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[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Rules and Regulations]
[Pages 65125-65133]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25855]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1012; FRL-9739-1]

Approval and Promulgation of Implementation Plans; Georgia 
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 
Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve the State Implementation 
Plan (SIP) submissions, submitted by the State of Georgia, through the 
Georgia Department of Natural Resources' Environmental Protection 
Division (EPD), as demonstrating that the State meets the SIP 
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or 
the Act) for the 1997 annual and 2006 24-hour fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS), with 
noted exceptions. Section 110(a) of the CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by the EPA, which is commonly 
referred to as an ``infrastructure'' SIP. Georgia certified that the 
Georgia SIP contains provisions that ensure the 1997 annual and 2006 
24-hour PM2 NAAQS are implemented, enforced, and maintained 
in Georgia (hereafter referred to as ``infrastructure submission''). 
Georgia's infrastructure submissions, provided to EPA on July 23, 2008, 
and supplemented on September 9, 2008 and October 21, 2009, address all 
the required infrastructure elements for the 1997 annual and 2006 24-
hour PM2 NAAQS. In addition, EPA is clarifying an 
inadvertent error included in the proposed approval for this rule.

DATES: This rule will be effective November 26, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-1012. 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 Regulatory Development Section, Air Planning 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 to 4:30 excluding federal 
holidays.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. This Action
III. EPA's Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 
36852), EPA promulgated a new annual PM2.5 NAAQS and on 
October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On 
June 15, 2012, EPA proposed to approve Georgia's July 23, 2008, and 
October 21, 2009, infrastructure submissions for the 1997 annual and 
2006 24-hour PM2.5 NAAQS. See 77 FR 35909. A summary of the 
background for today's final action is provided below. See EPA's June 
15, 2012, proposed rulemaking at 77 FR 35909 for more detail.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP

[[Page 65126]]

submission to EPA for a new or revised NAAQS, but the contents of that 
submission may vary depending upon the facts and circumstances. The 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, states typically have met the basic program 
elements required in section 110(a)(2) through earlier SIP submissions 
in connection with previous PM NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As already mentioned, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this final rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather are due at the time the nonattainment 
area plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) but does provide detail on how Georgia's SIP addresses 
110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's final rule does not address element 110(a)(2)(D)(i) 
(Interstate Transport) for the 1997 and 2006 PM2.5 NAAQS.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's final rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and prevention of significant deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

II. This Action

    EPA is taking final action to approve Georgia's infrastructure 
submissions as demonstrating that the State meets the applicable 
requirements of sections 110(a)(1) and (2) of the CAA for the 1997 
annual and 2006 24-hour PM2.5 NAAQS, except for the elements 
noted above on which EPA is not taking action. Section 110(a) of the 
CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance, and enforcement of each NAAQS promulgated 
by the EPA, which is commonly referred to as an ``infrastructure'' SIP. 
EPD certified that the Georgia SIP contains provisions that ensure the 
1997 annual and 2006 24-hour PM2.5 NAAQS are implemented, 
enforced, and maintained in Georgia. Additionally, EPA is now 
clarifying an inadvertent error made in the proposed rule.
    In the proposal, EPA inadvertently stated that Georgia had met each 
of its 105 grant commitments for fiscal year 2011. Georgia did not 
complete one of its 63 grant commitments from fiscal year 2011--its 
commitment to develop and submit a National Emissions Inventory Quality 
Assurance Project Plan (QAPP). Nonetheless, as was explained in the 
proposed rule, EPA has determined that Georgia has provided necessary 
assurances that its SIP contains the adequate infrastructure 
requirements to address these types of issues as they arise, consistent 
with the obligation in CAA Section 110(a)(2)(E)(i). Further, EPA has a 
process to ensure such issues are addressed and EPA is currently 
working with Georgia to ensure that the State meets all of its 
commitments, including the outstanding 2011 grant commitment.
    EPA received adverse comments on its June 15, 2012, proposed 
approval of portions of Georgia's July 23, 2008, and on October 21, 
2009, infrastructure submissions (hereafter ``Georgia's infrastructure 
submissions''). Today's final action includes a response to adverse 
comments.

III. EPA's Response to Comments

    EPA received one set of comments on the June 15, 2012, proposed 
rulemaking to approve Georgia's infrastructure submissions as meeting 
the requirements of sections 110(a)(1) and (2) of the CAA for the 1997 
annual and 2006 24-hour PM2.5 NAAQS. A summary of the 
comments and EPA's response are provided below.
    Comment 1: The Commenter contends that Georgia's SIP does not 
contain the requisite enforceable limits for PM2.5, and 
therefore, EPA cannot approve the State's infrastructure SIP submission 
with respect to section 110(a)(2)(A). The Commenter cites two primary 
reasons supporting this contention.
    First, the Commenter contends that Georgia's SIP does not currently 
provide adequate enforceable limitations for PM2.5 emissions 
from existing stationary sources. In support of this proposition, the 
Commenter notes a number of existing Georgia SIP provisions that 
address emissions of particulate matter generally or PM10, 
but not PM2.5. The Commenter further asserts that in the 
title V context, the State has concluded that at the time of the 
evaluation of the permit application, the source did not need to 
address PM2.5 emissions. Similarly, the Commenter states 
that existing stationary sources permitted prior to January 1, 2011, do 
not adequately control condensable PM2.5, and implies that 
this should be addressed in the context of acting on the State's 
infrastructure submittal. Finally, the Commenter contends that even in 
the case of a source permitted after January 1, 2011, the State has not 
required specific limitations on condensable PM and thus fails to 
control direct PM2.5 emissions at that source in a way that 
is relevant to action on the State's infrastructure SIP. The Commenter 
appears to be suggesting that this example evinces a SIP deficiency 
germane to EPA's determination respecting the sufficiency of the 
State's infrastructure SIP for purposes of section 110(a)(2)(A).
    Second, the Commenter argues that EPA should not approve the 
State's infrastructure submittal because it contained references to 
several regional cap and trade rules as measures that would impose 
emissions limitations on PM2.5 precursors within the State. 
The Commenter raised three objections: (1) The Commenter argued that 
the Nitrogen Oxide (NOX) SIP Call, Clean

[[Page 65127]]

Air Interstate Rule (CAIR), and Cross State Air Pollution Rule (CSAPR) 
cannot be considered enforceable emissions limitations because of their 
status; (2) the Commenter argued that cap and trade programs cannot be 
considered permanent and enforceable because they allow sources to 
purchase allowances or used banked credits rather than reducing 
emissions; and (3) the Commenter argued that the D.C. Circuit has held 
that regional cap and trade programs cannot ``satisfy an area-specific 
statutory mandate.'' \5\
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    \5\ The Commenter cites NRDC v. EPA, 571 F.3d 1245 (DC Cir. 
2009).
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    Response 1: EPA disagrees with the Commenter's contention that the 
State's infrastructure SIP submission is not approvable with respect to 
section 110(a)(2)(A) because it does not contain adequate enforceable 
emissions limitations on PM2.5 and PM2.5 
precursors.
    With respect to the Commenter's specific concerns about the 
adequacy of emissions limitations at stationary sources, the Commenter 
is incorrect with respect both to the scope of what is germane to an 
action on an infrastructure SIP and with respect to when certain 
regulatory requirements for stationary sources became operative. This 
comment pertains to EPA's action on an infrastructure SIP, which must 
meet the general structural requirements described in section 
110(a)(2)(A). Section 110(a)(2)(A) of the CAA states that each 
implementation plan submitted by a State under the Act shall be adopted 
by the State after reasonable notice and public hearing. Each such plan 
shall include enforceable emission limitations and other control 
measures, means, or techniques (including economic incentives such as 
fees, marketable permits, and auctions of emissions rights), as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of the Act.
    The Commenter seems to believe that in the context of an 
infrastructure SIP submission, section 110(a)(2)(A) explicitly requires 
that a State adopt all possible new enforceable emission limits, 
control measures and other means developed specifically for attaining 
and maintaining the new NAAQS within the State. EPA does not believe 
that this is a reasonable interpretation of the provision with respect 
to infrastructure SIP submissions. Rather, EPA believes that different 
requirements for SIPs become due at different times depending on the 
precise applicable requirements in the CAA. For example, some State 
regulations are required pursuant to CAA section 172(b), as part of an 
attainment demonstration for areas designated as nonattainment for the 
standard. The timing of such an attainment demonstration would be after 
promulgation of a NAAQS, after completion of designations, and after 
the development of the applicable nonattainment plans. The Commenter 
seems to believe that EPA should disapprove a State's infrastructure 
SIP if the State has not already developed all the substantive 
emissions limitations that may ultimately be required for all purposes, 
such as attainment and maintenance of the NAAQS as part of an 
attainment plan for a designated nonattainment area.
    In particular, the Commenter focuses upon the adequacy of emissions 
limitations for specific stationary sources in Georgia that arose in 
permit actions--Plant Bowen's title V Permit and Plant Washington's PSD 
permit--to support its argument that Georgia's SIP does not require 
adequate enforceable emissions limitations for PM2.5 for 
existing sources. As described above, for purposes of approving 
Georgia's infrastructure submittal as it relates to section 
110(a)(2)(A), EPA's evaluation is limited to whether the State has 
adopted, as necessary and appropriate, enforceable emission limitations 
and other control measures to meet applicable structural requirements 
of the CAA. Today's action does not involve case specific evaluations 
of specific permits. In this action, EPA is not evaluating whether or 
not the State has correctly imposed emissions limitations on each 
stationary source for purposes of meeting requirements for PSD permits 
or embodied in title V permits. Moreover, EPA notes that the Commenter 
is also incorrect with respect to its allegations concerning the 
appropriate treatment of condensables in emissions limits for 
stationary sources. In the implementation regulations for the 
PM2.5 NAAQS, EPA separately authorized States to elect not 
to address condensable emissions in their air pollution programs until 
January 1, 2011.\6\ Thus, the State was not required to address 
condensables in stationary source permits identified in the comment. 
For example, the Commenter is incorrect with respect to the PSD permit 
for Plant Washington because the permit for this source was issued on 
April 8, 2010, prior to January 1, 2011, and thus the permit was not 
required to address condensables.\7\ The State's compliance with what 
EPA authorized with respect to condensables is not grounds for 
disapproval of the State's infrastructure SIP submission.
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    \6\ See Implementation of the New Source Review (NSR) Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 
73 FR 28321 (May 16, 2008); 40 CFR 51.166(b)(49)(vi); 40 CFR 
52.21(b)(50)(vi).
    \7\ Although an amendment to the permit was issued on November 
18, 2011, the purpose of the amendment was to add case-by-case 
maximum achievable control technology (MACT) requirements for 
organic and non-mercury metal hazardous air pollutants (HAP) under 
section 112(g) of the Act. Pursuant to 40 CFR Part 63, States may 
use a preconstruction review process to make a section 112(g) case-
by-case MACT determination. However, pursuant to section 112(b)(6), 
the Act specifically excludes HAP from the PSD permitting 
requirements. See also 40 CFR Sec.  52.21(b)(50)(v). While the State 
may have subsequently added the section 112(g) determination to a 
permit that included PSD requirements, the revision of the 
construction permit to address the case-by-case MACT requirements 
was not a revision or reopening of the PSD requirements. The 
portions of the permit satisfying PSD requirements were final on 
April 8, 2010, before the requirement to account for condensables 
became effective.
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    For purposes of section 110(a)(2)(A), and for purposes of an 
infrastructure SIP submission, EPA believes that the proper inquiry is 
whether the State has met the basic structural SIP requirements 
appropriate at the point in time EPA is acting upon it. As stated in 
EPA's proposed approval for this rule, to meet section 110(a)(2)(A), 
Georgia submitted a list of existing emission reduction measures in the 
SIP that control PM2.5 emissions. These include all the 
required measures previously adopted for the control of 
PM2.5 and PM2.5 precursor pollutants. The 
Commenter identifies a number of ways in which it believes that 
Georgia's SIP fails to meet such current requirements, but EPA 
concludes that the Commenter has not identified any deficiency that 
justifies disapproval of the infrastructure SIP submission in this 
action.
    With respect to the Commenter's concern about the identification of 
cap and trade programs within the State's infrastructure SIP 
submission, the Commenter is also incorrect with respect to the scope 
of what is germane to section 110(a)(2)(A), and with respect to its 
assertions about such cap and trade programs in general.
    The Commenter asserts that emissions limitations of sulfur dioxide 
and NOX from the NOX SIP Call, CAIR, and CSAPR 
are not ``enforceable emissions limitations'' because of the legal 
status of each of those rules. The Commenter asserts that the 
NOX SIP call ``effectively no longer exists,'' that CAIR 
``has been remanded and effectively no longer exists,'' and that at the 
time of the comment, CSAPR had been stayed and was subject to 
litigation. The Commenter also asserts that reductions from such cap 
and trade rules cannot be

[[Page 65128]]

considered permanent and enforceable merely because they allow for the 
purchase and transfer of allowances or the use of banked credits. 
Finally the Commenter claims that the D.C. Circuit Court of Appeals 
recently held that EPA cannot allow use of cap and trade programs to 
satisfy an area-specific statutory mandate.
    EPA disagrees with the Commenter's position that emissions 
reductions associated with the NOX SIP Call cannot be 
considered to be permanent and enforceable. The Commenter's first 
argument--that the reductions are not permanent and enforceable because 
the NOX SIP Call has been replaced--is based on a 
misunderstanding of the relationship between CAIR and the 
NOX SIP Call. While the CAIR ozone-season NOX 
trading program replaced the ozone-season NOX trading 
program developed in the NOX SIP Call (70 FR 25290), nothing 
in CAIR relieved states of their NOX SIP Call obligations. 
In fact, in the preamble to CAIR, EPA emphasized that the states and 
certain units covered by the NOX SIP Call but not CAIR must 
still satisfy the requirements of the NOX SIP Call. EPA 
provided guidance regarding how such states could meet these 
obligations.\8\ In no way did EPA suggest that states could disregard 
their NOX SIP Call obligations. See 70 FR 25290. For 
NOX SIP Call states, the CAIR NOX ozone program 
provides a way to continue to meet the NOX SIP Call 
obligations for electric generating units (EGUs) and large non-electric 
generating units (non-EGUs). In addition, the antibacksliding 
provisions of 40 CFR 51.905(f) specifically provide that the provisions 
of the NOX SIP Call, including statewide NOX 
emission budgets, continue to apply. In sum, the requirements of the 
NOX SIP Call remain in force. They are permanent and 
enforceable as are state regulations developed to implement the 
requirements of the NOX SIP Call. Similarly, EPA disagrees 
with the Commenter's characterization of the status of CAIR and CSAPR. 
When the court stayed CSAPR as noted by the Commenter, it ordered EPA 
to continue to administer CAIR. When the court issued its opinion to 
vacate and remand CSAPR, it also ordered EPA to continue to administer 
CAIR pending development of a valid replacement. Thus, at this 
juncture, CAIR remains in place and EPA is continuing to implement and 
enforce it. Consequently, all SIP provisions implementing CAIR also 
remain enforceable at this time under the court opinion.
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    \8\ EPA guidance regarding the NOX SIP Call 
transition to CAIR can be found at http://www.epa.gov/airmarkets/progsregs/cair/faq10.html. EPA guidance regarding the NOX 
SIP Call transition for CSAPR can be found at http://www.epa.gov/crossstaterule/faqs.html.
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    EPA also disagrees with the Commenter's second argument--that the 
reductions associated with the NOX SIP Call, CAIR, or CSAPR 
could not be considered permanent and enforceable merely because they 
are trading programs. There is no support for the Commenter's argument 
that states cannot rely on such programs as a valid component of their 
SIPs to achieve necessary reductions of emissions simply because the 
mechanism used to achieve the reductions is an emissions trading 
program. As a general matter, trading programs establish mandatory caps 
on emissions and permanently reduce the total emissions allowed by 
sources subject to the programs. The emission caps and associated 
controls are enforced through the associated SIP rules or Federal 
Implementation Plans (FIPs). Any purchase of allowances and increase in 
emissions by a utility necessitates a corresponding sale of allowances 
and reductions in emissions by another utility. Given the regional 
nature of PM2.5, the emission reductions will have an air 
quality benefit that will compensate, at least in part, for the impact 
of any emission increase.
    In addition, the case cited by the Commenter, NRDC v. EPA, 571 F.3d 
1245 (D.C. Cir. 2009), does not support the Commenter's position. That 
case addressed EPA's determination that the ``reasonably available 
control technology'' (RACT) requirement for nonattainment areas was 
satisfied by the NOX SIP Call trading program. The court 
held that because EPA had not demonstrated that the trading program 
would result in sufficient reductions within nonattainment areas to 
meet the RACT requirement, its determination that the program satisfied 
the RACT requirement (a specific nonattainment area requirement) was 
not supported. Id, 1256-58. The court explicitly noted that EPA might 
be able to reinstate the provision providing that compliance with the 
NOX SIP Call satisfies NOX RACT for EGUs for 
particular nonattainment areas if, upon conducting a technical 
analysis, it could demonstrate that the NOX SIP Call results 
in greater emission reductions in a nonattainment area than would be 
achieved if RACT level controls were installed on the affected sources 
within the nonattainment area. Id at 1258. Thus, EPA disagrees with the 
Commenter's assertion that the case stands for the proposition that cap 
and trade programs can never satisfy a statutory mandate for area-
specific emissions controls. Moreover, EPA's action on a state's 
infrastructure SIP does not entail an evaluation of whether that state 
has met the more specific nonattainment area requirements for RACT that 
may become relevant in later actions on a SIP submission designed by 
the state to meet nonattainment area requirements. For purposes of 
evaluating a state's infrastructure SIP submission, EPA is limiting its 
review to ensuring that the State meets basic structural SIP 
requirements. In the event that a state has to develop a SIP submission 
to meet nonattainment area requirements, the state and EPA will at that 
time evaluate whether the submission meets the separate statutory 
requirements for nonattainment areas.
    Comment 2: The Commenter contends that Georgia's Ambient Air 
Quality Monitoring Program is incomplete because it does not meet the 
federal reporting requirements and utilizes spatial scales which could 
lead to misrepresentations of PM2.5 concentrations. The 
Commenter explains that Georgia fails to incorporate any micro and 
middle spatial scales for PM2.5, leading to potentially 
inaccurate reporting of PM2.5 concentrations. For this 
reason, the Commenter states that EPA cannot make the determination 
that Georgia's air quality monitoring and data systems related to the 
1997 annual and 2006 24-hour PM2.5 NAAQS are adequate. The 
Commenter explains that Georgia only utilizes the neighborhood spatial 
scale for monitoring PM2.5, with the exception of a 
PM2.5 background site. The Commenter cites to 40 CFR Part 
58, Appendix D (4.7.1(c)) for the proposition that there are 
circumstances where a more specific spatial scale is necessary to 
accurately represent the PM2.5 concentrations. Specifically, 
the Commenter explains that microscale is appropriate for ``areas such 
as downtown street canyons and traffic corridors where the general 
public would be exposed to maximum concentrations from mobile 
sources.'' The Commenter makes certain statements about Atlanta, 
including traffic and asthma issues, and concludes that microscale 
would be appropriate for Atlanta. The Commenter concludes by stating 
that Georgia should explore whether such downtown, high maximum 
concentration areas occur and accordingly utilize the appropriate 
spatial scales.
    Response 2: EPA disagrees with the Commenter's assessment that 
Georgia's Ambient Air Quality Monitoring Program is incomplete. 
Pursuant to CAA section 110(a)(2)(B), each SIP shall ``provide for 
establishment and operation of appropriate devices,

[[Page 65129]]

methods, systems, and procedures necessary to (i) monitor, compile, and 
analyze data on ambient air quality, and (ii) upon request, make such 
data available to the Administrator.'' Among other requirements that 
EPA evaluates to determine if the infrastructure SIP submission meets 
the applicable section 110(a)(2)(B) requirements, the Agency considers 
whether the state has submitted the most recent annual monitoring plan, 
and whether EPA has approved that monitoring plan as meeting the 
applicable regulatory requirements and consistent with applicable 
guidance. The latter approval addressed whether the state monitors air 
quality for the relevant pollutant at appropriate locations throughout 
the state using EPA approved federal reference method or equivalent 
monitors, and whether it submits data to EPA's Air Quality System (AQS) 
in a timely manner.
    As noted in EPA's proposed rule for this action, Georgia's Rules 
391-3-1-.02(3), ``Sampling,'' and 391-3-1-.02(6), ``Source 
Monitoring,'' along with the Georgia Network Description and Ambient 
Air Monitoring Network Plan provide for an ambient air quality 
monitoring system in the State. Annually, EPA approves the ambient air 
monitoring network plan for the state agencies including EPD. Prior to 
submission to EPA for approval, the State makes the annual monitoring 
plan available for public inspection and comment in its own 
administrative process. In August 2011, Georgia submitted its 
monitoring network plan to EPA, and on October 21, 2011, EPA approved 
Georgia's monitoring network plan.
    With regard to the Commenter's statements pertaining to the 
adequacy of monitoring in the Atlanta area, today's action does not 
involve specific evaluation for the Atlanta Area; but rather, Georgia's 
compliance with section 110(a)(2)(B) of the CAA for monitoring 
requirements statewide. As explained above, Georgia's infrastructure 
SIP submission complies with section 110(a)(2)(B) because it 
demonstrates that the State has met current monitoring requirements for 
this NAAQS and is thus approvable. The Commenter's concerns about the 
adequacy of monitoring in the Atlanta area in the future should be 
raised in the appropriate context, such as during the State's 
development of monitoring systems. For purposes of today's final action 
on Georgia's infrastructure submission, EPA has concluded that 
Georgia's monitoring program is adequate and thus consistent with the 
requirements of section 110(a)(2)(B) for this type of submission.
    Comment 3: The Commenter claims that Georgia's SIP does not contain 
required provisions for PM2.5 PSD increments promulgated in 
an October 20, 2010, EPA rule. The Commenter asserts that states are 
required to include these increments in their SIPs prior to EPA 
approval of their infrastructure SIP and cites 40 CFR 51.166(c) and 
EPA's September 25, 2009, ``Guidance on SIP Elements Required under 
Sections 110(a)(1) and (2) for the 2006 24-hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
for support. Further, the Commenter states that this ``lack of 
inclusion renders Georgia's SIP inadequate to address PSD permitting, 
and, thus, the EPA cannot determine that `Georgia's SIP and practices 
are adequate for program enforcement of control measures including 
review of proposed new sources related to the 1997 and 2006 24-hour 
PM2.5 NAAQS.'''
    Response 3: EPA does not agree with the Commenter's assertion that 
the lack of inclusion of the updated PM2.5 increments 
renders Georgia's SIP inadequate to address PSD permitting. Pursuant to 
the 2010 PM2.5 New Source Review (NSR) Rule and CAA section 
166(b), states were not required to submit a revised SIP addressing the 
PM2.5 increments until July 20, 2012. The Agency proposed 
action on the Georgia infrastructure SIP in a notice signed on June 1, 
2012.\9\ Therefore, on the date that the proposed rule was signed by 
the Agency, the PM2.5 increments were not required to be 
included in the Georgia SIP in order for the State to meet the PSD 
requirements of sections 110(a)(2)(C) and (J) of the Act.
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    \9\ Although the notice was published by the Federal Register on 
June 15, 2012, the notice was signed by the Acting Regional 
Administrator on June 1, 2012, before the statutory deadline for 
submission of the SIP revision addressing the PM2.5 
increments.
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    The Commenter's concerns here relate to the timing of Agency action 
on collateral, yet related, SIP submissions. These concerns highlight 
an important overarching question that the EPA has to confront when 
assessing the various infrastructure SIP submittals addressed in the 
proposed rule: how to proceed when the timing and sequencing of 
multiple related SIP submissions impact the ability of the State and 
the Agency to address certain substantive issues in the infrastructure 
SIP submission in a reasonable fashion.
    It is appropriate for EPA to take into consideration the timing and 
sequence of related SIP submissions as part of determining what it is 
reasonable to expect a state to have addressed in an infrastructure SIP 
submission for a NAAQS at the time when the EPA acts on such 
submission. EPA has historically interpreted section 110(a)(2)(C) and 
section 110(a)(2)(J) as requiring EPA to assess a state's 
infrastructure SIP submission with respect to the then-applicable and 
federally enforceable PSD regulations required to be included in a 
state's implementation plan at the time EPA takes action on the SIP. 
However, EPA does not consider it reasonable to interpret section 
110(a)(2)(C) and section 110(a)(2)(J) as requiring EPA to propose to 
disapprove a state's infrastructure SIP submissions because the state 
had not yet, at the time of proposal, made a submission that was not 
yet due for the 2010 PM2.5 NSR Rule. To adopt a different 
approach by which EPA could not act on an infrastructure SIP, or at 
least could not approve an infrastructure SIP, whenever there was any 
impending revision to the SIP required by another collateral rulemaking 
action would result in regulatory gridlock and make it impracticable or 
impossible for EPA to act on infrastructure SIPs if EPA is in the 
process of revising collateral PSD regulations. EPA believes that such 
an outcome would be an unreasonable reading of the statutory process 
for the infrastructure SIPs contemplated in section 110(a)(1) and (2).
    EPA acknowledges that it is important that these additional PSD 
program revisions be evaluated and approved into a state's 
implementation plan in accordance with the CAA, and the EPA intends to 
address the PM2.5 increments in a subsequent rulemaking.
    EPA also notes that major sources in Georgia are subject to the 
PM2.5 increments pursuant to the version of the regulation, 
GA Rule 391-3-1-.02(7)--Prevention of Significant Deterioration of Air 
Quality, currently in effect in Georgia. Because the regulations 
relating to PM2.5 increments are currently effective and 
enforceable as a matter of State law, as of August 9, 2012, EPA in the 
interim believes that proposed major sources in Georgia are being 
required as a matter of State law to comply with the PSD requirements 
like PM2.5 increments and thus that these sources are not 
being treated differently under State law than similar sources in other 
States that have adopted and submitted SIP revisions to include the 
increments. Thus, EPA does not believe that approving the State's 
infrastructure SIP submissions at this time will lead to major sources 
in Georgia being treated differently than

[[Page 65130]]

similar sources in the other States as a factual matter. If the 
Commenter determines that sources are not being evaluated in accordance 
with applicable State law requirements during the interim before EPA 
acts on a later SIP submission, those concerns can be addressed in the 
State's permitting process.
    Comment 4: The Commenter states that Georgia must provide 
assurances that the State will have adequate personnel, funding, and 
authority to carry out the SIP. The Commenter notes that EPD receives 
money from federal grants, and from permitting fees and that EPD also 
receives a significant portion of its funding from the State of 
Georgia. The Commenter explains that, in recent years, the EPD's funds 
from the State of Georgia have significantly declined and the Commenter 
believes that continued cuts in EPD's budget cast doubt on EPD's 
ability to adequately administer its air program. Further, the 
Commenter states that Georgia does not seem to be completing all of the 
requirements of its federal grants, putting those grants in jeopardy.
    Response 4: EPA does not agree with the Commenter's contention that 
Georgia does not have adequate personnel and funding to carry out its 
implementation plan. Section 110(a)(2)(E)(i) requires that each 
implementation plan provide necessary assurances that the State will 
have adequate personnel, funding, and authority under state law to 
carry out its implementation plan. EPA does not believe, and the 
Commenter has not demonstrated, that the State funding levels described 
in the comment contravene Georgia's assurances that the State has 
adequate personnel and funding to carry out its implementation plan. 
Georgia's infrastructure SIP submission indicated that the State 
believes that it has sufficient resources to meet its obligations. At 
this juncture, EPA does not see evidence that the State's resources are 
in fact inadequate.
    As the Commenter notes, Georgia did not finalize one of its sixty-
three 2011 grant commitments.\10\ Notwithstanding this fact, and as was 
explained in the proposed rule, EPA has determined that Georgia has 
provided necessary assurances that its SIP contains the adequate 
infrastructure requirements to address these types of issues as they 
arise, consistent with the obligation in CAA Section 110(a)(2)(E)(i). 
EPA has a process to ensure issues such as this are addressed and the 
Agency is currently working with Georgia to ensure that the State meets 
all of its commitments, including the outstanding 2011 grant commitment 
reference by Commenter. The fact that a process is in place to resolve 
the outstanding commitment supports EPA's approval of Georgia's 
infrastructure SIP.
---------------------------------------------------------------------------

    \10\ EPA inadvertently stated in the proposed rule for this 
action that Georgia had met each of its section 105 grant 
commitments for 2011. The Agency is hereby correcting that statement 
to note that Georgia did not meet its commitment to develop and 
submit a National Emissions Inventory QAPP.
---------------------------------------------------------------------------

IV. Final Action

    As already described, EPD has addressed the elements of the CAA 
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, 
guidance to ensure that 1997 annual and 2006 24-hour PM2.5 
NAAQS are implemented, enforced, and maintained in Georgia. EPA is 
taking final action to approve Georgia's July 23, 2008, and October 21, 
2009, submissions, with noted exceptions for 1997 annual and 2006 24-
hour PM2.5 NAAQS because these submissions are consistent 
with section 110 of the CAA. Today's action is not approving any 
specific rule, but rather making a determination that Georgia's already 
approved SIP meets certain CAA requirements. In addition, EPA is today 
clarifying the inadvertent error contained in the proposal approval for 
this rule as described above.

V. 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. 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 action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     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, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country, and EPA notes that it 
will not 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 December 24, 2012. 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

[[Page 65131]]

enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
Matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart L--Georgia

0
2. Section 52.570(e) is revised to read as follows:

Sec.  52.570  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Georgia Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                               Applicable geographic  State submittal
  Name of nonregulatory SIP      or  nonattainment     date/effective    EPA approval          Explanation
          provision                     area                date             date
----------------------------------------------------------------------------------------------------------------
1. High Occupancy Vehicle      Atlanta Metropolitan   11/15/93 and     3/18/99, 4/26/
 (HOV) lane on I-85 from        Area.                  amended on 6/    99 and 11/5/09.
 Chamblee-Tucker Road to                               17/96 and 2/5/
 State Road 316. High                                  10.
 Occupancy Toll (HOT) lane on
 I-85 from Chamblee-Tucker
 Road to State Road 316.
2. Clean Fuel Vehicles         Atlanta Metropolitan   6/17/96........  4/26/99........
 Revolving Loan Program.        Area.
3. Regional Commute Options    Atlanta Metropolitan   6/17/96........  4/26/99........
 Program and HOV Marketing      Area.
 Program.
4. HOV lanes on I-75 and I-85  Atlanta Metropolitan   6/17/96........  4/26/99........
                                Area.
5. Two Park and Ride Lots:     Atlanta Metropolitan   6/17/96........  4/26/99........
 Rockdale County-Sigman at I-   Area.
 20 and Douglas County-Chapel
 Hill at I-20.
6. MARTA Express Bus routes    Atlanta Metropolitan   6/17/96........  4/26/99........
 (15 buses).                    Area.
7. Signal preemption for       Atlanta Metropolitan   6/17/96........  4/26/99........
 MARTA routes 15 and   Area.
 23.
8. Improve and expand service  Atlanta Metropolitan   6/17/96........  4/26/99........
 on MARTA's existing routes     Area.
 in southeast DeKalb County.
9. Acquisition of clean fuel   Atlanta Metropolitan   6/17/96........  4/26/99........
 buses for MARTA and Cobb       Area.
 County Transit.
10. ATMS/Incident Management   Atlanta Metropolitan   6/17/96........  4/26/99........
 Program on I-75/I-85 inside    Area.
 I-285 and northern ARC of I-
 285 between I-75 and I-85.
11. Upgrading, coordination    Atlanta Metropolitan   6/17/96........  4/26/99........
 and computerizing              Area.
 intersections.
12. [Reserved]...............
13. Atlantic Steel             Atlanta Metropolitan   3/29/00........  8/28/00........
 Transportation Control         Area.
 Measure.
14. Procedures for Testing     Atlanta Metropolitan   7/31/00........  7/10/01........
 and Monitoring Sources of      Area.
 Air Pollutants.
15. Enhanced Inspection/       Atlanta Metropolitan   9/20/00........  7/10/01........
 Maintenance Test Equipment,    Area.
 Procedures and
 Specifications.
16. Preemption Waiver Request  Atlanta Metropolitan   5/31/00........  2/22/02........
 for Low-RVP, Low-Sulfur        Area.
 Gasoline Under Air Quality
 Control Rule 391-3-1-
 .02(2)(bbb).
17. Technical Amendment to     Atlanta Metropolitan   11/9/01........  2/22/02........
 the Georgia Fuel Waiver        Area.
 Request of May 31, 2000.
18. Georgia's State            Atlanta Metropolitan   7/17/01........  5/7/02.........
 Implementation Plan for the    Area.
 Atlanta Ozone Nonattainment
 Area.
19. Post-1999 Rate of          Atlanta Metropolitan   12/24/03.......  7/19/04, 69 FR
 Progress Plan.                 Area.                                   42884.
20. Severe Area Vehicle Miles  Atlanta 1-hour ozone   6/30/04........  6/14/05, 70 FR
 Traveled (VMT SIP) for the     severe nonattainment                    34358.
 Atlanta 1-hour severe ozone    area.
 nonattainment area.
21. Atlanta 1-hour ozone       Atlanta severe 1-hour  2/1/05.........  6/14/05, 70 FR
 attainment area 2015           ozone maintenance                       34660.
 maintenance plan.              area.
22. Attainment Demonstration   Walker and Catoosa     12/31/04.......  8/26/05, 70 FR
 for the Chattanooga Early      Counties.                               50199.
 Action Area.

[[Page 65132]]

 
23. Attainment Demonstration   Columbia and Richmond  12/31/04.......  8/26/05, 70 FR
 for the Lower Savannah-        Counties.                               50195.
 Augusta Early Action Compact
 Area.
24. Alternative Fuel           Douglas County, GA...  9/19/06........  11/28/06, 71 FR
 Refueling Station/Park and                                             68743.
 Ride Transportation Center,
 Project DO-AR-211 is removed.
25. Macon 8-hour Ozone         Macon, GA              6/15/07........  9/19/07, 72 FR
 Maintenance Plan.              encompassing a                          53432.
                                portion of Monroe
                                County.
26. Murray County 8-hour       Murray County........  6/15/07........  10/16/07, 72 FR
 Ozone Maintenance Plan.                                                58538.
27. Atlanta Early Progress     Barrow, Bartow,        1/12/07........  2/20/08, 73 FR
 Plan.                          Carroll, Cherokee,                      9206.
                                Clayton, Cobb,
                                Coweta, DeKalb,
                                Douglas, Fayette,
                                Forsyth, Fulton,
                                Gwinnett, Hall,
                                Henry, Newton,
                                Paulding, Rockdale,
                                Spalding and Walton
                                counties.
28. Rome; 1997 Fine            Floyd County.........  10/27/2009.....  1/12/12, 77 FR
 Particulate Matter 2002 Base                                           1873.
 Year Emissions Inventory.
29. Chattanooga; Fine          Catoosa and Walker     10/27/09.......  2/8/12; 77 FR
 Particulate Matter 2002 Base   Counties.                               6467.
 Year Emissions Inventory.
30. 110(a)(1) and (2)          Georgia..............  10/13/2007.....  2/6/2012, 77 FR
 Infrastructure Requirements                                            5706.
 for the 1997 8-Hour Ozone
 National Ambient Air Quality
 Standards.
31. Atlanta 1997 Fine          Barrow, Bartow,        07/06/2010.....  3/1/2012, 77 FR
 Particulate Matter 2002 Base   Carroll, Cherokee,                      12487.
 Year Emissions Inventory.      Clayton, Cobb,
                                Coweta, DeKalb,
                                Douglas, Fayette,
                                Forsyth, Fulton,
                                Gwinnett, Hall,
                                Henry, Newton,
                                Paulding, Rockdale,
                                Spalding and Walton
                                Counties in their
                                entireties and
                                portions of Heard
                                and Putnam Counties.
32. Macon 1997 Fine            Bibb County and        8/17/2009......  3/02/12, 77 FR
 Particulate Matter 2002 Base   Monroe County.                          12724.
 Year Emissions Inventory.
33. Atlanta 1997 8-Hour Ozone  Barrow, Bartow,        10/21/2009.....  4/24/2012, 77
 2002 Base-Year Emissions       Carroll, Cherokee,                      FR 24399.
 Inventory.                     Clayton, Cobb,
                                Coweta, DeKalb,
                                Douglas, Fayette,
                                Forsyth, Fulton,
                                Gwinnett, Hall,
                                Henry, Newton,
                                Paulding, Rockdale,
                                Spalding and Walton
                                Counties in their
                                entireties.
34. Regional Haze Plan.......  Statewide............  2/11/10........  6/28/12, 77 FR
                                                                        38501.
35. Regional Haze Plan         Statewide............  11/19/10.......  6/28/12, 77 FR
 Supplement (including BART                                             38501.
 and Reasonable Progress
 emissions limits).
36. 110(a)(1) and (2)          Georgia..............  7/23/2008......  10/25/2012       With the exception of
 Infrastructure Requirements                                            [Insert          110(a)(2)(D)(i).
 for 1997 Fine Particulate                                              citation of
 Matter National Ambient Air                                            publication].
 Quality Standards.
37. 110(a)(1) and (2)          Georgia..............  10/21/2009.....  10/25/2012       With the exception of
 Infrastructure Requirements                                            [Insert          110(a)(2)(D)(i).
 for 2006 Fine Particulate                                              citation of
 Matter National Ambient Air                                            publication].
 Quality Standards.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-25855 Filed 10-24-12; 8:45 am]
BILLING CODE 6560-50-P
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