[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Proposed Rules]
[Pages 75849-75857]
[FR Doc No: 2011-31191]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0351-201122; FRL-9498-9]

Approval and Promulgation of Implementation Plans; Georgia;
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submission, submitted by the State of Georgia, through the
Georgia Department of Natural Resources, Environmental Protection
Division (EPD), to demonstrate that the State meets the requirements of
sections 110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the
1997 8-hour ozone national ambient air quality standards (NAAQS).
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 8-hour ozone NAAQS are implemented,
enforced, and maintained in Georgia (hereafter referred to as
``infrastructure submission''). Georgia's infrastructure submission,
provided to EPA on December 13, 2007, and clarified in a subsequent
submission submitted on September 9, 2008, addresses all the required
infrastructure elements for the 1997 8-hour ozone NAAQS.

DATES: Written comments must be received on or before January 4, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0351, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2011-0351,'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, 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. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2011-
0351. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through http://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in http://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 a.m. to 4:30
p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, 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<PHONE_NUMBER>. Ms. Ward can be reached via electronic mail at
<EMAIL_ADDRESS>
Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how georgia addressed the elements of
sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm. See 62 FR 38856.
Pursuant to section 110(a)(1) of the CAA, states are required to submit
SIPs meeting the requirements of section 110(a)(2) within three years
after promulgation of a new or revised NAAQS. Sections 110(a)(2)
require states to address basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the NAAQS. States were required to submit

such SIPs for the 1997 8-hour ozone NAAQS to EPA no later than June
2000. However, intervening litigation over the 1997 8-hour ozone NAAQS
created uncertainty about how to proceed and many states did not
provide the required ``infrastructure'' SIP submission for these newly
promulgated NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS.
EPA entered into a consent decree with Earthjustice which required EPA,
among other things, to complete a Federal Register notice announcing
EPA's determinations pursuant to section 110(k)(1)(B) as to whether
each state had made complete submissions to meet the requirements of
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007.
Subsequently, EPA received an extension of the date to complete this
Federal Register notice until March 17, 2008, based upon agreement to
make the findings with respect to submissions made by January 7, 2008.
In accordance with the consent decree, EPA made completeness findings
for each state based upon what the Agency received from each state as
of January 7, 2008.
    On March 27, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans;
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or
failed to submit a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 8-hour
ozone NAAQS. See 73 FR 16205. For those states that did receive
findings, such as Georgia, the findings of failure to submit for all or
a portion of a state's implementation plan established a 24-month
deadline for EPA to promulgate a Federal Implementation Plan (FIP) to
address the outstanding SIP elements unless, prior to that time, the
affected states submitted, and EPA approved, the required SIPs.
However, the findings of failure to submit did not impose sanctions or
set deadlines for imposing sanctions as described in section 179 of the
CAA, because these findings do not pertain to the elements contained in
the Title I part D plan for nonattainment areas as required under
section 110(a)(2)(I). Additionally, the findings of failure to submit
for the infrastructure submittals are not a SIP call pursuant to
section 110(k)(5).
    The finding that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k). Georgia's
infrastructure submission was received by EPA on December 13, 2007, and
was determined to be complete on March 27, 2008, for all elements with
the exception of 110(a)(2)(G). Specifically, 110(a)(2)(G) relates to
the SIP providing authority comparable to that in section 303 of the
CAA, Emergency Power, and adequate contingency plans to implement such
authority. Georgia was among other states that received a finding of
failure to submit because its infrastructure submission was deemed
incomplete for element (G) for the 1997 8-hour ozone NAAQS by March 1,
2008. The finding of failure to submit action triggered a 24-month
clock for EPA to either issue a FIP or take final action on a SIP
revision which corrects the deficiency for which the finding of failure
to submit was received.
    On September 9, 2008, EPD submitted a letter to EPA to clarify that
Georgia does have authority to implement emergency powers for the 8-
hour ozone standard and that EPA has approved these provisions in the
SIP. Following review of Georgia's SIP in light of EPD's September 9,
2008 letter, EPA has preliminarily determined that Georgia's federally-
approved SIP does include provisions which provide the State with the
authority to implement emergency powers for the 8-hour ozone standard.
Today's action is proposing to approve Georgia's infrastructure
submission for which EPA made the completeness determination and
findings of failure to submit on March 27, 2008. This action is not
approving any specific rule, but rather proposing that Georgia's
already approved SIP meets certain CAA requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    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 submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, 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 8-hour ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous ozone
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 mentioned above, 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 proposed 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 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 proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning requirements of
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 proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone
NAAQS. Interstate transport requirements were formerly addressed by
Georgia consistent with the Clean Air Interstate Rule (CAIR). On
December 23, 2008, CAIR was remanded by the DC Circuit Court of
Appeals, without vacatur, back to EPA. See North Carolina v. EPA,
531 F.3d 896 (DC Cir. 2008). Prior to this remand, EPA took final
action to approve Georgia's SIP revision, which was submitted to
comply with CAIR. See 72 FR 57202 (October 9, 2007). In so doing,
Georgia's CAIR SIP revision addressed the interstate transport
provisions in section 110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS. In response to the remand of CAIR, EPA has recently finalized
a new rule to address the interstate transport of NOX and
SOX in the eastern United States. See 76 Fed. Reg. 48208
(August 8, 2011) (``the Cross-State Air Pollution Rule''). EPA's
action on element 110(a)(2)(D)(i) will be addressed in a separate
action.

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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 proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials;
public notification; and 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.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\5\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated in other proposals that it would address
the issues separately: (i) Existing provisions for minor source new
source review programs that may be inconsistent with the requirements
of the CAA and EPA's regulations that pertain to such programs (``minor
source NSR''); and (ii) existing provisions for Prevention of
Significant Deterioration (PSD) programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007)
(``NSR Reform''). In light of the comments, EPA believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth. It is important to emphasize that EPA is taking the same
position with respect to these four substantive issues in this action
on the infrastructure SIPs for the 1997 8-hour ozone NAAQS from
Georgia.
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    \5\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for Georgia.
    Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section

169A, new source review permitting program submissions required to
address the requirements of part D, and a host of other specific types
of SIP submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``Rule To
Reduce Interstate Transport of Fine Particulate Matter and Ozone
(Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's
implementation plans. Finally, EPA notes that not every element of
section 110(a)(2) would be relevant, or as relevant, or relevant in the
same way, for each new or revised NAAQS and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 p.m.2.5 NAAQS. See ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from William T.
Harnett, Director Air Quality Policy Division OAQPS, to Regional Air
Division Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 p.m.2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self

explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's implementation plans for the NAAQS in
question.
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    \11\ See ``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,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the infrastructure SIPs for Georgia.
---------------------------------------------------------------------------

    \15\ See ``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),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
---------------------------------------------------------------------------

    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa, Arizona, California,
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004)
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540
(January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how Georgia addressed the elements of the
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    The Georgia infrastructure submission addresses the provisions of
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures:
Several regulations within Georgia's SIP provide

Georgia's rules and regulations relevant to air quality control
regulations. The regulations described below have been federally
approved in the Georgia SIP and include enforceable emission
limitations and other control measures. Regulations 391-3-1-.02(2),
Emissions Standards, and 391-3-1-.02(4), Ambient Air Standards,
establish emission limits for ozone and address the required control
measures, means and techniques for compliance with the ozone NAAQS
respectively. EPA has made the preliminary determination that the
provisions contained in these chapters and Georgia's practices are
adequate to protect the 1997 8-hour ozone NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency plans to address such state regulations in the future. In the
meantime, EPA encourages any state having a deficient SSM provision to
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or
disapprove any existing State rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system:
Regulations 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. In August 2011, Georgia submitted
its monitoring network plan to EPA, and on October 21, 2011, EPA
approved this plan. Georgia's approved monitoring network plan can be
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2011-0351. EPA has made the preliminary determination that Georgia's
SIP and practices are adequate for the ambient air quality monitoring
and data system related to the 1997 8-hour ozone NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: Regulation 391-3-1-.02(7),
Prevention of Significant Deterioration of Air Quality (PSD), pertains
to the construction or modification of any major stationary source in
areas designated as attainment or unclassifiable. On March 5, 2007, EPD
submitted revisions to their Prevention of Significant Deterioration/
New Source Review (PSD/NSR) regulations for EPA approval. In the March
5, 2007, SIP revision, Georgia included revisions to rules in
Regulation 391-3-1-.02(7) which address infrastructure requirements C
and J.
    The March 5, 2007, SIP revision addresses the Ozone Implementation
NSR Update requirements to include nitrogen oxides (NOX) as
an ozone precursor for permitting purposes. Specifically, the Ozone
Implementation NSR Update requirements include changes to major source
thresholds for sources in certain classes of nonattainment areas,
changes to offset ratios for marginal, moderate, serious, severe, and
extreme ozone nonattainment areas, provisions addressing offset
requirements for facilities that shut down or curtail operation, and a
requirement stating that NOx emissions are ozone precursors. In a
November 22, 2010, final rulemaking action, EPA approved Georgia's
March 5, 2007, SIP revision. See 75 FR 71018.
    EPA published a final rulemaking notice approving Georgia's
greenhouse gas (GHG) regulations on September 8, 2011 (76 FR 55572).
These revisions establish appropriate emission thresholds for
determining which new stationary sources and modification projects
become subject to Georgia's PSD permitting requirements for their GHG
emissions. The September 8, 2011, rulemaking finalizes approval of the
Georgia rules which address the thresholds for GHG permitting
applicability in Georgia.
    On December 30, 2010, EPA published a final rulemaking, ``Action To
Ensure Authority To Implement Title V Permitting Programs Under the
Greenhouse Gas Tailoring Rule'' (75 FR 82254) to narrow EPA's previous
approval of State title V operating permit programs that apply (or may
apply) to GHG-emitting sources; this rule hereafter is referred to as
the ``Narrowing Rule.'' EPA narrowed its previous approval of certain
State permitting thresholds, for GHG emissions so that only sources
that equal or exceed the GHG thresholds, as established in the final
Tailoring Rule, would be covered as major sources by the Federally-
approved programs in the affected States. Georgia was included in this
rulemaking.
    In this action, EPA is proposing to approve Georgia's
infrastructure SIP for the 8-hour ozone NAAQS with respect to the
general requirement in section 110(a)(2)(C) to include a program in the
SIP that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. EPA is not
proposing, however, to approve or disapprove the state's existing minor
NSR program to the extent that it is inconsistent with EPA's
regulations governing this program. EPA believes that a number of
states may have minor NSR provisions that are contrary to the existing
EPA regulations for this program. EPA intends to work with states to
reconcile state minor NSR programs with EPA's regulatory provisions for
the program. The statutory requirements of section 110(a)(2)(C) provide
for considerable flexibility in designing minor NSR programs, and EPA
believes it may be time to revisit the regulatory requirements for this
program to give the states an appropriate level of flexibility to
design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
    EPA has made the preliminary determination that Georgia's SIP and
practices are adequate for program enforcement of control measures
including review of proposed new sources related to the 1997 8-hour
ozone NAAQS.
    4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: Regulation 391-3-1-.02(7), Prevention of Significant
Deterioration of Air Quality (PSD), outlines how Georgia will notify
neighboring states of potential impacts from new or modified sources.
Georgia does not have any pending obligation under sections 115 and
126. EPA has made the preliminary determination that Georgia's SIP and
practices are adequate for insuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 1997 8-hour ozone NAAQS.
    5. 110(a)(2)(E) Adequate resources: EPD is responsible for
promulgating rules and regulations for the NAAQS, emissions standards
general policies, a system of permits, and fee schedules for

the review of plans, and other planning needs. As evidence of the
adequacy of EPD's resources, EPA submitted a letter to Georgia on March
24, 2011, outlining 105 grant commitments and the current status of
these commitments for fiscal year 2010. The letter EPA submitted to
Georgia can be accessed at http://www.regulations.gov using Docket ID
No. EPA-R04-OAR-2011-0351. Annually, states update these grant
commitments based on current SIP requirements, air quality planning,
and applicable requirements related to the NAAQS. Georgia
satisfactorily met all commitments agreed to in the Air Planning
Agreement for fiscal year 2010, therefore Georgia's grants were
finalized and closed out.
    Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that: (1) The majority of
members of the state body which approves permits or enforcement orders
represent the public interest and do not derive any significant portion
of their income from persons subject to permitting or enforcement
orders under the CAA; and (2) any potential conflicts of interest by
such body be adequately disclosed. On August 26, 1976, EPA approved
into the Georgia SIP administration and enforcement provisions as
prescribed in the Official Code of Georgia Annotated (O.C.G.A.) Section
12-9-1, et seq., as amended, also referred to as the ``Georgia Air
Quality Act.'' Specifically, O.C.G.A. Section 12-9-5 provides the
Powers and duties of Board of Natural Resources as to air quality.
Section 12-9-5(a) states:

    Any hearing officer appointed by the Board of Natural Resources,
and all members of five-member committees of the Board of Natural
Resources, shall, and at least a majority of members of the entire
Board of Natural Resources shall, represent the public interest and
shall not derive any significant portion of their income from
persons subject to permits or enforcement orders under this article.
All potential conflicts of interest shall be adequately disclosed.
    EPA has made the preliminary determination that Georgia has
adequate resources for implementation of the 1997 8-hour ozone
NAAQS.

    6. 110(a)(2)(F) Stationary source monitoring system: Georgia's
infrastructure submission describes how the State establishes
requirements for emissions compliance testing and utilizes emissions
sampling and analysis. It further describes how the State ensures the
quality of its data through observing emissions and monitoring
operations. Georgia EPD uses these data to track progress towards
maintaining the NAAQS, develop control and maintenance strategies,
identify sources and general emission levels, and determine compliance
with emission regulations and additional EPA requirements. These
requirements are provided in Regulation 391-3-1-.02(6), Source
Monitoring.
    Additionally, Georgia is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory System
(EIS). States report emissions data for the six criteria pollutants and
the precursors that form them--nitrogen oxides, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Georgia made its latest update to the NEI on
February 16, 2011. EPA compiles the emissions data, supplementing it
where necessary, and releases it to the general public through the Web
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the
preliminary determination that Georgia's SIP and practices are adequate
for the stationary source monitoring systems related to the 1997 8-hour
ozone NAAQS.
    7. 110(a)(2)(G) Emergency power: Regulation 391-3-1-.04, Air
Pollution Episodes, of the Georgia SIP identifies air pollution
emergency episodes and preplanned abatement strategies. These criteria
have previously been approved by EPA. As discussed above, Georgia
received a finding of failure to submit because its infrastructure
submission was deemed incomplete for element (G) for the 1997 8-hour
ozone NAAQS by March 1, 2008. On September 9, 2008, EPD submitted a
letter to EPA to clarify that Georgia does have authority to implement
emergency powers for the 8-hour ozone standard and confirmed that EPA
had previously approved these provisions in the SIP. The September 9,
2008, letter EPD sent to EPA can be accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0351.
Following this clarification, EPA has made the preliminary
determination that Georgia's SIP and practices are adequate for
emergency powers related to the 1997 8-hour ozone NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: EPD is responsible for
adopting air quality rules and revising SIPs as needed to attain or
maintain the NAAQS in Georgia. EPD has the ability and authority to
respond to calls for SIP revisions, and has provided a number of SIP
revisions over the years for implementation of the NAAQS. Specific to
the 1997 8-hour ozone NAAQS, Georgia has provided a number of
submissions, including the following:

     December 31, 2004, SIP Revision--(EPA approval, 71 FR
50195, August 26, 2005) Chattanooga EAC 8-hour Ozone Attainment
Demonstration;
     December 31, 2004, SIP Revision--(EPA approval, 70 FR
50199, August 26, 2005) Augusta EAC 8-hour Ozone Attainment
Demonstration;
     June 15, 2007, SIP Revision--(EPA approval, 72 FR53432,
September 19, 2007) Macon Co. 8-hr O3 Redesignation;
     June 15, 2007, SIP Revision--(EPA approval, 72 FR
58538, October 16, 2007) Murray Co. 8-hr O3
Redesignation;
     October 21, 2009, SIP Revision--Atlanta 1997 8-hr ozone
Attainment Demonstration; and,
     October 21, 2009, SIP Revision--Substitution of
Transportation Control Measures in Atlanta Ozone and
PM2.5 SIPs.

EPA has made the preliminary determination that Georgia's SIP and
practices adequately demonstrate a commitment to provide future SIP
revisions related to the 1997 8-hour ozone NAAQS when necessary. EPA
notes, however, that Georgia's one remaining 1997 8-hour ozone NAAQS
nonattainment area--the Atlanta, Georgia Area (hereafter referred to as
the ``Atlanta Area'')--is currently attaining 1997 8-hour ozone NAAQS.
In a June 23, 2011 final rulemaking, EPA determined that the Atlanta
Area has attained the 1997 8-hour ozone NAAQS. See 76 FR 36873. That
final action, in accordance with 40 CFR 51.918, suspended the
requirements for the Atlanta Area to submit attainment demonstrations,
associated RACM, RFP plans, contingency measures, and other planning
SIPs related to attainment of the 1997 8-hour ozone NAAQS so long as
the Atlanta Area continues to meet the 1997 8-hour ozone NAAQS.
    9. 110(a)(2)(J) (121 consultation) Consultation with government
officials: Regulation 391-3-1-.03, Permits, as well as Georgia's
Regional Haze Implementation Plan (which allows for consultation
between appropriate state, local, and tribal air pollution control
agencies as well as the corresponding Federal Land Managers), provide
for consultation with government officials

whose jurisdictions might be affected by SIP development activities.
Georgia adopted state-wide consultation procedures for the
implementation of transportation conformity. These consultation
procedures include considerations associated with the development of
mobile inventories for SIPs. Implementation of transportation
conformity as outlined in the consultation procedures requires EPD to
consult with federal, state and local transportation and air quality
agency officials on the development of motor vehicle emissions budgets.
EPA approved Georgia's consultation procedures on April 7, 2000 (See 65
FR 18245). EPA has made the preliminary determination that Georgia's
SIP and practices adequately demonstrate consultation with government
officials related to the 1997 8-hour ozone NAAQS when necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: EPD
has public notice mechanisms in place to notify the public of ozone and
other pollutant forecasting, including an air quality monitoring Web
site providing ground level ozone alerts, http://www.georgiaair.org/smogforecast/. Regulation 391-3-1-.04, Air Pollution Episodes, requires
that EPD notify the public of any air pollution episode or NAAQS
violation. EPA has made the preliminary determination that Georgia's
SIP and practices adequately demonstrate the State's ability to provide
public notification related to the 1997 8-hour ozone NAAQS when
necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: Georgia's
authority to regulate new and modified sources of ozone precursors
volatile organic compounds (VOCs) and NOX to assist in the
protection of air quality in attainment and unclassifiable areas is
provided for in Regulation 391-3-1-.02(7), Prevention of Significant
Deterioration of Air Quality (PSD). On March 5, 2007, EPD submitted
revisions to their Prevention of Significant Deterioration/New Source
Review (PSD/NSR) regulations for EPA approval. In the March 5, 2007,
SIP revision, Georgia included revisions to rules in Regulation 391-3-
1-.02(7), Prevention of Significant Deterioration of Air Quality (PSD),
of Georgia's SIP that address the infrastructure requirements C and J.
    As described above, the March 5, 2007, SIP revision addressed the
Ozone Implementation NSR Update requirements to include NOX
as an ozone precursor for permitting purposes. This involved changes to
major source thresholds for sources in certain classes of nonattainment
areas, changes to offset ratios for marginal, moderate, serious,
severe, and extreme ozone nonattainment areas, provisions addressing
offset requirements for facilities that shut down or curtail operation,
and a requirement stating that NOX emissions are ozone
precursors. In a November 22, 2010, final rulemaking action, EPA
approved Georgia's March 5, 2007, SIP revision. See 75 FR 71018.
    With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS, however, the visibility and regional haze program
requirements under part C do not change. Thus, EPA finds that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because this NAAQS would not affect visibility requirements under part
C. Georgia has submitted SIP revisions for approval to satisfy the
requirements of the CAA Section 169A and 169B, and the regional haze
and best available retrofit technology rules contained in 40 CFR
51.308. These revisions are currently under review and will be acted on
in a separate action. EPA has made the preliminary determination that
Georgia's SIP and practices adequately demonstrate the State's ability
to implement PSD programs and to provide for visibility protection
related to the 1997 8-hour ozone NAAQS when necessary.
    12. 110(a)(2)(K) Air quality and modeling/data: Regulation 391-3-
1-.02(7)(b)(8), Prevention of Significant Deterioration of Air Quality
(PSD)-Air Quality Models, incorporates by reference 40 CFR 52.21(l),
which specifies that air modeling be conducted in accordance with 40
CFR part 51, Appendix W ``Guideline on Air Quality Models.'' These
regulations demonstrate that Georgia has the authority to provide
relevant data for the purpose of predicting the effect on ambient air
quality of the 8-hour ozone NAAQS. Additionally, Georgia supports a
regional effort to coordinate the development of emissions inventories
and conduct regional modeling for several NAAQS, including the 1997 8-
hour ozone NAAQS, for the Southeastern states. Taken as a whole,
Georgia's air quality regulations demonstrate that EPD has the
authority to provide relevant data for the purpose of predicting the
effect on ambient air quality of the 8-hour ozone NAAQS. EPA has made
the preliminary determination that Georgia's SIP and practices
adequately demonstrate the State's ability to provide for air quality
and modeling, along with analysis of the associated data, related to
the 1997 8-hour ozone NAAQS when necessary.
    13. 110(a)(2)(L) Permitting fees: Georgia addresses the review of
construction permits as previously discussed in 110(a)(2)(C).
Permitting fees in Georgia are collected through the State's federally-
approved title V fees program, according to State regulation 391-3-
1-.03(9) Permit Fees. EPA has made the preliminary determination that
Georgia's SIP and practices adequately provide for permitting fees
related to the 1997 8-hour ozone NAAQS when necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local
entities: Regulation 391-3-1-.03(11)(a)(2), Permit by Rule-General
Requirements, requires that EPD notify the public of an application,
preliminary determination, the activity or activities involved in a
permit action, any emissions associated with a permit modification, and
the opportunity for comment prior to making a final permitting
decision. Furthermore, EPD has demonstrated consultation with, and
participation by, affected local entities through its work with local
political subdivisions during the developing of its Transportation
Conformity SIP, Regional Haze Implementation Plan, and Early Action
Compacts. EPA has made the preliminary determination that Georgia's SIP
and practices adequately demonstrate consultation with affected local
entities related to the 1997 8-hour ozone NAAQS when necessary.

V. Proposed Action

    As described above, EPA 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 the 1997 8-hour ozone NAAQS are implemented,
enforced, and maintained in Georgia. EPA is proposing to approve
Georgia's infrastructure submission for the 1997 8-hour ozone NAAQS
because its September 9, 2008 submission is consistent with section 110
of the CAA.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions,

EPA's role is to approve state choices, provided that they meet the
criteria of the CAA. Accordingly, this proposed action merely approves
state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this proposed action:
     Is not a ``significant regulatory action'' 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 proposed 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 located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

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

    Dated: November 21, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-31191 Filed 12-2-11; 8:45 am]
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