08.11.2015 EPA Rejects Georgia SIP’s Automatic Rescission Powers By: Ethan R. Ware

Rarely does EPA propose to reject state regulations during review and approval of a State Implementation Plan (SIP) under the Clean Air Act.  However, EPA did just that for the Georgia SIP which automatically rescinded federal standards in certain circumstances.

In 2011, Georgia submitted its SIP revisions for approval by EPA as required by 40 CFR 51.105.  The Georgia rules included a new definition for “subject to regulation,” which immediately vacated any federal air regulations repealed or otherwise vacated by a federal court in the future.  The state indicated in the SIP background documents that it did not wish to enforce a federal rule otherwise unenforceable by EPA.  The effect of the automatic revision, of course, would be to vacate SIP requirements without review and approval of EPA and without public notice.

EPA proposed to disapprove of the SIP revisions on July 31, 2015.  Georgia’s revisions appear to contravene federal regulations which require any change to a state SIP to be approved by EPA before it goes into effect.  The prospective invalidation of a regulation in the future without EPA approval would be inconsistent with that rule.

Written comments on the proposal must be received by August 31, 2015.  Companies may wish to support Georgia’s SIP revision.  Absent the revision, facilities in Georgia and other states remain subject to federal air standards until the state SIP is revised, even if the federal regulation is vacated by a federal court or EPA in the meantime.

80 Fed. Reg. 45636 (July 31, 2015).