[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Rules and Regulations]
[Pages 55572-55577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22666]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2010-0816-201106; FRL-9458-1]
Approval and Promulgation of Implementation Plans; Georgia:
Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule
and Fine Particulate Matter Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve portions of a revision
to the State Implementation Plan (SIP), submitted by the State of
Georgia, through the Georgia Department of Natural Resources'
Environmental Protection Division (EPD), to EPA on September 30, 2010,
for parallel processing. Georgia submitted the final version of this
SIP revision on January 13, 2011. The portions of the SIP revision
approved by this action incorporate two updates to Georgia's air
quality regulations under Georgia's New Source Review (NSR) Prevention
of Significant Deterioration (PSD) program. First, the SIP revision
establishes appropriate emission thresholds for determining which new
stationary sources and modification projects become subject to
Georgia's PSD permitting requirements for its greenhouse gas (GHG)
emissions. Second, the SIP revision incorporates provisions for
implementing the PSD program for the fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS). EPA
is approving Georgia's January 13, 2011, SIP revision because the
Agency has made the determination that this SIP revision is in
accordance with the Clean Air Act (CAA or Act) and EPA regulations,
including those relating to PSD permitting for GHGs and the
PM2.5 NAAQS. Additionally, EPA is responding to adverse
comments received on EPA's November 29, 2010, proposed approval of
Georgia's September 30, 2010, draft SIP revision.
DATES: Effective Date: This rule will be effective October 11, 2011.
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 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 for further information. The Regional Office's official hours
of business are Monday through Friday, 8:30 to 4:30, excluding federal
holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the Georgia
SIP, contact Ms. Twunjala Bradley, 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. Ms. Bradley's telephone number is (404)
562-9352; e-mail address: [email protected]. For information
regarding the Tailoring Rule and the NSR PM2.5 Rule, contact
Ms. Heather Abrams, Air Permits Section, at the same address above. Ms.
Abrams' telephone number is (404) 562-9185; e-mail address:
[email protected]. For information regarding the PM2.5
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the
same address above. Mr. Huey's telephone number is (404) 562-9104; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What is the background for this action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What is the background for this action?
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's final action on
the Georgia SIP. Four of these actions include, as they are commonly
called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and
the ``Tailoring Rule.'' \4\ Taken together and in conjunction with the
CAA, these actions established regulatory requirements for GHGs emitted
from new motor vehicles and new motor vehicle engines; determined that
such regulations, when they took effect on January 2, 2011, subjected
GHGs emitted from stationary sources to PSD requirements; and limited
the applicability of PSD requirements to GHG sources on a phased-in
basis.
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\1\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\2\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
\3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\4\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
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With regard to the PM2.5 NAAQS, EPA finalized a rule on
May 16, 2008, including changes to the NSR program (hereafter referred
to as the ``2008 NSR PM2.5 Rule''). See 73 FR 28321. The
2008 NSR PM2.5 Rule revised the NSR program requirements to
establish the framework for implementing preconstruction permit review
for the PM2.5 NAAQS in both attainment and nonattainment
areas. States were required to provide SIP submissions to address the
requirements for the 2008 NSR PM2.5 Rule by May 16, 2011.
On September 30, 2010,\5\ in response to the Tailoring Rule,
earlier GHG-related EPA rules and the 2008 NSR PM2.5 Rule,
EPD submitted a draft revision to EPA for approval into the Georgia SIP
to: (1) Establish appropriate emission thresholds for determining which
new or modified stationary sources become subject to Georgia's PSD
permitting requirements for GHG emissions; and (2) incorporate
provisions for implementing the PSD program for the PM2.5
NAAQS. Subsequently, on November 29, 2010, EPA published a proposed
rulemaking to approve portions of Georgia's September 30, 2010, SIP
revision under parallel processing. See 75 FR 73017. Specifically, EPA
proposed to approve
[[Page 55573]]
the portions of Georgia's September 30, 2010, draft SIP revision that
incorporate by reference the thresholds for GHG permitting
applicability at 40 CFR 52.21 (as amended June 3, 2010, and effective
August 2, 2010), into Georgia's SIP (391-3-1-.02(7)--Prevention of
Significant Deterioration of Air Quality),\6\ and that incorporate the
federal requirements related to the 2008 NSR PM2.5 Rule.
Detailed background information and EPA's rationale for the proposed
approval are provided in EPA's November 29, 2010, Federal Register
notice.
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\5\ With respect to the PM2.5 NAAQS, Georgia's
January 13, 2011, SIP revision only addresses PSD requirements.
Regarding the nonattainment NSR provisions for the PM2.5
NAAQS, EPA is awaiting final SIP submittal from Georgia for the
nonattainment NSR PM2.5 provisions.
\6\ Georgia's submittal also includes revised title V operating
permit provisions, which are not included in the SIP. As such, EPA
is not taking final action to approve Georgia's update to its title
V regulations in this rulemaking.
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EPA's November 29, 2010, proposed approval was contingent upon
Georgia providing a final SIP revision that was substantively the same
as the revision proposed for approval by EPA in the November 29, 2010,
proposed rulemaking. See 75 FR 73017. Georgia provided its final SIP
revision on January 13, 2011. There were no differences between
Georgia's September 30, 2010, draft SIP revision, and the January 13,
2011, final SIP revision.
On December 30, 2010, EPA published a final rule narrowing its
previous approval of PSD programs as applicable to GHG-emitting sources
in SIPs for 24 states, including Georgia.\7\ See 75 FR 82536 (PSD
Narrowing Rule). Specifically, in the PSD Narrowing Rule, EPA withdrew
its previous approval of Georgia's SIP to the extent it applied PSD to
GHG-emitting sources below the thresholds in the Tailoring Rule. The
effect of the PSD Narrowing Rule on the approved Georgia SIP was to
establish that new and modified sources are subject to PSD permitting
requirements for their GHG emissions only if they emit GHGs at or above
the Tailoring Rule's emission thresholds. As result of today's action
approving Georgia's incorporation of the appropriate GHG permitting
thresholds into its SIP, paragraph (b) in 40 CFR 52.572, as included in
EPA's Narrowing Rule, is no longer necessary. Thus, today's action also
amends 40 CFR 52.572 to remove this unnecessary regulatory language.
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\7\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).
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In addition to changes to address PSD permitting requirements for
GHGs and PM2.5 discussed above, Georgia's January 13, 2011,
SIP revision incorporated by reference provisions in 40 CFR 52.21 that:
(1) Exclude facilities that produce ethanol through a natural
fermentation process from the definition of ``chemical process plants''
in the major NSR source permitting program as provided by the Ethanol
Rule (72 FR 24060, May 1, 2007), and (2) implement EPA's Fugitive
Emissions Rule (73 FR 77882, December 19, 2008).\8\ The SIP revision
also includes a provision (at 391-3-1-.02(7)(a)(iv)) that would
automatically rescind portions of Georgia's SIP in the wake of certain
court decisions or other events (the automatic rescission clause). At
this time, EPA is not taking final action to approve these three
additional provisions into the Georgia SIP.
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\8\ On March 31, 2010, EPA stayed the Fugitive Emissions Rule
(73 FR 77882) for 18 months to October 3, 2011, to allow the Agency
time to propose, take comment and issue a final action regarding the
inclusion of fugitive emissions in NSR applicability determinations.
The March 31, 2010, stay was established as a result of EPA granting
Natural Resource Defense Council's petition for reconsideration on
the original Fugitive Emissions Rule. See 73 FR 77882. On March 30,
2011 (76 FR 17548), EPA proposed an interim rule that superseded the
March 31, 2010, stay to clarify and extend the stay of the Fugitive
Emission Rule until EPA completes its reconsideration. The interim
rule simply reverts the CFR text back to the language that existed
prior to the Fugitive Emissions Rule changes in the December 19,
2008 rulemaking. EPA plans to issue a final rule approving the
interim rule. Until the interim rule is final, the Fugitive Emission
Rule is still currently stayed through October 3, 2011.
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II. What is EPA's response to comments received on this action?
EPA received two sets of adverse comments on the November 29, 2010,
proposed rulemaking to approve revisions to Georgia's SIP. One set of
comments, provided by the Air Permitting Forum, raised concerns
regarding the SIP revisions relating to PSD permitting for GHGs. The
other set of comments, provided by Oglethorpe Power Corporation,
expressed concern over EPA not proposing action on the automatic
rescission clause contained in Georgia's September 30, 2010, draft SIP
revision. A full set of the comments provided by both Oglethorpe Power
Corporation and Air Permitting Forum (hereinafter referred to as the
``Commenter'') is provided in the docket for today's final action. The
comments can be accessed at http://www.regulations.gov using Docket ID
No.: EPA-R04-OAR-2010-0816. A summary of the adverse comments and EPA's
responses are provided below.
Generally, the adverse comments fall into four categories. First,
one Commenter states that PSD requirements cannot be triggered by GHGs.
Second, a Commenter expresses concerns regarding a footnote in the
November 29, 2010, proposal describing EPA's previously announced
intention to narrow its prior approval of some SIPs to ensure that
sources with GHG emissions that are less than the Tailoring Rule's
thresholds will not be obligated under federal law to obtain PSD
permits prior to a SIP revision incorporating those thresholds. The
Commenter states that the planned SIP approval narrowing action ``is
illegal.'' Third, a Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements. Lastly,
both Commenters express concern over EPA not proposing action in the
November 29, 2010, rulemaking on the automatic rescission clause
(labeled the ``severability provision'' by one Commenter, and the
``sunsetting clause'' by the other Commenter) included in Georgia's
September 30, 2010, draft SIP revision. EPA's response to these four
categories of comments is provided below.
Comment 1: The Commenter asserts that PSD requirements cannot be
triggered by GHGs. In its letter, the Commenter reiterates EPA's
statement that without the Tailoring Rule thresholds, PSD will apply as
of January 2, 2011, to all stationary sources that emit or have the
potential to emit, depending on the source category, either 100 or 250
tons of GHGs per year. The Commenter also reiterates EPA's statement
that beginning January 2, 2011, a source owner proposing to construct
any new major source that emits at or higher than the GHG applicability
levels, or to modify any existing major source in a way that would
increase GHG emissions, would need to obtain a PSD permit that
addresses these emissions before construction could begin. In raising
concerns with the two aforementioned statements, the Commenter states:
``No area in the State of Georgia has been designated attainment or
unclassifiable for greenhouse gases (GHGs), as there is no national
ambient air quality standard (NAAQS) for GHGs. Therefore, GHGs cannot
trigger PSD permitting.'' The Commenter notes that it made this
argument in detail in comments submitted to EPA on the Tailoring Rule
and other related GHG rulemakings. The Commenter attached those
previously submitted comments to its comments on the proposed
rulemaking related to today's action. Finally, the Commenter states
that ``EPA should immediately provide notice that it is now
interpreting the Act not to require that GHGs trigger PSD and allow
Georgia to
[[Page 55574]]
rescind that portion of its rules that would allow GHGs to trigger
PSD.''
Response 1: EPA established the requirement that PSD applies to all
pollutants newly subject to regulation, including non-NAAQS pollutants
such as GHGs, in earlier national rulemakings concerning the PSD
program, and EPA has not re-opened that issue in today's rulemaking. In
an August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710-52712, and 45
FR 52735, EPA stated that a ``major stationary source'' was one which
emitted ``any air pollutant subject to regulation under the Act'' at or
above the specified numerical thresholds; and defined a ``major
modification,'' in general, as a physical or operational change that
increased emissions of ``any pollutant subject to regulation under the
Act'' by more than an amount that EPA variously termed as de minimis or
significant. In addition, EPA's 2002 NSR Reform rules added to the PSD
regulations the new definition of ``regulated NSR pollutant''
(currently codified at 40 CFR 52.21(b)(50) and 40 CFR 51.166(a)(49))
and noted that EPA added this term based on a request from a commenter
to ``clarify which pollutants are covered under the PSD program.''
Further, EPA explained that in addition to criteria pollutants for
which a NAAQS has been established, ``[t]he PSD program applies
automatically to newly regulated NSR pollutants, which would include
final promulgation of an NSPS [new source performance standard]
applicable to a previously unregulated pollutant.'' See 67 FR 80186,
80240 and 80264 (December 31, 2002). Among other things, the definition
of ``regulated NSR pollutant'' includes ``[a]ny pollutant that
otherwise is subject to regulation under the Act.'' See 40 CFR
52.21(b)(50)(d)(iv); 40 CFR 51.166(a)(49)(iv).
EPA disagrees with the Commenter's underlying premise that PSD
requirements were not triggered for GHGs when GHGs became subject to
regulation on January 2, 2011. This has been well established and
discussed in connection with prior EPA actions, including, most
recently, the Johnson Reconsideration and the Tailoring Rule. In
addition, EPA's November 29, 2010, proposed rulemaking provides the
general basis for the Agency's rationale that GHGs, while not a NAAQS
pollutant, can trigger PSD permitting requirements. The November 29,
2010, action also refers the reader to the preamble of the Tailoring
Rule for further information on this rationale. In that rulemaking, EPA
addressed at length the comment that PSD can be triggered only by
pollutants subject to the NAAQS, and concluded such an interpretation
of the Act would contravene Congress' unambiguous intent. See 75 FR
31560-31562. Further discussion of EPA's rationale for concluding that
PSD requirements are triggered by non-NAAQS pollutants such as GHGs
appears in the Tailoring Rule Response-to-Comments document
(``Prevention of Significant Deterioration and Title V GHG Tailoring
Rule: EPA's Response to Public Comments''), pp. 34-41; and in EPA's
response to motions for a stay filed in the litigation concerning those
rules (``EPA's Response to Motions for Stay,'' Coalition for
Responsible Regulation v. EPA, D.C. Cir. No. 09-1322 (and consolidated
cases)), at pp. 47-59, and are incorporated by reference here. These
documents have been placed in the docket for today's action and can be
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-0816.
Comment 2: The Commenter expresses concerns regarding a footnote in
which EPA describes its previously announced intention to narrow its
prior approval of some SIPs. In the footnote, EPA explained that such
narrowing would ensure that sources with GHG emissions that are less
than the Tailoring Rule's thresholds are not obligated under federal
law to obtain PSD permits during any gap between the effective date of
GHG-permitting requirements (January 2, 2011) and the date that a SIP
is revised to incorporate the Tailoring Rule thresholds. The Commenter
asserts that EPA's narrowing of its prior SIP approvals ``is illegal.''
Further, the Commenter states that ``EPA has not proposed to narrow
Georgia's SIP approval here and any such proposal must be explicit and
address the action specifically made with respect to Georgia. EPA
cannot sidestep these important procedural requirements.''
Response 2: While EPA does not agree with the Commenter's assertion
that the narrowing approach discussed in EPA's Tailoring Rule is
illegal, the narrowing approach was not the subject of EPA's November
29, 2010, proposed rulemaking to approve Georgia's September 30, 2010,
SIP revision. Rather, the narrowing approach was the subject of a
separate rulemaking, which was considered and finalized in the PSD
Narrowing Rule in an action separate from today's rulemaking. See 75 FR
82536 (December 30, 2010). In today's final action, EPA is acting to
approve a SIP revision submitted by Georgia, and is not otherwise
narrowing its approval of previously approved provisions in the Georgia
SIP. Accordingly, the legality of the narrowing approach is not at
issue in today's rulemaking.
Comment 3: The Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements.
Specifically, the Commenter refers to the statutory and executive
orders for the Paperwork Reduction Act, the Regulatory Flexibility Act
(RFA), Unfunded Mandates Reform Act, and Executive Order 13132
(Federalism). Additionally, the Commenter mentions that EPA has never
analyzed the costs and benefits associated with triggering PSD for
stationary sources in Georgia, much less nationwide.
Response 3: EPA disagrees with the Commenter's statement that EPA
has failed to meet applicable statutory and executive order review
requirements. As stated in EPA's proposed approval of Georgia's
September 30, 2010, draft SIP revision, today's action merely approves
state law as meeting federal requirements and does not impose
additional requirements beyond those imposed by state law. Accordingly,
EPA approval, in and of itself, does not impose any new information
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would
require additional review under the Paperwork Reduction Act. In
addition, because today's action simply approves existing state law, it
will not have a significant economic impact on a substantial number of
small entities beyond the impact of existing state law requirements.
Thus, a regulatory flexibility analysis is not required under the RFA.
Accordingly, this rule is appropriately certified under section 605(b)
of the RFA. Moreover, as this action approves pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it does not contain any unfunded
mandates or significantly or uniquely affect small governments, such
that it would be subject to the Unfunded Mandates Reform Act. Finally,
this action does not have federalism implications that would make
Executive Order 13132 applicable because it merely approves a state
rule implementing a federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the CAA.
In sum, today's rule is a routine approval of a SIP revision,
approving state law, and does not impose any requirements beyond those
imposed by state law. To the extent these comments are directed more
generally to the application of the statutory and executive order
reviews to the required regulation of GHGs under PSD
[[Page 55575]]
programs, EPA provided an extensive response to similar comments in
promulgating the Tailoring Rule. EPA refers the Commenter to the
sections in the Tailoring Rule entitled ``VII. Comments on Statutory
and Executive Order Reviews,'' 75 FR 31601-31603, and ``VI. What are
the economic impacts of the final rule?'' 75 FR 31595-31601. EPA also
notes that today's action does not in-and-of itself trigger the
regulation of GHGs. To the contrary, by helping to clarify that higher
PSD applicability thresholds for GHGs apply than would otherwise be in
effect under the Act, this rulemaking, as well as EPA's Tailoring Rule,
is part of the effort to provide relief to smaller GHG-emitting sources
that would otherwise be subject to PSD permitting requirements for
their GHG emissions.
Comment 4: The Commenters object to EPA not proposing to take
action (in the November 29, 2010, proposed rulemaking) on the automatic
rescission clause included in Georgia's September 30, 2010, draft SIP
revision. One Commenter states: ``EPA refuses to take action on this
provision, proposing neither approval nor disapproval of the
severability provision in the Georgia SIP.'' This Commenter further
states that, at a minimum, EPA is required, pursuant to section
110(k)(2) of the CAA, to take action within 12 months after the State's
submission of a complete SIP revision. The other Commenter asserts that
EPA cannot take action on any portion of the Georgia SIP revision
without taking action on the automatic rescission clause because, in
the Commenter's opinion, the rescission clause is not ``separable.''
The Commenter goes on to state that EPA is changing the intended scope
of the State's regulations. Further, the Commenter states: ``EPA's
failure to `act' on this provision would have the effect of codifying a
provision more stringent than what Georgia submitted to EPA because it
would effectively make the tailoring thresholds permanent until EPA
revises the SIP in the future. EPA must follow Section 110(k)(3) and
its own guidance, and approve the submitted provisions as a whole.''
Response 4: Contrary to the comments described above, EPA is not
refusing to take action on the automatic rescission clause. Rather, EPA
is in the process of evaluating the approvability of the automatic
rescission clause included in Georgia's January 13, 2011, final SIP
revision, and will continue to work with the State to resolve
outstanding concerns and reach a final decision. As noted by one
Commenter, section 110(k)(3) of the Act provides EPA with 12 months to
act on a SIP revision once the State's submission is complete, and that
time period has not yet expired with respect to Georgia's automatic
rescission clause.
One Commenter cites the Seventh Circuit finding in Bethlehem Steel
v. Gorsuch, 742 F.2d 1028 (7th Cir. 1984) that EPA may not act
separately on a portion of a SIP revision submittal that is not
separable from the rest, and the commenter defines ``separable'' as
meaning that approving only a portion of the SIP revision ``should not
result in the approved portions of the SIP submission being more
stringent than the State would have anticipated.'' However, in an e-
mail dated May 10, 2011, Georgia agreed to allow EPA to take action on
the majority of this SIP revision now, and reserve action on the
automatic rescission clause for a later date. The May 10, 2011, e-mail
to EPA Region 4 Air Planning Branch, Regulatory Development Section
Chief Lynorae Benjamin from Georgia EPD Air Protection Branch Chief
James Capp states: ``Georgia would like you to move forward with final
approval for the GHG Rule and not wait on the resolution for the
rescission clause. However, we would like to continue working with you
on obtaining approval of the rescission clause.'' See Docket ID No.
EPA-R04-OAR-2010-0816. Given Georgia's agreement to EPA's proposed
course of action, EPA is not acting in a way that makes its approval
more stringent than the state would anticipate and the 7th Circuit's
analysis in Bethlehem Steel is not implicated. Moreover, regardless of
whether EPA eventually approves the automatic rescission clause into
Georgia's SIP, if the federal GHG regulations are eliminated for some
reason, Georgia will be able to revise its SIP accordingly using the
SIP revision procedures set forth in section 110 of the CAA. EPA notes
that it has not yet decided on the approvability of the rescission
clause that the State submitted with its January 13, 2011 SIP revision,
but will continue to work with the State in consideration of a final
course of action.
III. What is the effect of this final action?
Final approval of Georgia's January 13, 2011, SIP revision will
incorporate the GHG emission thresholds for PSD applicability set forth
in EPA's Tailoring Rule (75 FR 31514, June 3, 2010) and adopted as
state law, confirming that smaller GHG sources emitting less than these
thresholds will not be subject to PSD permitting requirements under the
approved Georgia SIP. Pursuant to section 110 of the CAA, EPA is
approving the changes made in Georgia's January 13, 2011, SIP revision
into Georgia's SIP, with the exception of certain provisions noted
above.
Georgia's January 13, 2011, revision updates its existing
incorporation by reference of the federal NSR program to include the
relevant federal Tailoring Rule provisions set forth at 40 CFR 52.21
into the Georgia SIP at 391-3-1-.02(7)--Prevention of Significant
Deterioration of Air Quality.\9\ EPA has determined that the portions
of Georgia's January 13, 2011, SIP revision, approved by today's action
are consistent with EPA's regulations, including the Tailoring Rule.
Furthermore, EPA has determined that these portions of the January 13,
2011, revision to Georgia's SIP are consistent with section 110 of the
CAA. See, e.g., Tailoring Rule, at 75 FR 31561.
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\9\ Georgia's submittal also relates to title V provisions,
which are not included in the SIP. As such, EPA is not taking action
to approve Georgia's update to its title V regulations in this
rulemaking.
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Additionally, Georgia's January 13, 2011, SIP revision incorporates
by reference the provisions at 40 CFR 52.21 as amended by the
promulgation of the NSR PM2.5 Rule for PSD.\10\ EPA has
determined that these portions of Georgia's January 13, 2011, SIP
revision approved by today's action are consistent with EPA's
regulations, including the NSR PM2.5 Rule for PSD, and with
section 110 of the CAA.
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\10\ Georgia's January 13, 2011, SIP revision excludes adoption
of the relevant grandfathering provision at 40 CFR 52.21(i)(1)(ix).
On May 18, 2011, (76 FR 28646) EPA took final action to repeal the
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi)
which ends the use of the 1997 PM10 Surrogate Policy for
PSD permits under the federal PSD program at 40 CFR 52.
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IV. Final Action
EPA is taking final action to approve, with certain exceptions,
Georgia's January 13, 2011, SIP revision, which updates Georgia's air
quality regulations, 391-3-1-.02(7)--Prevention of Significant
Deterioration of Air Quality, to reflect changes in federal
requirements. Specifically, Georgia's January 13, 2011, SIP revision
incorporates appropriate emissions thresholds for determining PSD
applicability with respect to new or modified GHG-emitting sources in
accordance with EPA's Tailoring Rule, and incorporates those thresholds
in the form in which they are stated in state law. In addition, the SIP
revision incorporates provisions for implementing the PSD program for
the PM2.5 NAAQS. EPA determined that the portions of the
January 13, 2011, SIP revision addressed by today's action are
approvable because they are in
[[Page 55576]]
accordance with the CAA and EPA regulations.
As result of EPA's approval of Georgia's changes to its air quality
regulations to incorporate the appropriate thresholds for GHG
permitting applicability into Georgia's SIP, paragraph (b) in 40 CFR
52.572, as included in EPA's PSD Narrowing Rule, is no longer
necessary. In this final action, EPA is amending 40 CFR 52.572 to
remove this unnecessary regulatory language.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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 November 7, 2011. 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 CAA section 307(b)(2). For purposes of
judicial review, each of the SIP revisions approved by today's action
are severable from one another.
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: August 16, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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. Section 52.570 (c) is amended by revising the entry for ``391-3-
1-.02(7)'' to read as follows:
Sec. 52.570 Identification of plan.
* * * * *
(c) * * *
EPA Approved Georgia Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation
date
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[[Page 55577]]
* * * * * * *
391-3-1-.02(7)....................... Prevention of 12/29/2010 9/8/2011, [Insert Georgia's PSD Rule 391-3-1-.02(7) incorporates
Significant citation of by reference the regulations found at 40 CFR
Deterioration of Air publication]. 52.21 as of June 3, 2010, with changes. This
Quality (PSD). EPA action is approving the incorporation by
reference with the exception of the following
provisions: (1) the provisions amended in the
Ethanol Rule (72 FR 24060) which exclude
facilities that produce ethanol through a
natural fermentation process from the
definition of ``chemical process plants'' in
the major NSR source permitting program found
at 40 CFR 52.21(b)(1)(i)(a) and (b)(1(iii)(t);
and 2) the administrative regulations amended
in the Fugitive Emissions Rule (73 FR 77882).
Additionally, this EPA action is not approving
the ``automatic rescission clause'' provision
at 391-3-1-.02(7)(a)2.(iv).
This rule contains NOX as a precursor to ozone
for PSD and NSR.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
0
3. Section 52.572 is revised to read as follows:
Sec. 52.572 Approval Status.
With the exceptions set forth in this subpart, the Administrator
approves Georgia's plans for the attainment and maintenance of the
national standards under section 110 of the Clean Air Act. Furthermore,
the Administrator finds the plans satisfy all requirements of Part D,
Title I, of the Clean Air Act as amended in 1977.
[FR Doc. 2011-22666 Filed 9-7-11; 8:45 am]
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