[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Rules and Regulations]
[Pages 12688-12691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5441]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[GA-15-1-6285a; GA-21-4-6514a: FRL-5153-3]


Approval and Promulgation of Implementation Plans Georgia: 
Approval of Part D New Source Review (NSR) Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On December 15, 1986, and November 13, 1992, the Georgia 
Department of Natural Resources, Environmental Protection Division 
(EPD) submitted to EPA amendments to Georgia Air Quality Control Rules 
for Definitions and Permits. Georgia's definitions rule was amended to 
incorporate and adopt by reference definitions in Federal rules for 
application in designated nonattainment areas. Georgia's permit rule 
was amended to add new paragraphs to meet the requirements of the Clean 
Air Act (Act) as amended in 1977 and 1990. The New Source Review (NSR) 
revisions of the Georgia submittal fully meet the NSR requirements of 
the amended Act. Therefore, EPA is approving the submitted revisions.

DATES: This final rule is effective on May 8, 1995 unless adverse or 
critical comments are received by April 7, 1995. If the effective date 
is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Dick Schutt, 
Regulatory Planning and Development Section, Air Programs Branch, Air, 
Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street NE, Atlanta, Georgia 30365.
    Copies of the documents relevant to this final action are available 
for public inspection during normal business hours at the following 
locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460.
Region 4 Air Programs Branch, Environmental Protection Agency, 345 
Courtland Street NE, Atlanta, Georgia 30365.
Air Protection Branch, Georgia Environmental Protection Division, 
Georgia Department of Natural Resources, 4244 International Parkway, 
Suite 120, Atlanta, Georgia 30354.

FOR FURTHER INFORMATION CONTACT: Please contact Dick Schutt of the EPA 
Region 4 Air Programs Branch at 404-347-3555, extension 4206, and at 
the above address.

SUPPLEMENTARY INFORMATION: On December 15, 1986, the Georgia Department 
of Natural Resources (DNR) submitted changes to Chapter 391-3-1 of 
their rules, Rules for Air Quality Control. Among the revisions were 
amendments to Georgia Air Quality Control Rules 391-3-1-.01, 
Definitions, and 391-3-1-.03, Permits. EPA proposed to approve these 
revisions in the June 3, 1988 Federal Register document (53 FR 20347).
    In response to the 1990 Clean Air Act Amendments (CAAA), the DNR 
submitted on November 13, 1992, additional changes to the Air Quality 
rules. This submittal, along with the 1986 submittal, satisfies the new 
source review requirements for nonattainment areas in Georgia. Georgia 
Rule 391-3-1-.01, Definitions, was amended to incorporate and adopt by 
reference the definitions contained in 40 CFR 51.165(a)(1) (i)-(xix) 
for application in designated nonattainment areas. The definitions 
contained in the Federal rules include definitions for the following: 
stationary source, major stationary source, potential to emit, major 
modification, net emissions increase, emissions unit, secondary 
emissions, fugitive emissions, significant, allowable emissions, actual 
emissions, lowest achievable emission rate, federally enforceable, 
begin actual construction, commence, necessary 
[[Page 12689]] preconstruction approvals or permits, construction, and 
volatile organic compounds.
    Georgia Rule 391-3-1-.03(8) provides for permitting of new and 
modified major sources. Paragraph 1 of Georgia Rule 391-3-1-.03(8)(c) 
was revised to conform to the statutory language in section 
173(a)(1)(A) of the Act, concerning emission offsets. Paragraphs 2 and 
3 were not changed and require a proposed source to comply with the 
lowest achievable emission rate and to demonstrate statewide compliance 
under the Act by the owner or operator of the proposed source. 
Paragraph 4 was revised to conform to the statutory language in section 
173(a)(5) by requiring an analysis of alternatives to any proposed 
source. Paragraph 5 was not changed and requires a finding that the 
State Implementation Plan (SIP) is being carried out in accordance with 
the requirements of part D of Title I of the Act.
    Georgia Rule 391-3-1-.03(8)(c), Permits, was amended in 1986 to add 
six new paragraphs (paragraphs 6 to 11) to meet the requirements of 40 
CFR 51.165(a)(3)(i), (3)(ii)(C)-(D), (3)(ii)(F)-(G), and (4)(i)-
(xxvii). The new paragraph of 391-3-1-.03(8)(c) specified as paragraph 
six (6) meets the requirements of 40 CFR 51.165(a)(3)(i). Paragraph six 
(6) is more stringent than the latter in stating that ``the offset 
baseline for determining credits for emission reductions at a source is 
the applicable emission limit in this Chapter or the actual emissions 
at the time the application to construct is filed, whichever is less.'' 
Regulation 40 CFR 51.165(a)(3)(i) simply states that ``the baseline for 
determining credit for emission reductions is the emissions limit under 
the applicable State Implementation Plan in effect at the time the 
application to construct is filed, except that the offset baseline 
shall be the actual emissions of the source from which the offset 
credit is obtained * * *. In addition, paragraph six (6) incorporates 
the stipulation that ``creditable reductions must occur within two 
years prior to the filing of the permit application and the time the 
newly permitted source emissions commence.''
    Georgia Rule 391-3-1-.03(8)(c), paragraph seven (7) specifies that 
in order to be used for offset credits, a ``shutdown or curtailment of 
production'' occurring prior to the date of the new source application 
must occur ``less than one year prior to the date of permit 
application,'' and the new source must be a replacement for the 
shutdown in whole or in part. Paragraph seven (7) meets the 
requirements of 40 CFR 51.165(a)(3)(ii)(C).
    Paragraph eight (8) of Georgia Rule 391-3-1-.03(8)(c) states, ``No 
emission offset credit may be allowed for replacing one VOC compound 
with another of less reactivity.'' This paragraph is more stringent 
than the corresponding Federal regulation, 40 CFR 51.165(a)(3)(ii)(D), 
which allows for certain exceptions.
    Paragraph nine (9) of Georgia Rule 391-3-1-.03(8)(c) is identical 
to 40 CFR 51.165(a)(3)(ii)(F), except in an apparent typographical 
error, paragraph nine refers to 40 CFR Part 52, Appendix S, rather than 
40 CFR Part 51, Appendix S. Because there is no Appendix S to Part 52, 
EPA believes that a typographical error occurred and interprets the 
paragraph to refer to 40 CFR Part 51, Appendix S. Paragraph ten (10), 
although worded differently, is identical in meaning to 40 CFR 
51.165(a)(3)(ii)(G). Paragraph eleven (11) is identical in meaning to 
40 CFR 51.165(a)(4)(i)-(xxvii), but stated in a different manner.
    Georgia Rule 391-3-1-.03(8)(c) was amended in 1992 to add two new 
paragraphs to meet the NSR requirements of the amended Act. Paragraph 
12 was added to meet the offset requirements and paragraph 13 was added 
to identify additional provisions for the ozone nonattainment areas. 
Paragraph 12 is nearly identical to the statutory language in section 
173(c) of the Act. Paragraph 13 is nearly identical to the statutory 
language in section 182(c), especially section 182(c)(6-8, 10), of the 
Act.
    The 1992 submittal also deleted Georgia Rule 391-3-1.03(8)(f). The 
requirement in this paragraph regarding de minimis levels was 
incorporated in the paragraph (8)(c).
    The 1986 submittal adopted the definition of ``stationary source'' 
which was promulgated on June 25, 1982 (47 FR 27554), by EPA. This 
definition excludes all vessel emissions in determining if the source 
is major. On January 17, 1984, the Court of Appeals for the District of 
Columbia Circuit overturned and remanded to EPA for further 
consideration the vessel emission exemption portion of EPA's new source 
review regulations. EPA has not yet completed its reconsideration of 
how vessel emissions are to be treated. However, Georgia has submitted 
a written statement specifying that waterways (of the appropriate depth 
and width) to afford passage of ships and barges are not located within 
the Atlanta nonattainment area, the only such area in Georgia. 
Therefore, EPA is approving the amendments to Georgia Rules 391-3-1-.01 
and 391-3-1-.03.
    The proposal (June 3, 1988 (53 FR 20347)) referenced that Georgia 
lacked provisions for source responsibility (40 CFR 51.165(a)(5)(ii)). 
The Georgia Environmental Protection Division notified EPA on February 
28, 1989, that they intend to apply Georgia Rule 391-3-1-.03(8)(c) to 
any source which becomes a major source or undergoes modification due 
to a change in operation and not covered in an enforceable permit. EPA 
believes that this satisfies the requirement of 40 CFR 
51.165(a)(5)(ii).
    On October 14, 1981, the EPA revised the NSR regulations in 40 CFR 
Part 51 to give states the option of adopting the ``plantwide'' 
definition of stationary source which provides that only physical or 
operational changes that result in a net increase in emissions at the 
entire plant require a NSR permit. For example, if a plant increased 
emissions from one piece of process equipment but reduced emissions by 
the same amount at another piece of process equipment, then there would 
be no net increase in emissions at the plant and therefore, no 
``modification'' to the ``source.'' The plantwide definition is in 
contrast to the so-called ``dual'' definition [or definitional 
structure like that in the 1979 offset ruling (44 FR 3274), which has 
much the same effect as the dual definition]. Under the dual 
definition, the emissions from each physical or operational change are 
gauged without regard to reductions elsewhere at the plant.
    In the October 1981 Federal Register document, EPA set forth its 
rationale for allowing use of the plantwide definition (46 FR 50766-
50769). In EPA's view, allowing use of the plantwide definition was a 
reasonable accommodation of the conflicting goals of part D of the Act. 
The Act provided for reasonable further progress (RFP) and timely 
attainment of National Ambient Air Quality Standards (NAAQS), while 
also allowing for maximum state flexibility and economic growth. EPA 
recognized that the plantwide definition would bring fewer plant 
modifications into the nonattainment permitting process, but emphasized 
that this generally would not interfere with RFP and timely attainment 
primarily because the states, under the demands of part D, eventually 
would have adequate SIPs in place. For instance, EPA stated:

    Since demonstration of attainment and maintenance of the NAAQS 
continues to be required, deletion of the dual definition increases 
State flexibility without interfering with timely attainment of the 
ambient standards and so is consistent with Part D [46 FR 50767 col. 
2].

    [[Page 12690]] EPA also indicated that under the plantwide 
definition, new equipment would still be subjected to any applicable 
new source performance standard and that wholly new plants, as well as 
any modifications that resulted in a significant net emissions 
increase, would still be subject to NSR. Thus, EPA saw no significant 
disadvantage in the plantwide definition from the environmental 
standpoint, but the advantages from the standpoints of state 
flexibility and economic growth. It regarded the plantwide definition 
as presenting, at the very worst, environmental risks that were 
manageable because of the independent impetus to create adequate part D 
plans.
    As a result, EPA ruled that a state wishing to adopt a plantwide 
definition generally has complete discretion to do so, and it set only 
one restriction on that discretion. If a state had specifically 
projected emission reductions from its NSR program as a result of a 
dual or similar definition and had relied on those reductions in an 
attainment strategy that EPA later approved, then the state needed to 
revise its attainment strategy as necessary to accommodate reduced NSR 
permitting under the plantwide definition (46 FR 50767 Col. 2 and 50769 
Col. 1).
    In 1984, the Supreme Court upheld EPA's action as a reasonable 
accommodation of the conflicting purposes of part D of the Act, and 
hence, well within EPA's broad discretion. Chevron, U.S.A., Inc. v. 
Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984). 
Specifically, the Court agreed that the plantwide definition is fully 
consistent with the Act's goal of maximizing state flexibility and 
allowing reasonable economic growth. Likewise, the Court recognized 
that EPA had advanced a reasonable explanation for its conclusion that 
the plantwide definition serves the Act's environmental objectives as 
well (see 104 S. Ct. at 2792). EPA today generally reaffirms the 
rationales stated in the 1981 rulemaking. Those rationales were left 
undisturbed by the Supreme Court decision.
    The SIP revision EPA is approving in this action substitutes a 
plantwide definition for a dual definition in Georgia's existing NSR 
program. The one nonattainment area to which this program applies (the 
13-county metropolitan Atlanta area for ozone) has a part D plan 
previously approved by EPA, but nevertheless is still experiencing 
violations of the ozone NAAQS. In response to a 1984 SIP call, Georgia 
submitted a SIP addressing the nonattainment situation on May 22, 1985. 
Due to major deficiencies in the submittal EPA proposed disapproval (52 
FR 26435, July 14, 1987). An updated and revised SIP was later 
submitted October 1, 1987. The SIP addressed many problems noted in the 
earlier submittal, however, a few minor problems still existed after a 
detailed review by EPA. In a letter to the Georgia Environmental 
Protection Division dated November 9, 1989, EPA identified a few 
remaining minor Volatile Organic Compound (VOC) Reasonably Available 
Control Technology (RACT) issues that had to be resolved before EPA 
could approve the revision. Georgia resolved these issues and they have 
been approved by EPA in a Federal Register document dated October 13, 
1992 (57 FR 46780). In fact Georgia has submitted several revisions 
required by the amended Act prior to the attainment of the NAAQS by 
1999, the statutory attainment date for serious ozone nonattainment 
areas. Georgia has submitted revisions for VOC and NOX Reasonable 
Available Control Technology, Stage II vapor recovery, clean fuel fleet 
regulations and 15% VOC reduction. These revisions will be acted on in 
subsequent actions. The State has shown that in obtaining EPA approval 
of its original part D SIP it did not rely on any emission reductions 
from the operation of its existing NSR program. Therefore, EPA approves 
the switch to a plantwide definition, in accordance with its 1981 
action.
    Georgia's plantwide definition of source is consistent with the NSR 
requirements for ozone nonattainment areas in the Clean Air Act 
Amendments of 1990. The Atlanta area is classified as a ``serious'' 
ozone nonattainment area. Therefore, the attainment date for Atlanta is 
now 1999 (see section 181(a)), and Georgia must meet an independent 
requirement to reduce VOC emissions by fifteen percent in the first six 
years after 1990 and three percent per year thereafter (see section 182 
(b) and (c)(2)(B)). While Georgia must account for the impact of its 
plantwide definition of source in the attainment and reasonable further 
progress demonstrations it submits under the 1990 Amendments, it is 
clear that Congress anticipated States could use the plantwide 
definition of source when devising such plans.
    The 1990 Amendments include provisions regulating the application 
of the plantwide definition of source, including a special rule for 
serious and severe ozone nonattainment areas for determining ``de 
minimis'' net increases in VOC emissions from source modifications 
(section 182(c)(6)). It is clear that Congress anticipates states will 
often continue to employ EPA's plantwide definition of source in ozone 
nonattainment areas (except in extreme areas, see section 182(e)(2)), 
provided the states can also meet the new reasonable further progress 
requirements in the Act. In addition, it is important to note that the 
1990 Amendments' adoption of new future attainment deadlines for ozone 
has mooted concerns regarding the approvability of a plantwide source 
definition where a state has additional time to submit a revised SIP to 
provide for attainment by the revised deadline. As described above, 
Georgia has already begun to meet its obligations under the 1990 
Amendments.
    All of the amendments to Georgia Rules 391-3-1-.01 and 391-3-1-.03 
are identical to or more stringent than corresponding federal 
regulations. Therefore, they will adequately protect the NAAQS and meet 
all requirements of the Act.

Public Comments

    EPA received comments on the proposed approval of these SIP 
revisions from two sources. Both commenters questioned approval of the 
``plantwide'' new source definition for nonattainment areas without an 
approved plan.

Response to Comments

    As discussed earlier in this document, Georgia's submission, 
including the plantwide source definition, meets all applicable Federal 
regulations and policies. Further, the 1990 Amendments accommodate a 
plantwide definition of source and provide revised attainment 
deadlines. Finally, the State's previous attainment demonstration did 
not rely on NSR reductions from the dual source definition, and Georgia 
is making reasonable efforts to develop a complete and approvable ozone 
SIP in accordance with the 1990 Amendments. Therefore, EPA is approving 
this SIP revision.

Final Action

    EPA is approving the aforementioned amendments to the Georgia rules 
submitted on December 15, 1986, and November 13, 1992.
    EPA is publishing this action without prior proposal because the 
Agency views these as noncontroversial amendments and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revisions 
should adverse or critical comments be filed. This action will be 
effective on May 8, 1995 unless, by April 7, 1995 adverse or critical 
comments are received. [[Page 12691]] 
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective on May 8, 1995.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any SIP. Each request for revision to the SIP shall be considered 
separately in light of specific technical, economic and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 8, 1995. This action may not be 
challenged later in proceedings to enforce its requirements. (See 
307(b)(2).)
    The OMB has exempted these actions from review under Executive 
Order 12866.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the Act 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the Act, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action.
    The Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. Environmental Protection Agency et 
al, 96 S.Ct. 2518 (1976); 42 U.S.C. 7410(a)(2) and 7410(k).

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: February 6, 1995.
Patrick M. Tobin,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart L--Georgia

    2. Section 52.570 is amended by adding paragraph (c)(39) to read as 
follows:


Sec. 52.570  Identification of plan.

* * * * *
    (c) * * *
    (39) On December 15, 1986, and November 13, 1992, the Georgia 
Department of Natural Resources, Environmental Protection Division 
submitted regulations for Part D New Source Review.
    (i) Incorporation by reference. Revisions to the following Rules of 
Georgia Department of Natural Resources, Environmental Protection 
Division, effective November 22, 1992:
    (A) 391-3-1-.01 introductory paragraph
    (B) 391-3-1-.03(8)(c)
    (ii) Other material. Letter dated February 28, 1989, from the 
Georgia Department of Natural Resources, page 3 regarding change in 
operation of a source.
* * * * *
[FR Doc. 95-5441 Filed 3-7-95; 8:45 am]
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