06-2479. Approval and Promulgation of Implementation Plans; Georgia: Approval of Revisions to the State Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is correcting the State Implementation Plan (SIP) for the State of Georgia to remove a provision relating to a Georgia general “nuisance” rule. EPA has determined that this provision relating to Georgia Rule 391-3-1.02(2)(a)1, was erroneously incorporated into the SIP. EPA is removing this rule from the approved Georgia SIP because the Georgia rule is not related to the attainment and maintenance of the national ambient air quality standards (NAAQS). This final rule addresses comments made on the proposed rulemaking EPA previously published for this action.

DATES:

Effective Date: This rule will be effective April 17, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2005-GA-0005. All documents in the docket are listed on the http://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 http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is [phone]. Mr. Lakeman can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?

II. What Is the Background for the Action?

III. Response to Comments

IV. Final Action

V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

EPA is taking final action to remove Georgia Rule 391-3-1.02(2)(a)1, a general “nuisance” provision, from the Georgia SIP. EPA has determined that this rule was erroneously incorporated into the SIP. EPA is removing this rule from the approved Georgia SIP, because the rule is not related to the attainment and maintenance of the NAAQS.

II. What Is the Background for the Action?

The first significant amendments to the Clean Air Act (CAA) occurred in 1970 and 1977. Following these amendments, a large number of SIPs were submitted to EPA to fulfill new Federal requirements. In many cases, states and districts submitted their entire programs, including many elements not required pursuant to the CAA. Due to resource constraints during this timeframe, EPA's review of these submittals focused primarily on the required technical, legal, and enforcement elements of the submittals. At the time, EPA did not perform a detailed review of the numerous provisions submitted to determine if each provision was related to the attainment and maintenance of the NAAQS. However, provisions approved by EPA as part of states' SIPs should generally be related to attainment and maintenance of the NAAQS, consistent with the authority in section 110 of the CAA under which these plans are approved by EPA.

During the process of responding to a recent citizen petition of a title V operating permit in Georgia, EPA determined that a provision of the State's rules, approved as part of the SIP on January 3, 1980 (45 FR 780), is not related to the attainment and maintenance of the NAAQS. This State rule, “Georgia Air Quality Control Rule 391-3-1.02(2)(a)1,” is a general nuisance provision. Georgia has never used this rule as part of a Federal air quality standard attainment or maintenance plan. Georgia has also not relied on or attributed any emission reductions from this rule to any such plans (October 31, 2005, e-mail from Ron Methier, Georgia Environmental Protection Division, to Dick Schutt, U.S. Environmental Protection Agency.) For these reasons, EPA's 1980 approval of this provision into the Georgia SIP was in error. EPA is therefore removing the provision from the approved SIP under the authority of section 110(k)(6) of the CAA. Section 110(k)(6) provides: “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation, revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.”

On November 29, 2005 (70 FR 71446), EPA proposed to remove the provision from the approved SIP under the authority of section 110(k)(6) of the CAA. EPA subsequently received both supporting and adverse comments. At the request of several commenters, EPA reopened and extended the comment period through January 23, 2006 (71 FR 2177, January 13, 2006). In this action, EPA is addressing the adverse comments received and taking final action as described in Section I and Section IV.

III. Response to Comments

EPA received comments from three commenters who were in favor of the proposed change, five commenters who asked general questions, and two commenters who opposed the proposed change to the Georgia SIP. A summary of the adverse comments received on the proposed rule, published November 29, 2005 (70 FR 71446) and EPA's response to these comments is presented below.

Comment: The commenter asserts that the purpose of the rule change proposed in the November 29, 2005 Federal Register notice (70 FR 71446) is to thwart citizen efforts to end hazardous air releases that they assert are a threat to their children, health, and economy.

Response: The purpose of SIPs, approved pursuant to section 110 of the CAA, is to implement a program to attain and maintain the NAAQS. The Georgia nuisance rule is not directed at either attainment or maintenance of any NAAQS. Therefore, through this action EPA is removing it from the federally approved Georgia SIP. The effect of this action is to remove the Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1, as a federally enforceable element of the state program to attain and maintain the NAAQs. However, EPA's action does not affect the enforceability of the rule as a matter of state law. Nothing in today's action affects citizens' ability to use state law provisions to enforce the rule in state court.

Comment: The commenter asserts that “EPA did not provide any supporting documentation in the Federal Register to support their contention that the Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1 is reiterated in Georgia Code Title 41-Nuisance Rule, or that the same protections from the release of hazardous air pollutants listed in CAA Title 1, section 112 can be obtained under the Georgia Nuisance Rule.”

Response: The commenter seems to show some confusion over the two different provisions of the CAA (section 110 and section 112). The commenter also seems to misunderstand the focus of SIPs and section 110 of the CAA. Section 110 focuses on attainment and maintenance of the NAAQS, while section 112 focuses on hazardous air pollutants. A SIP is a mechanism provided under the Act to ensure states attain and maintain national ambient air quality standards. Other provisions of the Act, such as section 112 provide for the direct Federal regulation of hazardous air pollutants. Whether the Georgia rule provides the same or similar protections against hazardous air pollutants as provided under the Federal program provided under section 112 of the Act is not relevant for EPA's determination that the rule should not be included as part of a plan to address the NAAQS.

Comment: Several commenters assert the CAA requires state SIPs to contain enforceable emissions limitations and other control measures as may be necessary or appropriate to meet the applicable requirements and that the intent of the CAA was to provide states flexibility in creating their SIPs, as long as the state's rules and regulations were at least as stringent as the CAA. Furthermore, the commenters assert the proposed rule seeks to overturn the Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1, which could be interpreted to be more protective of human health than provisions in the CAA.

Response: Section 116 of the CAA states that, “Nothing in this Act shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 111 or 112, such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.” Section 116 of the CAA thus explains that unless pre-empted under one of several enumerated provisions of the Act, the state may adopt regulations more stringent than those required under the Act. It does not, however, as the commenter suggests, require that any “more stringent” state regulations be included as part of the federally enforceable SIP. EPA policy is that nuisance provisions unrelated to attainment and maintenance of the NAAQS should not be included as part of the SIP. (see 64 FR 7790, 66 FR 53657 and 69 FR 54006.)

Comment: Several commenters asserted that “EPA is overstepping its authority when proposing a rule change without a vote from the governing body, the Georgia Board of Natural Resources, which would also include the public participation provisions in CAA section 110.”

Response: Although the commenters are correct in their assertion that public participation is a prerequisite to SIP revision submissions under the CAA section 110(a)(2), this stipulation applies to implementation plans submitted by a State under the CAA. The proposed correction invokes CAA section 110(k)(6), which states, “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.” Since the approval of the Georgia Rule for Air Quality Control 391-3-1.02(2)(a)1 into the State of Georgia's SIP was in error, EPA is well within its authority to remove this component from the Georgia SIP without first requiring a SIP submission from the State. On November 29, 2005, notice of the proposed removal of the rule from the state SIP, including a 30-day comment period, was published in the Federal Register. On January 13, 2006, the comment period was extended through January 23, 2006.

Comment: The commenter asserts that the proposed rule, published on November 29, 2005 (70 FR 71446), is not supported by documentation of EPA's determination that the Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1, was erroneously incorporated into the State of Georgia's SIP.

Response: The proposed rule published on November 29, 2005 (70 FR 71446), states, “since the State's “nuisance” provision is not directed at the attainment and maintenance of the NAAQS, EPA has found that its prior approval of this particular rule (into the SIP) was in error.” This statement was supported by an examination of the SIP and an email exchange with the State, which confirmed that the provision at issue had not been relied on for purposes of attainment or maintenance of any NAAQS. EPA's exclusion from the SIP of a nuisance provision unrelated to attainment and maintenance of the NAAQS is consistent with previous Agency practice. EPA removed nuisance provisions from the SIPs of the State of Michigan, 64 FR 7790, Commonwealth of Kentucky (Jefferson County portion), 66 FR 53657, and the State of Nevada, 69 FR 54006. Additionally, EPA has issued final rules declining to approve nuisance provisions into SIPs. (see 45 FR 73696, 46 FR 11843, 46 FR 26303 and 63 FR 51833.)

Comment: The commenter asserts that the “rule change proposed in EPA-R04-OAR-2005-GA-0005-0001 is intended to circumvent agency responsibility to implement strategies to address disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income population in Brunswick, Georgia,” Executive Order 12898—Environmental Justice and Executive Order 13045—Protection of Children from Environmental Health Risks and Safety Risks.

Response: The CAA aims to “protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population * * * and to encourage and assist the development and operation of regional air pollution prevention control programs.” 42 U.S.C. 7401(b)(1). Section 110 of the CAA requires states to adopt a plan which provides for implementation, maintenance, and enforcement of the national ambient air quality standards, including carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter and sulfur oxides. The purpose of this rulemaking action is to remove Georgia Air Quality Control Rule 391-3-1.02(2)(a)1 from the Georgia SIP, because it does not support the attainment and maintenance of the NAAQS. This rulemaking action does not invalidate the Georgia law or affect its applicability to Georgia sources. Facilities located in Georgia are still subject to the state nuisance provision. EPA supports programs and activities that promote enforcement of health and environmental statutes in areas with minority populations and low-income populations and the protection of children. The purpose of the SIP is to address attainment and maintenance of the NAAQS in all areas of the country. Other programs under the CAA address hazardous air pollutants (see CAA section 112). The State of Georgia has adopted Maximum Achievable Control Technology (MACT) and National Emission Standards for Hazardous Air Pollutants (NESHAP) standards that reflect the federal standards, and these standards are enforceable through other mechanisms that do not include the Georgia SIP, which is affected by this rulemaking.

Comment: The commenter asserts that the “rule change proposed in EPA-R04-OAR-2005-GA-0005-0001, is intended to circumvent Executive Order 12866—Regulatory Planning and Review by not allowing for a comment period of at least 60 days.” Several commenters requested that the comment period be extended. One commenter requested an extension of 60 days from the date the EPA “formally notified its legal counsel of the proposed rule,” which it asserts was on December 15, 2005.

Response: SIPs are rulemakings under the Administrative Procedure Act, which does not specify a period for public comment. However, a 30-day period is consistent with most SIP actions proposed by EPA. Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” We note that in response to comments received, EPA extended the comment period for the proposed rule change through January 23, 2006. See 71 FR 2177. It should be noted that EPA is not required to notify any entity of its rulemaking actions; notification of all parties is accomplished through publications in the Federal Register.

Comment: The commenter asserts that it followed the public participation requirements set forth for the title V permitting process and that through this action to remove 391-3-1-.02(2)(a)1 from the Georgia SIP, EPA is frustrating that process. A commenter further asserts that the purpose of the rule change proposed in EPA-OAR-2005-GA-0005-0001 is to thwart citizen efforts to end hazardous air releases that it claims are a “threat to our children, our health, and our economy.”

Response: Although title V permits are required to contain conditions that are necessary to assure compliance with all the applicable requirements of the CAA, including the requirements of the applicable SIP, the title V permit may also contain state-only enforceable requirements. Once the final rule takes effect, Georgia Rule 391-3-1-.02(2)(a)1 will become a state-only enforceable rule that will continue to be applicable to facilities in Georgia. For the reasons provided above, however, EPA believes this action to remove the nuisance provision from the SIP is appropriate.

Comment: The commenter asserts that “proposed rule R04-OAR-2005-GA-0005-0001 is not supported by documentation of EPA's determination that the rule, Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1, was erroneously incorporated into the Georgia SIP.” Furthermore, the commenter alleges that “without supporting documentation, the EPA's action in adopting this rule is arbitrary and capricious, and violates every aspect of the Administrative Procedures Act.”

Response: In support of its decision to remove Georgia Air Quality Control Rule 391-3-1-.02(2)(a)1 from the Georgia SIP, EPA determined that this is a general nuisance provision that is not related to the attainment and maintenance of the NAAQS. Georgia has never used this rule as part of a federal air quality standard attainment or maintenance plan. In addition, Georgia has not relied on or attributed any emission reductions from this rule to any such plans. 70 FR 71447 (November 29, 2005). In support of these conclusions, EPA relied on an email from Georgia that indicated it had checked its records and made these findings. As explained above, EPA's action to exclude from the SIP a nuisance provision unrelated to attainment or maintenance of any NAAQS is consistent with prior Agency practice.

Comment: The commenter asserts that the Georgia Environmental Protection Division (EPD) has a history of allowing unregulated and unpermitted hazardous air releases from certain facilities. Furthermore, the commenter alleges that some permit applications had remained un-acted upon by the Georgia EPD since 1986, and that without valid permits, emission control equipment operations are not enforceable by either the Georgia EPD or the EPA.

Response: Our action to exclude the nuisance provision from the Georgia SIP does not affect the enforceability of the rule as a matter of state law. The issue of whether Georgia adequately enforces or permits hazardous air pollutants has no bearing on whether the nuisance provision should be part of a plan to attain and maintain standards for NAAQS.

Comment: The commenter questions the legal basis of the proposed action and whether there is a compelling reason to change the rule.

Response: In the Federal Register Notice proposing to remove the Georgia nuisance rule, 391-3-1.02(2)(a)1, from the Georgia SIP, 70 FR 71446, EPA cited the basis for its action. First, the Agency explained that the purpose of the SIP is to provide for how the state will attain and maintain the NAAQS. EPA then explained that because the nuisance rule is unrelated to attainment and maintenance of the NAAQS, “EPA's 1980 approval of this provision into the Georgia SIP was in error and EPA is, therefore, proposing to remove the provision from the approved SIP under the authority of section 110(k)(6) of the CAA. Section 110(k)(6) provides: ‘Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.’ ” 70 FR 71447 (Nov. 29, 2005).

Comment: The commenter alleges that a “reasonable person could easily find that the EPA blatantly misrepresented the purpose of the proposed rule change. At a minimum, the EPA is misusing their powers to propose rule changes in the Federal Register, and the case might actually be that the information presented in the Federal Register is fraudulent.”

Response: EPA vigorously disagrees with the commenter's allegation that the Agency misrepresented, misused, or engaged in any other fraudulent practice in proposing this rule change. As provided above, EPA has an established history of removing and excluding state nuisance rules, which are unrelated to attaining or maintaining the NAAQS, from the SIP.

Comment: The commenter asked how the citizen's petition of a Title V operating permit in Georgia led EPA to find an erroneously approved rule.

Response: The citizen's petition of the Title V operating permit for the Hercules Corporation, in the State of Georgia, specifically cites the Georgia Rule for Air Quality Control, 391-3-1.02(2)(a)1 as a rule of which the Hercules Corporation is in violation. Hence, through this petition, it was brought to EPA's attention that this particular rule was incorporated into the Georgia SIP. Because EPA has concluded that this rule is unrelated to attainment or maintenance of any NAAQS and thus was erroneously approved into the SIP, EPA is using section 110(k)(6), error correction, to remove the rule from the approved SIP.

Comment: A commenter asked whether EPA had done any research to determine how many erroneous laws were approved by the EPA in their rush to approve SIPs.

Response: EPA has many rulemaking and other activities that are required under the CAA or that are otherwise a priority under the Act, and thus has not had the time or resources to perform an extensive review of the SIPs to determine if any rules are erroneously incorporated. However where, through other means errors in the SIPs come to light, it is appropriate for EPA to correct the errors.

Comment: The commenter asserts that the CAA requires states to hold public hearings when revising a SIP and that EPA should hold a public hearing on the removal of the “nuisance” rule from the SIP. The commenter also asserts that this is “particularly troublesome given that the SIP contained the nuisance rule for over 25 years and the proposed elimination was prompted only after a lawsuit was filed regarding the nuisance rule.”

Response: As outlined above, section 110(k)(6) does not require a public hearing when making a correction to a SIP. Section 110(k)(6) of the CAA states that “whenever” the Administrator determines that the Administrator's action approving any plan “was in error,” the Administrator may in the same manner as the approval, revise such action as appropriate. By this action EPA is removing the provision from the Georgia SIP in the same manner as EPA approves SIPs.

IV. Final Action

Since Georgia Rule 391-3-1-.02(2)(a)1 is not directed at the attainment and maintenance of the NAAQS, EPA has found that its prior approval of this particular rule (into the SIP) was in error. Consequently, in order to correct this error, EPA is removing Georgia Rule 391-3-1-.02(2)(a)1 from the approved Georgia SIP pursuant to section 110(k)(6) of the CAA, and codifying this deletion by revising the appropriate paragraph under 40 CFR part 52, subpart L, section 52.570 (Identification of Plan).

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely corrects an error and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule corrects an error and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely corrects an error, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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 rule 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 15, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Carbon monoxide
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Sulfur oxides
• Volatile organic compounds

Dated: March 6, 2006.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart L—Georgia

2. Section 52.570 is amended in the table to paragraph (c) by revising the entry for “391-3-1-.02(2)(a) General Provisions” to read as follows:

§ 52.570

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Georgia Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
391-3-1-.02(2)(a)	General Provisions	01/09/91	3/16/06 [Insert first page of publication]	Except for paragraph 391-3-1-.02(2)(a)1.
*         *         *         *         *         *         *

* * * * *