[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]
BILLING CODE 6560-50-P
