[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Rules and Regulations]
[Pages 12688-12691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5441]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[GA-15-1-6285a; GA-21-4-6514a: FRL-5153-3]
Approval and Promulgation of Implementation Plans Georgia:
Approval of Part D New Source Review (NSR) Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: On December 15, 1986, and November 13, 1992, the Georgia
Department of Natural Resources, Environmental Protection Division
(EPD) submitted to EPA amendments to Georgia Air Quality Control Rules
for Definitions and Permits. Georgia's definitions rule was amended to
incorporate and adopt by reference definitions in Federal rules for
application in designated nonattainment areas. Georgia's permit rule
was amended to add new paragraphs to meet the requirements of the Clean
Air Act (Act) as amended in 1977 and 1990. The New Source Review (NSR)
revisions of the Georgia submittal fully meet the NSR requirements of
the amended Act. Therefore, EPA is approving the submitted revisions.
DATES: This final rule is effective on May 8, 1995 unless adverse or
critical comments are received by April 7, 1995. If the effective date
is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Dick Schutt,
Regulatory Planning and Development Section, Air Programs Branch, Air,
Pesticides & Toxics Management Division, Region 4 Environmental
Protection Agency, 345 Courtland Street NE, Atlanta, Georgia 30365.
Copies of the documents relevant to this final action are available
for public inspection during normal business hours at the following
locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460.
Region 4 Air Programs Branch, Environmental Protection Agency, 345
Courtland Street NE, Atlanta, Georgia 30365.
Air Protection Branch, Georgia Environmental Protection Division,
Georgia Department of Natural Resources, 4244 International Parkway,
Suite 120, Atlanta, Georgia 30354.
FOR FURTHER INFORMATION CONTACT: Please contact Dick Schutt of the EPA
Region 4 Air Programs Branch at 404-347-3555, extension 4206, and at
the above address.
SUPPLEMENTARY INFORMATION: On December 15, 1986, the Georgia Department
of Natural Resources (DNR) submitted changes to Chapter 391-3-1 of
their rules, Rules for Air Quality Control. Among the revisions were
amendments to Georgia Air Quality Control Rules 391-3-1-.01,
Definitions, and 391-3-1-.03, Permits. EPA proposed to approve these
revisions in the June 3, 1988 Federal Register document (53 FR 20347).
In response to the 1990 Clean Air Act Amendments (CAAA), the DNR
submitted on November 13, 1992, additional changes to the Air Quality
rules. This submittal, along with the 1986 submittal, satisfies the new
source review requirements for nonattainment areas in Georgia. Georgia
Rule 391-3-1-.01, Definitions, was amended to incorporate and adopt by
reference the definitions contained in 40 CFR 51.165(a)(1) (i)-(xix)
for application in designated nonattainment areas. The definitions
contained in the Federal rules include definitions for the following:
stationary source, major stationary source, potential to emit, major
modification, net emissions increase, emissions unit, secondary
emissions, fugitive emissions, significant, allowable emissions, actual
emissions, lowest achievable emission rate, federally enforceable,
begin actual construction, commence, necessary
[[Page 12689]] preconstruction approvals or permits, construction, and
volatile organic compounds.
Georgia Rule 391-3-1-.03(8) provides for permitting of new and
modified major sources. Paragraph 1 of Georgia Rule 391-3-1-.03(8)(c)
was revised to conform to the statutory language in section
173(a)(1)(A) of the Act, concerning emission offsets. Paragraphs 2 and
3 were not changed and require a proposed source to comply with the
lowest achievable emission rate and to demonstrate statewide compliance
under the Act by the owner or operator of the proposed source.
Paragraph 4 was revised to conform to the statutory language in section
173(a)(5) by requiring an analysis of alternatives to any proposed
source. Paragraph 5 was not changed and requires a finding that the
State Implementation Plan (SIP) is being carried out in accordance with
the requirements of part D of Title I of the Act.
Georgia Rule 391-3-1-.03(8)(c), Permits, was amended in 1986 to add
six new paragraphs (paragraphs 6 to 11) to meet the requirements of 40
CFR 51.165(a)(3)(i), (3)(ii)(C)-(D), (3)(ii)(F)-(G), and (4)(i)-
(xxvii). The new paragraph of 391-3-1-.03(8)(c) specified as paragraph
six (6) meets the requirements of 40 CFR 51.165(a)(3)(i). Paragraph six
(6) is more stringent than the latter in stating that ``the offset
baseline for determining credits for emission reductions at a source is
the applicable emission limit in this Chapter or the actual emissions
at the time the application to construct is filed, whichever is less.''
Regulation 40 CFR 51.165(a)(3)(i) simply states that ``the baseline for
determining credit for emission reductions is the emissions limit under
the applicable State Implementation Plan in effect at the time the
application to construct is filed, except that the offset baseline
shall be the actual emissions of the source from which the offset
credit is obtained * * *. In addition, paragraph six (6) incorporates
the stipulation that ``creditable reductions must occur within two
years prior to the filing of the permit application and the time the
newly permitted source emissions commence.''
Georgia Rule 391-3-1-.03(8)(c), paragraph seven (7) specifies that
in order to be used for offset credits, a ``shutdown or curtailment of
production'' occurring prior to the date of the new source application
must occur ``less than one year prior to the date of permit
application,'' and the new source must be a replacement for the
shutdown in whole or in part. Paragraph seven (7) meets the
requirements of 40 CFR 51.165(a)(3)(ii)(C).
Paragraph eight (8) of Georgia Rule 391-3-1-.03(8)(c) states, ``No
emission offset credit may be allowed for replacing one VOC compound
with another of less reactivity.'' This paragraph is more stringent
than the corresponding Federal regulation, 40 CFR 51.165(a)(3)(ii)(D),
which allows for certain exceptions.
Paragraph nine (9) of Georgia Rule 391-3-1-.03(8)(c) is identical
to 40 CFR 51.165(a)(3)(ii)(F), except in an apparent typographical
error, paragraph nine refers to 40 CFR Part 52, Appendix S, rather than
40 CFR Part 51, Appendix S. Because there is no Appendix S to Part 52,
EPA believes that a typographical error occurred and interprets the
paragraph to refer to 40 CFR Part 51, Appendix S. Paragraph ten (10),
although worded differently, is identical in meaning to 40 CFR
51.165(a)(3)(ii)(G). Paragraph eleven (11) is identical in meaning to
40 CFR 51.165(a)(4)(i)-(xxvii), but stated in a different manner.
Georgia Rule 391-3-1-.03(8)(c) was amended in 1992 to add two new
paragraphs to meet the NSR requirements of the amended Act. Paragraph
12 was added to meet the offset requirements and paragraph 13 was added
to identify additional provisions for the ozone nonattainment areas.
Paragraph 12 is nearly identical to the statutory language in section
173(c) of the Act. Paragraph 13 is nearly identical to the statutory
language in section 182(c), especially section 182(c)(6-8, 10), of the
Act.
The 1992 submittal also deleted Georgia Rule 391-3-1.03(8)(f). The
requirement in this paragraph regarding de minimis levels was
incorporated in the paragraph (8)(c).
The 1986 submittal adopted the definition of ``stationary source''
which was promulgated on June 25, 1982 (47 FR 27554), by EPA. This
definition excludes all vessel emissions in determining if the source
is major. On January 17, 1984, the Court of Appeals for the District of
Columbia Circuit overturned and remanded to EPA for further
consideration the vessel emission exemption portion of EPA's new source
review regulations. EPA has not yet completed its reconsideration of
how vessel emissions are to be treated. However, Georgia has submitted
a written statement specifying that waterways (of the appropriate depth
and width) to afford passage of ships and barges are not located within
the Atlanta nonattainment area, the only such area in Georgia.
Therefore, EPA is approving the amendments to Georgia Rules 391-3-1-.01
and 391-3-1-.03.
The proposal (June 3, 1988 (53 FR 20347)) referenced that Georgia
lacked provisions for source responsibility (40 CFR 51.165(a)(5)(ii)).
The Georgia Environmental Protection Division notified EPA on February
28, 1989, that they intend to apply Georgia Rule 391-3-1-.03(8)(c) to
any source which becomes a major source or undergoes modification due
to a change in operation and not covered in an enforceable permit. EPA
believes that this satisfies the requirement of 40 CFR
51.165(a)(5)(ii).
On October 14, 1981, the EPA revised the NSR regulations in 40 CFR
Part 51 to give states the option of adopting the ``plantwide''
definition of stationary source which provides that only physical or
operational changes that result in a net increase in emissions at the
entire plant require a NSR permit. For example, if a plant increased
emissions from one piece of process equipment but reduced emissions by
the same amount at another piece of process equipment, then there would
be no net increase in emissions at the plant and therefore, no
``modification'' to the ``source.'' The plantwide definition is in
contrast to the so-called ``dual'' definition [or definitional
structure like that in the 1979 offset ruling (44 FR 3274), which has
much the same effect as the dual definition]. Under the dual
definition, the emissions from each physical or operational change are
gauged without regard to reductions elsewhere at the plant.
In the October 1981 Federal Register document, EPA set forth its
rationale for allowing use of the plantwide definition (46 FR 50766-
50769). In EPA's view, allowing use of the plantwide definition was a
reasonable accommodation of the conflicting goals of part D of the Act.
The Act provided for reasonable further progress (RFP) and timely
attainment of National Ambient Air Quality Standards (NAAQS), while
also allowing for maximum state flexibility and economic growth. EPA
recognized that the plantwide definition would bring fewer plant
modifications into the nonattainment permitting process, but emphasized
that this generally would not interfere with RFP and timely attainment
primarily because the states, under the demands of part D, eventually
would have adequate SIPs in place. For instance, EPA stated:
Since demonstration of attainment and maintenance of the NAAQS
continues to be required, deletion of the dual definition increases
State flexibility without interfering with timely attainment of the
ambient standards and so is consistent with Part D [46 FR 50767 col.
2].
[[Page 12690]] EPA also indicated that under the plantwide
definition, new equipment would still be subjected to any applicable
new source performance standard and that wholly new plants, as well as
any modifications that resulted in a significant net emissions
increase, would still be subject to NSR. Thus, EPA saw no significant
disadvantage in the plantwide definition from the environmental
standpoint, but the advantages from the standpoints of state
flexibility and economic growth. It regarded the plantwide definition
as presenting, at the very worst, environmental risks that were
manageable because of the independent impetus to create adequate part D
plans.
As a result, EPA ruled that a state wishing to adopt a plantwide
definition generally has complete discretion to do so, and it set only
one restriction on that discretion. If a state had specifically
projected emission reductions from its NSR program as a result of a
dual or similar definition and had relied on those reductions in an
attainment strategy that EPA later approved, then the state needed to
revise its attainment strategy as necessary to accommodate reduced NSR
permitting under the plantwide definition (46 FR 50767 Col. 2 and 50769
Col. 1).
In 1984, the Supreme Court upheld EPA's action as a reasonable
accommodation of the conflicting purposes of part D of the Act, and
hence, well within EPA's broad discretion. Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984).
Specifically, the Court agreed that the plantwide definition is fully
consistent with the Act's goal of maximizing state flexibility and
allowing reasonable economic growth. Likewise, the Court recognized
that EPA had advanced a reasonable explanation for its conclusion that
the plantwide definition serves the Act's environmental objectives as
well (see 104 S. Ct. at 2792). EPA today generally reaffirms the
rationales stated in the 1981 rulemaking. Those rationales were left
undisturbed by the Supreme Court decision.
The SIP revision EPA is approving in this action substitutes a
plantwide definition for a dual definition in Georgia's existing NSR
program. The one nonattainment area to which this program applies (the
13-county metropolitan Atlanta area for ozone) has a part D plan
previously approved by EPA, but nevertheless is still experiencing
violations of the ozone NAAQS. In response to a 1984 SIP call, Georgia
submitted a SIP addressing the nonattainment situation on May 22, 1985.
Due to major deficiencies in the submittal EPA proposed disapproval (52
FR 26435, July 14, 1987). An updated and revised SIP was later
submitted October 1, 1987. The SIP addressed many problems noted in the
earlier submittal, however, a few minor problems still existed after a
detailed review by EPA. In a letter to the Georgia Environmental
Protection Division dated November 9, 1989, EPA identified a few
remaining minor Volatile Organic Compound (VOC) Reasonably Available
Control Technology (RACT) issues that had to be resolved before EPA
could approve the revision. Georgia resolved these issues and they have
been approved by EPA in a Federal Register document dated October 13,
1992 (57 FR 46780). In fact Georgia has submitted several revisions
required by the amended Act prior to the attainment of the NAAQS by
1999, the statutory attainment date for serious ozone nonattainment
areas. Georgia has submitted revisions for VOC and NOX Reasonable
Available Control Technology, Stage II vapor recovery, clean fuel fleet
regulations and 15% VOC reduction. These revisions will be acted on in
subsequent actions. The State has shown that in obtaining EPA approval
of its original part D SIP it did not rely on any emission reductions
from the operation of its existing NSR program. Therefore, EPA approves
the switch to a plantwide definition, in accordance with its 1981
action.
Georgia's plantwide definition of source is consistent with the NSR
requirements for ozone nonattainment areas in the Clean Air Act
Amendments of 1990. The Atlanta area is classified as a ``serious''
ozone nonattainment area. Therefore, the attainment date for Atlanta is
now 1999 (see section 181(a)), and Georgia must meet an independent
requirement to reduce VOC emissions by fifteen percent in the first six
years after 1990 and three percent per year thereafter (see section 182
(b) and (c)(2)(B)). While Georgia must account for the impact of its
plantwide definition of source in the attainment and reasonable further
progress demonstrations it submits under the 1990 Amendments, it is
clear that Congress anticipated States could use the plantwide
definition of source when devising such plans.
The 1990 Amendments include provisions regulating the application
of the plantwide definition of source, including a special rule for
serious and severe ozone nonattainment areas for determining ``de
minimis'' net increases in VOC emissions from source modifications
(section 182(c)(6)). It is clear that Congress anticipates states will
often continue to employ EPA's plantwide definition of source in ozone
nonattainment areas (except in extreme areas, see section 182(e)(2)),
provided the states can also meet the new reasonable further progress
requirements in the Act. In addition, it is important to note that the
1990 Amendments' adoption of new future attainment deadlines for ozone
has mooted concerns regarding the approvability of a plantwide source
definition where a state has additional time to submit a revised SIP to
provide for attainment by the revised deadline. As described above,
Georgia has already begun to meet its obligations under the 1990
Amendments.
All of the amendments to Georgia Rules 391-3-1-.01 and 391-3-1-.03
are identical to or more stringent than corresponding federal
regulations. Therefore, they will adequately protect the NAAQS and meet
all requirements of the Act.
Public Comments
EPA received comments on the proposed approval of these SIP
revisions from two sources. Both commenters questioned approval of the
``plantwide'' new source definition for nonattainment areas without an
approved plan.
Response to Comments
As discussed earlier in this document, Georgia's submission,
including the plantwide source definition, meets all applicable Federal
regulations and policies. Further, the 1990 Amendments accommodate a
plantwide definition of source and provide revised attainment
deadlines. Finally, the State's previous attainment demonstration did
not rely on NSR reductions from the dual source definition, and Georgia
is making reasonable efforts to develop a complete and approvable ozone
SIP in accordance with the 1990 Amendments. Therefore, EPA is approving
this SIP revision.
Final Action
EPA is approving the aforementioned amendments to the Georgia rules
submitted on December 15, 1986, and November 13, 1992.
EPA is publishing this action without prior proposal because the
Agency views these as noncontroversial amendments and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revisions
should adverse or critical comments be filed. This action will be
effective on May 8, 1995 unless, by April 7, 1995 adverse or critical
comments are received. [[Page 12691]]
If the 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. The 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 on May 8, 1995.
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 section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 8, 1995. This action may not be
challenged later in proceedings to enforce its requirements. (See
307(b)(2).)
The OMB has exempted these actions from review under Executive
Order 12866.
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.
SIP approvals under section 110 and subchapter I, part D of the Act
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 Act,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action.
The Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. Environmental Protection Agency et
al, 96 S.Ct. 2518 (1976); 42 U.S.C. 7410(a)(2) and 7410(k).
List of Subjects in 40 CFR Part 52
Air pollution control, Environmental protection, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: February 6, 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)(39) to read as
follows:
Sec. 52.570 Identification of plan.
* * * * *
(c) * * *
(39) On December 15, 1986, and November 13, 1992, the Georgia
Department of Natural Resources, Environmental Protection Division
submitted regulations for Part D New Source Review.
(i) Incorporation by reference. Revisions to the following Rules of
Georgia Department of Natural Resources, Environmental Protection
Division, effective November 22, 1992:
(A) 391-3-1-.01 introductory paragraph
(B) 391-3-1-.03(8)(c)
(ii) Other material. Letter dated February 28, 1989, from the
Georgia Department of Natural Resources, page 3 regarding change in
operation of a source.
* * * * *
[FR Doc. 95-5441 Filed 3-7-95; 8:45 am]
BILLING CODE 6560-50-P
