[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Rules and Regulations]
[Pages 45048-45051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21466]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[GA-033-1-7037a; FRL-5276-1]


Approval and Promulgation of Implementation Plans Georgia: 
Approval of Revisions to Minor Source Permit Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Georgia State Implementation 
Plan (SIP) to allow the State of Georgia to issue Federally enforceable 
state operating permits (FESOP). On March 15, 1995, the State of 
Georgia through the Georgia Department of Natural Resources, 
Environmental Protection Division (EPD) submitted a SIP revision 
fulfilling the requirements necessary for a state FESOP program to 
become Federally enforceable. In order to extend the Federal 
enforceability of Georgia's FESOP program to hazardous air pollutants 
(HAP), EPA is also approving Georgia's FESOP program pursuant to 
section 112 of the Clean Air Act as amended in 1990 (CAA) so that the 
State may issue FESOP for HAP.

DATES: This final rule will be effective October 30, 1995 unless 
adverse or critical comments are received by September 29, 1995. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments should be addressed to Yolanda Adams, at 
the EPA Regional Office listed below. Copies of the documents relative 
to this action are available for public inspection during normal 
business hours at the following locations. The interested persons 
wanting to examine these documents should make an appointment with the 
appropriate office at least 24 hours before the visiting day.

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

FOR FURTHER INFORMATION CONTACT: Yolanda Adams, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365. 
The telephone number is 404/347-3555 x4149. Reference file GA033-01-
7037.

SUPPLEMENTARY INFORMATION: On March 15, 1995, the State of Georgia 
through the EPD submitted a SIP revision designed to make certain 
permits issued under Georgia's existing minor source operating permit 
program Federally enforceable pursuant to EPA requirements as specified 
in a Federal Register document, ``Requirements for the preparation, 
adoption, and submittal of implementation plans; air quality, new 
source review; final rules.'' (see 54 FR 22274, June 28, 1989). The 
State will continue to issue permits which are not Federally 
enforceable under its existing minor source operating permit rules as 

[[Page 45049]]
it has done in the past. The SIP revision which is the subject of 
today's rulemaking adds additional requirements to the State's current 
minor source operating permit program which allows the State to issue 
Federally enforceable operating permits, and provides for the issuance 
of generic operating permits.1 This voluntary SIP revision allows 
EPA and citizens under the CAA to enforce terms and conditions of 
Georgia's FESOP program. Operating permits that are issued under the 
State's FESOP program that is approved into the State SIP and under 
section 112(l) will provide Federally enforceable limits to an air 
pollution source's potential to emit. Limiting of a source's potential 
to emit through Federally enforceable operating permits can affect a 
source's applicability to Federal regulations such as title V operating 
permits, New Source Review (NSR) preconstruction permits, Prevention of 
Significant Deterioration (PSD) preconstruction permits for criteria 
pollutants and Federal air toxics requirements mandated under section 
112 of the CAA.

    \1\ A generic permit is a single operating permit that 
establishes terms and conditions that must be complied with by all 
sources subject to that permit.
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    In the aforementioned June 28, 1989, Federal Register document, EPA 
listed five criteria necessary to make a State's minor source operating 
permit program Federally enforceable and, therefore, approvable into 
the SIP. This revision satisfies the five criteria for Federal 
enforceability of the State's FESOP program.
    The first criteria for a state's operating permit program to become 
Federally enforceable is that the permit program that the state wishes 
to be Federally enforceable must be approved into the SIP. On March 15, 
1995, the State of Georgia submitted through the EPD a SIP revision 
designed to meet the five criteria for Federal enforceability. Today's 
action will approve these regulations into the Georgia SIP, thereby, 
meeting the first criteria for Federal enforceability.
    The second criteria for a state's operating permit program to 
become Federally enforceable is that the regulations approved into the 
SIP impose a legal obligation that operating permit holders adhere to 
the terms and limitations of such permits. Georgia's regulations meet 
this criteria in Rule 391-3-1-.03, subsections (2)(g) and (12)(a), by 
requiring that under penalty of law, the holder of any Air Quality 
Permit must adhere to the terms, limitations, and conditions of that 
permit and subsequent revisions of that permit. Hence, the second 
criteria for Federal enforceability is met.
    The third criteria necessary for a state's operating permit program 
to be Federally enforceable is that the state operating permit program 
require that all emissions limitations, controls, and other 
requirements imposed by such permits will be at least as stringent as 
any other applicable limitations and requirements contained in the SIP 
or enforceable under the SIP, and that the program may not issue 
permits that waive, or make less stringent, any limitations or 
requirements contained in or issued pursuant to the SIP, or that are 
otherwise ``Federally enforceable'' (e.g. standards established under 
sections 111 and 112 of the Act). Georgia satisfies this criteria in 
Rule 391-3-1-.03, subsection (2)(c) by stating that an operating permit 
will be issued upon evidence of compliance with the provisions of the 
Act and the rules and regulations promulgated thereunder. Said permit 
shall specify the conditions under which the facility shall be operated 
in order to comply with the Act and rules and regulations. As a 
condition for the issuance of an operating permit, Georgia may require 
the applicant to conduct performance tests and monitoring and provide 
reports concerning operations, to demonstrate compliance with the Act 
and the rules and regulations. Therefore, this subsection of Georgia's 
permits rule satisfies the third criteria for Federal enforceability.
    The fourth criteria for a state's operating permit program to 
become Federally enforceable is that limitations, controls, and 
requirements in the operating permits are quantifiable, and otherwise 
enforceable as a practical matter. Georgia's Rule 391-3-1-.03, 
subsections (2)(h) and (12)(b), requires that the limitations, 
controls, and requirements in Federally enforceable operating permits 
be permanent, quantifiable, and otherwise enforceable as a practical 
matter. Therefore, the Georgia FESOP program satisfies the fourth 
criteria for Federal enforceability.
    The fifth criteria for a state's operating permit program to become 
Federally enforceable is to provide EPA and the public with timely 
notice of the proposal and issuance of such permits, and to provide 
EPA, on a timely basis, with a copy of each proposed (or draft) and 
final permit intended to be Federally enforceable. This process also 
must provide for an opportunity for public comment on the permit 
applications prior to issuance of the final permit. Rule 391-3-1-.03, 
subsections (2)(i) and (12)(c), states that prior to the issuance of 
any Federally enforceable operating permit, EPA and the public will be 
notified and given a chance for comment on the draft permit. EPA notes 
that any permit which has not gone through an opportunity for public 
comment and EPA review under the Georgia FESOP program will not be 
Federally enforceable.
    In addition to requesting approval into the SIP, Georgia has also 
requested approval of its FESOP program under section 112(l) of the Act 
for the purpose of creating Federally enforceable limitations on the 
potential to emit of HAP through the issuance of Federally enforceable 
state operating permits. Approval under section 112(l) is necessary 
because the proposed SIP approval discussed above only extends to the 
control of criteria pollutants.
    EPA believes that the five approval criteria for approving FESOP 
programs into the SIP, as specified in the June 28, 1989, Federal 
Register document, are also appropriate for evaluating and approving 
the programs under section 112(l). The June 28, 1989, document does not 
address HAP because it was written prior to the 1990 amendments to 
section 112, not because it establishes requirements unique to criteria 
pollutants.
    In addition to meeting the criteria in the June 28, 1989, document, 
a FESOP program that addresses HAP must meet the statutory criteria for 
approval under section 112(l)(5). Section 112(l) allows EPA to approve 
a program only if it: (1) contains adequate authority to assure 
compliance with any section 112 standards or requirements; (2) provides 
for adequate resources; (3) provides for an expeditious schedule for 
assuring compliance with section 112 requirements; and (4) is otherwise 
likely to satisfy the objectives of the CAA.
    EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAP, such as FESOP programs, through amendments to 
Subpart E of Part 63, the regulations promulgated to implement section 
112(l) of the CAA. (See 58 Fed. Reg. 62262, November 26, 1993.) EPA 
anticipates that these regulatory criteria, as they apply to FESOP 
programs, will mirror those set forth in the June 28, 1989, document. 
The EPA also anticipates that since FESOP programs approved pursuant to 
section 112(l) prior to the planned Subpart E revisions will have been 
approved as meeting these criteria, further approval actions for those 
programs will not be necessary.
    EPA has authority under section 112(l) to approve programs to limit 
potential to emit of HAP directly under section 112(l) prior to this 
revision to 

[[Page 45050]]
Subpart E. Section 112(l)(5) requires the EPA to disapprove programs 
that are inconsistent with guidance required to be issued under section 
112(l)(2). This might be read to suggest that the ``guidance'' referred 
to in section 112(l)(2) was intended to be a binding rule. Even under 
this interpretation, EPA does not believe that section 112(l) requires 
this rulemaking to be comprehensive. That is, it need not address every 
possible instance of approval under section 112(l). EPA has already 
issued regulations under section 112(l) that would satisfy any section 
112(l)(2) requirement for rulemaking. Given the severe timing problems 
posed by impending deadlines set forth in ``maximum achievable control 
technology'' (MACT) emission standards under section 112 and for 
submittal of title V permit applications, EPA believes it is reasonable 
to read section 112(l) to allow for approval of programs to limit 
potential to emit prior to promulgation of a rule specifically 
addressing this issue. Therefore, EPA is approving Georgia's FESOP 
program so that Georgia may begin to issue Federally enforceable 
operating permits as soon as possible.
    EPA believes that Georgia's FESOP program meets the approval 
criteria specified in the June 28, 1989 Federal Register document and 
in section 112(l)(5) of the CAA. As discussed previously in this 
document, Georgia's FESOP program meets the five criteria necessary for 
Federal enforceability.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes Georgia's FESOP program contains adequate authority 
to assure compliance with section 112 requirements because the third 
criterion of the June 28, 1989, document is met, that is, because the 
program does not allow for the waiver of any section 112 requirement. 
Sources that become minor through a permit issued pursuant to this 
program would still be required to meet section 112 requirements 
applicable to non-major sources.
    Regarding the requirement for adequate resources, EPA believes 
Georgia has demonstrated that it can provide for adequate resources to 
support the FESOP program. EPA expects that resources will continue to 
be adequate to administer that portion of the State's minor source 
operating permit program under which Federally enforceable operating 
permits will be issued since Georgia has administered a minor source 
operating permit program for several years. EPA will monitor Georgia's 
implementation of its FESOP program to ensure that adequate resources 
are in fact available. EPA also believes that Georgia's FESOP program 
provides for an expeditious schedule for assuring compliance with 
section 112 requirements. This program will be used to allow a source 
to establish a voluntary limit on potential to emit to avoid being 
subject to a CAA requirement applicable on a particular date. Nothing 
in Georgia's FESOP program would allow a source to avoid or delay 
compliance with a CAA requirement if it fails to obtain an appropriate 
Federally enforceable limit by the relevant deadline. Finally, EPA 
believes it is consistent with the intent of section 112 and the CAA 
for states to provide a mechanism through which sources may avoid 
classification as a major source by obtaining a Federally enforceable 
limit on potential to emit.
    Eligibility for Federal enforceability of permits extends not only 
to permits issued after the effective date of this rule but also 
extends to permits issued under the State's current rule prior to the 
effective date of today's rulemaking. If the State followed its own 
procedures, each permit issued under this regulation to establish a 
title I condition (e.g. for a source to have minor source potential to 
emit) was subject to public notice and prior EPA review. Therefore, EPA 
will consider all such operating permits issued which were processed in 
a manner consistent with both the State regulations and the five 
criteria to be federally enforceable with the promulgation of this rule 
provided that any permits that the State wishes to make federally 
enforceable are submitted to EPA and accompanied by documentation that 
the procedures approved today have been followed. EPA will 
expeditiously review any individual permits so submitted to ensure 
their conformity to the program requirements.
    With the addition of these provisions, Georgia's FESOP program 
satisfies all the requirements listed in the June 28, 1989, Federal 
Register document. EPA is approving this revision to the State of 
Georgia's SIP thus making the State's FESOP program Federally 
enforceable.

Final Action

    In this action, EPA is approving the Georgia FESOP program. EPA is 
publishing this action without prior proposal because the Agency views 
this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document elsewhere in this Federal 
Register, EPA is proposing to approve the SIP revision should adverse 
or critical comments be filed. This action will be effective October 
30, 1995 unless, by September 29, 1995, adverse or critical comments 
are received. If 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. 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 October 30, 1995.
    The Agency has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Amendments 
enacted on November 15, 1990. EPA has determined that this action 
conforms with those requirements.
    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by October 
30, 1995. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2) of the CAA, 42 U.S.C. 7607 (b)(2)). The Office of Management 
and Budget has exempted this action from review under Executive Order 
12866.
    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 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.
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in 

[[Page 45051]]
association with proposed or final rules that include a Federal mandate 
that may result in estimated costs of $100 million or more to the 
private sector, or to State, local, or tribal governments in the 
aggregate.
    Through submission of this state implementation plan or plan 
revision, the State has elected to adopt the program provided for under 
Section 110 of the Clean Air Act. These rules may bind the State 
government to perform certain actions and also require the private 
sector to perform certain duties. To the extent that the rules being 
approved by this action would impose no new requirements; such sources 
are already subject to these regulations under State law. Accordingly, 
no additional costs to the State government, or to the private sector, 
result from this action. EPA has also determined that this final action 
does not include a mandate that may result in estimated costs of $100 
million or more to the State government in the aggregate or to the 
private sector.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
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 CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action.
    The CAA forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 
1976); 42 U.S.C. section 7410(a)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: August 3, 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)(46) to read as 
follows:


Sec. 52.570  Identification of plan.

* * * * *
    (c) * * *
    (46) Revisions to minor source permit rules submitted by the 
Georgia Environmental Protection Division on March 15, 1995.
    (i) Incorporation by reference. Revised Rule 391-3-1-.03, 
``Permits'', sections (1), (2), and (12), effective August 17, 1994.
    (ii) Other material. None.

[FR Doc. 95-21466 Filed 8-29-95; 8:45 am]
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