[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Proposed Rules]
[Pages 14843-14845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05332]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0113; FRL-10006-55-Region 4] Air Plan Approval;


Georgia: Definition for Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a portion of a State Implementation Plan (SIP) revision 
submitted by the State of Georgia, through the Georgia Department of 
Natural Resources' Environmental Protection Division (also known as GA 
EPD), on September 19, 2006, with a clarification submitted on November 
6, 2006 and a supplemental submittal transmitted on November 27, 2019. 
EPA is proposing to approve portions of a definition that impacts 
existing minor new source review (NSR) permitting regulations because 
the State has demonstrated it is consistent with the Clean Air Act (CAA 
or Act).

DATES: Comments must be received on or before April 15, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2007-0113 at www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. EPA may publish any comment received to 
its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Akers can also be 
reached via telephone at (404) 562-9089 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. What action is EPA proposing?

    EPA is proposing to approve certain changes to the Georgia SIP that 
were provided to EPA by GA EPD via a letter dated September 19, 2006. 
EPA previously approved the majority of the changes to Georgia rules 
originally included in the September 19, 2006, submittal.\1\ In 
addition, GA EPD has withdrawn several portions of the SIP revision 
from EPA consideration.\2\ In this action, EPA is proposing to approve 
the portion of this SIP revision that makes changes to the State's Rule 
391-3-1-.01, Definitions. The portion of the SIP revision considered 
adds a definition for ``Pollution control project'' (PCP)--which GA EPD 
describes as environmentally-beneficial projects that reduce criteria 
pollutant emissions--that relate to minor NSR applicability for 
construction permitting under Rule 391-3-1-.03, Permits. The changes to 
this rule and EPA's rationale for proposing approval are described in 
more detail in Section II of this notice of proposed rulemaking (NPRM).
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    \1\ EPA approved portions of the September 19, 2006, SIP 
revision as follows: Changes to Rule 391-3-1-.01, Definitions, were 
approved on February 9, 2010 (75 FR 6309); changes to Rule 391-3-
1-.02, Provisions, were approved on February 9, 2010 (75 FR 6309), 
December 1, 2010 (75 FR 74642), and September 1, 2015 (80 FR 52627); 
and changes to Rule 391-3-1-.03, Permits, were approved on April 9, 
2013 (78 FR 21065) and November 22, 2019 (84 FR 64427).
    \2\ GA EPD withdrew portions of the September 19, 2006, SIP 
revision as follows: 391-3-1-.02 on January 25, 2016 and portions of 
391-3-1-.01 on November 27, 2019.
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II. EPA's Analysis of the State's Submittal

A. Summary

    Georgia seeks to add a definition of ``Pollution control project'' 
to its SIP at Rule 391-3-1-.01(qqqq). This definition lists certain 
projects, described as ``environmentally beneficial,'' that are 
exempted from the minor NSR \3\ construction permit requirements 
pursuant to Rule 391-3-1-.03(6)(j). The exemption does not apply to 
sources subject to major NSR requirements under either 391-3-1-.02(7) 
(``Prevention of Significant Deterioration [PSD] of Air Quality''), or 
391-3-1-.03(8) ``Permit Requirements'' under paragraph (c), (Georgia's 
nonattainment new source review (NNSR) program). The exemption for PCPs 
applies to minor sources only, limiting any emissions increases from 
the exempted projects to below the major source thresholds for all 
pollutants.
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    \3\ EPA's regulations governing the implementation of NSR 
permitting programs are contained in 40 CFR 51.160--.166; 52.21, 
.24; and part 51, appendix S. The CAA NSR program is composed of 
three separate programs: PSD, NNSR, and Minor NSR. PSD is 
established in part C of title I of the CAA and applies to major 
stationary sources in areas that meet the national ambient air 
quality standards (NAAQS)--``attainment areas''--as well as areas 
where there is insufficient information to determine if the area 
meets the NAAQS--``unclassifiable areas.'' The NNSR program is 
established in part D of title I of the CAA and applies to major 
stationary sources in areas that are not in attainment of the 
NAAQS--``nonattainment areas.'' The Minor NSR program applies to 
stationary sources that do not require PSD or NNSR permits. 
Together, these programs are referred to as the NSR programs.
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    EPA previously approved the exemption for PCPs for minor sources at 
.03(6)(j) on February 9, 2010 (75 FR 6309) but did not act on the PCP 
definition at Rule 391-3-1-.01(qqqq) at that time. In this action, EPA 
is proposing to approve a definition of ``Pollution control project'' 
at .01(qqqq). Because this definition only applies to minor sources, it 
is not impacted by the United States Court of Appeals for the District 
of Columbia Circuit decision in New York v. EPA, 413 F.3d 3 (D.C. 
Cir.), in which the D.C. Circuit vacated an exemption for PCPs from the 
federal NSR regulations for major sources. Georgia's previously 
approved NSR regulations governing major sources are consistent with 
federal requirements and the D.C. Circuit decision on PCPs for major 
NSR.
    On June 29, 2017, EPA published a NPRM (82 FR 29469) proposing 
approval of changes to 391-3-1-.01, Definitions, and 391-3-1-.03, 
Permits and published an accompanying direct final rulemaking notice 
(82 FR 29418). EPA specifically proposed to approve a definition of 
``Pollution control project'' at 391-3-1-.01(qqqq), which included 
subparagraphs .01(qqqq)1. through 8., as a clarifying amendment to an 
existing exemption from minor NSR permitting at 391-3-1-.03(6)(j). The 
proposed rule stated that if EPA received adverse comment on the direct 
final rule, then the Agency would withdraw the direct final rule and 
address public comments received in a subsequent final rule based on 
the proposed rule. EPA received one adverse comment regarding the 
portion of the direct final rule revising 391-3-1-.01, Definitions, and 
EPA accordingly withdrew the direct final rule on August 22, 2017 (82 
FR 39671).\4\
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    \4\ The adverse comment received on the June 29, 2017, proposed 
rule is included in the docket for this action.
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    Since the August 22, 2017, withdrawal of EPA's direct final rule,

[[Page 14844]]

GA EPD has withdrawn several portions of the definition at .01(qqqq) 
from EPA consideration. Specifically, on November 27, 2019, GA EPD 
withdrew .01(qqqq)1. and .01(qqqq)3. through 8., and submitted a 
supplemental justification for the approval of .01(qqqq)2. into the 
SIP.\5\ The remaining list of projects EPA is considering in this 
action at .01(qqqq)2. are as follows: ``[e]lectrostatic precipitators, 
baghouses, high-efficiency multiclones, or scrubbers for control of 
particulate matter or other air contaminants.''
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    \5\ The November 27, 2019, partial withdrawal letter and 
accompanying Attachment A transmitting supporting documentation for 
the remainder of the SIP revision are included in the docket for 
this action.
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B. Minor NSR and CAA Section 110(l)

    CAA Section 110(a)(2)(C) requires that SIPs include a program for 
regulating the construction and modification of stationary sources as 
necessary to ensure that the NAAQS are achieved. Under 40 CFR 
51.160(e), the State must identify the types and sizes of sources 
subject to the program and provide a basis for its determination. 
Additionally, CAA Section 110(l) provides that EPA shall not approve a 
revision to a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress (as 
defined in CAA section 171), or any other applicable requirement of the 
CAA.
    Georgia has a SIP-approved minor NSR program at Rule 391-3-1-.03. 
Under that program, the Director of GA EPD must determine prior to 
issuing a construction permit that the construction or modification of 
the source will not cause a violation of the NAAQS or other applicable 
requirement. See Rule 391-3-1-.03(8)(a). However, EPA has previously 
approved certain exemptions from the State's construction permit 
requirements at Rule 391-3-1-.03(6). Of relevance here, paragraph 
(6)(j) exempts PCPs from the requirement to obtain a construction 
permit. In addition, paragraph (6)(i)(3) exempts the modification of an 
existing facility where the combined emission increase resulting from 
the modification falls below certain specified thresholds at paragraph 
(6)(i)3.
    In this action, EPA is proposing to approve a definition of 
``Pollution control project'' as consistent with applicable CAA 
requirements. Under that definition, GA EPD's PCP minor NSR exemption 
would apply to installation of the following types of equipment: 
Electrostatic precipitators, baghouses, high-efficiency multiclones, or 
scrubbers for control of particulate matter or other air contaminants. 
Under Georgia Rule 391-3-1-.01(qqqq), these types of projects are 
presumed to be environmentally beneficial and thus qualify for the 
exemption; however, the Director of GA EPD may determine prior to 
granting an operating permit to the source that application of the 
exemption is not appropriate in a particular case.
    EPA has evaluated the exemption and believes, in its technical 
judgment, that the listed projects will reduce emissions of both NAAQS 
and non-NAAQS pollutants. Additionally, EPA notes that these projects 
will not lead to collateral emissions increases of any NAAQS 
pollutants. As a result, these types of projects already qualify for 
Georgia's preexisting minor NSR exemption at Rule 391-3-1-.03(6)(i)3. 
As noted above, that provision exempts projects that fall below certain 
specified emissions thresholds. Since the projects included under Rule 
391-3-1-.01(qqqq)2. will not increase emissions of any NAAQS pollutant, 
they would previously have been exempted under those thresholds.
    More importantly, EPA believes that these projects are otherwise 
appropriately exempted from Georgia's minor NSR program under CAA 
Section 110(a)(2)(C). As noted above, that provision requires a program 
within the State to regulate the construction and modification of 
sources such that the NAAQS are maintained. By definition, a project 
that will not lead to any emissions increases will not negatively 
impact the NAAQS. For similar reasons, EPA also believes this exemption 
is consistent with CAA Section 110(l), which prohibits EPA from 
approving a SIP revision that would interfere with any applicable 
requirement concerning attainment and reasonable further progress (as 
defined in Section 7501 of the CAA), or any other applicable 
requirement of the Act.
    GA EPD further supports this proposed conclusion in its SIP 
submittal. Specifically, in its November 27, 2019, letter GA EPD 
asserts that Rule 391-3-1-.01(qqqq)(2) includes control technologies 
that are not expected to have collateral emissions increases, are 
commonly used to reduce emissions, and are generally desirable from an 
environmental protection perspective. GA EPD then explains that the 
only requests it has received under .01(qqqq) and .03(6)(j) since those 
rules became state effective in 2006 have been for the addition or 
replacement of control equipment. In practice, those PCP examples did 
not result in increases in collateral emissions, and therefore, reduced 
emissions as intended. Although GA EPA acknowledges in its November 27, 
2019 letter that these types of projects would have been exempted under 
the State's minor NSR exemption thresholds at Rule 391-3-1-.03(6)(i)3., 
GA EPD believes there is a benefit to clarifying that the activities 
listed at .01(qqqq)2. are exempt from construction permitting pursuant 
to .03(6)(j). Therefore, the project list at .01(qqqq)2. serves to 
provide examples for the public and the regulated community of projects 
that are presumed to qualify for exemption.
    GA EPD also explains in its supplemental letter that the emission 
limitations and standards which ensure attainment and maintenance of 
the NAAQS are those at Rule 391-3-1-.02, Provisions, and that exemption 
from the requirement to obtain a construction permit does not alter in 
any way these limitations or standards, including work practice, 
sampling, or monitoring requirements and federal NSR, New Source 
Performance Standards, and National Emission Standards for Hazardous 
Air Pollutants provisions incorporated into the rule.
    In sum, 40 CFR 51.160(e) requires that the SIP identify the ``types 
and sizes of facilities, buildings, structures, or installations which 
will be subject to review'' under the State's minor NSR program. EPA is 
proposing approval of the definition of sources that qualify as PCPs at 
Rule 391-3-1-.01(qqqq) because the definition describes projects that 
already qualify for preexisting SIP-approved exemptions, and because 
the projects will not increase emissions of pollutants, or otherwise 
impact the State's ability to achieve the NAAQS, as required by CAA 
sections 110(a)(2)(C) and 110(l).

C. CAA Section 193

    Section 193 of the CAA provides, in part, that ``[n]o control 
requirement in effect, or required to be adopted by an order, 
settlement agreement, or plan in effect before November 15, 1990, in 
any area which is a nonattainment area for any air pollutant may be 
modified after November 15, 1990, in any manner unless the modification 
insures equivalent or greater emission reductions of such air 
pollutant.'' As noted in Section II.B. of this NPRM, EPA believes the 
proposed revisions will not lead to any increases of NAAQS pollutants. 
Thus, to the extent Section 193 applies to this proposed action, EPA 
has preliminarily concluded that the proposed revision is consistent 
with the requirements of that provision.

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III. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the Georgia Rule 391-3-1-.01, entitled ``Definitions,'' 
effective July 20, 2017, which adds a definition for a ``Pollution 
control project.'' 6 7 EPA has made, and will continue to 
make, these materials generally available through www.regulations.gov 
and at the EPA Region 4 office (please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).
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    \6\ The effective date of the change to Rule 391-3-1-.01 made in 
Georgia's September 19, 2006, SIP revision is July 13, 2006. 
However, for purposes of the state effective date included at 40 CFR 
52.570(c), that change to Georgia's rule is captured and superseded 
by Georgia's update in a November 13, 2017, SIP revision, state 
effective on July 20, 2017, which EPA previously approved on 
December 4, 2018. See 83 FR 62466.
    \7\ Except for (qqqq)1. and (qqqq)3. through 8., which were 
withdrawn from EPA consideration on November 27, 2019.
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IV. Proposed Action

    EPA is proposing to approve the portion of the September 19, 2006, 
SIP revision that adds a definition at Rule 391-3-1-.01(qqqq). EPA 
believes this change is consistent with the CAA and will not impact the 
NAAQS or interfere with any other applicable requirement of the Act.

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. See 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 
proposes to approve 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Sulfur oxides, Volatile organic compounds.

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

    Dated: March 4, 2020.
Mary S. Walker,
Regional Administrator, Region 4.
[FR Doc. 2020-05332 Filed 3-13-20; 8:45 am]
 BILLING CODE 6560-50-P