[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Proposed Rules]
[Pages 72941-72946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25917]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R4-OAR-2022-0294; FRL-10440-01-R4]


Disapproval of Air Quality Implementation Plans; Georgia; 
Proposed Revisions to Georgia's Rules for Air Quality Control 
Pertaining to Startup, Shutdown and Malfunction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove a State Implementation Plan (SIP) revision submitted by the 
State of Georgia through the Georgia Environmental Protection Division 
(GA EPD) on November 17, 2016. The revision was submitted by Georgia in 
response to a finding of substantial inadequacy and SIP call published 
on June 12, 2015, for a provision in the Georgia SIP related to excess 
emissions during startup, shutdown, and malfunction (SSM) events. EPA 
is proposing to disapprove the SIP revision and to determine that the 
SIP revision fails to correct the deficiencies identified in the June 
12, 2015, SIP call in accordance with the requirements for SIP 
provisions under the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before December 28, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R4-
OAR-2022-0294 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. EPA may publish any comment 
received to its public docket. Do not electronically submit any 
information you consider to be Confidential Business Information (CBI) 
or other information, the disclosure of which is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Planning and 
Implementation Branch, Air and Radiation Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 
30303-8960. Mr. Akers can be reached by telephone at (404) 562-9089 or 
via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 22, 2013, EPA published in the Federal Register a 
notice of proposed rulemaking that outlined EPA's policy at the time 
with respect to SIP provisions related to periods of SSM.\1\ In that 
notice, EPA analyzed specific SSM SIP provisions and explained how each 
one either did or did not comply with the CAA with regard to excess 
emission events. For each SIP provision that EPA determined to be 
inconsistent with the CAA, EPA proposed to find that the existing SIP 
provision was substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call under CAA section 110(k)(5). On 
September 17, 2014, EPA issued a document supplementing and revising 
what the Agency had previously proposed on February 22, 2013, in light 
of a United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) decision \2\ that determined the CAA precludes 
authority of EPA to create affirmative defense provisions applicable to 
private civil suits. EPA outlined its updated policy that affirmative 
defense SIP provisions are not consistent with CAA requirements. EPA 
proposed in the supplemental proposal document to apply its revised 
interpretation of the CAA to specific affirmative defense SIP 
provisions and proposed SIP calls for those provisions where 
appropriate. See 79 FR 55920 (September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
    \2\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' hereinafter referred to as the ``2015 SSM SIP Action.'' 
See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016.
    Georgia submitted a SIP revision to EPA on November 17, 2016, in 
response to the SIP call issued in the 2015 SSM SIP Action. In its 
submission, the State is requesting that EPA approve two new paragraphs 
into Ga. Comp. R. & Regs. (hereinafter Rule) 391-3-1-.02(2)(a) of the 
Georgia SIP that would allow sources to comply with certain work 
practice standards as alternative emission limitations (AELs) during 
periods of SSM and would describe requirements for minimizing excess 
emissions during periods of SSM.
    EPA issued a memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\3\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Georgia in 2015. The 2020 Memorandum did, 
however, indicate

[[Page 72942]]

EPA's intent at the time to review SIP calls that were issued in the 
2015 SSM SIP Action to determine whether EPA should maintain, modify, 
or withdraw particular SIP calls through future agency actions.
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    \3\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income, and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\5\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
Agency acts on SIP submissions, including Georgia's SIP submittal 
provided in response to the 2015 SIP call.
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    \4\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ See 80 FR 33985.
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    Regarding the Georgia SIP, in the 2015 SSM SIP Action, EPA 
determined that paragraph 7, ``Excess Emissions,'' of Rule 391-3-
1-.02(2)(a) (paragraph 391-3-1-.02(2)(a)7) (hereinafter referred to as 
paragraph 7), is substantially inadequate to meet CAA requirements. See 
80 FR 33962. Paragraph 7, which has three parts, provides, first, that 
excess emissions which occur during periods of SSM despite ordinary 
diligence by the source are allowed provided that best operational 
practices to minimize emissions are adhered to, all associated air 
pollution control equipment is operated in a manner consistent with 
good air pollution control practice for minimizing emissions, and the 
duration of excess emissions is minimized. Second, paragraph 7 provides 
that excess emissions which are caused entirely or in part by poor 
maintenance, poor operation, or any other equipment or process failure 
which may reasonably be prevented during periods of SSM are prohibited 
and are violations of Georgia's Air Quality Control rules. Third, 
paragraph 7 specifies that the provisions therein apply only to those 
sources which are not subject to any requirement of 40 CFR part 60, as 
amended, concerning New Source Performance Standards. The rationale 
underlying EPA's determination that paragraph 7 of section 391-3-
1-.02(2)(a) is substantially inadequate to meet CAA requirements, and 
therefore to issue a SIP call to Georgia to remedy the provision, is 
detailed in the 2015 SSM SIP Action and the accompanying proposals. EPA 
is not soliciting comment on its rationale for issuing the 2015 SIP 
call to Georgia.

II. Analysis of Georgia's SIP Submission

    As noted above, Georgia's November 17, 2016, SIP revision requests 
that EPA approve two new paragraphs into Rule 391-3-1-.02(2)(a) of the 
Georgia SIP at 391-3-1-.02(2)(a)11, ``Startup and Shutdown Emissions 
for SIP-Approved Rules'' (paragraph 11) and at 391-3-1-.02(2)(a)12, 
``Malfunction Emissions'' (paragraph 12).

A. Rule 391-3-1-.02(2)(a)11, ``Startup and Shutdown Emissions for SIP-
Approved Rules''

    For periods of startup and shutdown, new paragraph 11 would apply 
in lieu of the existing SIP-called paragraph 7 upon the effective date 
of EPA's final approval of the rule. Paragraph 11 would require sources 
to comply with applicable SIP emission limitations and standards by 
either: (1) complying with the applicable emission limitations and 
standards at all times, including periods of startup and shutdown, or 
(2) complying with the applicable emission limitations and standards 
during ``normal operations'' and complying with AELs in the form of 
certain work practice standards during periods of startup and shutdown. 
Thus, owners and operators of sources that elect not to comply with the 
numeric emission limitations during periods of startup and shutdown 
would be allowed to comply with certain alternative work practice 
standards.\6\
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    \6\ New paragraph 391-3-1-.02(2)(a)11 also includes language at 
paragraph 11.(iii) that would void 391-3-1-.02(2)(a)11.(ii), which 
provide for compliance options during periods of SSM, if EPA's 2015 
SSM Action is (1) ``Declared or adjudged to be invalid or 
unconstitutional or stayed by the United States Court of Appeals for 
the Eleventh Circuit, the District of Columbia Circuit, or the 
United States Supreme Court,'' or (2) ``Withdrawn, repealed, 
revoked, or otherwise rendered of no force and effect by the United 
States Environmental Protection Agency, Congress, or Presidential 
Executive Order.'' EPA notes, however, that Georgia's SIP submission 
does not ask EPA to approve this automatic rescission language into 
the SIP. See the submittal at pages 15/63, 22/63, and 23/63, where 
Georgia indicates that these provisions are not intended for 
incorporation into the Georgia SIP.
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    EPA previously identified several deficiencies in paragraph 11, as 
outlined in EPA Region 4's August 1, 2016, and September 30, 2016, 
comment letters to GA EPD regarding Georgia's July 1, 2016, and August 
31, 2016, prehearing submissions transmitting the State's proposed 
response to the 2015 SSM SIP Action for public review.\7\ In this 
notice of proposed rulemaking (NPRM), EPA proposes to find that 
paragraph 11, which generally was not changed from the version in the 
pre-hearing submissions except for renumbering, does not adequately 
address the 2015 SSM SIP Action and does not comport with EPA's SSM 
policy, as outlined in that action.
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    \7\ EPA's comment letters are part of Georgia's complete 
November 17, 2016, submittal, available in the docket for this 
proposed action.
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    As submitted, subparagraph (ii)(I)I.B of paragraph 11 provides 
that, during periods of startup and shutdown, sources subject to any of 
the SIP emission limitations identified in subparagraph 11.(ii) may 
choose to comply with ``general alternative work practice standards'' 
identified at 11.(ii)(I)IV; work practice standards which are in 
federal rules as noted at 11.(ii)(I)V; or source-specific work practice 
standards established in permits at 11.(ii)(I)VI. Subparagraph 
(ii)(I)IV.B of paragraph 11 provides that sources may choose to comply 
with generally available work practice standards at provisions 
(ii)(I)IV.B.(A)-(M), as applicable, for fuel burning sources and 
pollution control devices installed to meet applicable emission 
limitations, as applicable. The Georgia rules, which would function as 
AELs to otherwise applicable numeric emission limits in the SIP during 
periods of startup and shutdown, do not reflect consideration of the 
seven specific criteria that EPA recommends, per Agency guidance, for 
developing AELs that apply during startup and shutdown. See 80 FR 
33980-82.\8\ For example, and as discussed in more detail below, the 
generally available work practice standards apply to a general type of 
source, i.e., ``fuel burning sources,'' and are not limited to 
specific, narrowly

[[Page 72943]]

defined source categories (e.g., cogeneration facilities burning 
natural gas, steam generating units burning fossil fuel, stationary gas 
turbines, etc.) using specific control strategies.
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    \8\ See also EPA's 1999 SSM Guidance (Memorandum to EPA Regional 
Administrators, Regions I-X from Steven A. Herman and Robert 
Perciasepe, USEPA, Subject: State Implementation Plans: Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown, dated September 20, 1999), available as Document ID EPA-
HQ-OAR-2012-0322-0007 at https://www.regulations.gov.
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    The Georgia rules also seem to have been developed without 
consideration of whether sources are capable of complying with 
otherwise applicable numeric emission limitations. EPA does not 
recommend establishing AELs for sources that are capable of meeting 
their existing emission limitations at all times. See id. at 33913. As 
part of the November 17, 2016, SIP revision, GA EPD responded to EPA's 
comments on the draft regulatory changes. GA EPD notes in its response 
that sources that are capable of meeting their numeric emission 
limitations at all times have the option to comply with those limits at 
all times in lieu of the additional burden of complying with work 
practice standards during periods of startup and shutdown. 
Specifically, paragraph 11 at 11.(ii)(I)I. allows compliance with 
emission limitations to be achieved by either complying with the 
applicable emission limitations at all times or by complying with the 
AELs during periods of startup and shutdown as outlined in the 
remainder of subparagraph 11(ii). This means that sources which are 
capable of meeting the original emission limitations and standards at 
all times, even during periods of startup and shutdown, have the option 
of complying with AELs such as work practice standards in lieu of 
meeting those original limitations. Accordingly, EPA views this option 
as inconsistent with the 2015 SSM SIP Action.
    Moreover, the requirements at 11.(ii)(I)IV.B.(A)-(M) have not been 
sufficiently tailored for specific sources or source categories. 
Control requirements that apply during startup and shutdown must be 
clearly stated as components of the emission limitation and must meet 
the applicable level of control required for the type of SIP provision 
(e.g., must be reasonably available control technology (RACT) for 
sources subject to a RACT requirement). See 80 FR 33890, 33912-13. 
Alternative requirements applicable to a source during startup and 
shutdown should be narrowly tailored and take into account 
considerations such as the technological limitations of the specific 
source category and the control technology that is feasible during 
startup and shutdown. See id. at 33912-13, 33980.
    The November 17, 2016, submittal indicates that the State made use 
of EPA's work practice standards at 40 CFR part 63, subpart DDDDD, 
known as the boiler Maximum Achievable Control Technology (MACT) rule 
(Boiler MACT Rule), and other federal regulations in developing its 
work practice standards (e.g., the general work practice standard at 
11.(ii)(I)IV.B.(H)). EPA acknowledges that certain federal rules may 
provide useful examples of approaches for appropriate and feasible AELs 
for states to apply during startup and shutdown in a SIP provision (in 
particular those federal rules that have been revised or newly 
promulgated since 2008).\9\ However, it should not be assumed that 
emission limitation requirements in recent National Emission Standards 
for Hazardous Air Pollutants (NESHAP) and New Source Performance 
Standards (NSPS) are appropriate for all sources regulated by the SIP. 
The universe of sources regulated by the federal NSPS and NESHAP 
programs is not identical to the universe of sources regulated by 
states for purposes of the national ambient air quality standards 
(NAAQS). Moreover, the pollutants regulated under the NESHAP program 
(i.e., hazardous air pollutants) are in many cases different than those 
that would be regulated for purposes of attaining and maintaining the 
NAAQS, protecting prevention of significant deterioration (PSD) 
increments, improving visibility, and meeting other CAA requirements. 
See 80 FR 33916. Therefore, the work practice standards which the State 
wants to include as components of a continuously applicable emission 
limitation would need to be evaluated on a case-by-case basis as to 
their appropriateness as AELs for SIP purposes.
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    \9\ Specifically, EPA is referring to federal rules for the New 
Source Performance Standards and National Emission Standards for 
Hazardous Air Pollutants that have been issued since the D.C. 
Circuit's decision of December 19, 2008, Sierra Club v. Johnson, 551 
F.3d 1019 (D.C. Cir. 2008).
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    Regarding the example included in GA EPD's response in its November 
17, 2016, submittal, the general work practice standard at 
11.(ii)(I)IV.B.(H) is available to all fuel burning equipment and 
requires sources to burn a ``clean fuel'' as defined in the Boiler MACT 
Rule or to burn ``the cleanest fuel the unit is permitted to burn, as 
practicable.'' The submittal does not explain why startup and shutdown 
work practice standards that were developed for boilers are necessarily 
appropriate as AELs for all types of fuel-burning sources. This general 
work practice standard is not sufficiently specific in its 
applicability, nor is it sufficiently specific as to which fuels are 
acceptable to burn during startup to be considered an appropriate AEL. 
See 80 FR 33912-13, 33916. Additionally, if certain sources can meet 
their existing numeric emission limitations and standards, then those 
sources do not need AELs. In those cases, there should be a distinction 
between which sources are required to comply with their existing 
numeric emission limitations or standards and which sources need AELs 
for periods of startup or shutdown.
    Additionally, EPA notes that many of the work practice standards 
listed in 11.(ii)(I)IV.B. appear to contain exempt periods, presumably 
due to technological limitations of the control equipment. Some of the 
standards also require operation ``as specified by the manufacturer,'' 
which makes these standards difficult or impractical to enforce and may 
also result in exempt periods. For example, for units using baghouses, 
no emission limitation would apply whenever ``the inlet gas temperature 
is below the dew point, outside the manufacturer's recommended 
operating temperature range, or if the pressure differential across the 
baghouse exceeds the manufacturer's recommended maximum pressure 
differential.'' Rule 391-3-1-.02(2)(a)11.(ii)(I)IV.B.(A). While EPA 
agrees that emission control devices should be utilized to the maximum 
extent practicable, the Agency disagrees that sources should be exempt 
from any sort of emission limitation during times in which full use of 
control devices might not be possible. As discussed in the 2015 SSM SIP 
Action, in accordance with the CAA, some emission limitation must apply 
at all times. Examples of potential AELs that may be applied include 
the use of additional emission controls, use of cleaner burning fuels, 
and establishment of higher numeric emission limitations that are still 
protective of the NAAQS and otherwise meet the requirements of the CAA. 
Thus, for the reasons discussed above, EPA is proposing to disapprove 
the AEL approach established at 11.(ii)(I)IV.
    Next, paragraph 11 at 11.(ii)(I)V provides that, in lieu of the 
general alternative work practice standards option at 11.(ii)(I)IV, the 
owner or operator of a source may follow the startup and shutdown work 
practice standards in federal rules included in 40 CFR part 60 (NSPS) 
or 40 CFR part 63 (NESHAP) so long as the rule contains specific work 
practice standards for startup and shutdown periods. The provision also 
notes that those federal rules are adopted by Georgia as Rules 391-3-
1-.02(8) and (9). As discussed above, while EPA acknowledges that 
certain federal rules may provide good examples of approaches for 
appropriate and feasible AELs for states to apply during startup and 
shutdown in a SIP provision (in particular, those federal

[[Page 72944]]

rules that have been revised or newly promulgated since 2008),\10\ the 
SIP must be clear as to what the applicable limitations are for each 
source at all times. Therefore, this provision does not constitute a 
component of an emission limitation for a specific source or source 
category, as it does not specify which sources or source categories 
will comply with the startup and shutdown procedures contained in 
federal rules and which provisions from those federal rules are 
applicable.
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    \10\ See supra n.9.
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    As noted above, control requirements that apply during startup and 
shutdown must be clearly stated as components of the emission 
limitation and must meet the applicable level of control required for 
the type of SIP provision. Since the purpose of the NSPS and NESHAP 
programs is not identical to that of the SIPs, the provisions intended 
to apply to specific source categories should be evaluated on a case-
by-case basis to ensure their appropriateness for the purposes of the 
SIP. See 80 FR 33916. EPA also recommends giving consideration to the 
seven specific criteria delineated in the 2015 SSM SIP Action for 
developing AELs in SIP provisions that apply during startup and 
shutdown. See id. at 33980. Therefore, EPA is proposing to disapprove 
the AEL approach established in 11.(ii)(I)V.
    Rule 11.(ii)(I)VI provides that in lieu of options 11.(ii)(l)IV or 
11.(ii)(l)V discussed above, the owner or operator of a source may 
choose to comply with a source-specific alternative work practice 
standard for startup and shutdown periods that has been incorporated 
into a federally enforceable permit. EPA notes, however, that emission 
limitations that are specified only in a permit are not part of the SIP 
unless and until they are submitted to EPA and federally approved into 
the SIP. The fact that EPA has approved the permitting program itself 
into the SIP does not mean that EPA has approved the actual contents of 
each permit issued or has made such contents an approved part of the 
SIP. See 80 FR 33915-16, 33922. In the context of emission limitations 
contained in a SIP, EPA views the approach of establishing AELs through 
a permit that does not involve submitting the relevant permit 
requirements to the EPA for inclusion in the SIP as a form of 
``director's discretion,'' a type of provision that, as explained in 
the 2015 SSM SIP Action, is inconsistent with CAA requirements because 
it would allow the state to create alternatives to SIP emission 
limitations without complying with the CAA's SIP revision requirements.
    Among other things, a permit-based approach to establishing an AEL 
(that does not involve submitting the relevant permit requirements to 
the EPA for inclusion in the SIP) would bypass EPA's role in reviewing 
and approving the AEL to ensure that it is enforceable pursuant to CAA 
section 110(a)(2)(A) (i.e., that emission limitations are sufficiently 
specific regarding the source's obligations and include adequate 
monitoring, recordkeeping, and reporting requirements). Accordingly, a 
permitting process cannot be used to create alternatives to SIP 
emission limitations for sources during startup and shutdown in lieu of 
a SIP revision. The State may use the permit development process as a 
means to evaluate and establish AELs for periods of startup and 
shutdown for a specific source, but such permit conditions would not 
negate or replace applicable SIP limits without being approved as a 
source-specific SIP revision.
    Georgia's November 17, 2016, submittal suggests that the 
``director's discretion'' issue is not implicated in the approach 
delineated in 11.(ii)(I)VI because EPA and the public would have an 
opportunity to comment on the permit. This opportunity for public 
comment is not a substitute for a source-specific SIP revision, which 
is needed to alter otherwise applicable SIP emission limitations. As 
noted above, treating conditions in a permit as AELs that apply instead 
of SIP-approved emission limitations effectively revises otherwise 
applicable SIP requirements without going through a SIP revision. 
Therefore, EPA is proposing to disapprove the AEL approach established 
in paragraph 11.(ii)(I)VI.
    Subparagraph 11.(ii) also states that ``[t]he provisions of this 
subparagraph 11.(ii) shall also apply to emission limitations 
established in accordance with the new source review requirements in 
391-3-1-.02(7)(b) and/or 391-3-1-.03(8) unless startup and shutdown 
emissions have already been specifically addressed via a federally 
enforceable permit.'' Paragraph 11 at 11.(ii)(I)I.B provides that 
compliance with those emission limitations may be achieved by one of 
the alternative work practice standards during startup and shutdown. In 
addition to the other concerns noted previously regarding subparagraph 
11.(ii), allowing the alternative compliance options for startup and 
shutdown to be available for limitations established for a source 
through the State's new source review (NSR) program may result in 
emission limitations that do not comply with that program. A fully 
approvable SIP emission limitation, including periods of startup and 
shutdown, must meet all substantive requirements of the CAA applicable 
to such a SIP provision. For purposes of nonattainment NSR (NNSR) and 
PSD permitting, any AEL applicable to startup and shutdown periods must 
constitute the lowest achievable emissions rate (LAER) for NNSR or must 
reflect the use of best available control technology (BACT) for PSD. 
See 80 FR 33893. To satisfy CAA requirements, such AELs must be 
established on a source-specific basis through the NNSR and PSD 
permitting process rather than in a static rule. The process identified 
in 11.(ii) is also open-ended and not sufficiently specific to 
determine what applies to specific permitted sources during periods of 
startup and shutdown.
    EPA understands from GA EPD's response to comments in the November 
17, 2016, submittal that this provision is specifically intended to 
apply to sources with existing permits issued pursuant to Rules 391-3-
1-.02(7)(b) (PSD) and 391-3-1-.03(8) (NNSR), which did not include 
emission limitations for periods of startup and shutdown at the time 
the permits were issued, while permits issued pursuant to the PSD and 
NNSR program today would consider startup and shutdown in the 
permitting process. However, the same issues remain with this approach 
even for the more limited universe of existing permits. Furthermore, 
for the reasons described previously, EPA is proposing to disapprove 
the underlying regulations at paragraph 11. Therefore, EPA is also 
proposing to disapprove this provision at 11.(ii) establishing the AEL 
``options'' approaches for existing PSD and NNSR permits.

B. Rule 391-3-1-.02(2)(a)12, ``Malfunction Emissions''

    For periods of malfunction, new paragraph 12 would allow compliance 
with source-specific AELs in the form of work practice standards. 
Owners and operators of sources that elect not to comply with the 
numeric emission limitations during periods of malfunction may choose 
to propose source-specific alternative work practice standards. As with 
new paragraph 391-3-1-.02(2)(a)11 discussed above, this provision would 
apply in lieu of the existing SIP-called paragraph 391-3-1-.02(2)(a)7 
upon EPA's approval into the SIP, and it also includes automatic 
rescission language regarding the effectiveness of subparagraph 12.(ii) 
in the event that legal challenges to the 2015 SSM SIP Action are 
successful.\11\
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    \11\ The rescission language at Rule 391-3-1-.02(2)(a)12.(iii) 
is not submitted for approval into the SIP in the November 17, 2016, 
SIP revision. See the submittal at pages 15/63, 22/63, and 23/63.

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[[Page 72945]]

    As with new subparagraph 11, EPA identified several deficiencies in 
new subparagraph 12 previously, as outlined in EPA Region 4's August 1, 
2016, and September 30, 2016, comment letters to GA EPD regarding 
Georgia's July 1, 2016, and August 31, 2016, prehearing submissions 
transmitting GA EPD's proposed response to the 2015 SSM SIP Action for 
public review.\12\ In this NPRM, EPA proposes to find that paragraph 
12, which generally was not changed from the pre-hearing submission 
except for renumbering, contains deficiencies such that the rule does 
not adequately address the 2015 SSM SIP Action and does not comport 
with EPA's SSM policy, as outlined in that action.
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    \12\ See supra n.6.
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    The SIP must require sources to comply with applicable emission 
limitations, which may include AELs approved into the SIP for certain 
periods of operation. As submitted, subparagraph 12.(ii)(I)II. provides 
that, during periods of malfunction, sources subject to any of the SIP 
emission limitations and standards identified in paragraph 12.(i) may 
choose to comply with a ``source specific malfunction work practice 
standard approved into a federally enforceable air quality operating 
permit,'' and this process is outlined further at 12.(ii)(IV). 
Subparagraph 12.(ii) does not require the AELs to be approved into the 
SIP, and likewise does not specify that such AELs are not effective for 
SIP purposes until they are approved by the EPA as part of the SIP. As 
discussed above in relation to paragraph 11, a permitting process 
cannot be used to create alternatives to SIP emission limitations 
unless such alternative limitations are incorporated into the SIP.
    EPA further notes that, unlike AELs specific to periods of startup 
and/or shutdown, it is likely not feasible for the State to develop 
approvable AELs that apply specifically to malfunctions. As EPA 
explained in the 2015 SSM SIP Action, a malfunction is unpredictable as 
to the timing of the start of the malfunction event, its duration, and 
its exact nature. The effect of a malfunction on emissions is therefore 
unpredictable and variable, making the development of AELs for 
malfunctions problematic. There may be rare instances in which certain 
types of malfunctions at certain types of sources are foreseeable and 
foreseen and thus are an expected mode of source operation. In such 
circumstances, EPA believes that sources should be expected to meet the 
otherwise applicable emission limitation to encourage sources to be 
properly designed, maintained, and operated to prevent or minimize any 
such malfunctions. To the extent that a given type of malfunction is so 
foreseeable and foreseen that a state considers it a normal mode of 
operation that is appropriate for a specifically designed AEL, then 
such alternative should be developed in accordance with EPA's 
recommended criteria for AELs. See 80 FR 33979. However, should there 
be a demonstrated need for source-specific AELs for malfunctions, such 
AELs would not negate otherwise applicable SIP emission limitations 
unless submitted to EPA and approved into the SIP. For these reasons, 
EPA is proposing to disapprove the AEL approach for malfunctions 
established at 12.(ii)(I)II.
    Paragraph 12 at 12.(ii)(V) provides that ``[m]alfunctions that are 
not specifically included in an approved source specific work practice, 
or are the result of poor maintenance, poor operation, or otherwise 
reasonably preventable control equipment or process failure, are 
prohibited and shall be considered violations . . . if the malfunction 
continues for 4 hours or more.'' EPA notes that a standard duration for 
determining whether a malfunction is a violation across the wide array 
of rules and sources listed in subparagraph 12.(i) does not 
appropriately consider source-specific requirements, such as the 
averaging time of applicable emission limitations or the total amount 
of pollutants released in that time. Thus, EPA believes that the 4-hour 
period can serve as an improper exempt period for malfunctions in 
certain circumstances. As discussed above, an emission limitation must 
apply at all times. Therefore, EPA is proposing to disapprove 
12.(ii)(V).
    Additionally, subparagraph 12.(i) provides that ``[t]his paragraph 
12. also applies to emission limitations established in accordance with 
the new source review requirements in 391-3-1-.02(7)(b) and/or 391-3-
1-.03(8) unless malfunction emissions have already been specifically 
addressed via a federally enforceable permit.'' EPA acknowledges that 
there are not open-ended, generally available work practice standards 
for malfunctions in paragraph 12 as in 11.(ii)(I)IV.B. for startup and 
shutdown, and 12.(ii)(IV) requires a permit application and for any 
sources without source-specific work practice standards approved in a 
permit to comply with the applicable emission limitation (i.e., 
existing BACT or LAER, as issued) during malfunctions. However, EPA 
also notes that, as discussed above, it may not be feasible to 
establish AELs that are specifically applicable to malfunctions and 
that are consistent with EPA's SSM policy. Additionally, because EPA is 
proposing to disapprove the underlying regulations at paragraph 12, the 
Agency is likewise proposing to disapprove this provision related to 
existing PSD and NNSR permits at 12.(i).\13\
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    \13\ New paragraph 391-3-1-.02(2)(a)13, ``Startup, Shutdown, and 
Malfunction Emissions for Certain Rules'' (paragraph 13), would 
describe requirements for minimizing excess emissions during periods 
of startup, shutdown and malfunction for rules adopted by Georgia 
but that are not in the State's SIP. The rule would provide that 
emissions in excess of an applicable standard resulting from SSM 
events are allowed under certain conditions if appropriate actions 
are taken to minimize those emissions. Paragraph 13 is not submitted 
for EPA approval into the SIP. See the cover letter of the November 
16, 2017, SIP submittal, and pages 20/63, 37/63, 41/63, and 43/63 in 
the submittal, available in the docket for this proposed action.
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C. Summary of EPA's Analysis

    For the reasons discussed above, EPA is proposing to disapprove 
Georgia's November 17, 2016, SIP submission, which would establish 
options for complying with existing SIP emission limitations and 
standards or alternatives for periods of SSM. Specifically, during 
periods of startup and shutdown, the SIP revision would allow sources 
to either comply with existing numeric emission limitations or elect to 
comply with AELs generally available, comply with AELs listed in 
federal rules, or to establish source-specific AELs in permits which 
are not incorporated in the SIP. Further, the SIP revision would also 
allow sources, during periods of malfunction, to either comply with 
existing numeric emission limitations or elect to comply with source-
specific AELs established in permits which are not incorporated in the 
SIP. EPA proposes to find that the State's November 17, 2016, SIP 
revision is not consistent with CAA requirements and does not 
adequately address the specific deficiencies EPA identified in the 2015 
SSM SIP Action with respect to the Georgia SIP.

III. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is 
proposing to disapprove Georgia's November 17, 2016, SIP submission 
requesting approval of new paragraphs 391-3-1-.02(2)(a)11.(i) and (ii) 
and 391-3-1-.02(2)(a)12.(i) and (ii) into the SIP. EPA is proposing 
disapproval of the SIP revision because

[[Page 72946]]

the Agency has preliminarily determined that it is not consistent with 
the requirements for SIP provisions under the CAA. EPA is further 
proposing to determine that the SIP revision does not correct the 
deficiencies identified in the June 12, 2015, SIP call. EPA is not 
reopening the 2015 SSM SIP Action and is only taking comment on whether 
this SIP revision is consistent with CAA requirements and whether it 
addresses the substantial inadequacy in the specific Georgia SIP 
provision identified in the 2015 SSM SIP Action.
    If the Agency finalizes this disapproval, CAA section 110(c) would 
require EPA to promulgate a federal implementation plan within 24 
months of the effective date of the final action unless EPA first 
approves a SIP revision that corrects the deficiencies identified in 
Section II of this NPRM within such time.\14\
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    \14\ In addition to a requirement for EPA to promulgate a 
federal implementation plan, a final disapproval would trigger the 
offset sanction in CAA section 179(b)(2) 18 months after the 
effective date of a final disapproval, and the highway funding 
sanction in CAA section 179(b)(1) 24 months after the effective date 
of a final disapproval. Although the sanctions clock would begin to 
run from the effective date of a final disapproval, mandatory 
sanctions under CAA section 179 generally apply only in designated 
nonattainment areas. This includes areas designated as nonattainment 
after the effective date of a final disapproval. As discussed in the 
2015 SSM SIP Action, EPA will evaluate the geographic scope of 
potential sanctions at the time it makes a determination that the 
air agency has failed to make a complete SIP submission in response 
to the 2015 SIP call, or at the time it disapproves such a SIP 
submission. The appropriate geographic scope for sanctions may vary 
depending upon the SIP provisions at issue. See 80 FR 33839, 33930. 
At this time, there are no nonattainment areas in Georgia.
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IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Proposed action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    The proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA (5 
U.S.C. 601 et seq.). This action merely proposes to disapprove a SIP 
submission as not meeting the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    The proposed action does not contain any unfunded mandate as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or 
uniquely affect small governments. This proposed action imposes no 
enforceable duty on any State, local, or tribal governments or the 
private sector.

E. Executive Order 13132: Federalism

    The proposed action does not have federalism implications. It will 
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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    The proposed action does not have tribal implications as specified 
in Executive Order 13175. The proposed action does not apply on any 
Indian reservation land, any other area where EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction, or non-reservation 
areas of Indian country. Thus, Executive Order 13175 does not apply in 
this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definitions of ``covered regulatory action'' in section 2-202 
of the Executive Order. This proposed action is not subject to 
Executive Order 13045 because it merely proposes to disapprove a SIP 
submission from Georgia as not meeting the CAA.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution and Use

    The proposed action is not subject to Executive Order 13211, 
because it is not a significant regulatory action under Executive Order 
12866.

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk address by this 
proposed action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. This proposed action merely proposes to 
disapprove a SIP submission as not meeting the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

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

    Dated: November 21, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-25917 Filed 11-25-22; 8:45 am]
BILLING CODE 6560-50-P


