81 FR 11438 - Air Plan Disapproval; Georgia: Disapproval of Automatic Rescission Clause
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 43 (March 4, 2016)
Federal Register Volume 81, Issue 43 (March 4, 2016)
| Page Range | 11438-11445 | |
| FR Document | 2016-04746 |
[Federal Register Volume 81, Number 43 (Friday, March 4, 2016)] [Rules and Regulations] [Pages 11438-11445] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-04746] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2010-0816; FRL-9943-35-Region 4] Air Plan Disapproval; Georgia: Disapproval of Automatic Rescission Clause AGENCY: Environmental Protection Agency. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking final action to disapprove a portion of a revision to the Georgia State Implementation Plan (SIP), submitted through the Georgia Department of Natural Resources Environmental Protection Division (Georgia EPD), on January 13, 2011, that would allow for the automatic rescission of federal permitting-related requirements in certain circumstances. EPA is disapproving Georgia's automatic rescission clause because the Agency has determined that this provision is not consistent with the Clean Air Act (CAA or Act) or federal regulations related to SIPs. DATES: This rule will be effective April 4, 2016. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2010-0816. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On September 8, 2011, EPA took final action to approve portions of a requested revision to the Georgia SIP, submitted by Georgia EPD on January 13, 2011. See 76 FR 55572. Specifically, the portions of Georgia's January 13, 2011, SIP submittal that EPA approved incorporated two updates to the State's air quality regulations under Georgia's New Source Review (NSR) Prevention of Significant Deterioration (PSD) program. First, the SIP revision established emission thresholds for determining which new stationary sources and modification projects become subject to Georgia's PSD permitting requirements for their greenhouse gas (GHG) emissions. Second, the SIP revision incorporated provisions for implementing the PSD program for the fine particulate matter (PM2.5 ) national ambient air quality standards (NAAQS). EPA noted in its September 8, 2011 final rule approving portions of Georgia's January 13, 2011, SIP submittal that the Agency was still evaluating the portion of the SIP submittal related to a provision (at 391-3-1-.02(7)(a)(2)(iv)) that would automatically rescind portions of Georgia's SIP in the wake of certain court decisions or other triggering events (the automatic rescission clause), and consequently was not taking action on that provision in that final action. See 76 FR at 55573. Specifically, at 391-3-1-.02(7)(a)(2)(iv), Georgia's rules read as follows: ``The definition and use of the term `subject to regulation' in 40 CFR, [[Page 11439]] part 52.21, as amended June 3, 2010, is hereby incorporated by reference; provided, however, that in the event all or any portion of 40 CFR 52.21 containing that term is: (i) Declared or adjudged to be invalid or unconstitutional or stayed by the United States Court of Appeals for the Eleventh Circuit or for the District of Columbia Circuit; or (ii) withdrawn, repealed, revoked or otherwise rendered of no force and effect by the United States Environmental Protection Agency, Congress, or Presidential Executive Order. [sic] Such action shall render the regulation as incorporated herein, or that portion thereof that may be affected by such action, as invalid, void, stayed, or otherwise without force and effect for purposes of this rule upon the date such action becomes final and effective; provided, further, that such declaration, adjudication, stay, or other action described herein shall not affect the remaining portions, if any, of the regulation as incorporated herein, which shall remain of full force and effect as if such portion so declared or adjudged invalid or unconstitutional or stayed or otherwise invalidated or effected were not originally a part of this rule. The Board declares that it would [not] have incorporated the remaining parts of the federal regulation if it had known that such portion thereof would be declared or adjudged invalid or unconstitutional or stayed or otherwise rendered of no force and effect.'' In a notice of proposed rulemaking (NPR) published on July 31, 2015, EPA proposed to disapprove the portion of Georgia's January 13, 2011, submittal that would add the automatic rescission clause at Georgia Rule 391-3-1-.02(7)(a)(2)(iv) to the SIP. See 80 FR 45635. EPA is now taking final action to disapprove this portion of Georgia's submittal. In assessing the approvability of Georgia's proposed automatic rescission clause, EPA considered two key factors: (1) Whether the public will be given reasonable notice of any change to the SIP that occurs as a result of the automatic rescission clause; and (2) whether any future change to the SIP that occurs as a result of the automatic rescission clause would be consistent with EPA's interpretation of the effect of the triggering action (e.g., the extent of an administrative or judicial stay) on federal permitting requirements at 40 CFR 52.21. These criteria are derived from the SIP revision procedures set forth in the CAA and federal regulations. Regarding public notice, CAA section 110(l) provides that any revision to a SIP submitted by a State to EPA for approval ``shall be adopted by such State after reasonable notice and public hearing.'' See 42 U.S.C. 7410(l). Under Georgia's automatic rescission clause, the SIP would automatically be revised as a result of a triggering action without public notice. To the extent that there is any ambiguity regarding how a court order or other triggering action impacts the federal permitting requirements at 40 CFR 52.21, that ambiguity will lead to ambiguity regarding the extent to which the triggering action results in a SIP revision (and indeed, whether a particular court ruling or other action in fact triggers an automatic SIP revision under Georgia's automatic rescission clause). EPA concludes that Georgia's automatic rescission clause would not provide reasonable public notice of a SIP revision as required by CAA 110(l), 42 U.S.C. 7410(l). EPA's consideration of whether any SIP change resulting from the automatic rescission clause would be consistent with EPA's interpretation of the effect of the triggering action on federal permitting requirements at 40 CFR 52.21 is based on 40 CFR 51.105. Under 40 CFR 51.105, ``[r]evisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.'' However, the Georgia automatic rescission clause takes effect immediately upon certain triggering actions without any EPA intervention. The effect of this is that EPA is not given the opportunity to determine the effect and extent of the triggering court order or federal law change on the federal permitting requirements at 40 CFR 52.21; instead, the SIP is modified without EPA's approval. Comments on the NPR were due on or before August 31, 2015. EPA received adverse comments on our proposed action, specifically on our proposed disapproval of the automatic rescission clause, from Georgia EPD. EPA also received comments from Georgia Industry Environmental Coalition, Inc. (GIEC). After considering the comments, EPA has decided to finalize our action as proposed. A summary of the comments and EPA's responses follow. II. Response to Comments Comment 1: Georgia EPD contends that the public notice, the comment period, and the public hearing held for the rule change that adopted the automatic rescission clause at Georgia Rule 391-3- 1-.02(7)(a)(2)(iv) satisfies CAA section 110(l) requirements. Specifically, Georgia EPD notes that it published public notices in several newspapers announcing an opportunity to comment on the proposed automatic rescission clause, held a public hearing, and addressed all comments received during the public comment period. According to Georgia EPD, Georgia's rescission clause already went through public notice and comment, and there is no reason to require another round of public notice and comment simply because the automatic rescission clause is triggered. GIEC likewise argues that Georgia EPD followed notice-and-comment procedures prior to the adoption of the automatic rescission clause that satisfy the requirements of CAA section 110(l). GIEC adds that the notice-and-comment procedures the Georgia EPD performed are indistinguishable from notice-and-comment procedures taken by the Tennessee Department of Environment and Conservation (TDEC) and the Louisville Metro Air Pollution Control District (LMAPCD) prior to enacting EPA-approved ``automatic rescission'' SIP provisions. GIEC contends that in approving the TDEC and LMAPCD provisions, EPA concluded that these agencies' respective prior notice-and-comment procedures satisfied CAA section 110(l) because they placed the public on notice that the respective SIPs would update automatically to reflect rescission-triggering actions. According to GIEC, because EPA concluded that TDEC and LMAPCD notice-and-comment procedures occurring prior to promulgation of their respective automatic rescission provisions satisfied CAA section 110(l), EPA cannot now conclude that the Georgia provision would not provide reasonable public notice under CAA section 110(l) when Georgia followed indistinguishable notice-and- comment procedures prior to promulgating that provision. GIEC contends that if EPA were to finally conclude in this rulemaking that the provision does not satisfy CAA section 110(l), such a conclusion would be arbitrary, capricious, an abuse of discretion, beyond the Agency's statutory and Constitutional limits, and otherwise contrary to law in light of the Agency's final determinations concerning the TDEC and LMAPCD SIPs. Response 1: EPA disagrees with the Commenters' contention that the public notice and comment procedures associated with Georgia's adoption of the automatic rescission clause are sufficient to fulfill notice- and-comment requirements with respect to any future SIP revision resulting from the rescission clause's operation. While EPA does not dispute that Georgia EPD provided for public comment and a hearing when promulgating the [[Page 11440]] automatic rescission clause at Georgia Rule 391-3-1-.02(7)(a)(2)(iv), that public comment opportunity did not--and could not--satisfy CAA section 110(l)'s public-notice-and-comment requirement with respect to future SIP revisions that would occur in the wake of a triggering action if EPA were to approve the automatic rescission clause into Georgia's SIP. Contrary to the GIEC's suggestion, EPA's approval of the automatic rescission clauses adopted by TDEC and LMAPCD does not render EPA's disapproval of Georgia's automatic rescission clause unlawful or arbitrary and capricious. This is because Georgia's automatic rescission clause differs substantially from the automatic rescission clauses adopted by TDEC and LMAPCD. First, under the automatic rescission clauses adopted by TDEC and LMAPCD, no change to the SIP will occur until EPA publishes a Federal Register notice announcing that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. See 77 FR 12484 (March 1, 2012); 77 FR 62150 (October 12, 2012). As EPA explained in the final actions approving these clauses, because no change to the SIP will occur until EPA has published a Federal Register notice announcing the change in federal regulations, ``the timing and extent of any future SIP change resulting from the automatic rescission clause will be clear to both the regulated community and the general public.'' Id. Second, unlike Georgia's proposed rescission clause, the automatic rescission clauses adopted by TDEC and LMAPCD make it clear to the public in advance that any SIP change resulting from operation of the automatic rescission clause will be consistent with EPA's interpretation of how the triggering action impacted federal regulations. In sharp contrast, the SIP changes resulting from operation of Georgia's proposed automatic rescission clause would happen automatically upon a triggering event without any public notice or EPA involvement. To the extent that there is any ambiguity regarding how a court order or other triggering action impacts the federal permitting requirements at 40 CFR 52.21, that ambiguity would lead to ambiguity regarding the specific revision to Georgia's SIP resulting from the triggering action. Not only does the public have no assurance that changes resulting from operation of the rescission clause would be consistent with EPA's interpretation of the applicable federal regulations, but after a change occurs, the exact change may not be clear to the public.\1\ Furthermore, because ambiguity may exist regarding whether a particular court ruling or other action in fact triggers an automatic SIP revision under Georgia's automatic rescission clause, it may not be clear to the public whether the SIP has changed at all. Due to this ambiguity with respect to how the SIP might be revised under Georgia's proposed automatic rescission clause in the wake of a triggering action, EPA concludes that approval of the automatic rescission clause into Georgia's SIP would authorize future SIP revisions without reasonable public notice in violation of CAA section 110(l). --------------------------------------------------------------------------- \1\ Georgia's proposed automatic rescission clause would invalidate affected regulatory text, but would not actually remove the text from the regulation. Thus, if EPA were to approve Georgia's automatic rescission clause, it would be left up to the public, the regulated community, and ultimately, the courts, to determine whether and how a potential triggering action changed SIP requirements. --------------------------------------------------------------------------- Comment 2: Georgia EPD states that after the D.C. Circuit issued its Amended Judgment in Coalition for Responsible Regulation v. EPA, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132 (D.C. Cir. 2015) (issued in response to the Supreme Court's decision in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014)), EPA removed the affected portions of the federal PSD regulations without providing an opportunity for public comment because EPA deemed the action to be ministerial. See 80 FR 50199 (August 19, 2015). According to Georgia EPD, its rescission clause is no different than the process utilized by EPA in this rule to remove vacated permitting requirements from federal regulations following the Supreme Court's decision. Likewise, GIEC states that EPA's removal of 40 CFR 52.21(b)(49)(v) as a ministerial act performed without notice-and-comment establishes that Georgia's proposed automatic rescission clause, to the extent that it operates to invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v), would not contravene the public notice requirements of CAA section 110(l). Quoting from EPA's Federal Register notice, GIEC points out that EPA characterized its removal of 40 CFR 52.21(b)(49)(v) from the CFR as a ``necessary ministerial act'' for which the Agency determined ``it was not necessary to provide a public hearing or an opportunity for public comment.'' GIEC further notes that EPA stated that ``notice-and-comment would be contrary to the public interest because it would unnecessarily delay the removal from the CFR of the Tailoring Rule Step 2 PSD permitting provisions that the Supreme Court held were invalid.'' Response 2: EPA disagrees with these comments. The April 2015 EPA rule referenced by the Commenter did not revise a SIP submitted by a state for EPA approval. Thus, EPA's rule was not subject to the procedures applicable to the revisions of SIPs. EPA's rule revised section 40 CFR 51.166, which governs the content of state SIP submissions. But the EPA rule did not revise any SIP submitted by a state. CAA section 110(l) requires without exception that ``[e]ach revision'' to a SIP submitted to EPA for approval be adopted by the state ``after reasonable notice and public hearing.'' See 42 U.S.C. 7410(l). Thus, there are no circumstances under which a state can revise its SIP without providing for public notice and comment on the revision. EPA's April 2015 action was not governed by section 110(l) of the CAA. That rule was promulgated under the Administrative Procedures Act (APA). Section 307(d) of the CAA says that the rulemaking procedures in that section ``shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) and (B) of subsection 553(b) of Title 5.'' Subparagraph (B) of this section in the APA provides that an agency need not provide notice of proposed rulemaking or opportunity for public comment when the agency for good cause finds that it is impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b). The APA does not address procedures for state actions to revise a SIP. Such actions are addressed in section 110(l) of the CAA. In addition, although EPA's rule was not subject to public comment under an exception in the APA, EPA's action provided notice to the public of the change in the law. Georgia's rescission clause provides no mechanism for informing the public of a change in state law. Moreover, EPA did not deem all of the regulatory revisions needed to implement the D.C. Circuit's April 10, 2015, Amended Judgment in Coalition for Responsible Regulation v. EPA to be ministerial. To the contrary, EPA explained in the final rule removing certain vacated elements from the federal PSD and title V regulations that the action did not fully address all of the revisions needed to implement the Amended Judgment because ``[t]hose additional revisions to the PSD and title V regulations, although necessary to implement the Coalition Amended Judgment, are not purely ministerial in nature and will be addressed in [a] separate notice-and-comment [[Page 11441]] rulemaking, which will give the public an opportunity to comment on how the EPA proposed to address those portions of the Coalition Amended Judgment.'' See 80 FR 50199, 50200 (August 19, 2015) (emphasis added). It is unclear how these more complex regulatory changes would be handled under Georgia's proposed automatic rescission clause. In any event, even if Georgia had the authority to revise its SIP without providing for public notice and comment--which it does not--EPA's decision to provide public notice but no opportunity for public comment on certain regulatory changes that it considered to be ministerial in no way supports Georgia EPD's claim that it would be appropriate to deem all of the SIP revisions needed to remove vacated GHG permitting elements to be ministerial and to make such changes to Georgia's SIP without any public notice or opportunity for public comment. Finally, Georgia's proposed automatic rescission clause is not limited to GHG permitting requirements. Rather, the clause applies broadly to actions that affect ``all or any portion of 40 CFR 52.21'' that contain the term ``subject to regulation.'' See Georgia Rule 391- 3-1-.02(7)(a)(2)(iv). Thus, arguments regarding the alleged lack of ambiguity with respect to changes needed to address a triggering action pertaining to GHG permitting in particular are insufficient to support EPA's approval of Georgia's automatic rescission clause. Even if a ministerial change generally (or the particular change addressed in EPA's action) could be exempt from the requirements of 110(l), because of the broad reach of Georgia's rescission clause, it is impossible to conclude in advance that every automatic SIP change resulting from a triggering action would be ministerial. Comment 3: Georgia EPD states that the occurrence of a triggering action and the resulting rescission would not be a change to the SIP because the triggering action and rescission clause were already included in Georgia Rule 391-3-1-.02(7)(a)(2)(iv). Thus, according to Georgia EPD, the SIP is not being revised and therefore does not require approval from the Administrator. Response 3: EPA disagrees with this comment. Georgia's proposed automatic rescission clause would automatically invalidate SIP language in response to a triggering action. Such a change would constitute a SIP revision. Comment 4: GIEC states that ``EPA's preliminary conclusion that the [automatic rescission clause] is inconsistent with 40 CFR 51.105 is incorrect because EPA has been and will be afforded adequate opportunity under the CAA and through other proceedings to ensure that any SIP change resulting from the automatic operation of the [rescission clause] is consistent with EPA's interpretation of the effect of the triggering action on the permitting requirements at 40 CFR 52.21.'' GIEC states that although the rescission clause is self- executing, ``Georgia EPD would implement the effect of the provision's operation through permitting decisions that, under the Georgia SIP, are expressly subject to EPA notice, comment, and objection procedures.'' Specifically, GIEC contends that the ``permit notice, comment, and objection procedures running to EPA's benefit provide EPA with ample opportunity to convey its interpretation of (and ultimately object to) the effect of any [rescission clause] triggering action on the permitting requirements at 40 CFR 52.21 if EPA's interpretation of such an action conflicted with that of the Georgia EPD.'' Response 4: EPA disagrees with this comment. The CAA's SIP revision procedures are distinct from the permit notice, comment, and EPA objection procedures. Indeed, section 110(i) of the Act specifically prohibits States and EPA, except in certain limited circumstances not applicable here, from taking any action to modify any requirement of a SIP with respect to any stationary source, except in compliance with the CAA's requirements for promulgation or revision of a state plan. See 42 U.S.C. 7410(i). Thus, contrary to the Commenter's contention, EPA's opportunity to object to a state permit cannot substitute for the state's compliance with the CAA's SIP revision requirements. Because Georgia's rescission clause would automatically revise the SIP in the wake of a triggering action, by the time EPA has the opportunity to review the permit for a particular source, it will be too late for EPA to ``object'' to a prior SIP revision brought about by a triggering action under Georgia's automatic rescission clause. Georgia cannot substitute permit review procedures for the procedural requirements governing SIP revisions at CAA section 110(l) and 40 CFR 51.105. Comment 5: GIEC states that it is ``highly unlikely'' that any action triggering the rescission clause's operation would be subject to interpretation because the provision is triggered by clear and unambiguous occurrences--the withdrawal, repeal, or revocation of all or part of the term ``subject to regulation'' in 40 CFR 52.21 by executive or congressional action or its invalidation or stay by the Eleventh Circuit or D.C. Circuit Courts of Appeal. GIEC further states that the triggering actions do not become operative until any such action is ``final and effective.'' GIEC comments that specifically with respect to GHG permitting requirements at 40 CFR 52.21(b)(49)(v), there was no ambiguity regarding the impact of the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation, which GIEC states would have been the ``triggering action'' if Georgia's automatic rescission clause had been approved by EPA. According to GIEC, EPA had (and took) several opportunities to interpret the effect of the U.S. Supreme Court's decision in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014), on the permitting requirements at 40 CFR 52.21. GIEC points to various memoranda issued by EPA after the Supreme Court's decision. GIEC also notes that as early as July 2014, EPA was on notice that the Georgia EPD construed Utility Air Regulatory Group v. EPA to invalidate 40 CFR 52.21(b)(49)(v) and, accordingly, the SIP provision adopting that regulation was ``no longer valid.'' GIEC states that to its knowledge, EPA did not object to the Georgia EPD's construction of Utility Air Regulatory Group v. EPA or the Division's conclusions regarding the validity of 40 CFR 52.21(b)(49)(v) and the Georgia SIP provision incorporating it. GIEC concludes that in light of the straightforward and unambiguous manner in which Georgia's rescission clause automatically operated as a result of the issuance of the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation and the opportunities EPA had and took to determine the effect of Utility Air Regulatory Group v. EPA on the permitting requirements at 40 CFR 52.21, it is incorrect and appears somewhat disingenuous for EPA to preliminarily conclude that the rescission clause is inconsistent with 40 CFR 51.105. Response 5: EPA disagrees with this comment. Contrary to GIEC's contention, it is not ``highly unlikely'' that any action triggering operation of Georgia's automatic rescission clause would be subject to interpretation. Among other actions, the automatic rescission clause would be triggered by a decision by the U.S. Court of Appeals for the Eleventh Circuit or the District of Columbia Circuit that declares a portion of 40 CFR 52.21 to be ``invalid.'' It is sometimes the case that the precise regulatory changes needed to address a court decision involve more than simply removing the provision at issue. Under such circumstances, the exact changes to SIP requirements brought about by a triggering action under Georgia's [[Page 11442]] automatic rescission clause would be unclear. Rather than support GIEC's argument, the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation v. EPA, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132 (D.C. Cir. 2015) provides a useful example of a triggering action that involves some degree of ambiguity with respect to how it impacts regulatory requirements. The D.C. Circuit ordered, among other things, that ``the regulations under review . . . be vacated to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emissions or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification.'' 2015 U.S. App. LEXIS 11132, at 130-131. The Court further ordered ``that EPA take steps to rescind and/or revise the applicable provisions of the Code of Federal Regulations as expeditiously as practicable to reflect the relief granted,'' and ``that EPA consider whether any further revisions to its regulations are appropriate'' in light of the Supreme Court's decision in Utility Air Regulatory Group v. EPA. Id. at 131. As explained above, EPA subsequently published a final action removing some, but not all, of the regulatory provisions impacted by the D.C. Circuit's Amended Judgment. See 80 FR at 50199. EPA explained in that notice that some of the regulatory changes needed to address the Amended Judgment are not purely ministerial. Id. at 50200. Because those regulatory changes involve the exercise of EPA's discretion to some extent, EPA intends to publish a separate Federal Register notice proposing those changes and soliciting public comment. Id. Thus, contrary to GIEC's argument, it cannot be assumed that Georgia's automatic rescission clause would be triggered only by ``clear and unambiguous occurrences.'' Rather, as illustrated by EPA's efforts to respond to the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation v. EPA, there may be ambiguity with respect to the precise change to the permitting requirements in Georgia's SIP that would result from a triggering action under the automatic rescission clause. Because Georgia's automatic rescission clause would automatically change Georgia's SIP without public notice or EPA approval, any ambiguity regarding the regulatory impact of the triggering action would lead to ambiguity for regulated entities and the general public regarding the applicable SIP permitting requirements. This is especially true because while the automatic rescission clause would render the affected SIP provisions ``invalid,'' the invalid text would not be removed or otherwise identified. Thus, it would not necessarily be clear to the public and regulated entities which SIP requirements remain in effect and which have been rendered invalid. Significantly, Georgia EPD (and Georgia courts) may disagree with EPA regarding the regulatory changes brought about by a triggering action under Georgia's automatic rescission clause. Thus, in the wake of a triggering action, Georgia's SIP may not be consistent with federal regulations. Given the uncertainty regarding what SIP revisions may result from the future operation of Georgia's automatic rescission clause, EPA cannot at this time ``approve'' such future SIP revisions in accordance with 40 CFR 51.105. Comment 6: Georgia EPD comments that the Supreme Court issued its decision in Utility Air Regulatory Group v. EPA on June 23, 2014. Georgia EPD then states: ``Ten months later, EPA still had not made any revisions to the federal PSD or Title V permitting requirements. As a result, on April 10, 2015, the D.C. Circuit Court issued an amended judgment in Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132, which vacated the Tailoring Rule to the extent that it requires sources to obtain PSD or Title V permits solely due to a potential to emit GHGs. This prompted EPA to remove portions of those regulations from the Federal Register that were initially promulgated in 2010.'' According to Georgia EPD: ``Because EPA did not publish the Final Rule in the Federal Register until August 2015, without an immediate rescission clause, facilities would have been required to continue to follow the provisions in the Tailoring Rule for an additional 14 months after the Court vacated the rule. The [Georgia] EPD automatic rescission clause immediately did what it took EPA fourteen (14) months to do.'' Response 6: EPA disagrees with this comment. First, Georgia EPD's comment reflects some misconceptions regarding the aftermath of the Supreme Court's decision in Utility Air Regulatory Group v. EPA. Contrary to Georgia EPD's suggestion, it was not EPA's delay in revising the federal permitting regulations that resulted in the D.C. Circuit issuing its Amended Judgment. Rather, the D.C. Circuit was acting in response to the Supreme Court's remand of the case back to the D.C. Circuit for issuance of an amended judgment and mandate consistent with the Supreme Court's opinion. Consistent with standard judicial practice, following the Supreme Court's remand of the case to the D.C. Circuit, EPA briefed the D.C. Circuit on what the agency considered to be the appropriate relief and waited for the D.C. Circuit to issue its Amended Judgment and mandate before taking action to remove provisions from the federal PSD and title V regulations. Notably, the parties to the litigation had differing views as to how the Supreme Court's decision should impact the federal regulations. The D.C. Circuit issued its Amended Judgment on April 10, 2015, and EPA published a final rule in the Federal Register on August 19, 2015, removing those portions of the federal permitting regulations that the D.C. Circuit specifically identified as vacated. See 80 FR at 50199. However, as discussed above, EPA concluded that some of the regulatory changes needed to address the D.C. Circuit's Amended Judgment are not purely ministerial and therefore, EPA will address these changes in a separate notice-and-comment rulemaking. Id. at 50200. Georgia EPD's comment also reflects some confusion regarding how Georgia's automatic rescission clause operates. Specifically, Georgia EPD apparently believes that the Supreme Court's decision, itself, was the triggering action under the automatic rescission clause. See Georgia EPD Comments at 2-3. Industry commenters, on the other hand, take the position that it was the D.C. Circuit's Amended Judgment that served as the triggering action. See GIEC Comments at 5. This disagreement between Georgia EPD and industry commenters underscores EPA's statement in the NPR that in addition to ambiguity regarding how the SIP might be revised in the future by operation of the automatic rescission clause, there may also be confusion regarding ``whether a court ruling or other action in fact triggers an automatic SIP revision under Georgia's automatic rescission clause.'' See 80 FR at 45637. In contrast, when a SIP revision is made in accordance with statutory and regulatory requirements, there is no ambiguity regarding how and when the SIP is changed. Regarding Georgia EPD's comment that without the automatic rescission clause, ``facilities would have been required to continue to follow the provisions in the Tailoring Rule for an additional 14 months after the [Supreme] Court vacated the rule,'' EPA notes that shortly after the Supreme Court issued its decision, EPA announced that it would no longer [[Page 11443]] apply or enforce federal regulatory provisions or the EPA-approved PSD SIP provisions that require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant: (i) That the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g., 40 CFR 52.21(b)(49)(v)). Memorandum from Janet G. McCabe, Acting Asst. Adm'r, Office of Air & Radiation, to Regional Administrators, Regions 1-10, Next Steps and Preliminary Views on the Application of Clean Air Act Permitting Programs to Greenhouse Gases Following the Supreme Court's Decision in Utility Air Regulatory Group v. EPA (July 24, 2014), at 2 (available at http://www3.epa.gov/nsr/documents/20140724memo.pdf). EPA further announced that it did not intend to continue applying regulations that would require that states include in their SIP a requirement that such sources obtain PSD permits.'' Id. Georgia can exercise this same discretion with respect to enforcement of state GHG permitting requirements affected by the Supreme Court's decision that the State has not yet had the opportunity to revise. EPA appreciates Georgia's desire to enable its SIP to automatically update to reflect actions that invalidate federal regulatory requirements. As Georgia EPD noted in its comments, there are some types of automatic updating provisions that EPA has found to be approvable. Specifically, EPA concluded that the automatic rescission clauses adopted by TDEC and LMAPCD were approvable because under those provisions, no change to the SIP will occur until EPA publishes a Federal Register document announcing that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. See 77 FR at 12485 (TDEC provision); 77 FR at 62153 (LMAPCD provision). Another acceptable approach would be to enable the SIP to automatically update to reflect revisions to 40 CFR 52.21. Comment 7: Georgia EPD states that EPA has itself adopted a similar automatic rescission clause in a note to paragraph (b)(2)(iii)(a) of 40 CFR 52.21, which states: ``By court order on December 24, 2003, the second sentence of this paragraph (b)(2)(iii)(a) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay.'' Response 7: EPA disagrees with this comment. The language in 40 CFR 52.21 cited by Georgia EPD has no substantive effect on the regulations and therefore is not an automatic rescission clause. It was added by EPA to clarify for the public that paragraph (b)(2)(iii)(a) was stayed indefinitely by the D.C. Circuit in State of New York v. EPA, No. 03- 1380 and consolidated cases. As EPA explained in the Federal Register notice promulgating this language, ``this rule is merely a housekeeping measure that reflects the court order. The action does not have any substantive effect.'' 69 FR 40274, 40275. In any event, as discussed above, EPA's procedural obligations derive from the APA, not the CAA. While the APA provides some exceptions from public notice requirements, CAA section 110(l) does not. Comment 8: GIEC states that EPA's August 19, 2015 promulgation of the Final Rule entitled ``Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Certain Vacated Elements,'' 80 FR 501999, compels the Agency to take final action to approve Georgia's rescission clause to the extent that it operates to invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v) and to effectively remove the paragraph from the Georgia SIP. According to GIEC, the automatic operation of the rescission clause to invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v) is functionally identical to, and cannot be distinguished from, the ministerial action EPA performed in its August 19, 2015 Final Rule. Accordingly, GIEC contends that EPA's August 19, 2015 Final Rule rendered moot any grounds on which EPA could rely to disapprove Georgia's automatic rescission clause to the extent it operates to invalidate Georgia's incorporation of now-vacated and removed 40 CFR 52.21(b)(49)(v). GIEC further claims that EPA's final rule removing 40 CFR 52.21(b)(49)(v) establishes that the rescission clause's invalidation of Georgia's incorporation of 40 CFR 52.21(b)(49)(v) would not contravene 40 CFR 51.105 because such invalidation is consistent with EPA's interpretation of the triggering action on federal permitting requirements at 40 CFR 52.21. Response 8: EPA disagrees with this comment. It is not possible for EPA to approve Georgia's automatic rescission clause only for the limited purpose of enabling the automatic rescission of Georgia's incorporation by reference of 40 CFR 52.21(b)(49)(v). The plain language of the rescission clause extends well beyond the GHG permitting requirements to encompass ``all of any portion of 40 CFR 52.21'' that contains the term ``subject to regulation'' that is impacted by a triggering action. See Georgia Rule 391-3- 1-.02(7)(a)(2)(iv). As explained above, EPA concludes that it cannot approve this language into Georgia's SIP because it would allow for future automatic SIP revisions without reasonable public notice as required by CAA 110(l) and without EPA approval as required by 40 CFR 51.105. Comment 9: GIEC states that EPA's approval of the rescission clause to the extent that it operates to invalidate 40 CFR 52.21(b)(49)(v) would avoid unnecessary delay in removal of this provision from the Georgia SIP, and that such delay could likely result in confusion on the part of the regulated industry about how the D.C. Circuit's Amended Judgment affects the PSD and Title V regulations and PSD permitting requirements administered by the Georgia EPD. Response 9: With respect to GIEC's concern that any delay in removing Georgia's incorporation of 40 CFR 52.21(b)(49)(v) into its SIP could likely result in confusion on the part of the regulated industry regarding applicable PSD permitting requirements, as acknowledged by the commenter, EPA has issued several memoranda explaining how EPA interprets the effect of the U.S. Supreme Court's decision on PSD permitting requirements, and these memoranda are available on EPA's Web site. Further information regarding EPA's interpretation of the impact of the Court's decision appears in the August 19, 2015, Federal Register notice removing certain vacated provisions from the CFR. See 80 FR at 50199. Finally, as discussed above, EPA has announced that it will no longer apply or enforce federal regulatory provisions or the EPA-approved PSD SIP provisions that require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g., 40 CFR 52.21(b)(49)(v)). Georgia can exercise this same discretion with respect to enforcement of state GHG permitting requirements affected by the Supreme Court's decision (and the D.C. Circuit's subsequent Amended Judgment) that the State has not yet had the opportunity to revise. Regarding GIEC's concerns with respect to the Title V operating permit regulations, EPA notes that today's final action does not impact Georgia's approved Title V program because a state's title V regulations are not incorporated into the SIP and are not subject to SIP revision procedures. [[Page 11444]] Comment 10: Georgia EPD states that ``if the federal GHG rule (or part of the federal rule) is vacated and considered invalid or stayed by the Courts, it should be immediately removed from the Georgia SIP. The state rulemaking process can be time consuming and may not be capable of responding to judicial, executive (including EPA), or congressional action in time to allow the permitting process to remain consistent with federal requirements. Therefore, Georgia EPD created the rescission clause to ensure that Georgia's PSD rule will be consistent with federal requirements at all times.'' Response 10: EPA appreciates Georgia's desire to ensure that the permitting requirements in its SIP remain consistent with federal requirements. However, Georgia's proposed automatic rescission clause would create the possibility that Georgia's SIP would be inconsistent with federal requirements in the wake of a triggering action. Specifically, Georgia's proposed rescission clause would revise Georgia's SIP automatically following a triggering action, without waiting for EPA's public notice explaining how exactly the triggering action impacts federal requirements. Georgia EPD (and Georgia courts) may disagree with EPA regarding the regulatory changes brought about by a triggering action under Georgia's automatic rescission clause, resulting in confusion for regulated entities and the general public. This possibility of inconsistency between the Georgia SIP and federal regulatory requirements, and the lack of public notice regarding such inconsistency, makes Georgia's proposed automatic SIP revision different from other automatic updating mechanisms that EPA has found to be approvable. For example, as Georgia EPD noted in its comments, EPA concluded that the automatic rescission clauses adopted by TDEC and LMAPCD were approvable because under those provisions, no change to the SIP will occur until EPA publishes a Federal Register notice announcing that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. See 77 FR at 12485; 77 FR at 62153. Another acceptable approach would be to enable the SIP to automatically update to reflect to the most recent version of 40 CFR 52.21, which is the approach that EPA takes with respect to Federal Implementation Plans (FIPs) that apply 40 CFR 52.21 in states that have not adopted PSD permitting requirements into their SIP. Under these alternative approaches, regulated entities and the public can be certain that any changes to the SIP resulting from automatic updating will simply reflect express changes to the federal requirements in 40 CFR 52.21, and that there will be no inconsistency between the SIP and federal permitting regulations. Comment 11: Georgia EPD notes that EPA stated in its proposed action that disapproval of Georgia's proposed automatic rescission clause ``does not impose additional requirements beyond those imposed by state law'' and ``is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).'' However, Georgia EPD believes that requiring PSD permitting requirements for facilities that a court has vacated and considered invalid or stayed does impose additional requirements beyond those imposed by state law and does have a significant economic impact on a substantial number of small entities. Response 11: EPA disagrees with this comment. EPA's disapproval of Georgia's automatic rescission clause does not itself impose any additional requirement on any regulated entity beyond those requirements imposed by state law. In particular, the rescission clause is merely a procedural mechanism by which requirements that EPA previously approved into Georgia's SIP at Georgia's request would be automatically invalidated in the wake of a triggering action. As discussed above, EPA has determined that it cannot approve this procedural mechanism because it contravenes CAA and regulatory requirements governing SIP revisions. This action does not impair Georgia's existing ability to request a SIP revision in accordance with the procedures set forth in the CAA and federal regulations. Because EPA's disapproval of Georgia's automatic rescission clause does not impose any additional requirement on any regulated entity, this final action will not have a significant economic impact on a substantial number of small entities. Accordingly, EPA concludes pursuant to section 605 of the Regulatory Flexibility Act, 5 U.S.C. 605, that a regulatory flexibility analysis is unnecessary. III. Final Action EPA is taking final action to disapprove the provision in Georgia's January 13, 2011, SIP submittal (at Georgia Rule 391-3- 1-.02(7)(a)(2)(iv)) that would automatically rescind permitting-related federal requirements in certain circumstances. Previously, EPA approved the remainder of Georgia's January 13, 2011, SIP revision, which related to PSD requirements for GHG-emitting sources and for the PM2.5 NAAQS. See 76 FR 55572 (September, 8, 2011). This action does not change what EPA previously approved. EPA notes that this disapproval action does not obligate Georgia in any way to make a new SIP submittal and does not create any potential for sanctions because this provision is not a required element of the SIP. IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action disapproves a state law as not meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using [[Page 11445]] practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 3, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Dated: February 23, 2016. Heather McTeer Toney, Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 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. Amend Sec. 52.572 by designating the existing undesignated paragraph as paragraph (a) and adding paragraph (b) to read as follows: Sec. 52.572 Approval status. * * * * * (b) Disapproval. Submittal from the State of Georgia, through the Georgia's Department of Natural Resources Environmental Protection Division (EPD) on January 13, 2011, that would allow for the automatic rescission of federal permitting-related requirements in certain circumstances. EPA is disapproving a portion of the SIP submittal related to a provision (at 391-3-1-.02(7)(a)(2)(iv)) that would automatically rescind portions of Georgia's State Implementation Plan in the wake of certain court decisions or other triggering events (the automatic rescission clause). [FR Doc. 2016-04746 Filed 3-3-16; 8:45 am] BILLING CODE 6560-50-P
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ACTION: Notice of enforcement of also provide notice through other www.regulations.gov or in hard copy at
regulation. means, which may include the Air Regulatory Management Section,
Broadcast Notice to Mariners, Local Air Planning and Implementation
SUMMARY: The Coast Guard will enforce Notice to Mariners, local news media, Branch, Air, Pesticides and Toxics
a segment of the Safety Zone; Brandon distribution in leaflet form, and on- Management Division, U.S.
Road Lock and Dam to Lake Michigan scene oral notice. Additionally, the Environmental Protection Agency,
including Des Plaines River, Chicago Captain of the Port Lake Michigan may Region 4, 61 Forsyth Street SW.,
Sanitary and Ship Canal, Chicago River, notify representatives from the maritime Atlanta, Georgia 30303–8960. EPA
Calumet-Saganashkee Channel on all industry through telephonic and email requests that if at all possible, you
waters of the Chicago Sanitary and Ship notifications. contact the person listed in the FOR
Canal between Mile Marker 296.1 to FURTHER INFORMATION CONTACT section to
Dated: February 24, 2016.
Mile Marker 296.7 at specified times schedule your inspection. The Regional
from March 3, 2016 to March 11, 2016. A. B. Cocanour,
Captain, U.S. Coast Guard, Captain of the
Office’s official hours of business are
This action is necessary to protect the Monday through Friday 8:30 a.m. to
waterway, waterway users, and vessels Port Lake Michigan.
[FR Doc. 2016–04826 Filed 3–3–16; 8:45 am]
4:30 p.m., excluding Federal holidays.
from the hazards associated with the
FOR FURTHER INFORMATION CONTACT:
U.S. Army Corps of Engineer’s BILLING CODE 9110–04–P
Sean Lakeman, Air Regulatory
underwater inspections of the electric
Management Section, Air Planning and
dispersal system for invasive species.
Implementation Branch, Air, Pesticides
DATES: The regulations in 33 Code of ENVIRONMENTAL PROTECTION
and Toxics Management Division, U.S.
Federal Regulations (CFR) 165.930 will AGENCY
Environmental Protection Agency,
be enforced from March 3, 2016 from 7 Region 4, 61 Forsyth Street SW.,
a.m. until 11 a.m. and then from 1 p.m. 40 CFR Part 52
Atlanta, Georgia 30303–8960. Mr.
until 5 p.m. In the event the work [EPA–R04–OAR–2010–0816; FRL–9943–35– Lakeman can be reached by telephone at
cannot be completed on March 3, 2016, Region 4] (404) 562–9043 or via electronic mail at
the safety zone will be enforced on lakeman.sean@epa.gov.
March 4, 2016 through March 11, 2016 Air Plan Disapproval; Georgia:
Disapproval of Automatic Rescission SUPPLEMENTARY INFORMATION:
from 7 a.m. until 11 a.m. and from 1
p.m. until 5 p.m. Clause I. Background
FOR FURTHER INFORMATION CONTACT: If AGENCY: Environmental Protection On September 8, 2011, EPA took final
you have questions about this notice of Agency. action to approve portions of a
enforcement, call or email LT Lindsay ACTION: Final rule. requested revision to the Georgia SIP,
Cook, Waterways Management Division, submitted by Georgia EPD on January
Marine Safety Unit Chicago, U.S. Coast SUMMARY: The Environmental Protection 13, 2011. See 76 FR 55572. Specifically,
Guard; telephone 630–986–2155, email Agency (EPA) is taking final action to the portions of Georgia’s January 13,
address D09-DG-MSUChicago- disapprove a portion of a revision to the 2011, SIP submittal that EPA approved
Waterways@uscg.mil. Georgia State Implementation Plan incorporated two updates to the State’s
SUPPLEMENTARY INFORMATION: The Coast (SIP), submitted through the Georgia air quality regulations under Georgia’s
Guard will enforce a segment of the Department of Natural Resources New Source Review (NSR) Prevention of
Safety Zone; Brandon Road Lock and Environmental Protection Division Significant Deterioration (PSD) program.
Dam to Lake Michigan including Des (Georgia EPD), on January 13, 2011, that First, the SIP revision established
Plaines River, Chicago Sanitary and would allow for the automatic emission thresholds for determining
Ship Canal, Chicago River, Calumet- rescission of federal permitting-related which new stationary sources and
Saganashkee Channel, Chicago, IL, requirements in certain circumstances. modification projects become subject to
listed in 33 CFR 165.930. Specifically, EPA is disapproving Georgia’s Georgia’s PSD permitting requirements
the Coast Guard will enforce this safety automatic rescission clause because the for their greenhouse gas (GHG)
zone on all waters of the Chicago Agency has determined that this emissions. Second, the SIP revision
Sanitary and Ship Canal between Mile provision is not consistent with the incorporated provisions for
Marker 296.1 to Mile Marker 296.7. Clean Air Act (CAA or Act) or federal implementing the PSD program for the
Enforcement will occur on March 3, regulations related to SIPs. fine particulate matter (PM2.5) national
2016 from 7 a.m. until 11 a.m. and from DATES: This rule will be effective April ambient air quality standards (NAAQS).
1 p.m. until 5 p.m. In the event the work 4, 2016. EPA noted in its September 8, 2011 final
cannot be completed on March 3, 2016 ADDRESSES: EPA has established a rule approving portions of Georgia’s
due to inclement weather or unforeseen docket for this action under Docket January 13, 2011, SIP submittal that the
circumstances this safety zone will be Identification No. EPA–R04–OAR– Agency was still evaluating the portion
enforced on March 4, 2016 through 2010–0816. All documents in the docket of the SIP submittal related to a
March 11, 2016 from 7 a.m. until 11 are listed on the www.regulations.gov provision (at 391–3–1–.02(7)(a)(2)(iv))
a.m. and from 1 p.m. until 5 p.m. During Web site. Although listed in the index, that would automatically rescind
the enforcement period, no vessel may some information is not publicly portions of Georgia’s SIP in the wake of
transit this regulated area without available, i.e., Confidential Business certain court decisions or other
approval from the Captain of the Port Information or other information whose triggering events (the automatic
jstallworth on DSK7TPTVN1PROD with RULES
Sector Lake Michigan (COTP) or a COTP disclosure is restricted by statute. rescission clause), and consequently
designated representative. Certain other material, such as was not taking action on that provision
This notice of enforcement is issued copyrighted material, is not placed on in that final action. See 76 FR at 55573.
under the authority of 33 CFR 165.930 the Internet and will be publicly Specifically, at 391–3–1–
and 5 U.S.C. 552(a). In addition to this available only in hard copy form. .02(7)(a)(2)(iv), Georgia’s rules read as
publication in the Federal Register, the Publicly available docket materials are follows: ‘‘The definition and use of the
Captain of the Port Lake Michigan will available either electronically through term ‘subject to regulation’ in 40 CFR,
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![Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 11439
part 52.21, as amended June 3, 2010, is approval ‘‘shall be adopted by such to comment on the proposed automatic
hereby incorporated by reference; State after reasonable notice and public rescission clause, held a public hearing,
provided, however, that in the event all hearing.’’ See 42 U.S.C. 7410(l). Under and addressed all comments received
or any portion of 40 CFR 52.21 Georgia’s automatic rescission clause, during the public comment period.
containing that term is: (i) Declared or the SIP would automatically be revised According to Georgia EPD, Georgia’s
adjudged to be invalid or as a result of a triggering action without rescission clause already went through
unconstitutional or stayed by the United public notice. To the extent that there is public notice and comment, and there is
States Court of Appeals for the Eleventh any ambiguity regarding how a court no reason to require another round of
Circuit or for the District of Columbia order or other triggering action impacts public notice and comment simply
Circuit; or (ii) withdrawn, repealed, the federal permitting requirements at because the automatic rescission clause
revoked or otherwise rendered of no 40 CFR 52.21, that ambiguity will lead is triggered.
force and effect by the United States to ambiguity regarding the extent to GIEC likewise argues that Georgia
Environmental Protection Agency, which the triggering action results in a EPD followed notice-and-comment
Congress, or Presidential Executive SIP revision (and indeed, whether a procedures prior to the adoption of the
Order. [sic] Such action shall render the particular court ruling or other action in automatic rescission clause that satisfy
regulation as incorporated herein, or fact triggers an automatic SIP revision the requirements of CAA section 110(l).
that portion thereof that may be affected under Georgia’s automatic rescission GIEC adds that the notice-and-comment
by such action, as invalid, void, stayed, clause). EPA concludes that Georgia’s procedures the Georgia EPD performed
or otherwise without force and effect for automatic rescission clause would not are indistinguishable from notice-and-
purposes of this rule upon the date such provide reasonable public notice of a comment procedures taken by the
action becomes final and effective; SIP revision as required by CAA 110(l), Tennessee Department of Environment
provided, further, that such declaration, 42 U.S.C. 7410(l). and Conservation (TDEC) and the
adjudication, stay, or other action EPA’s consideration of whether any Louisville Metro Air Pollution Control
described herein shall not affect the SIP change resulting from the automatic District (LMAPCD) prior to enacting
remaining portions, if any, of the rescission clause would be consistent EPA-approved ‘‘automatic rescission’’
regulation as incorporated herein, with EPA’s interpretation of the effect of SIP provisions. GIEC contends that in
which shall remain of full force and the triggering action on federal approving the TDEC and LMAPCD
effect as if such portion so declared or permitting requirements at 40 CFR 52.21 provisions, EPA concluded that these
adjudged invalid or unconstitutional or is based on 40 CFR 51.105. Under 40 agencies’ respective prior notice-and-
stayed or otherwise invalidated or CFR 51.105, ‘‘[r]evisions of a plan, or comment procedures satisfied CAA
effected were not originally a part of this any portion thereof, will not be section 110(l) because they placed the
rule. The Board declares that it would considered part of an applicable plan public on notice that the respective SIPs
[not] have incorporated the remaining until such revisions have been approved would update automatically to reflect
parts of the federal regulation if it had by the Administrator in accordance with rescission-triggering actions. According
known that such portion thereof would this part.’’ However, the Georgia to GIEC, because EPA concluded that
be declared or adjudged invalid or automatic rescission clause takes effect TDEC and LMAPCD notice-and-
unconstitutional or stayed or otherwise immediately upon certain triggering comment procedures occurring prior to
rendered of no force and effect.’’ actions without any EPA intervention. promulgation of their respective
In a notice of proposed rulemaking The effect of this is that EPA is not automatic rescission provisions satisfied
(NPR) published on July 31, 2015, EPA given the opportunity to determine the CAA section 110(l), EPA cannot now
proposed to disapprove the portion of effect and extent of the triggering court conclude that the Georgia provision
Georgia’s January 13, 2011, submittal order or federal law change on the would not provide reasonable public
that would add the automatic rescission federal permitting requirements at 40 notice under CAA section 110(l) when
clause at Georgia Rule 391–3–1– CFR 52.21; instead, the SIP is modified Georgia followed indistinguishable
.02(7)(a)(2)(iv) to the SIP. See 80 FR without EPA’s approval. notice-and-comment procedures prior to
45635. EPA is now taking final action to Comments on the NPR were due on or promulgating that provision. GIEC
disapprove this portion of Georgia’s before August 31, 2015. EPA received contends that if EPA were to finally
submittal. adverse comments on our proposed conclude in this rulemaking that the
In assessing the approvability of action, specifically on our proposed provision does not satisfy CAA section
Georgia’s proposed automatic rescission disapproval of the automatic rescission 110(l), such a conclusion would be
clause, EPA considered two key factors: clause, from Georgia EPD. EPA also arbitrary, capricious, an abuse of
(1) Whether the public will be given received comments from Georgia discretion, beyond the Agency’s
reasonable notice of any change to the Industry Environmental Coalition, Inc. statutory and Constitutional limits, and
SIP that occurs as a result of the (GIEC). After considering the comments, otherwise contrary to law in light of the
automatic rescission clause; and (2) EPA has decided to finalize our action Agency’s final determinations
whether any future change to the SIP as proposed. A summary of the concerning the TDEC and LMAPCD
that occurs as a result of the automatic comments and EPA’s responses follow. SIPs.
rescission clause would be consistent Response 1: EPA disagrees with the
with EPA’s interpretation of the effect of II. Response to Comments Commenters’ contention that the public
the triggering action (e.g., the extent of Comment 1: Georgia EPD contends notice and comment procedures
an administrative or judicial stay) on that the public notice, the comment associated with Georgia’s adoption of
federal permitting requirements at 40 period, and the public hearing held for the automatic rescission clause are
jstallworth on DSK7TPTVN1PROD with RULES
CFR 52.21. These criteria are derived the rule change that adopted the sufficient to fulfill notice-and-comment
from the SIP revision procedures set automatic rescission clause at Georgia requirements with respect to any future
forth in the CAA and federal Rule 391–3–1–.02(7)(a)(2)(iv) satisfies SIP revision resulting from the
regulations. CAA section 110(l) requirements. rescission clause’s operation. While
Regarding public notice, CAA section Specifically, Georgia EPD notes that it EPA does not dispute that Georgia EPD
110(l) provides that any revision to a published public notices in several provided for public comment and a
SIP submitted by a State to EPA for newspapers announcing an opportunity hearing when promulgating the
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automatic rescission clause at Georgia not be clear to the public.1 Furthermore, 2 PSD permitting provisions that the
Rule 391–3–1–.02(7)(a)(2)(iv), that because ambiguity may exist regarding Supreme Court held were invalid.’’
public comment opportunity did not— whether a particular court ruling or Response 2: EPA disagrees with these
and could not—satisfy CAA section other action in fact triggers an automatic comments. The April 2015 EPA rule
110(l)’s public-notice-and-comment SIP revision under Georgia’s automatic referenced by the Commenter did not
requirement with respect to future SIP rescission clause, it may not be clear to revise a SIP submitted by a state for EPA
revisions that would occur in the wake the public whether the SIP has changed approval. Thus, EPA’s rule was not
of a triggering action if EPA were to at all. Due to this ambiguity with respect subject to the procedures applicable to
approve the automatic rescission clause to how the SIP might be revised under the revisions of SIPs. EPA’s rule revised
into Georgia’s SIP. Georgia’s proposed automatic rescission section 40 CFR 51.166, which governs
Contrary to the GIEC’s suggestion, clause in the wake of a triggering action, the content of state SIP submissions. But
EPA’s approval of the automatic EPA concludes that approval of the the EPA rule did not revise any SIP
rescission clauses adopted by TDEC and automatic rescission clause into submitted by a state.
LMAPCD does not render EPA’s Georgia’s SIP would authorize future CAA section 110(l) requires without
disapproval of Georgia’s automatic SIP revisions without reasonable public exception that ‘‘[e]ach revision’’ to a SIP
rescission clause unlawful or arbitrary notice in violation of CAA section submitted to EPA for approval be
and capricious. This is because 110(l). adopted by the state ‘‘after reasonable
Georgia’s automatic rescission clause notice and public hearing.’’ See 42
Comment 2: Georgia EPD states that U.S.C. 7410(l). Thus, there are no
differs substantially from the automatic after the D.C. Circuit issued its
rescission clauses adopted by TDEC and circumstances under which a state can
Amended Judgment in Coalition for revise its SIP without providing for
LMAPCD. First, under the automatic Responsible Regulation v. EPA, 606 Fed.
rescission clauses adopted by TDEC and public notice and comment on the
Appx. 6; 2015 U.S. App. LEXIS 11132 revision.
LMAPCD, no change to the SIP will (D.C. Cir. 2015) (issued in response to
occur until EPA publishes a Federal EPA’s April 2015 action was not
the Supreme Court’s decision in Utility governed by section 110(l) of the CAA.
Register notice announcing that a Air Regulatory Group v. EPA, 134 S. Ct. That rule was promulgated under the
portion of 40 CFR 52.21 has been 2427 (2014)), EPA removed the affected Administrative Procedures Act (APA).
stayed, vacated, or withdrawn. See 77 portions of the federal PSD regulations Section 307(d) of the CAA says that the
FR 12484 (March 1, 2012); 77 FR 62150 without providing an opportunity for rulemaking procedures in that section
(October 12, 2012). As EPA explained in public comment because EPA deemed ‘‘shall not apply in the case of any rule
the final actions approving these the action to be ministerial. See 80 FR or circumstance referred to in
clauses, because no change to the SIP 50199 (August 19, 2015). According to subparagraphs (A) and (B) of subsection
will occur until EPA has published a Georgia EPD, its rescission clause is no 553(b) of Title 5.’’ Subparagraph (B) of
Federal Register notice announcing the different than the process utilized by this section in the APA provides that an
change in federal regulations, ‘‘the EPA in this rule to remove vacated agency need not provide notice of
timing and extent of any future SIP permitting requirements from federal proposed rulemaking or opportunity for
change resulting from the automatic regulations following the Supreme public comment when the agency for
rescission clause will be clear to both Court’s decision. good cause finds that it is impracticable,
the regulated community and the unnecessary, or contrary to the public
Likewise, GIEC states that EPA’s
general public.’’ Id. Second, unlike interest. See 5 U.S.C. 553(b). The APA
removal of 40 CFR 52.21(b)(49)(v) as a
Georgia’s proposed rescission clause, does not address procedures for state
ministerial act performed without
the automatic rescission clauses actions to revise a SIP. Such actions are
notice-and-comment establishes that
adopted by TDEC and LMAPCD make it addressed in section 110(l) of the CAA.
Georgia’s proposed automatic rescission
clear to the public in advance that any In addition, although EPA’s rule was
clause, to the extent that it operates to
SIP change resulting from operation of not subject to public comment under an
invalidate Georgia’s incorporation of 40
the automatic rescission clause will be exception in the APA, EPA’s action
CFR 52.21(b)(49)(v), would not
consistent with EPA’s interpretation of provided notice to the public of the
contravene the public notice
how the triggering action impacted change in the law. Georgia’s rescission
requirements of CAA section 110(l).
federal regulations. clause provides no mechanism for
Quoting from EPA’s Federal Register
In sharp contrast, the SIP changes informing the public of a change in state
notice, GIEC points out that EPA
resulting from operation of Georgia’s law.
characterized its removal of 40 CFR
proposed automatic rescission clause Moreover, EPA did not deem all of the
52.21(b)(49)(v) from the CFR as a
would happen automatically upon a regulatory revisions needed to
‘‘necessary ministerial act’’ for which
triggering event without any public implement the D.C. Circuit’s April 10,
the Agency determined ‘‘it was not
notice or EPA involvement. To the 2015, Amended Judgment in Coalition
necessary to provide a public hearing or
extent that there is any ambiguity for Responsible Regulation v. EPA to be
an opportunity for public comment.’’
regarding how a court order or other ministerial. To the contrary, EPA
GIEC further notes that EPA stated that
triggering action impacts the federal explained in the final rule removing
‘‘notice-and-comment would be
permitting requirements at 40 CFR certain vacated elements from the
contrary to the public interest because it
52.21, that ambiguity would lead to federal PSD and title V regulations that
would unnecessarily delay the removal
ambiguity regarding the specific the action did not fully address all of
from the CFR of the Tailoring Rule Step
revision to Georgia’s SIP resulting from the revisions needed to implement the
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the triggering action. Not only does the 1 Georgia’s proposed automatic rescission clause Amended Judgment because ‘‘[t]hose
public have no assurance that changes would invalidate affected regulatory text, but would additional revisions to the PSD and title
resulting from operation of the not actually remove the text from the regulation. V regulations, although necessary to
rescission clause would be consistent Thus, if EPA were to approve Georgia’s automatic implement the Coalition Amended
with EPA’s interpretation of the rescission clause, it would be left up to the public,
the regulated community, and ultimately, the
Judgment, are not purely ministerial in
applicable federal regulations, but after courts, to determine whether and how a potential nature and will be addressed in [a]
a change occurs, the exact change may triggering action changed SIP requirements. separate notice-and-comment
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rulemaking, which will give the public the CAA and through other proceedings actions do not become operative until
an opportunity to comment on how the to ensure that any SIP change resulting any such action is ‘‘final and effective.’’
EPA proposed to address those portions from the automatic operation of the GIEC comments that specifically with
of the Coalition Amended Judgment.’’ [rescission clause] is consistent with respect to GHG permitting requirements
See 80 FR 50199, 50200 (August 19, EPA’s interpretation of the effect of the at 40 CFR 52.21(b)(49)(v), there was no
2015) (emphasis added). It is unclear triggering action on the permitting ambiguity regarding the impact of the
how these more complex regulatory requirements at 40 CFR 52.21.’’ GIEC D.C. Circuit’s Amended Judgment in
changes would be handled under states that although the rescission clause Coalition for Responsible Regulation,
Georgia’s proposed automatic rescission is self-executing, ‘‘Georgia EPD would which GIEC states would have been the
clause. In any event, even if Georgia had implement the effect of the provision’s ‘‘triggering action’’ if Georgia’s
the authority to revise its SIP without operation through permitting decisions automatic rescission clause had been
providing for public notice and that, under the Georgia SIP, are approved by EPA.
comment—which it does not—EPA’s expressly subject to EPA notice, According to GIEC, EPA had (and
decision to provide public notice but no comment, and objection procedures.’’ took) several opportunities to interpret
opportunity for public comment on Specifically, GIEC contends that the the effect of the U.S. Supreme Court’s
certain regulatory changes that it ‘‘permit notice, comment, and objection decision in Utility Air Regulatory Group
considered to be ministerial in no way procedures running to EPA’s benefit v. EPA, 134 S. Ct. 2427 (2014), on the
supports Georgia EPD’s claim that it provide EPA with ample opportunity to permitting requirements at 40 CFR
would be appropriate to deem all of the convey its interpretation of (and 52.21. GIEC points to various
SIP revisions needed to remove vacated ultimately object to) the effect of any memoranda issued by EPA after the
GHG permitting elements to be [rescission clause] triggering action on Supreme Court’s decision. GIEC also
ministerial and to make such changes to the permitting requirements at 40 CFR notes that as early as July 2014, EPA
Georgia’s SIP without any public notice 52.21 if EPA’s interpretation of such an was on notice that the Georgia EPD
or opportunity for public comment. action conflicted with that of the construed Utility Air Regulatory Group
Finally, Georgia’s proposed automatic Georgia EPD.’’ v. EPA to invalidate 40 CFR
rescission clause is not limited to GHG Response 4: EPA disagrees with this 52.21(b)(49)(v) and, accordingly, the SIP
permitting requirements. Rather, the comment. The CAA’s SIP revision provision adopting that regulation was
clause applies broadly to actions that procedures are distinct from the permit ‘‘no longer valid.’’ GIEC states that to its
affect ‘‘all or any portion of 40 CFR notice, comment, and EPA objection knowledge, EPA did not object to the
52.21’’ that contain the term ‘‘subject to procedures. Indeed, section 110(i) of the Georgia EPD’s construction of Utility Air
regulation.’’ See Georgia Rule 391–3–1– Act specifically prohibits States and Regulatory Group v. EPA or the
.02(7)(a)(2)(iv). Thus, arguments EPA, except in certain limited Division’s conclusions regarding the
regarding the alleged lack of ambiguity circumstances not applicable here, from validity of 40 CFR 52.21(b)(49)(v) and
with respect to changes needed to taking any action to modify any the Georgia SIP provision incorporating
address a triggering action pertaining to requirement of a SIP with respect to any it. GIEC concludes that in light of the
GHG permitting in particular are stationary source, except in compliance straightforward and unambiguous
insufficient to support EPA’s approval with the CAA’s requirements for manner in which Georgia’s rescission
of Georgia’s automatic rescission clause. promulgation or revision of a state plan. clause automatically operated as a result
Even if a ministerial change generally See 42 U.S.C. 7410(i). Thus, contrary to of the issuance of the D.C. Circuit’s
(or the particular change addressed in the Commenter’s contention, EPA’s Amended Judgment in Coalition for
EPA’s action) could be exempt from the opportunity to object to a state permit Responsible Regulation and the
requirements of 110(l), because of the cannot substitute for the state’s opportunities EPA had and took to
broad reach of Georgia’s rescission compliance with the CAA’s SIP revision determine the effect of Utility Air
clause, it is impossible to conclude in requirements. Because Georgia’s Regulatory Group v. EPA on the
advance that every automatic SIP rescission clause would automatically permitting requirements at 40 CFR
change resulting from a triggering action revise the SIP in the wake of a triggering 52.21, it is incorrect and appears
would be ministerial. action, by the time EPA has the somewhat disingenuous for EPA to
Comment 3: Georgia EPD states that opportunity to review the permit for a preliminarily conclude that the
the occurrence of a triggering action and particular source, it will be too late for rescission clause is inconsistent with 40
the resulting rescission would not be a EPA to ‘‘object’’ to a prior SIP revision CFR 51.105.
change to the SIP because the triggering brought about by a triggering action Response 5: EPA disagrees with this
action and rescission clause were under Georgia’s automatic rescission comment. Contrary to GIEC’s
already included in Georgia Rule 391– clause. Georgia cannot substitute permit contention, it is not ‘‘highly unlikely’’
3–1–.02(7)(a)(2)(iv). Thus, according to review procedures for the procedural that any action triggering operation of
Georgia EPD, the SIP is not being requirements governing SIP revisions at Georgia’s automatic rescission clause
revised and therefore does not require CAA section 110(l) and 40 CFR 51.105. would be subject to interpretation.
approval from the Administrator. Comment 5: GIEC states that it is Among other actions, the automatic
Response 3: EPA disagrees with this ‘‘highly unlikely’’ that any action rescission clause would be triggered by
comment. Georgia’s proposed automatic triggering the rescission clause’s a decision by the U.S. Court of Appeals
rescission clause would automatically operation would be subject to for the Eleventh Circuit or the District
invalidate SIP language in response to a interpretation because the provision is of Columbia Circuit that declares a
triggering action. Such a change would triggered by clear and unambiguous portion of 40 CFR 52.21 to be ‘‘invalid.’’
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constitute a SIP revision. occurrences—the withdrawal, repeal, or It is sometimes the case that the precise
Comment 4: GIEC states that ‘‘EPA’s revocation of all or part of the term regulatory changes needed to address a
preliminary conclusion that the ‘‘subject to regulation’’ in 40 CFR 52.21 court decision involve more than simply
[automatic rescission clause] is by executive or congressional action or removing the provision at issue. Under
inconsistent with 40 CFR 51.105 is its invalidation or stay by the Eleventh such circumstances, the exact changes
incorrect because EPA has been and will Circuit or D.C. Circuit Courts of Appeal. to SIP requirements brought about by a
be afforded adequate opportunity under GIEC further states that the triggering triggering action under Georgia’s
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![11442 Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations
automatic rescission clause would be especially true because while the issuance of an amended judgment and
unclear. automatic rescission clause would mandate consistent with the Supreme
Rather than support GIEC’s argument, render the affected SIP provisions Court’s opinion. Consistent with
the D.C. Circuit’s Amended Judgment in ‘‘invalid,’’ the invalid text would not be standard judicial practice, following the
Coalition for Responsible Regulation v. removed or otherwise identified. Thus, Supreme Court’s remand of the case to
EPA, 606 Fed. Appx. 6; 2015 U.S. App. it would not necessarily be clear to the the D.C. Circuit, EPA briefed the D.C.
LEXIS 11132 (D.C. Cir. 2015) provides a public and regulated entities which SIP Circuit on what the agency considered
useful example of a triggering action requirements remain in effect and to be the appropriate relief and waited
that involves some degree of ambiguity which have been rendered invalid. for the D.C. Circuit to issue its Amended
with respect to how it impacts Significantly, Georgia EPD (and Georgia Judgment and mandate before taking
regulatory requirements. The D.C. courts) may disagree with EPA action to remove provisions from the
Circuit ordered, among other things, regarding the regulatory changes federal PSD and title V regulations.
that ‘‘the regulations under review . . . brought about by a triggering action Notably, the parties to the litigation had
be vacated to the extent they require a under Georgia’s automatic rescission differing views as to how the Supreme
stationary source to obtain a PSD permit clause. Thus, in the wake of a triggering Court’s decision should impact the
if greenhouse gases are the only action, Georgia’s SIP may not be federal regulations. The D.C. Circuit
pollutant (i) that the source emissions or consistent with federal regulations. issued its Amended Judgment on April
has the potential to emit above the Given the uncertainty regarding what 10, 2015, and EPA published a final rule
applicable major source thresholds, or SIP revisions may result from the future in the Federal Register on August 19,
(ii) for which there is a significant operation of Georgia’s automatic 2015, removing those portions of the
emissions increase from a rescission clause, EPA cannot at this federal permitting regulations that the
modification.’’ 2015 U.S. App. LEXIS time ‘‘approve’’ such future SIP D.C. Circuit specifically identified as
11132, at 130–131. The Court further revisions in accordance with 40 CFR vacated. See 80 FR at 50199. However,
ordered ‘‘that EPA take steps to rescind 51.105. as discussed above, EPA concluded that
and/or revise the applicable provisions Comment 6: Georgia EPD comments some of the regulatory changes needed
of the Code of Federal Regulations as that the Supreme Court issued its to address the D.C. Circuit’s Amended
expeditiously as practicable to reflect decision in Utility Air Regulatory Group Judgment are not purely ministerial and
the relief granted,’’ and ‘‘that EPA v. EPA on June 23, 2014. Georgia EPD therefore, EPA will address these
consider whether any further revisions then states: ‘‘Ten months later, EPA still changes in a separate notice-and-
to its regulations are appropriate’’ in had not made any revisions to the comment rulemaking. Id. at 50200.
light of the Supreme Court’s decision in federal PSD or Title V permitting Georgia EPD’s comment also reflects
Utility Air Regulatory Group v. EPA. Id. requirements. As a result, on April 10, some confusion regarding how Georgia’s
at 131. As explained above, EPA 2015, the D.C. Circuit Court issued an automatic rescission clause operates.
subsequently published a final action amended judgment in Coalition for Specifically, Georgia EPD apparently
removing some, but not all, of the Responsible Regulation, Inc. v. believes that the Supreme Court’s
regulatory provisions impacted by the Environmental Protection Agency, 606 decision, itself, was the triggering action
D.C. Circuit’s Amended Judgment. See Fed. Appx. 6; 2015 U.S. App. LEXIS under the automatic rescission clause.
80 FR at 50199. EPA explained in that 11132, which vacated the Tailoring Rule See Georgia EPD Comments at 2–3.
notice that some of the regulatory to the extent that it requires sources to Industry commenters, on the other
changes needed to address the obtain PSD or Title V permits solely due hand, take the position that it was the
Amended Judgment are not purely to a potential to emit GHGs. This D.C. Circuit’s Amended Judgment that
ministerial. Id. at 50200. Because those prompted EPA to remove portions of served as the triggering action. See GIEC
regulatory changes involve the exercise those regulations from the Federal Comments at 5. This disagreement
of EPA’s discretion to some extent, EPA Register that were initially promulgated between Georgia EPD and industry
intends to publish a separate Federal in 2010.’’ According to Georgia EPD: commenters underscores EPA’s
Register notice proposing those changes ‘‘Because EPA did not publish the Final statement in the NPR that in addition to
and soliciting public comment. Id. Rule in the Federal Register until ambiguity regarding how the SIP might
Thus, contrary to GIEC’s argument, it August 2015, without an immediate be revised in the future by operation of
cannot be assumed that Georgia’s rescission clause, facilities would have the automatic rescission clause, there
automatic rescission clause would be been required to continue to follow the may also be confusion regarding
triggered only by ‘‘clear and provisions in the Tailoring Rule for an ‘‘whether a court ruling or other action
unambiguous occurrences.’’ Rather, as additional 14 months after the Court in fact triggers an automatic SIP revision
illustrated by EPA’s efforts to respond to vacated the rule. The [Georgia] EPD under Georgia’s automatic rescission
the D.C. Circuit’s Amended Judgment in automatic rescission clause immediately clause.’’ See 80 FR at 45637. In contrast,
Coalition for Responsible Regulation v. did what it took EPA fourteen (14) when a SIP revision is made in
EPA, there may be ambiguity with months to do.’’ accordance with statutory and
respect to the precise change to the Response 6: EPA disagrees with this regulatory requirements, there is no
permitting requirements in Georgia’s comment. First, Georgia EPD’s comment ambiguity regarding how and when the
SIP that would result from a triggering reflects some misconceptions regarding SIP is changed.
action under the automatic rescission the aftermath of the Supreme Court’s Regarding Georgia EPD’s comment
clause. Because Georgia’s automatic decision in Utility Air Regulatory Group that without the automatic rescission
rescission clause would automatically v. EPA. Contrary to Georgia EPD’s clause, ‘‘facilities would have been
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change Georgia’s SIP without public suggestion, it was not EPA’s delay in required to continue to follow the
notice or EPA approval, any ambiguity revising the federal permitting provisions in the Tailoring Rule for an
regarding the regulatory impact of the regulations that resulted in the D.C. additional 14 months after the
triggering action would lead to Circuit issuing its Amended Judgment. [Supreme] Court vacated the rule,’’ EPA
ambiguity for regulated entities and the Rather, the D.C. Circuit was acting in notes that shortly after the Supreme
general public regarding the applicable response to the Supreme Court’s remand Court issued its decision, EPA
SIP permitting requirements. This is of the case back to the D.C. Circuit for announced that it would no longer
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![Federal Register / Vol. 81, No. 43 / Friday, March 4, 2016 / Rules and Regulations 11445
practicable and legally permissible AUTHORITY: 42.U.S.C. 7401 et seq. the www.regulations.gov Web site.
methods, under Executive Order 12898 Although listed in the index, some
(59 FR 7629, February 16, 1994). Subpart L—Georgia information is not publicly available,
The SIP is not approved to apply on i.e., Confidential Business Information
any Indian reservation land or in any ■ 2. Amend § 52.572 by designating the
(CBI) or other information whose
other area where EPA or an Indian tribe existing undesignated paragraph as
disclosure is restricted by statute.
has demonstrated that a tribe has paragraph (a) and adding paragraph (b)
Certain other material, such as
jurisdiction. In those areas of Indian to read as follows:
copyrighted material, is not placed on
country, the rule does not have tribal § 52.572 Approval status. the Internet and will be publicly
implications as specified by Executive * * * * * available only in hard copy form.
Order 13175 (65 FR 67249, November 9, (b) Disapproval. Submittal from the Publicly available docket materials are
2000), nor will it impose substantial State of Georgia, through the Georgia’s available either electronically through
direct costs on tribal governments or www.regulations.gov or in hard copy at
Department of Natural Resources
preempt tribal law. the Environmental Protection Agency,
Environmental Protection Division
The Congressional Review Act, 5 Region 5, Air and Radiation Division, 77
U.S.C. 801 et seq., as added by the Small (EPD) on January 13, 2011, that would
allow for the automatic rescission of West Jackson Boulevard, Chicago,
Business Regulatory Enforcement Illinois 60604. This facility is open from
Fairness Act of 1996, generally provides federal permitting-related requirements
in certain circumstances. EPA is 8:30 a.m. to 4:30 p.m., Monday through
that before a rule may take effect, the Friday, excluding Federal holidays. We
agency promulgating the rule must disapproving a portion of the SIP
submittal related to a provision (at 391– recommend that you telephone Gilberto
submit a rule report, which includes a Alvarez, Environmental Engineer, at
copy of the rule, to each House of the 3–1–.02(7)(a)(2)(iv)) that would
automatically rescind portions of (312) 886–6143 before visiting the
Congress and to the Comptroller General Region 5 office.
of the United States. EPA will submit a Georgia’s State Implementation Plan in
the wake of certain court decisions or FOR FURTHER INFORMATION CONTACT:
report containing this action and other
required information to the U.S. Senate, other triggering events (the automatic Gilberto Alvarez, Environmental
the U.S. House of Representatives, and rescission clause). Scientist, Attainment Planning and
the Comptroller General of the United [FR Doc. 2016–04746 Filed 3–3–16; 8:45 am] Maintenance Section, Air Programs
States prior to publication of the rule in BILLING CODE 6560–50–P
Branch (AR–18J), Environmental
the Federal Register. A major rule Protection Agency, Region 5, 77 West
cannot take effect until 60 days after it Jackson Boulevard, Chicago, Illinois
is published in the Federal Register. ENVIRONMENTAL PROTECTION 60604, (312) 886–6143,
This action is not a ‘‘major rule’’ as AGENCY alvarez.gilberto@epa.gov.
defined by 5 U.S.C. 804(2). SUPPLEMENTARY INFORMATION:
Under section 307(b)(1) of the CAA, 40 CFR Part 52 Throughout this document whenever
petitions for judicial review of this [EPA–R05–OAR–2014–0362; FRL–9943–29– ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
action must be filed in the United States Region 5] EPA. This supplementary information
Court of Appeals for the appropriate section is arranged as follows:
circuit by May 3, 2016. Filing a petition Air Plan Approval; Ohio; Regional I. What is the background for this action?
for reconsideration by the Administrator Haze Glatfelter BART SIP Revision II. What action is EPA taking?
of this final rule does not affect the III. Final Action
AGENCY: Environmental Protection
finality of this action for the purposes of IV. Incorporation by Reference
Agency (EPA).
judicial review nor does it extend the V. Statutory and Executive Order Reviews
time within which a petition for judicial ACTION: Final rule.
I. What is the background for this
review may be filed, and shall not
SUMMARY: The Environmental Protection action?
postpone the effectiveness of such rule
Agency (EPA) is taking final action to On July 2, 2012, EPA approved Ohio’s
or action. This action may not be
extend the compliance date for the Best Regional Haze SIP (77 FR 39177). Ohio’s
challenged later in proceedings to
Available Retrofit Technology (BART) Regional Haze SIP included the
enforce its requirements. See section
emission limits for sulfur dioxide (SO2) applicability of BART to the State’s only
307(b)(2).
at the P.H. Glatfelter Company non-utility BART source, Glatfelter, in
List of Subjects in 40 CFR Part 52 (Glatfelter) facility submitted as part of Chillicothe, Ohio. The BART
Environmental protection, Air its State Implementation Plan (SIP) requirement specified that two of the
pollution control, Greenhouse gases, Revision on April 14, 2014. Specifically, coal-fired boilers at this facility, No. 7
Incorporation by reference, EPA is extending the compliance date and No. 8, install control technology to
Intergovernmental relations, Particulate for the SO2 emission limits applicable to limit the amount of SO2 emissions from
matter, Reporting and recordkeeping Boilers No. 7 and No. 8 at Glatfelter by the boilers. The compliance date for
requirements. 25 months, from December 31, 2014, to BART emission reductions was
January 31, 2017. We have reviewed this scheduled to be December 31, 2014. The
Dated: February 23, 2016.
SIP revision and concluded that it meets compliance date was aligned with
Heather McTeer Toney,
the requirements of the Clean Air Act Glatfelter’s expected compliance date
Regional Administrator, Region 4. and the regional haze rule and because for the Industrial Boiler Maximum
40 CFR part 52 is amended as follows:
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BART requirements continue to be met. Achievable Control Technology (MACT)
DATES: This final rule is effective on requirements finalized by EPA in May,
PART 52—APPROVAL AND
April 4, 2016. 2011 (76 FR 28862).
PROMULGATION OF
IMPLEMENTATION PLANS ADDRESSES: EPA has established a On February 6, 2014, Ohio EPA
docket for this action under Docket ID received a request from Glatfelter to
■ 1. The authority citation for part 52 No. EPA–R05–OAR–2014–0362. All extend the original compliance date to
continues to read as follows: documents in the docket are listed on January 31, 2017. The extension request
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Document Created: 2018-02-02 15:05:45
Document Modified: 2018-02-02 15:05:45
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule will be effective April 4, 2016. | |
| Contact | Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected] | |
| FR Citation | 81 FR 11438 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Greenhouse Gases; Incorporation by Reference; Intergovernmental Relations; Particulate Matter and Reporting and Recordkeeping Requirements |
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