

Captain of the Port Lake Michigan may 

notify representatives from the maritime 

industry through telephonic and email 

notifications. 

Dated: February 24, 2016. 

A. B. Cocanour, 

Captain, U.S. Coast Guard, Captain of the 

Port Lake Michigan. 

[FR Doc. 2016–04826 Filed 3–3–16; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0816; FRL–9943–35– 

Region 4] 

Air Plan Disapproval; Georgia: 

Disapproval of Automatic Rescission 

Clause 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

disapprove a portion of a revision to the 

Georgia State Implementation Plan 

(SIP), submitted through the Georgia 

Department of Natural Resources 

Environmental Protection Division 

(Georgia EPD), on January 13, 2011, that 

would allow for the automatic 

rescission of federal permitting-related 

requirements in certain circumstances. 

EPA is disapproving Georgia’s 

automatic rescission clause because the 

Agency has determined that this 

provision is not consistent with the 

Clean Air Act (CAA or Act) or federal 

regulations related to SIPs. 

DATES: This rule will be effective April 

4, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0816. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Regulatory Management Section, 

Air Planning and Implementation 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Sean Lakeman, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Mr. 

Lakeman can be reached by telephone at 

(404) 562–9043 or via electronic mail at 

lakeman.sean@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On September 8, 2011, EPA took final 

action to approve portions of a 

requested revision to the Georgia SIP, 

submitted by Georgia EPD on January 

13, 2011. See 76 FR 55572. Specifically, 

the portions of Georgia’s January 13, 

2011, SIP submittal that EPA approved 

incorporated two updates to the State’s 

air quality regulations under Georgia’s 

New Source Review (NSR) Prevention of 

Significant Deterioration (PSD) program. 

First, the SIP revision established 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

Georgia’s PSD permitting requirements 

for their greenhouse gas (GHG) 

emissions. Second, the SIP revision 

incorporated provisions for 

implementing the PSD program for the 

fine particulate matter (PM2.5) national 

ambient air quality standards (NAAQS). 

EPA noted in its September 8, 2011 final 

rule approving portions of Georgia’s 

January 13, 2011, SIP submittal that the 

Agency was still evaluating the portion 

of the SIP submittal related to a 

provision (at 391–3–1–.02(7)(a)(2)(iv)) 

that would automatically rescind 

portions of Georgia’s SIP in the wake of 

certain court decisions or other 

triggering events (the automatic 

rescission clause), and consequently 

was not taking action on that provision 

in that final action. See 76 FR at 55573. 

Specifically, at 391–3–1– 

.02(7)(a)(2)(iv), Georgia’s rules read as 

follows: ‘‘The definition and use of the 

term ‘subject to regulation’ in 40 CFR, 


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Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 11439 

part 52.21, as amended June 3, 2010, is 

hereby incorporated by reference; 

provided, however, that in the event all 

or any portion of 40 CFR 52.21 

containing that term is: (i) Declared or 

adjudged to be invalid or 

unconstitutional or stayed by the United 

States Court of Appeals for the Eleventh 

Circuit or for the District of Columbia 

Circuit; or (ii) withdrawn, repealed, 

revoked or otherwise rendered of no 

force and effect by the United States 

Environmental Protection Agency, 

Congress, or Presidential Executive 

Order. [sic] Such action shall render the 

regulation as incorporated herein, or 

that portion thereof that may be affected 

by such action, as invalid, void, stayed, 

or otherwise without force and effect for 

purposes of this rule upon the date such 

action becomes final and effective; 

provided, further, that such declaration, 

adjudication, stay, or other action 

described herein shall not affect the 

remaining portions, if any, of the 

regulation as incorporated herein, 

which shall remain of full force and 

effect as if such portion so declared or 

adjudged invalid or unconstitutional or 

stayed or otherwise invalidated or 

effected were not originally a part of this 

rule. The Board declares that it would 

[not] have incorporated the remaining 

parts of the federal regulation if it had 

known that such portion thereof would 

be declared or adjudged invalid or 

unconstitutional or stayed or otherwise 

rendered of no force and effect.’’ 

In a notice of proposed rulemaking 

(NPR) published on July 31, 2015, EPA 

proposed to disapprove the portion of 

Georgia’s January 13, 2011, submittal 

that would add the automatic rescission 

clause at Georgia Rule 391–3–1– 

.02(7)(a)(2)(iv) to the SIP. See 80 FR 

45635. EPA is now taking final action to 

disapprove this portion of Georgia’s 

submittal. 

In assessing the approvability of 

Georgia’s proposed automatic rescission 

clause, EPA considered two key factors: 

(1) Whether the public will be given 

reasonable notice of any change to the 

SIP that occurs as a result of the 

automatic rescission clause; and (2) 

whether any future change to the SIP 

that occurs as a result of the automatic 

rescission clause would be consistent 

with EPA’s interpretation of the effect of 

the triggering action (e.g., the extent of 

an administrative or judicial stay) on 

federal permitting requirements at 40 

CFR 52.21. These criteria are derived 

from the SIP revision procedures set 

forth in the CAA and federal 

regulations. 

Regarding public notice, CAA section 

110(l) provides that any revision to a 

SIP submitted by a State to EPA for 

approval ‘‘shall be adopted by such 

State after reasonable notice and public 

hearing.’’ See 42 U.S.C. 7410(l). Under 

Georgia’s automatic rescission clause, 

the SIP would automatically be revised 

as a result of a triggering action without 

public notice. To the extent that there is 

any ambiguity regarding how a court 

order or other triggering action impacts 

the federal permitting requirements at 

40 CFR 52.21, that ambiguity will lead 

to ambiguity regarding the extent to 

which the triggering action results in a 

SIP revision (and indeed, whether a 

particular court ruling or other action in 

fact triggers an automatic SIP revision 

under Georgia’s automatic rescission 

clause). EPA concludes that Georgia’s 

automatic rescission clause would not 

provide reasonable public notice of a 

SIP revision as required by CAA 110(l), 

42 U.S.C. 7410(l). 

EPA’s consideration of whether any 

SIP change resulting from the automatic 

rescission clause would be consistent 

with EPA’s interpretation of the effect of 

the triggering action on federal 

permitting requirements at 40 CFR 52.21 

is based on 40 CFR 51.105. Under 40 

CFR 51.105, ‘‘[r]evisions of a plan, or 

any portion thereof, will not be 

considered part of an applicable plan 

until such revisions have been approved 

by the Administrator in accordance with 

this part.’’ However, the Georgia 

automatic rescission clause takes effect 

immediately upon certain triggering 

actions without any EPA intervention. 

The effect of this is that EPA is not 

given the opportunity to determine the 

effect and extent of the triggering court 

order or federal law change on the 

federal permitting requirements at 40 

CFR 52.21; instead, the SIP is modified 

without EPA’s approval. 

Comments on the NPR were due on or 

before August 31, 2015. EPA received 

adverse comments on our proposed 

action, specifically on our proposed 

disapproval of the automatic rescission 

clause, from Georgia EPD. EPA also 

received comments from Georgia 

Industry Environmental Coalition, Inc. 

(GIEC). After considering the comments, 

EPA has decided to finalize our action 

as proposed. A summary of the 

comments and EPA’s responses follow. 

II. Response to Comments 

Comment 1: Georgia EPD contends 

that the public notice, the comment 

period, and the public hearing held for 

the rule change that adopted the 

automatic rescission clause at Georgia 

Rule 391–3–1–.02(7)(a)(2)(iv) satisfies 

CAA section 110(l) requirements. 

Specifically, Georgia EPD notes that it 

published public notices in several 

newspapers announcing an opportunity 

to comment on the proposed automatic 

rescission clause, held a public hearing, 

and addressed all comments received 

during the public comment period. 

According to Georgia EPD, Georgia’s 

rescission clause already went through 

public notice and comment, and there is 

no reason to require another round of 

public notice and comment simply 

because the automatic rescission clause 

is triggered. 

GIEC likewise argues that Georgia 

EPD followed notice-and-comment 

procedures prior to the adoption of the 

automatic rescission clause that satisfy 

the requirements of CAA section 110(l). 

GIEC adds that the notice-and-comment 

procedures the Georgia EPD performed 

are indistinguishable from notice-andcomment procedures taken by the 

Tennessee Department of Environment 

and Conservation (TDEC) and the 

Louisville Metro Air Pollution Control 

District (LMAPCD) prior to enacting 

EPA-approved ‘‘automatic rescission’’ 

SIP provisions. GIEC contends that in 

approving the TDEC and LMAPCD 

provisions, EPA concluded that these 

agencies’ respective prior notice-andcomment procedures satisfied CAA 

section 110(l) because they placed the 

public on notice that the respective SIPs 

would update automatically to reflect 

rescission-triggering actions. According 

to GIEC, because EPA concluded that 

TDEC and LMAPCD notice-andcomment procedures occurring prior to 

promulgation of their respective 

automatic rescission provisions satisfied 

CAA section 110(l), EPA cannot now 

conclude that the Georgia provision 

would not provide reasonable public 

notice under CAA section 110(l) when 

Georgia followed indistinguishable 

notice-and-comment procedures prior to 

promulgating that provision. GIEC 

contends that if EPA were to finally 

conclude in this rulemaking that the 

provision does not satisfy CAA section 

110(l), such a conclusion would be 

arbitrary, capricious, an abuse of 

discretion, beyond the Agency’s 

statutory and Constitutional limits, and 

otherwise contrary to law in light of the 

Agency’s final determinations 

concerning the TDEC and LMAPCD 

SIPs. 

Response 1: EPA disagrees with the 

Commenters’ contention that the public 

notice and comment procedures 

associated with Georgia’s adoption of 

the automatic rescission clause are 

sufficient to fulfill notice-and-comment 

requirements with respect to any future 

SIP revision resulting from the 

rescission clause’s operation. While 

EPA does not dispute that Georgia EPD 

provided for public comment and a 

hearing when promulgating the 


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11440 Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 

1 Georgia’s proposed automatic rescission clause 

would invalidate affected regulatory text, but would 

not actually remove the text from the regulation. 

Thus, if EPA were to approve Georgia’s automatic 

rescission clause, it would be left up to the public, 

the regulated community, and ultimately, the 

courts, to determine whether and how a potential 

triggering action changed SIP requirements. 

automatic rescission clause at Georgia 

Rule 391–3–1–.02(7)(a)(2)(iv), that 

public comment opportunity did not— 

and could not—satisfy CAA section 

110(l)’s public-notice-and-comment 

requirement with respect to future SIP 

revisions that would occur in the wake 

of a triggering action if EPA were to 

approve the automatic rescission clause 

into Georgia’s SIP. 

Contrary to the GIEC’s suggestion, 

EPA’s approval of the automatic 

rescission clauses adopted by TDEC and 

LMAPCD does not render EPA’s 

disapproval of Georgia’s automatic 

rescission clause unlawful or arbitrary 

and capricious. This is because 

Georgia’s automatic rescission clause 

differs substantially from the automatic 

rescission clauses adopted by TDEC and 

LMAPCD. First, under the automatic 

rescission clauses adopted by TDEC and 

LMAPCD, no change to the SIP will 

occur until EPA publishes a Federal 

Register notice announcing that a 

portion of 40 CFR 52.21 has been 

stayed, vacated, or withdrawn. See 77 

FR 12484 (March 1, 2012); 77 FR 62150 

(October 12, 2012). As EPA explained in 

the final actions approving these 

clauses, because no change to the SIP 

will occur until EPA has published a 

Federal Register notice announcing the 

change in federal regulations, ‘‘the 

timing and extent of any future SIP 

change resulting from the automatic 

rescission clause will be clear to both 

the regulated community and the 

general public.’’ Id. Second, unlike 

Georgia’s proposed rescission clause, 

the automatic rescission clauses 

adopted by TDEC and LMAPCD make it 

clear to the public in advance that any 

SIP change resulting from operation of 

the automatic rescission clause will be 

consistent with EPA’s interpretation of 

how the triggering action impacted 

federal regulations. 

In sharp contrast, the SIP changes 

resulting from operation of Georgia’s 

proposed automatic rescission clause 

would happen automatically upon a 

triggering event without any public 

notice or EPA involvement. To the 

extent that there is any ambiguity 

regarding how a court order or other 

triggering action impacts the federal 

permitting requirements at 40 CFR 

52.21, that ambiguity would lead to 

ambiguity regarding the specific 

revision to Georgia’s SIP resulting from 

the triggering action. Not only does the 

public have no assurance that changes 

resulting from operation of the 

rescission clause would be consistent 

with EPA’s interpretation of the 

applicable federal regulations, but after 

a change occurs, the exact change may 

not be clear to the public.1 Furthermore, 

because ambiguity may exist regarding 

whether a particular court ruling or 

other action in fact triggers an automatic 

SIP revision under Georgia’s automatic 

rescission clause, it may not be clear to 

the public whether the SIP has changed 

at all. Due to this ambiguity with respect 

to how the SIP might be revised under 

Georgia’s proposed automatic rescission 

clause in the wake of a triggering action, 

EPA concludes that approval of the 

automatic rescission clause into 

Georgia’s SIP would authorize future 

SIP revisions without reasonable public 

notice in violation of CAA section 

110(l). 

Comment 2: Georgia EPD states that 

after the D.C. Circuit issued its 

Amended Judgment in Coalition for 

Responsible Regulation v. EPA, 606 Fed. 

Appx. 6; 2015 U.S. App. LEXIS 11132 

(D.C. Cir. 2015) (issued in response to 

the Supreme Court’s decision in Utility 

Air Regulatory Group v. EPA, 134 S. Ct. 

2427 (2014)), EPA removed the affected 

portions of the federal PSD regulations 

without providing an opportunity for 

public comment because EPA deemed 

the action to be ministerial. See 80 FR 

50199 (August 19, 2015). According to 

Georgia EPD, its rescission clause is no 

different than the process utilized by 

EPA in this rule to remove vacated 

permitting requirements from federal 

regulations following the Supreme 

Court’s decision. 

Likewise, GIEC states that EPA’s 

removal of 40 CFR 52.21(b)(49)(v) as a 

ministerial act performed without 

notice-and-comment establishes that 

Georgia’s proposed automatic rescission 

clause, to the extent that it operates to 

invalidate Georgia’s incorporation of 40 

CFR 52.21(b)(49)(v), would not 

contravene the public notice 

requirements of CAA section 110(l). 

Quoting from EPA’s Federal Register 

notice, GIEC points out that EPA 

characterized its removal of 40 CFR 

52.21(b)(49)(v) from the CFR as a 

‘‘necessary ministerial act’’ for which 

the Agency determined ‘‘it was not 

necessary to provide a public hearing or 

an opportunity for public comment.’’ 

GIEC further notes that EPA stated that 

‘‘notice-and-comment would be 

contrary to the public interest because it 

would unnecessarily delay the removal 

from the CFR of the Tailoring Rule Step 

2 PSD permitting provisions that the 

Supreme Court held were invalid.’’ 

Response 2: EPA disagrees with these 

comments. The April 2015 EPA rule 

referenced by the Commenter did not 

revise a SIP submitted by a state for EPA 

approval. Thus, EPA’s rule was not 

subject to the procedures applicable to 

the revisions of SIPs. EPA’s rule revised 

section 40 CFR 51.166, which governs 

the content of state SIP submissions. But 

the EPA rule did not revise any SIP 

submitted by a state. 

CAA section 110(l) requires without 

exception that ‘‘[e]ach revision’’ to a SIP 

submitted to EPA for approval be 

adopted by the state ‘‘after reasonable 

notice and public hearing.’’ See 42 

U.S.C. 7410(l). Thus, there are no 

circumstances under which a state can 

revise its SIP without providing for 

public notice and comment on the 

revision. 

EPA’s April 2015 action was not 

governed by section 110(l) of the CAA. 

That rule was promulgated under the 

Administrative Procedures Act (APA). 

Section 307(d) of the CAA says that the 

rulemaking procedures in that section 

‘‘shall not apply in the case of any rule 

or circumstance referred to in 

subparagraphs (A) and (B) of subsection 

553(b) of Title 5.’’ Subparagraph (B) of 

this section in the APA provides that an 

agency need not provide notice of 

proposed rulemaking or opportunity for 

public comment when the agency for 

good cause finds that it is impracticable, 

unnecessary, or contrary to the public 

interest. See 5 U.S.C. 553(b). The APA 

does not address procedures for state 

actions to revise a SIP. Such actions are 

addressed in section 110(l) of the CAA. 

In addition, although EPA’s rule was 

not subject to public comment under an 

exception in the APA, EPA’s action 

provided notice to the public of the 

change in the law. Georgia’s rescission 

clause provides no mechanism for 

informing the public of a change in state 

law. 

Moreover, EPA did not deem all of the 

regulatory revisions needed to 

implement the D.C. Circuit’s April 10, 

2015, Amended Judgment in Coalition 

for Responsible Regulation v. EPA to be 

ministerial. To the contrary, EPA 

explained in the final rule removing 

certain vacated elements from the 

federal PSD and title V regulations that 

the action did not fully address all of 

the revisions needed to implement the 

Amended Judgment because ‘‘[t]hose 

additional revisions to the PSD and title 

V regulations, although necessary to 

implement the Coalition Amended 

Judgment, are not purely ministerial in 

nature and will be addressed in [a] 

separate notice-and-comment 


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Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 11441 

rulemaking, which will give the public 

an opportunity to comment on how the 

EPA proposed to address those portions 

of the Coalition Amended Judgment.’’ 

See 80 FR 50199, 50200 (August 19, 

2015) (emphasis added). It is unclear 

how these more complex regulatory 

changes would be handled under 

Georgia’s proposed automatic rescission 

clause. In any event, even if Georgia had 

the authority to revise its SIP without 

providing for public notice and 

comment—which it does not—EPA’s 

decision to provide public notice but no 

opportunity for public comment on 

certain regulatory changes that it 

considered to be ministerial in no way 

supports Georgia EPD’s claim that it 

would be appropriate to deem all of the 

SIP revisions needed to remove vacated 

GHG permitting elements to be 

ministerial and to make such changes to 

Georgia’s SIP without any public notice 

or opportunity for public comment. 

Finally, Georgia’s proposed automatic 

rescission clause is not limited to GHG 

permitting requirements. Rather, the 

clause applies broadly to actions that 

affect ‘‘all or any portion of 40 CFR 

52.21’’ that contain the term ‘‘subject to 

regulation.’’ See Georgia Rule 391–3–1– 

.02(7)(a)(2)(iv). Thus, arguments 

regarding the alleged lack of ambiguity 

with respect to changes needed to 

address a triggering action pertaining to 

GHG permitting in particular are 

insufficient to support EPA’s approval 

of Georgia’s automatic rescission clause. 

Even if a ministerial change generally 

(or the particular change addressed in 

EPA’s action) could be exempt from the 

requirements of 110(l), because of the 

broad reach of Georgia’s rescission 

clause, it is impossible to conclude in 

advance that every automatic SIP 

change resulting from a triggering action 

would be ministerial. 

Comment 3: Georgia EPD states that 

the occurrence of a triggering action and 

the resulting rescission would not be a 

change to the SIP because the triggering 

action and rescission clause were 

already included in Georgia Rule 391– 

3–1–.02(7)(a)(2)(iv). Thus, according to 

Georgia EPD, the SIP is not being 

revised and therefore does not require 

approval from the Administrator. 

Response 3: EPA disagrees with this 

comment. Georgia’s proposed automatic 

rescission clause would automatically 

invalidate SIP language in response to a 

triggering action. Such a change would 

constitute a SIP revision. 

Comment 4: GIEC states that ‘‘EPA’s 

preliminary conclusion that the 

[automatic rescission clause] is 

inconsistent with 40 CFR 51.105 is 

incorrect because EPA has been and will 

be afforded adequate opportunity under 

the CAA and through other proceedings 

to ensure that any SIP change resulting 

from the automatic operation of the 

[rescission clause] is consistent with 

EPA’s interpretation of the effect of the 

triggering action on the permitting 

requirements at 40 CFR 52.21.’’ GIEC 

states that although the rescission clause 

is self-executing, ‘‘Georgia EPD would 

implement the effect of the provision’s 

operation through permitting decisions 

that, under the Georgia SIP, are 

expressly subject to EPA notice, 

comment, and objection procedures.’’ 

Specifically, GIEC contends that the 

‘‘permit notice, comment, and objection 

procedures running to EPA’s benefit 

provide EPA with ample opportunity to 

convey its interpretation of (and 

ultimately object to) the effect of any 

[rescission clause] triggering action on 

the permitting requirements at 40 CFR 

52.21 if EPA’s interpretation of such an 

action conflicted with that of the 

Georgia EPD.’’ 

Response 4: EPA disagrees with this 

comment. The CAA’s SIP revision 

procedures are distinct from the permit 

notice, comment, and EPA objection 

procedures. Indeed, section 110(i) of the 

Act specifically prohibits States and 

EPA, except in certain limited 

circumstances not applicable here, from 

taking any action to modify any 

requirement of a SIP with respect to any 

stationary source, except in compliance 

with the CAA’s requirements for 

promulgation or revision of a state plan. 

See 42 U.S.C. 7410(i). Thus, contrary to 

the Commenter’s contention, EPA’s 

opportunity to object to a state permit 

cannot substitute for the state’s 

compliance with the CAA’s SIP revision 

requirements. Because Georgia’s 

rescission clause would automatically 

revise the SIP in the wake of a triggering 

action, by the time EPA has the 

opportunity to review the permit for a 

particular source, it will be too late for 

EPA to ‘‘object’’ to a prior SIP revision 

brought about by a triggering action 

under Georgia’s automatic rescission 

clause. Georgia cannot substitute permit 

review procedures for the procedural 

requirements governing SIP revisions at 

CAA section 110(l) and 40 CFR 51.105. 

Comment 5: GIEC states that it is 

‘‘highly unlikely’’ that any action 

triggering the rescission clause’s 

operation would be subject to 

interpretation because the provision is 

triggered by clear and unambiguous 

occurrences—the withdrawal, repeal, or 

revocation of all or part of the term 

‘‘subject to regulation’’ in 40 CFR 52.21 

by executive or congressional action or 

its invalidation or stay by the Eleventh 

Circuit or D.C. Circuit Courts of Appeal. 

GIEC further states that the triggering 

actions do not become operative until 

any such action is ‘‘final and effective.’’ 

GIEC comments that specifically with 

respect to GHG permitting requirements 

at 40 CFR 52.21(b)(49)(v), there was no 

ambiguity regarding the impact of the 

D.C. Circuit’s Amended Judgment in 

Coalition for Responsible Regulation, 

which GIEC states would have been the 

‘‘triggering action’’ if Georgia’s 

automatic rescission clause had been 

approved by EPA. 

According to GIEC, EPA had (and 

took) several opportunities to interpret 

the effect of the U.S. Supreme Court’s 

decision in Utility Air Regulatory Group 

v. EPA, 134 S. Ct. 2427 (2014), on the 

permitting requirements at 40 CFR 

52.21. GIEC points to various 

memoranda issued by EPA after the 

Supreme Court’s decision. GIEC also 

notes that as early as July 2014, EPA 

was on notice that the Georgia EPD 

construed Utility Air Regulatory Group 

v. EPA to invalidate 40 CFR 

52.21(b)(49)(v) and, accordingly, the SIP 

provision adopting that regulation was 

‘‘no longer valid.’’ GIEC states that to its 

knowledge, EPA did not object to the 

Georgia EPD’s construction of Utility Air 

Regulatory Group v. EPA or the 

Division’s conclusions regarding the 

validity of 40 CFR 52.21(b)(49)(v) and 

the Georgia SIP provision incorporating 

it. GIEC concludes that in light of the 

straightforward and unambiguous 

manner in which Georgia’s rescission 

clause automatically operated as a result 

of the issuance of the D.C. Circuit’s 

Amended Judgment in Coalition for 

Responsible Regulation and the 

opportunities EPA had and took to 

determine the effect of Utility Air 

Regulatory Group v. EPA on the 

permitting requirements at 40 CFR 

52.21, it is incorrect and appears 

somewhat disingenuous for EPA to 

preliminarily conclude that the 

rescission clause is inconsistent with 40 

CFR 51.105. 

Response 5: EPA disagrees with this 

comment. Contrary to GIEC’s 

contention, it is not ‘‘highly unlikely’’ 

that any action triggering operation of 

Georgia’s automatic rescission clause 

would be subject to interpretation. 

Among other actions, the automatic 

rescission clause would be triggered by 

a decision by the U.S. Court of Appeals 

for the Eleventh Circuit or the District 

of Columbia Circuit that declares a 

portion of 40 CFR 52.21 to be ‘‘invalid.’’ 

It is sometimes the case that the precise 

regulatory changes needed to address a 

court decision involve more than simply 

removing the provision at issue. Under 

such circumstances, the exact changes 

to SIP requirements brought about by a 

triggering action under Georgia’s 


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automatic rescission clause would be 

unclear. 

Rather than support GIEC’s argument, 

the D.C. Circuit’s Amended Judgment in 

Coalition for Responsible Regulation v. 

EPA, 606 Fed. Appx. 6; 2015 U.S. App. 

LEXIS 11132 (D.C. Cir. 2015) provides a 

useful example of a triggering action 

that involves some degree of ambiguity 

with respect to how it impacts 

regulatory requirements. The D.C. 

Circuit ordered, among other things, 

that ‘‘the regulations under review . . . 

be vacated to the extent they require a 

stationary source to obtain a PSD permit 

if greenhouse gases are the only 

pollutant (i) that the source emissions or 

has the potential to emit above the 

applicable major source thresholds, or 

(ii) for which there is a significant 

emissions increase from a 

modification.’’ 2015 U.S. App. LEXIS 

11132, at 130–131. The Court further 

ordered ‘‘that EPA take steps to rescind 

and/or revise the applicable provisions 

of the Code of Federal Regulations as 

expeditiously as practicable to reflect 

the relief granted,’’ and ‘‘that EPA 

consider whether any further revisions 

to its regulations are appropriate’’ in 

light of the Supreme Court’s decision in 

Utility Air Regulatory Group v. EPA. Id. 

at 131. As explained above, EPA 

subsequently published a final action 

removing some, but not all, of the 

regulatory provisions impacted by the 

D.C. Circuit’s Amended Judgment. See 

80 FR at 50199. EPA explained in that 

notice that some of the regulatory 

changes needed to address the 

Amended Judgment are not purely 

ministerial. Id. at 50200. Because those 

regulatory changes involve the exercise 

of EPA’s discretion to some extent, EPA 

intends to publish a separate Federal 

Register notice proposing those changes 

and soliciting public comment. Id. 

Thus, contrary to GIEC’s argument, it 

cannot be assumed that Georgia’s 

automatic rescission clause would be 

triggered only by ‘‘clear and 

unambiguous occurrences.’’ Rather, as 

illustrated by EPA’s efforts to respond to 

the D.C. Circuit’s Amended Judgment in 

Coalition for Responsible Regulation v. 

EPA, there may be ambiguity with 

respect to the precise change to the 

permitting requirements in Georgia’s 

SIP that would result from a triggering 

action under the automatic rescission 

clause. Because Georgia’s automatic 

rescission clause would automatically 

change Georgia’s SIP without public 

notice or EPA approval, any ambiguity 

regarding the regulatory impact of the 

triggering action would lead to 

ambiguity for regulated entities and the 

general public regarding the applicable 

SIP permitting requirements. This is 

especially true because while the 

automatic rescission clause would 

render the affected SIP provisions 

‘‘invalid,’’ the invalid text would not be 

removed or otherwise identified. Thus, 

it would not necessarily be clear to the 

public and regulated entities which SIP 

requirements remain in effect and 

which have been rendered invalid. 

Significantly, Georgia EPD (and Georgia 

courts) may disagree with EPA 

regarding the regulatory changes 

brought about by a triggering action 

under Georgia’s automatic rescission 

clause. Thus, in the wake of a triggering 

action, Georgia’s SIP may not be 

consistent with federal regulations. 

Given the uncertainty regarding what 

SIP revisions may result from the future 

operation of Georgia’s automatic 

rescission clause, EPA cannot at this 

time ‘‘approve’’ such future SIP 

revisions in accordance with 40 CFR 

51.105. 

Comment 6: Georgia EPD comments 

that the Supreme Court issued its 

decision in Utility Air Regulatory Group 

v. EPA on June 23, 2014. Georgia EPD 

then states: ‘‘Ten months later, EPA still 

had not made any revisions to the 

federal PSD or Title V permitting 

requirements. As a result, on April 10, 

2015, the D.C. Circuit Court issued an 

amended judgment in Coalition for 

Responsible Regulation, Inc. v. 

Environmental Protection Agency, 606 

Fed. Appx. 6; 2015 U.S. App. LEXIS 

11132, which vacated the Tailoring Rule 

to the extent that it requires sources to 

obtain PSD or Title V permits solely due 

to a potential to emit GHGs. This 

prompted EPA to remove portions of 

those regulations from the Federal 

Register that were initially promulgated 

in 2010.’’ According to Georgia EPD: 

‘‘Because EPA did not publish the Final 

Rule in the Federal Register until 

August 2015, without an immediate 

rescission clause, facilities would have 

been required to continue to follow the 

provisions in the Tailoring Rule for an 

additional 14 months after the Court 

vacated the rule. The [Georgia] EPD 

automatic rescission clause immediately 

did what it took EPA fourteen (14) 

months to do.’’ 

Response 6: EPA disagrees with this 

comment. First, Georgia EPD’s comment 

reflects some misconceptions regarding 

the aftermath of the Supreme Court’s 

decision in Utility Air Regulatory Group 

v. EPA. Contrary to Georgia EPD’s 

suggestion, it was not EPA’s delay in 

revising the federal permitting 

regulations that resulted in the D.C. 

Circuit issuing its Amended Judgment. 

Rather, the D.C. Circuit was acting in 

response to the Supreme Court’s remand 

of the case back to the D.C. Circuit for 

issuance of an amended judgment and 

mandate consistent with the Supreme 

Court’s opinion. Consistent with 

standard judicial practice, following the 

Supreme Court’s remand of the case to 

the D.C. Circuit, EPA briefed the D.C. 

Circuit on what the agency considered 

to be the appropriate relief and waited 

for the D.C. Circuit to issue its Amended 

Judgment and mandate before taking 

action to remove provisions from the 

federal PSD and title V regulations. 

Notably, the parties to the litigation had 

differing views as to how the Supreme 

Court’s decision should impact the 

federal regulations. The D.C. Circuit 

issued its Amended Judgment on April 

10, 2015, and EPA published a final rule 

in the Federal Register on August 19, 

2015, removing those portions of the 

federal permitting regulations that the 

D.C. Circuit specifically identified as 

vacated. See 80 FR at 50199. However, 

as discussed above, EPA concluded that 

some of the regulatory changes needed 

to address the D.C. Circuit’s Amended 

Judgment are not purely ministerial and 

therefore, EPA will address these 

changes in a separate notice-andcomment rulemaking. Id. at 50200. 

Georgia EPD’s comment also reflects 

some confusion regarding how Georgia’s 

automatic rescission clause operates. 

Specifically, Georgia EPD apparently 

believes that the Supreme Court’s 

decision, itself, was the triggering action 

under the automatic rescission clause. 

See Georgia EPD Comments at 2–3. 

Industry commenters, on the other 

hand, take the position that it was the 

D.C. Circuit’s Amended Judgment that 

served as the triggering action. See GIEC 

Comments at 5. This disagreement 

between Georgia EPD and industry 

commenters underscores EPA’s 

statement in the NPR that in addition to 

ambiguity regarding how the SIP might 

be revised in the future by operation of 

the automatic rescission clause, there 

may also be confusion regarding 

‘‘whether a court ruling or other action 

in fact triggers an automatic SIP revision 

under Georgia’s automatic rescission 

clause.’’ See 80 FR at 45637. In contrast, 

when a SIP revision is made in 

accordance with statutory and 

regulatory requirements, there is no 

ambiguity regarding how and when the 

SIP is changed. 

Regarding Georgia EPD’s comment 

that without the automatic rescission 

clause, ‘‘facilities would have been 

required to continue to follow the 

provisions in the Tailoring Rule for an 

additional 14 months after the 

[Supreme] Court vacated the rule,’’ EPA 

notes that shortly after the Supreme 

Court issued its decision, EPA 

announced that it would no longer 


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apply or enforce federal regulatory 

provisions or the EPA-approved PSD 

SIP provisions that require a stationary 

source to obtain a PSD permit if 

greenhouse gases are the only pollutant: 

(i) That the source emits or has the 

potential to emit above the major source 

thresholds, or (ii) for which there is a 

significant emissions increase and a 

significant net emissions increase from 

a modification (e.g., 40 CFR 

52.21(b)(49)(v)). Memorandum from 

Janet G. McCabe, Acting Asst. Adm’r, 

Office of Air & Radiation, to Regional 

Administrators, Regions 1–10, Next 

Steps and Preliminary Views on the 

Application of Clean Air Act Permitting 

Programs to Greenhouse Gases 

Following the Supreme Court’s Decision 

in Utility Air Regulatory Group v. EPA 

(July 24, 2014), at 2 (available at http:// 

www3.epa.gov/nsr/documents/

20140724memo.pdf). EPA further 

announced that it did not intend to 

continue applying regulations that 

would require that states include in 

their SIP a requirement that such 

sources obtain PSD permits.’’ Id. 

Georgia can exercise this same 

discretion with respect to enforcement 

of state GHG permitting requirements 

affected by the Supreme Court’s 

decision that the State has not yet had 

the opportunity to revise. 

EPA appreciates Georgia’s desire to 

enable its SIP to automatically update to 

reflect actions that invalidate federal 

regulatory requirements. As Georgia 

EPD noted in its comments, there are 

some types of automatic updating 

provisions that EPA has found to be 

approvable. Specifically, EPA 

concluded that the automatic rescission 

clauses adopted by TDEC and LMAPCD 

were approvable because under those 

provisions, no change to the SIP will 

occur until EPA publishes a Federal 

Register document announcing that a 

portion of 40 CFR 52.21 has been 

stayed, vacated, or withdrawn. See 77 

FR at 12485 (TDEC provision); 77 FR at 

62153 (LMAPCD provision). Another 

acceptable approach would be to enable 

the SIP to automatically update to 

reflect revisions to 40 CFR 52.21. 

Comment 7: Georgia EPD states that 

EPA has itself adopted a similar 

automatic rescission clause in a note to 

paragraph (b)(2)(iii)(a) of 40 CFR 52.21, 

which states: ‘‘By court order on 

December 24, 2003, the second sentence 

of this paragraph (b)(2)(iii)(a) is stayed 

indefinitely. The stayed provisions will 

become effective immediately if the 

court terminates the stay.’’ 

Response 7: EPA disagrees with this 

comment. The language in 40 CFR 52.21 

cited by Georgia EPD has no substantive 

effect on the regulations and therefore is 

not an automatic rescission clause. It 

was added by EPA to clarify for the 

public that paragraph (b)(2)(iii)(a) was 

stayed indefinitely by the D.C. Circuit in 

State of New York v. EPA, No. 03–1380 

and consolidated cases. As EPA 

explained in the Federal Register notice 

promulgating this language, ‘‘this rule is 

merely a housekeeping measure that 

reflects the court order. The action does 

not have any substantive effect.’’ 69 FR 

40274, 40275. In any event, as discussed 

above, EPA’s procedural obligations 

derive from the APA, not the CAA. 

While the APA provides some 

exceptions from public notice 

requirements, CAA section 110(l) does 

not. 

Comment 8: GIEC states that EPA’s 

August 19, 2015 promulgation of the 

Final Rule entitled ‘‘Prevention of 

Significant Deterioration and Title V 

Permitting for Greenhouse Gases: 

Removal of Certain Vacated Elements,’’ 

80 FR 501999, compels the Agency to 

take final action to approve Georgia’s 

rescission clause to the extent that it 

operates to invalidate Georgia’s 

incorporation of 40 CFR 52.21(b)(49)(v) 

and to effectively remove the paragraph 

from the Georgia SIP. According to 

GIEC, the automatic operation of the 

rescission clause to invalidate Georgia’s 

incorporation of 40 CFR 52.21(b)(49)(v) 

is functionally identical to, and cannot 

be distinguished from, the ministerial 

action EPA performed in its August 19, 

2015 Final Rule. Accordingly, GIEC 

contends that EPA’s August 19, 2015 

Final Rule rendered moot any grounds 

on which EPA could rely to disapprove 

Georgia’s automatic rescission clause to 

the extent it operates to invalidate 

Georgia’s incorporation of now-vacated 

and removed 40 CFR 52.21(b)(49)(v). 

GIEC further claims that EPA’s final rule 

removing 40 CFR 52.21(b)(49)(v) 

establishes that the rescission clause’s 

invalidation of Georgia’s incorporation 

of 40 CFR 52.21(b)(49)(v) would not 

contravene 40 CFR 51.105 because such 

invalidation is consistent with EPA’s 

interpretation of the triggering action on 

federal permitting requirements at 40 

CFR 52.21. 

Response 8: EPA disagrees with this 

comment. It is not possible for EPA to 

approve Georgia’s automatic rescission 

clause only for the limited purpose of 

enabling the automatic rescission of 

Georgia’s incorporation by reference of 

40 CFR 52.21(b)(49)(v). The plain 

language of the rescission clause 

extends well beyond the GHG 

permitting requirements to encompass 

‘‘all of any portion of 40 CFR 52.21’’ that 

contains the term ‘‘subject to 

regulation’’ that is impacted by a 

triggering action. See Georgia Rule 391– 

3–1–.02(7)(a)(2)(iv). As explained above, 

EPA concludes that it cannot approve 

this language into Georgia’s SIP because 

it would allow for future automatic SIP 

revisions without reasonable public 

notice as required by CAA 110(l) and 

without EPA approval as required by 40 

CFR 51.105. 

Comment 9: GIEC states that EPA’s 

approval of the rescission clause to the 

extent that it operates to invalidate 40 

CFR 52.21(b)(49)(v) would avoid 

unnecessary delay in removal of this 

provision from the Georgia SIP, and that 

such delay could likely result in 

confusion on the part of the regulated 

industry about how the D.C. Circuit’s 

Amended Judgment affects the PSD and 

Title V regulations and PSD permitting 

requirements administered by the 

Georgia EPD. 

Response 9: With respect to GIEC’s 

concern that any delay in removing 

Georgia’s incorporation of 40 CFR 

52.21(b)(49)(v) into its SIP could likely 

result in confusion on the part of the 

regulated industry regarding applicable 

PSD permitting requirements, as 

acknowledged by the commenter, EPA 

has issued several memoranda 

explaining how EPA interprets the effect 

of the U.S. Supreme Court’s decision on 

PSD permitting requirements, and these 

memoranda are available on EPA’s Web 

site. Further information regarding 

EPA’s interpretation of the impact of the 

Court’s decision appears in the August 

19, 2015, Federal Register notice 

removing certain vacated provisions 

from the CFR. See 80 FR at 50199. 

Finally, as discussed above, EPA has 

announced that it will no longer apply 

or enforce federal regulatory provisions 

or the EPA-approved PSD SIP 

provisions that require a stationary 

source to obtain a PSD permit if 

greenhouse gases are the only pollutant 

(i) that the source emits or has the 

potential to emit above the major source 

thresholds, or (ii) for which there is a 

significant emissions increase and a 

significant net emissions increase from 

a modification (e.g., 40 CFR 

52.21(b)(49)(v)). Georgia can exercise 

this same discretion with respect to 

enforcement of state GHG permitting 

requirements affected by the Supreme 

Court’s decision (and the D.C. Circuit’s 

subsequent Amended Judgment) that 

the State has not yet had the 

opportunity to revise. Regarding GIEC’s 

concerns with respect to the Title V 

operating permit regulations, EPA notes 

that today’s final action does not impact 

Georgia’s approved Title V program 

because a state’s title V regulations are 

not incorporated into the SIP and are 

not subject to SIP revision procedures. 


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Comment 10: Georgia EPD states that 

‘‘if the federal GHG rule (or part of the 

federal rule) is vacated and considered 

invalid or stayed by the Courts, it 

should be immediately removed from 

the Georgia SIP. The state rulemaking 

process can be time consuming and may 

not be capable of responding to judicial, 

executive (including EPA), or 

congressional action in time to allow the 

permitting process to remain consistent 

with federal requirements. Therefore, 

Georgia EPD created the rescission 

clause to ensure that Georgia’s PSD rule 

will be consistent with federal 

requirements at all times.’’ 

Response 10: EPA appreciates 

Georgia’s desire to ensure that the 

permitting requirements in its SIP 

remain consistent with federal 

requirements. However, Georgia’s 

proposed automatic rescission clause 

would create the possibility that 

Georgia’s SIP would be inconsistent 

with federal requirements in the wake of 

a triggering action. Specifically, 

Georgia’s proposed rescission clause 

would revise Georgia’s SIP 

automatically following a triggering 

action, without waiting for EPA’s public 

notice explaining how exactly the 

triggering action impacts federal 

requirements. Georgia EPD (and Georgia 

courts) may disagree with EPA 

regarding the regulatory changes 

brought about by a triggering action 

under Georgia’s automatic rescission 

clause, resulting in confusion for 

regulated entities and the general 

public. This possibility of inconsistency 

between the Georgia SIP and federal 

regulatory requirements, and the lack of 

public notice regarding such 

inconsistency, makes Georgia’s 

proposed automatic SIP revision 

different from other automatic updating 

mechanisms that EPA has found to be 

approvable. For example, as Georgia 

EPD noted in its comments, EPA 

concluded that the automatic rescission 

clauses adopted by TDEC and LMAPCD 

were approvable because under those 

provisions, no change to the SIP will 

occur until EPA publishes a Federal 

Register notice announcing that a 

portion of 40 CFR 52.21 has been 

stayed, vacated, or withdrawn. See 77 

FR at 12485; 77 FR at 62153. Another 

acceptable approach would be to enable 

the SIP to automatically update to 

reflect to the most recent version of 40 

CFR 52.21, which is the approach that 

EPA takes with respect to Federal 

Implementation Plans (FIPs) that apply 

40 CFR 52.21 in states that have not 

adopted PSD permitting requirements 

into their SIP. Under these alternative 

approaches, regulated entities and the 

public can be certain that any changes 

to the SIP resulting from automatic 

updating will simply reflect express 

changes to the federal requirements in 

40 CFR 52.21, and that there will be no 

inconsistency between the SIP and 

federal permitting regulations. 

Comment 11: Georgia EPD notes that 

EPA stated in its proposed action that 

disapproval of Georgia’s proposed 

automatic rescission clause ‘‘does not 

impose additional requirements beyond 

those imposed by state law’’ and ‘‘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.).’’ However, Georgia EPD 

believes that requiring PSD permitting 

requirements for facilities that a court 

has vacated and considered invalid or 

stayed does impose additional 

requirements beyond those imposed by 

state law and does have a significant 

economic impact on a substantial 

number of small entities. 

Response 11: EPA disagrees with this 

comment. EPA’s disapproval of 

Georgia’s automatic rescission clause 

does not itself impose any additional 

requirement on any regulated entity 

beyond those requirements imposed by 

state law. In particular, the rescission 

clause is merely a procedural 

mechanism by which requirements that 

EPA previously approved into Georgia’s 

SIP at Georgia’s request would be 

automatically invalidated in the wake of 

a triggering action. As discussed above, 

EPA has determined that it cannot 

approve this procedural mechanism 

because it contravenes CAA and 

regulatory requirements governing SIP 

revisions. This action does not impair 

Georgia’s existing ability to request a 

SIP revision in accordance with the 

procedures set forth in the CAA and 

federal regulations. Because EPA’s 

disapproval of Georgia’s automatic 

rescission clause does not impose any 

additional requirement on any regulated 

entity, this final action will not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, EPA concludes pursuant 

to section 605 of the Regulatory 

Flexibility Act, 5 U.S.C. 605, that a 

regulatory flexibility analysis is 

unnecessary. 

III. Final Action 

EPA is taking final action to 

disapprove the provision in Georgia’s 

January 13, 2011, SIP submittal (at 

Georgia Rule 391–3–1–.02(7)(a)(2)(iv)) 

that would automatically rescind 

permitting-related federal requirements 

in certain circumstances. Previously, 

EPA approved the remainder of 

Georgia’s January 13, 2011, SIP revision, 

which related to PSD requirements for 

GHG-emitting sources and for the PM2.5

NAAQS. See 76 FR 55572 (September, 

8, 2011). This action does not change 

what EPA previously approved. EPA 

notes that this disapproval action does 

not obligate Georgia in any way to make 

a new SIP submittal and does not create 

any potential for sanctions because this 

provision is not a required element of 

the SIP. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. This action disapproves a state 

law as not meeting Federal requirements 

and does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this 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 


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Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 11445 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by May 3, 2016. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Dated: February 23, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

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 L—Georgia 

■ 2. Amend § 52.572 by designating the 

existing undesignated paragraph as 

paragraph (a) and adding paragraph (b) 

to read as follows: 

§ 52.572 Approval status. 

* * * * * 

(b) Disapproval. Submittal from the 

State of Georgia, through the Georgia’s 

Department of Natural Resources 

Environmental Protection Division 

(EPD) on January 13, 2011, that would 

allow for the automatic rescission of 

federal permitting-related requirements 

in certain circumstances. EPA is 

disapproving a portion of the SIP 

submittal related to a provision (at 391– 

3–1–.02(7)(a)(2)(iv)) that would 

automatically rescind portions of 

Georgia’s State Implementation Plan in 

the wake of certain court decisions or 

other triggering events (the automatic 

rescission clause). 

[FR Doc. 2016–04746 Filed 3–3–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2014–0362; FRL–9943–29– 

Region 5] 

Air Plan Approval; Ohio; Regional 

Haze Glatfelter BART SIP Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

extend the compliance date for the Best 

Available Retrofit Technology (BART) 

emission limits for sulfur dioxide (SO2) 

at the P.H. Glatfelter Company 

(Glatfelter) facility submitted as part of 

its State Implementation Plan (SIP) 

Revision on April 14, 2014. Specifically, 

EPA is extending the compliance date 

for the SO2 emission limits applicable to 

Boilers No. 7 and No. 8 at Glatfelter by 

25 months, from December 31, 2014, to 

January 31, 2017. We have reviewed this 

SIP revision and concluded that it meets 

the requirements of the Clean Air Act 

and the regional haze rule and because 

BART requirements continue to be met. 

DATES: This final rule is effective on 

April 4, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2014–0362. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Gilberto 

Alvarez, Environmental Engineer, at 

(312) 886–6143 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Gilberto Alvarez, Environmental 

Scientist, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–6143, 

alvarez.gilberto@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background for this action? 

II. What action is EPA taking? 

III. Final Action 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

On July 2, 2012, EPA approved Ohio’s 

Regional Haze SIP (77 FR 39177). Ohio’s 

Regional Haze SIP included the 

applicability of BART to the State’s only 

non-utility BART source, Glatfelter, in 

Chillicothe, Ohio. The BART 

requirement specified that two of the 

coal-fired boilers at this facility, No. 7 

and No. 8, install control technology to 

limit the amount of SO2 emissions from 

the boilers. The compliance date for 

BART emission reductions was 

scheduled to be December 31, 2014. The 

compliance date was aligned with 

Glatfelter’s expected compliance date 

for the Industrial Boiler Maximum 

Achievable Control Technology (MACT) 

requirements finalized by EPA in May, 

2011 (76 FR 28862). 

On February 6, 2014, Ohio EPA 

received a request from Glatfelter to 

extend the original compliance date to 

January 31, 2017. The extension request 


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