[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79653-79655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30813]



40 CFR Part 52

[EPA-R04-OAR-2006-0649-200750; FRL-8757-9]

Approval and Promulgation of Implementation Plans; Georgia; 
Nonattainment New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is taking final action to disapprove a portion of a 
revision to the Georgia State Implementation Plan (SIP) submitted by 
the State of Georgia on March 5, 2007. The proposed revision was 
intended to modify Georgia's Nonattainment New Source Review (NNSR) 
permitting rules in the SIP to establish a new baseline emissions 
calculation procedure for the generation of emissions reduction credits 
to be used as offsets. EPA proposed to disapprove this revision on 
September 4, 2008; one comment letter, which supported EPA's proposed 
disapproval of the baseline emissions calculation, was received.

DATES: This rule will be effective January 29, 2009.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2006-0649. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information may not be 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 www.regulations.gov or in hard 
copy at

[[Page 79654]]

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 to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding federal 

FOR FURTHER INFORMATION CONTACT: For information regarding the Georgia 
State Implementation Plan, contact Ms. Stacy Harder, 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. Telephone number: 
(404) 562-9042; e-mail address: [email protected]. For information 
regarding New Source Review, contact Ms. Kelly Fortin, Air Permits 
Section, at the same address above. Telephone number: (404) 562-9117; 
e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, references to 
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the U.S. 
Environmental Protection Agency. The supplementary information is 
arranged as follows:

I. What Action Is EPA Taking?
II. What Is the Background for EPA's Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    On March 5, 2007, the State of Georgia, through the Georgia 
Environmental Protection Division (EPD), submitted revisions to the 
Georgia SIP. The submittal consisted of changes to the Georgia Rules 
for Air Quality Control, Chapter 391-3-1. Among other revisions, the 
submittal includes changes to Rules 391-3-1-.02(7) ``Prevention of 
Significant Deterioration (PSD) of Air Quality,'' and 391-3-
1-.03(13)(c) ``Emission Reduction Credits.''
    On September 4, 2008 (73 FR 51606), EPA published a notice of 
proposed rulemaking (NPR) in the Federal Register, proposing to, among 
other actions, approve the State's change to Rule 391-3-1-.02(7) and to 
disapprove Rule 391-3-1-.03(13)(c). The public comment period on this 
action was extended to November 6, 2008 (October 6, 2008, 73 FR 58085). 
One comment letter was received which included adverse comments on the 
proposed revisions concerning Rule 391-3-1-.02(7) and supporting 
comments on the proposed disapproval of Rule 391-3-1-.03(13)(c). EPA is 
now moving forward to disapprove Rule 391-3-1-.03(13)(c) which is 
separate from Rule 391-3-1-.02(7). EPA is not now taking any actions 
regarding Rule 391-3-1-.02(7). In a future Federal Register notice, EPA 
will be addressing the adverse comments in a final action on Rule 391-
3-1-.02(7). Additionally, EPA is not acting on the non-New Source 
Review (NSR) portions of the March 5, 2007, submittal, which were not 
part of the September 4, 2008 proposal.
    EPA is taking final action to disapprove Rule 391-3-1-.03(13)(c), 
related to ``Emissions Reduction Credits.''

II. What Is the Background for EPA's Action?

    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, 
regarding the Clean Air Act's (CAA) PSD and NNSR programs. On November 
7, 2003 (68 FR 63021), EPA published a notice of final action on the 
reconsideration of the December 31, 2002, final rule changes. The 
December 31, 2002, and the November 7, 2003, final actions are 
collectively referred to as the ``2002 NSR Reform Rules.'' For 
additional information on the 2002 NSR Reform Rules, see 67 FR 80186 
(December 31, 2002). For information on the subsequent revisions to 
these rules, see http://www.epa.gov/nsr.
    On October 31, 2006, March 5, 2007, and August 22, 2007, EPD 
submitted revisions to EPA for the purpose of including the revised 
State NSR permitting rules in the SIP. Copies of Georgia's revised NSR 
rules, as well as the State's Technical Support Document, can be 
obtained from the Docket, as discussed in the ADDRESSES section above.
    On September 4, 2008 (73 FR 51606), EPA proposed to partially 
approve and disapprove certain portions of these submittals consistent 
with section 110(k)(3) of the CAA (73 FR 51606). In response to 
requests for an extension of the public comment period, EPA extended 
the public comment period through November 6, 2008 (73 FR 58084). One 
comment letter, which among other concerns supports this disapproval 
action, was received and may be obtained from the Docket, as discussed 
in the ADDRESSES section above.
    The March 5, 2007, proposed SIP revision includes changes to 
Georgia Rule 391-3-1-.03 subparagraph (13)(c), ``Quantification of 
Emission Reduction Credits,'' regarding the methodology for the 
calculation of emission reduction credits to incorporate the new 
federal definition of ``baseline actual emissions.'' The State's intent 
was to make the method for determining actual emissions, prior to a 
reduction, consistent with the calculation of baseline emissions 
reductions used elsewhere in the federal and State NSR requirements. 
The emission reduction credits are certified under the Georgia rule to 
be used as offsets for nonattainment NSR purposes. However, the federal 
requirements at 40 CFR 51.165(a)(3)(i) require that the offset baseline 
shall be the ``actual emissions'' of the source from which offset 
credit is obtained. For additional discussion on this topic, see EPA's 
final action on the NSR Reform Rules (67 FR 80196), under the heading 
``Am I able to Apply Today's Changes for Calculating the Baseline 
Actual Emissions to Other Major NSR Requirements?''
    The Georgia SIP currently contains an approved calculation 
methodology for emission reduction credits to be used as offsets, which 
is based upon the federal definition of ``actual emissions'' rather 
than ``baseline actual emissions.'' EPA is now acting to disapprove the 
State's March 5, 2007, submission requesting that the change to Georgia 
Rule 391-3-1-.03 subparagraph (13)(c), be incorporated into the Georgia 
SIP because it is not consistent with federal requirements. This 
provision is severable from the other provisions of the Georgia 
submittals discussed in EPA's September 4, 2008, rulemaking notice.
    No additional submittals to EPA are required by Georgia in response 
to EPA's disapproval because Georgia's SIP contains an approved 
methodology for calculating emission reduction credits that is 
consistent with the federal nonattainment NSR requirements. Any use of 
``baseline actual emissions'' for the calculation of offsets, or the 
subsequent use of such offsets, would be inconsistent with federal law 
and the applicable Georgia SIP requirements.

III. Final Action

    EPA is taking final action to disapprove subparagraph 391-3-
1-.03(13)(c) of the State of Georgia's March 5, 2007, SIP submittal 
related to ``Emissions Reduction Credits'' pursuant to section 
110(k)(3) of the CAA.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the

[[Page 79655]]

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. This 
action merely ensures that State law meets 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. 
    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 March 2, 2009. 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: December 16, 2008.
Russell L. Wright, Jr.,
Acting Regional Administrator, Region 4.
[FR Doc. E8-30813 Filed 12-29-08; 8:45 am]