[Federal Register Volume 78, Number 1 (Wednesday, January 2, 2013)]
[Proposed Rules]
[Pages 45-51]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31538]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0622; FRL-9767-2]


Approval and Promulgation of Implementation Plans; Georgia: New 
Source Review--Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve portions of a revision to the 
Georgia State Implementation Plan (SIP) submitted by the State of 
Georgia, through the Georgia Department of Natural Resources' 
Environmental Protection Division (EPD), on July 26, 2012. The SIP 
submission includes changes to Georgia's New Source Review (NSR), 
Prevention of Significant Deterioration (PSD) program to incorporate by 
reference (IBR) federal PSD requirements regarding fine particulate 
matter (PM2.5) increments, significant impact levels (SILs), 
significant monitoring concentration (SMC) and the deferral of, until 
July 21, 2014, PSD applicability to biogenic carbon dioxide 
(CO2) emissions from bioenergy and other biogenic stationary 
sources. EPA is proposing to approve portions of Georgia's SIP 
submittal because the Agency has preliminarily determined that it is 
consistent with section 110 of the Clean Air Act (CAA or Act) and EPA 
regulations regarding NSR permitting.

DATES: Comments must be received on or before February 1, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0622 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2012-0622, 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.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
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. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2012-0622.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in 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 to schedule your inspection. 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; email address: [email protected]. For information 
regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the 
same address above. Ms. Adams' telephone number is (404) 562-9241; 
email address: [email protected]. For information regarding the 
PM2.5 national ambient air quality standards (NAAQS), 
contact Mr. Joel Huey, Regulatory Development Section, at the same 
address above. Mr. Huey's

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telephone number is (404) 562-9104; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. What is EPA's analysis of Georgia's SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On July 26, 2012, EPD submitted a SIP revision to EPA for approval 
into the Georgia SIP to IBR \1\ federal NSR PSD permitting requirements 
at Georgia's Air Quality Control Rule 391-3-1-.02(7)--Prevention of 
Significant Deterioration of Air Quality. These rule changes were 
provided to comply with federal NSR permitting regulations and include 
provisions related to the implementation of the PM2.5 NAAQS 
for the PSD program as promulgated in the rule entitled ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC), Final Rule,'' 75 
FR 64864 (October 20, 2010) (hereafter referred to as 
``PM2.5 PSD Increment-SILs-SMC Rule'') and the deferral 
until July 21, 2014, of the application of PSD permitting requirement 
to biogenic CO2 emissions from bioenergy and other biogenic 
stationary sources as promulgated in the rule entitled, ``Deferral for 
CO2 Emissions From Bioenergy and Other Biogenic Sources 
Under the Prevention of Significant Deterioration (PSD) and Title V 
Programs,'' Final Rule, 76 FR 43490 (July 20, 2011) (hereafter referred 
to as CO2 Biomass Deferral Rule). Additionally, the July 26, 
2012, SIP revision (1) IBR into Georgia SIP EPA's interim rulemaking 
entitled ``Prevention of Significant Deterioration (PSD) and 
Nonattainment New Source Review (NNSR): Reconsideration of Inclusion of 
Fugitive Emissions; Interim Rule; Stay and Revisions,'' 76 FR 17548 
(March 30, 2011) (hereafter referred to as the ``Fugitive Emissions 
Interim Rule''); (2) requests that EPA remove from the SIP the 
exclusion language at Rule 391-3-1-.02(7) regarding the coarse particle 
pollution (PM10) surrogate and grandfathering provision 
promulgated in the ``Implementation of the New Source Review Program 
for Particulate Matter Less Than 2.5 Micrometers,'' 73 FR 28321, May 
16, 2008 (hereafter referred to as ``NSR PM2.5 Rule''); (3) 
amends the definitions Rule 391-3-1-.01(nnn)--Definitions regarding 
testing and monitoring of air pollutants; and (4) revises Rule 391-3-
1-.03(6)--Exemptions by adding a new exemption for cumulative small 
modifications at an existing quarry where the quarry is not a major 
source and the associated emissions increase is less than 10 tons per 
year of particulate matter and PM10.
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    \1\ Throughout this document IBR means incorporate or 
incorporates by reference.
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    The two elements of EPD's July 26, 2012, SIP submittal that EPA is 
not proposing to approve in this action are: (1) incorporation of the 
SIL thresholds and provisions promulgated in EPA's PM2.5 PSD 
Increment-SILs-SMC Rule (for reasons explained later in this notice); 
and (2) revisions to Rules 391-3-1-.02(2)(c)--Incinerators, 391-3-
1-.02(www)--Sewage Sludge Incineration, 391-3-1-.02(8)(b)--New Source 
Performance Standards and 391-3-1-.02(9)(b)--Emissions Standards for 
Hazardous Air Pollutants, as these regulations are not part of 
Georgia's federally approved SIP.

II. What is the background for EPA's proposed action?

    Today's proposed action to revise the Georgia SIP relates to PSD 
provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC 
Rule and CO2 Biomass Deferral Rule. Additionally, the July 
26, 2012, SIP revision addresses EPA's repeal of the grandfathering 
provision as promulgated in the Rule entitled ``Implementation of the 
New Source Review Program for Particulate Matter Less Than 2.5 
Micrometers (PM2.5); Final Rule to Repeal Grandfather 
Provision'' (76 FR 28646, May 18, 2011) and the extension of the stay 
in the Fugitive Emissions Interim Rule. More details regarding these 
rules are found in the respective final rulemakings and are summarized 
below. For more information on the NSR Program and the PM2.5 
NAAQS please refer to the PM2.5 PSD Increment-SILs-SMC Rule 
and the NSR PM2.5 Rule.

A. PM2.5 PSD Increment-SILs-SMC-Rule

    On October 20, 2010, EPA finalized the PM2.5 PSD 
Increment-SILs-SMC Rule to provide additional regulatory requirements 
under the PSD program regarding the implementation of the 
PM2.5 NAAQS for NSR. Specifically, the rule establishes: (1) 
PM2.5 increments pursuant to section 166(a) of the CAA to 
prevent significant deterioration of air quality in areas meeting the 
NAAQS; (2) SILs used as a screening tool (by a major source subject to 
PSD) to evaluate the impact a proposed major source or modification may 
have on the NAAQS or PSD increment; and (3) a SMC (also a screening 
tool) used by a major source subject to PSD to determine if a source 
must submit to the permitting authority one year of pre-construction 
air quality monitoring data prior to constructing or modifying a 
facility. As part of the response to comments on the October 20, 2010, 
final rulemaking, EPA explained that the Agency agrees that the SILs 
and SMCs used as de minimis \2\ thresholds for the various pollutants 
are useful tools that enable permitting authorities and PSD applicants 
to screen out ``insignificant'' activities; however, these values are 
not required by the Act as part of an approvable SIP program. EPA 
believes that most states are likely to adopt the SILs and SMCs because 
of the useful purpose they serve regardless of EPA's position that the 
values are not mandatory. Alternatively, states may develop more 
stringent values if they desire to do so. In any case, states are not 
under any statutory deadline for revising their PSD programs to add 
these screening tools. See 75 FR 64864, 64900.
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    \2\ The de minimis principle is grounded in the decision 
described by the court case Alabama Power Co. v. Costle, 636 F.2d 
323, 360 (DC Cir. 1980). In this case, reviewing EPA's 1978 PSD 
regulations, the court recognized that ``there is likely a basis for 
an implication of de minimis authority to provide exemption when the 
burdens of regulation yield a gain of trivial or no value.'' 636 
F.2d at 360.
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    Georgia's July 26, 2012, SIP revision IBR the NSR changes 
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be 
consistent with the federal NSR regulations and to appropriately 
implement the State's NSR program for the PM2.5 NAAQS. More 
detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found 
in EPA's October 20, 2010, final rule and is summarized below. See 75 
FR 64864. For the reasons explained below, EPA is not proposing to take 
action to approve the SILs (promulgated in the PM2.5 PSD 
Increment-SILs-SMC Rule) into the Georgia SIP in this rulemaking. EPA's 
authority to implement the SILs and SMC for PSD purposes has been 
challenged by the Sierra Club. Sierra Club v. EPA, Case No 10-1413 
(D.C. Circuit Court).\3\ More details regarding Georgia's changes to 
its PSD regulations are also summarized below in Section III.
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    \3\ On April 6, 2012, EPA filed a brief with the D.C. Circuit 
Court defending the Agency's authority to implement SILs and SMC for 
PSD purposes.
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1. What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program 
protects public health from adverse effects of air pollution by 
ensuring that construction of new or modified sources in attainment or 
unclassifiable areas does not lead to significant deterioration of

[[Page 47]]

air quality while simultaneously ensuring that economic growth will 
occur in a manner consistent with preservation of clean air resources. 
Under section 165(a)(3) of the CAA, a PSD permit applicant must 
demonstrate that emissions from the proposed construction and operation 
of a facility ``will not cause, or contribute to, air pollution in 
excess of any maximum allowable increase or allowable concentration for 
any pollutant.'' In other words, when a source applies for a permit to 
emit a regulated pollutant in an area that meets the NAAQS, the state 
and EPA must determine if emissions of the regulated pollutant from the 
source will cause significant deterioration in air quality. Significant 
deterioration occurs when the amount of the new pollution exceeds the 
applicable PSD increment, which is the ``maximum allowable increase'' 
of an air pollutant allowed to occur above the applicable baseline 
concentration \4\ for that pollutant. PSD increments prevent air 
quality in clean areas from deteriorating to the level set by the 
NAAQS. Therefore, an increment is the mechanism used to estimate 
``significant deterioration'' of air quality for a pollutant in an 
area.
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    \4\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the air quality at the time of the first application for a 
PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular 
pollutant emitted from a source includes the attainment or 
unclassifiable area in which the source is located as well as any other 
attainment or unclassifiable area in which the source's emissions of 
that pollutant are projected (by air quality modeling) to result in an 
ambient pollutant increase of at least 1 microgram per meter cubed 
([mu]g/m\3\) (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's 
existing regulations, the establishment of a baseline area for any PSD 
increment results from the submission of the first complete PSD permit 
application and is based on the location of the proposed source and its 
emissions impact on the area. Once the baseline area is established, 
subsequent PSD sources locating in that area need to consider that a 
portion of the available increment may have already been consumed by 
previous emissions increases. In general, the submittal date of the 
first complete PSD permit application in a particular area is the 
operative ``baseline date'' after which new sources must evaluate 
increment consumption.\5\ On or before the date of the first complete 
PSD application, emissions generally are considered to be part of the 
baseline concentration, except for certain emissions from major 
stationary sources. Most emissions increases that occur after the 
baseline date will be counted toward the amount of increment consumed. 
Similarly, emissions decreases after the baseline date restore or 
expand the amount of increment that is available. See 75 FR 64864. As 
described in the PM2.5 PSD Increment-SILs-SMC Rule, and 
pursuant to the authority under section 166(a) of the CAA, EPA 
promulgated numerical increments for PM2.5 as a new 
pollutant \6\ for which NAAQS were established after August 7, 1977,\7\ 
and derived 24-hour and annual PM2.5 increments for the 
three area classifications (Class I, II and III) using the ``contingent 
safe harbor'' approach. See 75 FR 64864 at 64869 and ambient air 
increment table at 40 CFR 51.166(c)(1) and 52.21(c).
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    \5\ Baseline dates are pollutant specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \6\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM2.5 as if 
PM2.5 was a new pollutant even though EPA had already 
developed air quality criteria for PM generally. See 75 FR 64864 
(October 20, 2010).
    \7\ EPA interprets 166(a) to authorize EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which EPA 
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the 
PM2.5 PSD Increment-SILs-SMC Rule amended the definition at 
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor 
source baseline date'' (including trigger dates) to establish the 
PM2.5 NAAQS specific dates associated with the 
implementation of PM2.5 PSD increments. See 75 FR 64864. In 
accordance with section 166(b) of the CAA, EPA required the states to 
submit revised implementation plans to EPA for approval (to adopt the 
PM2.5 PSD increments) within 21 months from promulgation of 
the final rule (by July 20, 2012). Regardless of when a state submits 
its revised SIP, the emissions from major sources subject to PSD for 
PM2.5 for which construction commenced after October 20, 
2010 (major source baseline date), consume PM2.5 increment 
and should be included in the increment analyses occurring after the 
minor source baseline date is established for an area under the state's 
revised PSD program. See 75 FR 64864. As discussed in detail in Section 
III, Georgia's July 26, 2012, SIP revision IBR the PM2.5 PSD 
increment permitting requirements promulgated in the PM2.5 
PSD Increment-SILs-SMC Rule.
2. What are significant monitoring concentrations?
    Under the CAA and EPA regulations, an applicant for a PSD permit is 
required to gather preconstruction monitoring data in certain 
circumstances. CAA Section 165(a)(7) calls for ``such monitoring as may 
be necessary to determine the effect which emissions from any such 
facility may have, or is having, on air quality in any areas which may 
be affected by emissions from such source.'' In addition, CAA section 
165(e) requires an analysis of the air quality in areas affected by a 
proposed major facility or major modification and calls for gathering 
one year of monitoring data unless the reviewing authority determines 
that a complete and adequate analysis may be accomplished in a shorter 
period. These requirements are codified in EPA's PSD regulations at 40 
CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline 
for Air Quality Modeling (40 CFR part 51, appendix W), the 
preconstruction monitoring data are primarily used to determine 
background concentrations in modeling conducted to demonstrate that the 
proposed source or modification will not cause or contribute to a 
violation of the NAAQS. See 40 CFR part 51, appendix W, section 9.2. 
SMCs are numerical values that represent thresholds of insignificant 
(i.e., de minimis), monitored (ambient) impacts on pollutant 
concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule, 
EPA established a SMC of 4 [micro]g/m\3\ for PM2.5.
    Using the SMC as a screening tool, sources may be able to 
demonstrate that the modeled air quality impact of emissions from the 
new source or modification, or the existing air quality level in the 
area where the source would construct, is less than the SMC (i.e., de 
minimis), and as such, may be allowed to forego the preconstruction 
monitoring requirement for a particular pollutant at the discretion of 
the reviewing authority. See 40 CFR 51.166(i)(5) and 52.21(i)(5). SMCs 
are not minimum required elements of an approvable SIP under the CAA. 
This de minimis value is widely considered to be a useful component for 
implementing the PSD program, but is not absolutely necessary for the 
states to implement PSD programs. States can satisfy the statutory 
requirements for a PSD program by requiring each PSD

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applicant to submit air quality monitoring data for PM2.5 
without using de minimis thresholds to exempt certain sources from such 
requirements. See 75 FR 64864. The PM2.5 SMC became 
effective under the federal PSD program on December 20, 2010. States 
with EPA-approved PSD programs that adopt the SMC for PM2.5, 
however, may use the SMC, once it is part of an approved SIP, to 
determine when it may be appropriate to exempt a particular major 
stationary source or major modification from the monitoring 
requirements under its state PSD program. Georgia's July 26, 2012, 
revision IBR the SMC provision into the Georgia SIP.
    Recently, the Sierra Club filed suit challenging EPA's authority to 
implement the PM2.5 SILs \8\ as well as the SMC for PSD 
purposes as promulgated in the October 20, 2010, rule. Sierra Club v. 
EPA, Case No 10-1413, D.C. Circuit Court. Specifically regarding the 
SMC, Sierra Club claims that the use of SMC to exempt a source from 
submitting a year's worth of monitoring data is inconsistent with the 
CAA. EPA responded to Sierra Club's claims in a brief dated April 6, 
2012, which describes the Agency's authority to develop and promulgate 
SMCs.\9\ A copy of EPA's April 6, 2012, brief can be found in the 
docket for today's rulemaking at www.regulations.gov using docket ID: 
EPA-R04-OAR-2012-0622.
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    \8\ As mentioned earlier, due to litigation by the Sierra Club, 
EPA is not proposing to take action on the SILs portion of the 
Georgia's July 26, 2012, SIP revision at this time but will take 
action once the court case regarding SILs implementation is 
resolved.
    \9\ Additional information on this issue can also be found in an 
April 25, 2012, comment letter from EPA Region 6 to the Louisiana 
Department of Environmental Quality regarding the SILs-SMC 
litigation. A copy of this letter can be found in the docket for 
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0622.
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B. CO2 Biomass Deferral

1. The GHG Tailoring Rule
    On June 3, 2010 (effective August 2, 2010), EPA promulgated a final 
rulemaking, entitled ``Prevention of Significant Deterioration and 
Title V Greenhouse Gas Tailoring Rule; Final Rule'' (hereafter referred 
to as the GHG Tailoring Rule), for the purpose of relieving 
overwhelming permitting burdens from the regulation of greenhouse gases 
(GHG) that would, in the absence of the rule, fall on permitting 
authorities and sources. See 75 FR 31514. EPA accomplished this by 
tailoring the applicability criteria that determine which GHG emission 
sources become subject to the PSD program of the CAA. In particular, 
EPA established in the GHG Tailoring Rule a phase-in approach for PSD 
applicability and estblished the first two steps of the phase-in for 
the largest GHG emitters.\10\ On January 13, 2011, EPD submitted a SIP 
revision to EPA to IBR into the Georgia SIP (at 391-3-1-.02(7)), the 
version of 40 CFR 52.21 as of June 3, 2010, which included the GHG 
Tailoring Rule thresholds.\11\ EPA took final action to approve 
Georgia's SIP revision on September 8, 2011. See 76 FR 55572. Please 
refer to the GHG Tailoring Rule for specific details on the PSD 
thresholds.
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    \10\ Please refer to the July 12, 2012 rulemaking finalizing GHG 
Tailoring Rule Step 3. See 77 FR 41051.
    \11\ Georgia's submittal also revised the State's title V 
operating permit provisions (which are not included in the federally 
approved SIP) to incorporate the GHG Tailoring Rule provisions. As 
such, EPA did not taking final action to approve Georgia's update to 
its title V.
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2. EPA's CO2 Biomass Deferral Rule
    In the July 20, 2011, final rulemaking, EPA deferred until July 21, 
2014, the consideration of CO2 emissions from bioenergy and 
other biogenic sources (hereafter referred to as ``biogenic 
CO2 emissions'') when determining whether a stationary 
source meets the PSD and title V applicability thresholds, including 
those for the application of best available control technology 
(BACT).\12\ See 76 FR 43490. Thus, under the federal PSD rules, 
stationary sources that combust biomass (or otherwise emit biogenic 
CO2 emissions) and construct or modify during the deferral 
period will not be subject to the application of PSD to the biogenic 
CO2 emissions resulting from those actions. The deferral 
applies only to biogenic CO2 emissions and does not affect 
non-GHG pollutants or other GHGs (e.g., methane and nitrous oxide) 
emitted from the combustion of biomass fuel. Also, the deferral only 
pertains to regulation of biogenic CO2 emissions under the 
PSD and title V programs and does not pertain to any other EPA programs 
such as the GHG Reporting Program.
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    \12\ As with the Tailoring Rule, the Biomass Deferral addresses 
both PSD and title V requirements. However, EPA is only taking 
action on Georgia's PSD program as part of this action.
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    Biogenic CO2 emissions are defined as emissions of 
CO2 from a stationary source directly resulting from the 
combustion or decomposition of biologically-based materials other than 
fossil fuels and mineral sources of carbon. Examples of ``biogenic 
CO2 emissions'' include, but are not limited to:
     CO2 generated from the biological decomposition 
of waste in landfills, wastewater treatment, or manure management 
processes;
     CO2 from the combustion of biogas collected 
from biological decomposition of waste in landfills, wastewater 
treatment, or manure management processes;
     CO2 from fermentation during ethanol production 
or other industrial fermentation processes;
     CO2 from combustion of the biological fraction 
of municipal solid waste or biosolids;
     CO2 from combustion of the biological fraction 
of tire-derived fuel; and
     CO2 derived from combustion of biological 
material, including all types of wood and wood waste, forest residue, 
and agricultural material.
    The deferral is intended to be a temporary measure, in effect for 
no more than three years, to allow the Agency time to conduct detailed 
examination of the science and technical issues related to accounting 
for biogenic CO2 emissions, and determine what, if any, 
treatment of biogenic CO2 emissions should be in the PSD and 
title V programs. The biomass deferral rule is not EPA's final 
determination on the treatment of biogenic CO2 emissions in 
those programs. The Agency plans to complete its science and technical 
review and any follow-up rulemakings within the three-year deferral 
period and further believes that three years is ample time to complete 
these tasks. It is possible that the subsequent rulemaking, depending 
on the nature of EPA's determinations, would supersede the biomass 
deferral rulemaking and become effective in fewer than three years. In 
that event, Georgia may revise its SIP accordingly.
    EPA's final biomass deferral rule is an interim deferral for 
biogenic CO2 emissions only and does not relieve sources of 
the obligation to meet the PSD and title V permitting requirements for 
other pollutant emissions that are otherwise applicable to the source 
during the deferral period or that may be applicable to the source at a 
future date pending the results of EPA's study and subsequent 
rulemaking action. This means, for example, that if the deferral is 
applicable to biogenic CO2 emissions from a particular 
source during the three-year effective period and the study and future 
rulemaking do not provide for a permanent exemption from PSD and title 
V permitting requirements for the biogenic CO2 emissions 
from a source with particular characteristics, then the deferral would 
end for that type of source and its biogenic CO2 emissions 
would have to be

[[Page 49]]

appropriately considered in any applicability determinations that the 
source may need to conduct for future stationary source permitting 
purposes, consistent with that subsequent rulemaking and the final GHG 
Tailoring Rule (e.g., a major source determination for title V purposes 
or a major modification determination for PSD purposes). EPA also 
wishes to clarify that the agency does not require that a PSD permit 
issued during the deferral period be amended or that any PSD 
requirements in a PSD permit existing at the time the deferral took 
effect, such as BACT limitations, be revised or removed from an 
effective PSD permit for any reason related to the deferral or when the 
deferral period expires.
    Under 40 CFR 52.21(w), any PSD permit shall remain in effect, 
unless and until it expires or it is rescinded, under the limited 
conditions specified in that provision. Thus, a PSD permit that is 
issued to a source while the deferral was effective need not be 
reopened or amended if the source is no longer eligible to exclude its 
biogenic CO2 emissions from PSD applicability after the 
deferral expires. However, if such a source undertakes a modification 
that could potentially require a PSD permit and the source is not 
eligible to continue excluding its biogenic CO2 emissions 
after the deferral expires, the source will need to consider its 
biogenic CO2 emissions in assessing whether it needs a PSD 
permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the 
deferral for biogenic sources are beyond the scope of the biomass 
deferral action and this proposed approval of the deferral into the 
Georgia SIP, and will be addressed through subsequent rulemaking. The 
results of EPA's review of the science related to net atmospheric 
impacts of biogenic CO2 and the framework to properly 
account for such emissions in title V and PSD permitting programs based 
on the study are prospective and unknown. Thus, EPA is unable to 
predict which biogenic CO2 sources, if any, currently 
subject to the deferral as incorporated into the Georgia SIP would be 
subject to any permanent exemptions or which currently deferred sources 
would be potentially required to account for their emissions in the 
future rulemaking EPA has committed to undertake for such purposes in 
three or fewer years. Only in that rulemaking can EPA address the 
question of extending the deferral or putting in place requirements 
that would have the equivalent effect on sources covered by the biomass 
deferral. Once that rulemaking has occurred, Georgia may address 
related revisions to its SIP.

III. What is EPA's analysis of Georgia's SIP revision?

    Georgia currently has a SIP-approved NSR program for new and 
modified stationary sources. EPD's PSD preconstruction rules are found 
at Georgia Air Quality Control Rule 391-3-1-.02(7)--Prevention of 
Significant Deterioration of Air Quality and apply to major stationary 
sources or modifications constructed in areas designated attainment 
areas or unclassifiable/attainment areas as required under part C of 
title I of the CAA with respect to the NAAQS. Georgia's Rule 391-3-
1-.02(7) IBR the federal NSR PSD regulations at 40 CFR 52.21 into the 
Georgia SIP. In effect, EPD's July 26, 2012, SIP revision revises Rule 
391-3-1-.02(7) by updating the State's IBR date to July 20, 2011, which 
includes the federal PSD permitting updates promulgated in the 
PM2.5 PSD Increment-SILs-SMC Rule, the CO2 
Biomass Deferral Rule and the extension of the stay in the Fugitive 
Emissions Interim Rule. Additionally, the July 26, 2012, SIP submission 
revises Rule 391-3-1-.02(7) by removing language to address EPA's 
repeal of the PM10 surrogate and grandfathering provisions 
and clarifies at subparagraph (a)(1) of 391-3-1-.01 that all dates 
associated with IBR of the federal PSD rules (at 40 CFR 52.21) refer to 
the date of publication of those rules in the Federal Register. In 
addition to changes to Rule 391-3-1-.02(7), the July 26, 2012, SIP 
revision also (1) amends Georgia's definitions at 391-3-1-.01 by 
revising subparagraph (nnnn) to reference the February 1, 2012, update 
to Georgia's ``Procedures for Testing and Monitoring Sources of Air 
Pollutants,'' and; (2) modifies Rule 391-3-1-.03(6) by adding a new 
exemption from SIP permitting requirements (at subparagraph (i)(4)) for 
small modifications to an existing quarry that is not a major source, 
where the combined emissions increases, including any contemporaneous 
emission decreases from all nonexempt modified activities, are less 
than 10 tons per year of particulate matter and PM10. The 
new quarry exemption may not be used to avoid any emission limitations 
or standards of the Rules for Air Quality Control Chapter 391-3-1-.02 
(e.g., PSD requirements), lower the potential to emit below ``major 
source'' thresholds, or avoid any ``applicable requirement'' as defined 
in 40 CFR Part 70.2. See Georgia Rule 391-3-1-.03(6).
    These changes to Georgia's rules became state effective on August 
9, 2012. EPA is proposing to approve changes to Georgia's Rule 391-3-
1-.02(7), to update the State's existing SIP-approved PSD program to be 
consistent with federal NSR regulations (at 40 CFR 52.21) and the CAA. 
In addition, EPA is proposing to approve Georgia's requested changes to 
Rules 391-3-1-.01 and .0. 3. More details on EPA's analysis and 
proposed approval of the portions of Georgia's July 26, 2012, SIP 
submittal addressing PSD provisions promulgated in the PM2.5 
PSD Increment-SILs-SMC Rule, the CO2 Deferral Rule, the 
Fugitive Emissions Interim Rule and the NSR PM2.5 Rule 
(grandfathering provision) are discussed below.

A. Rule 391-3-1-.02(7) SIP Revision

1. PM2.5 PSD Increment-SILs-SMC Rule
    EPD's July 26, 2012, SIP revision IBR the following provisions into 
the Georgia SIP at regulation 391-3-1-.02(7) as promulgated in the 
October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD 
increments for PM2.5 annual and 24-hour NAAQS pursuant to 
section 166(a) of the CAA; (2) SILs used as a screening tool (used by a 
major source subject to PSD) to evaluate the impact a proposed major 
source or modification may have on the NAAQS or PSD increment; and (3) 
SMC to determine the level of data gathering required of a major source 
in support of its PSD permit application for PM2.5 
emissions.
    Specifically, Georgia's July 26, 2012, SIP revision IBR into the 
Georgia SIP (at 391-3-1-.02(7)) the PM2.5 PSD increments as 
amended in the tables at 40 CFR 52.21(c) and (p)(5) (for Class I 
Variances) the amendments to the terms ``major source baseline date'' 
(as amended at 40 CFR 52.21(b)(14)(i)(c)); ``minor source baseline 
date'' (including establishment of the ``trigger date'') (40 CFR 
52.21(b)(14)(ii)(c)); and the definition of ``baseline area'' (as 
amended at 40 CFR 52.21(b)(15)(i) and (ii)). These changes provide for 
the implementation of the PM2.5 PSD increments for the 
PM2.5 NAAQS in the State's PSD program. In today's action, 
EPA is proposing to approve Georgia's July 26, 2012, SIP revision to 
address PM2.5 PSD increments.
    Regarding the SILs and SMC established in the October 20, 2010, 
PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has 
challenged EPA's authority to implement SILs and SMC. In a brief filed 
in the DC Circuit on April 6, 2012, EPA described the Agency's 
authority under the CAA to promulgate and implement the SMCs and SILs 
de minimis thresholds. With respect to the SMC, Georgia's July 26, 
2012, SIP revision IBR the SMC of 4 [micro]g/m\3\ for

[[Page 50]]

PM2.5 NAAQS at 391-3-1-.02(7). Georgia's July 26, 2012, SIP 
revision is consistent with EPA's current promulgated provisions in the 
October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule. EPA is 
proposing to approve this promulgated threshold into the Georgia SIP as 
EPA believes the SMC is a valid exercise of the Agency's de minimis 
authority. However, EPA notes that future court action may require 
subsequent rule revisions and SIP revisions from the State of Georgia.
    The July 26, 2012, SIP revision submitted by Georgia to IBR the new 
PSD requirements for PM2.5 pursuant to the PM2.5 
PSD Increment-SILs-SMC Rule also includes the new regulatory text at 40 
CFR 52.21(k)(2), concerning the implementation of SILs for 
PM2.5. EPA stated in the preamble to the October 20, 2010, 
final rule that we do not consider the SILs to be a mandatory SIP 
element, but regard them as discretionary on the part of a regulating 
authority for use in the PSD permitting process. Nevertheless, the 
PM2.5 SILs are currently the subject of litigation before 
the U.S. Court of Appeals. Sierra Club v. EPA, Case No 10-1413 (DC 
Circuit). In response to that litigation, EPA has requested that the 
court remand and vacate the regulatory text in EPA's PSD regulations at 
paragraph (k)(2) so that EPA can make necessary rulemaking revisions to 
that text. In light of EPA's request for remand and vacatur and the 
acknowledgement of the need to revise the regulatory text presently 
contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does 
not believe that it is appropriate at this time to approve that portion 
of Georgia's SIP revision that contains the affected regulatory text in 
the State's PSD regulations, at 391-3-1-0.2(7). Instead, EPA is taking 
no action at this time with regard to that specific provision contained 
in the SIP revision. EPA will take action on the SILs portion of 
Georgia's July 26, 2012, SIP revision in a separate rulemaking once the 
issue regarding the court case has been resolved.
2. CO2 Biomass Deferral
    In the July 20, 2011, CO2 Biomass Deferral Rule, similar 
to the approach with the GHG Tailoring Rule, EPA incorporated the 
biomass deferral into the Federal PSD program by amending the 
definition of ``subject to regulation'' under 40 CFR 51.166 and 52.21, 
respectively. Georgia's July 26, 2012, SIP revision IBR into the 
Georgia SIP 40 CFR 52.21 as of July 20, 2011, which includes the 
CO2 Biomass Deferral revision to the definition of ``subject 
to regulation'' deferring, until July 21, 2014, PSD applicability to 
biogenic carbon dioxide (CO2) emissions from bioenergy and 
other biogenic stationary sources. EPA is proposing to approve 
Georgia's IBR of the CO2 Biomass Deferral Rule.
3. Fugitive Emissions Interim Rule
    Georgia's July 26, 2012, SIP revision also IBR the extension of the 
stay of the Fugitive Emissions Rule into the Georgia PSD program at 
391-3-1-.02(7). On December 19, 2008, EPA issued a final rule revising 
the requirements of the NSR permitting program regarding the treatment 
of fugitive emissions. See 73 FR 77882. The final rule required 
fugitive emissions to be included in determining whether a physical or 
operational change results in a major modification only for sources in 
industries that have been designated through rulemaking under section 
302(j) \13\ of the CAA. As a result of EPA granting the Natural 
Resource Defense Council's petition for reconsideration on the original 
Fugitive Emissions Rule \14\ on March 31, 2010, EPA stayed the Fugitive 
Emissions Rule (73 FR 77882) for 18 months to October 3, 2011. The stay 
allowed the Agency time to propose, take comment and issue a final 
action regarding the inclusion of fugitive emissions in NSR 
applicability determinations. On March 30, 2011 (76 FR 17548), EPA 
proposed an interim rule which superseded the March 31, 2010, stay and 
clarified and extended 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 affirming the interim rule as final. The final rule will 
remain in effect until EPA completes its reconsideration. EPA is 
proposing to approve Georgia's IBR of the interim rulemaking extending 
the stay of the Fugitives Emissions Rule into its SIP at Rule 391-3-
1-.02(7).
---------------------------------------------------------------------------

    \13\ Pursuant to CAA section 302(j), examples of these industry 
sectors include oil refineries, Portland cement plants, and iron and 
steel mills.
    \14\ On April 24, 2009, EPA agreed to reconsider the approach to 
handling fugitive emissions and granted a 3-month administrative 
stay of the Fugitive Emissions Rule. The administrative stay of the 
Fugitive Emissions Rule became effective on September 30, 2009. EPA 
put an additional three-month stay in place from December 31, 2009, 
until March 31, 2010.
---------------------------------------------------------------------------

4. PM2.5 Grandfathering Provision
    In the NSR PM2.5 Rule, EPA finalized regulations to 
establish the framework for implementing preconstruction permit review 
for the PM2.5 NAAQS in both attainment and nonattainment 
areas including the grandfather provision which allowed PSD applicants 
that submitted their complete permit application prior to the July 15, 
2008 effective date of the NSR PM2.5 Rule to continue to 
rely on the 1997 p.m.10 Surrogate Policy rather than amend 
their application to demonstrate compliance directly with the new 
PM2.5 requirements. See 73 FR 28321. On January 13, 2011, 
Georgia submitted a SIP revision to IBR into the Georgia SIP the 
version of 40 CFR 52.21 as of June 3, 2010 which included language that 
excluded the grandfathering exemption (at 40 CFR 52.21(i)(1)(xi)) from 
the state's PSD regulations (at Rule 391-3-1-.02(7)(b)(6)(i)) ensuring 
that sources were not subject to the grandfathering provision. EPA 
approved Georgia's January 13, 2011, SIP revision on September 8, 
2011(76 FR 55572).
    On May 18, 2011, EPA took final action to repeal the 
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). 
See 76 FR 28646. Georgia's July 26, 2012, SIP submittal incorporates 
into the Georgia SIP the version of 40 CFR 52.21 as of July 20, 2011, 
which includes the May 18, 2011, repeal of the grandfather provision. 
Thus, the language previously approved into Georgia's SIP at Rule 391-
3-1-.02(7)(b)(6)(i) that excludes the grandfathering provision is no 
longer necessary. Georgia's July 26, 2012, SIP submittal removes the 
unnecessary language pertaining to the grandfather provision from Rule 
391-3-1-.02(7)(b)(6)(i).\15\ EPA is proposing to approve this portion 
of Georgia's July 26, 2012, SIP submittal.
---------------------------------------------------------------------------

    \15\ Georgia's previous incorporation by reference of 40 CFR 
52.21 at 391-3-1-.02(7) was as of June 3, 2010, which did not 
include the May 18, 2011, repeal of the PM10 Surrogate 
Policy; therefore the grandfathering exclusion language at 391-3-
1-.02(7)(b)(6)(i) was necessary at that time. The June 3, 2010, IBR 
date was approved into the Georgia SIP on September 8, 2011.
---------------------------------------------------------------------------

IV. Proposed Action

    EPA is proposing to approve portions of Georgia's July 26, 2012, 
SIP revision adopting federal regulations amended in the October 20, 
2010, PM2.5 PSD Increment-SILs-SMC rule, the June 3, 2010, 
CO2 Biomass Deferral Rule; the March 30, 2011, Fugitive 
Emissions Interim Rule, the additional amendments regarding 
PM2.5 Grandfathering Provision, and the definition and 
exemption revisions into the Georgia SIP. EPA is not however proposing 
to approve in this rulemaking Georgia's SIP revisions regarding the SIL 
thresholds and provisions and Rule 391-3-1-.02(c)--Incinerators, 391-3-
1-.02(www)--Sewage Sludge Incineration, 391-3-1-.02(8)(b)--New Source 
Performance Standards and 391-3-1-

[[Page 51]]

.02(9)(b)--Emissions Standards for Hazardous Air Pollutants. EPA has 
made the preliminary determination that this SIP revision, with regard 
to the aforementioned proposed actions, is approvable because it is 
consistent with section 110 of the CAA and EPA regulations regarding 
NSR permitting.

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 
proposed 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 proposed 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 F43255, 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 proposed 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Particulate matter, Reporting and recordkeeping requirements.

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

    Dated: December 18, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-31538 Filed 12-31-12; 8:45 am]
BILLING CODE 6560-50-P