[Federal Register Volume 85, Number 104 (Friday, May 29, 2020)]
[Rules and Regulations]
[Pages 32300-32303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09602]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0113; FRL-10009-10-Region 4]


Air Plan Approval; Georgia: Definition for Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 (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 approving 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: This rule is effective June 29, 2020.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2007-0113. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information may not be publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the 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. 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 a.m. to 4:30 p.m., excluding 
Federal holidays.

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 
akers.brad@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What action is EPA finalizing?

    EPA is approving 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

[[Page 32301]]

EPA consideration.\2\ In this action, EPA is approving 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 relates to minor NSR applicability for 
construction permitting under Rule 391-3-1-.03, Permits. The changes to 
this rule and EPA's rationale for approval are described in more detail 
in EPA's notice of proposed rulemaking (NPRM) published on March 16, 
2020. See 85 FR 14843.
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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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    Comments on EPA's March 16, 2020, NPRM were due on April 15, 2020. 
EPA received comments which, as discussed in Section III below, do not 
challenge the underlying rationale for EPA's proposed action. 
Accordingly, EPA is finalizing action on the March 16, 2020, NPRM.

II. EPA's Analysis of the Georgia's Submittal

    EPA is approving portions of the definition of ``Pollution control 
project'' into the Georgia 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 51.160-51.166; 52.21, 
52.24; 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 approving 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 (82 FR 29469), EPA published a NPRM proposing 
approval of changes to 391-3-1-.01, Definitions, and 391-3-1-.03, 
Permits, and published an accompanying direct final rule. See 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.\4\ See 
82 FR 39671.
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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, 
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.'' EPA proposed to approve 
this remaining portion of the definition on March 16, 2020. See 85 FR 
14843.
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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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    EPA is approving the remaining portion of the definition, 
specifically the introductory paragraph and subparagraph .01(qqqq)2. 
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. 
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. Therefore, 
the revision will not 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, 
consistent with CAA section 110(l). EPA believes that these projects 
are otherwise appropriately exempted from Georgia's minor NSR program 
under CAA section 110(a)(2)(C). 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.
    To the extent CAA section 193 applies to this action, EPA has 
concluded that the revision is consistent with the requirements of that 
provision because these changes will not lead to any increases of NAAQS 
pollutants. See EPA's March 16, 2020, NPRM (85 FR 14843) for more 
detail on EPA's rationale for approval.

III. Response to Comments

    EPA received two comments that do not directly address the March 
16, 2020, NPRM. EPA also received one comment that generally supports 
the proposed action, but raises other points that are summarized and 
discussed below.
    Comment 1: The Commenter requests that EPA adequately publicize 
that Georgia Rule 391-3-1.01(qqqq)1. and (qqqq)3. through 8.--which GA 
EPD withdrew from EPA consideration--are not part of the SIP. 
Specifically, the Commenter requests that EPA include

[[Page 32302]]

an explanation at 40 CFR 52.570(c), ``EPA Approved Georgia 
Regulations,'' confirming that these provisions are not included in the 
SIP and that this explanation remain in place as long as these 
provisions remain in the State's regulations.
    Response 1: The Commenter does not challenge the substance of the 
State rule EPA has proposed to approve into Georgia's SIP. Consistent 
with its current practice, EPA Region 4 will identify exceptions from 
the SIP-approved version of Rule 391-3-1-.01 in the explanations column 
of the Georgia SIP table at Sec.  52.570(c), and the explanation will 
remain in place until the need for the explanation is eliminated 
through an approved SIP revision.
    Comment 2: The Commenter requests that EPA include the 
aforementioned explanation on EPA Region 4's website titled ``EPA 
Approved Statutes and Regulations in the Georgia SIP'' \6\ and notes 
that exceptions at Rule 391-3-1-.01 listed at 40 CFR 52.570(c) are not 
reproduced on the website. The Commenter states that it is essential 
that EPA's website correctly identify the approved State regulations to 
ensure that the public is adequately informed of the operative 
provisions of the Georgia SIP.
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    \6\ This website is located at https://www.epa.gov/sips-ga/epa-approved-statutes-and-regulations-georgia-sip. It is a sub-site of 
the website titled ``Approved Air Quality Implementation Plans in 
Georgia,'' located at https://www.epa.gov/sips-ga, which is a sub-
site of the website titled ``Approved Air Quality Implementation 
Plans in Region 4,'' located at https://www.epa.gov/air-quality-implementation-plans/approved-air-quality-implementation-plans-region-4.
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    Response 2: These comments regarding Region 4's website are outside 
the scope of this action. However, EPA acknowledges that the Region 4 
website may have created confusion. The website titled ``Approved Air 
Quality Implementation Plans in Georgia'' contains the following 
statement:

    About this website: The official SIPs, TIPs, and FIPs are 
contained in regulations promulgated in the Federal Register and 
codified in the U.S. Code of Federal Regulations (CFR). EPA's web-
versions of the approved SIPs, TIPs, and FIPs are for reference. 
While we make every effort to maintain the accuracy of the files 
accessible here, inconsistencies may occur. Please contact us using 
the link below if you find any errors in these files.

    To add clarity, EPA Region 4 has revised this statement as follows 
and placed it on all three of its websites related to Georgia's SIP: 
\7\
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    \7\ See footnote 6.

    About this website: This website does not necessarily represent 
the current version of the SIPs, TIPs, or FIPs. The official SIPs, 
TIPs, and FIPs are contained in regulations promulgated in the 
Federal Register and codified in the U.S. Code of Federal 
Regulations (CFR). While we make every effort to maintain the 
accuracy of the files accessible here, inconsistencies may occur. 
Please contact us using the link below if you find any errors in 
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these files.

    Comment 3: The Commenter urges EPA to ensure that Georgia 
implements its SIP and not allow the State to apply the exemptions at 
391-3-1-.01(qqqq)1. and (qqqq)3. through 8 to minor NSR. The Commenter 
states that it has experience with the State implementing State 
regulations that differ from the SIP and provides information related 
to the issuance of an air permit as an example.
    Response 3: EPA agrees that it retains oversight authority to 
ensure that states are adequately implementing SIP-approved rules. 
Should EPA discover evidence to support a determination that GA EPD is 
misapplying the exemptions approved through this action, the Agency 
retains oversight authority to remedy this issue, such as through a 
failure to implement action. EPA appreciates the Commenter's specific 
information regarding a GA EPD permitting action. However, the 
Commenter's statements related to this unrelated permitting action are 
outside the scope of this action.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Georgia 
Rule 391-3-1-.01, entitled ``Definitions,'' effective July 23, 2018 
which adds a definition for a ``Pollution control project.'' 
8 9 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). 
Therefore, these materials have been approved by EPA for inclusion in 
the State implementation plan, have been incorporated by reference by 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\10\
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    \8\ 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 July 31, 2018, SIP revision, state 
effective on July 23, 2018, which EPA previously approved on 
November 22, 2019. See 84 FR 64427.
    \9\ Except for (qqqq)1. and (qqqq)3. through 8., which were 
withdrawn from EPA consideration on November 27, 2019.
    \10\ See 62 FR 27968 (May 22, 1997).
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V. Final Action

    EPA is approving 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.

VI. 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 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive 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);

[[Page 32303]]

     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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 28, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

Mary Walker,
Regional Administrator, Region 4.

    Accordingly, 40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart L--Georgia

0
2. Section 52.570(c) is amended by revising the entry for ``391-3-
1-.01'' to read as follows:


Sec.  52.570  Identification of plan.

* * * * *
    (c) * * *

                                        EPA Approved Georgia Regulations
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                                                          State
         State citation             Title/subject       effective    EPA approval  date        Explanation
                                                          date
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391-3-1-.01....................  Definitions.......       7/23/2018  5/29/2020, [Insert  Except the first
                                                                      citation of         paragraph, sections
                                                                      publication].       (a)-(nn), (pp)-(ccc),
                                                                                          (eee)-(jjj), (nnn)-
                                                                                          (bbbb), (dddd)-(mmmm),
                                                                                          (rrrr)-(ssss),
                                                                                          approved on 12/4/2018
                                                                                          with a State-effective
                                                                                          date of 7/20/2017;
                                                                                          sections (ddd) and
                                                                                          (cccc)--approved on 2/
                                                                                          2/1996 with a State-
                                                                                          effective date of 11/
                                                                                          20/1994; (nnnn),
                                                                                          approved on 1/5/2017
                                                                                          with a State-effective
                                                                                          date of 8/14/2016; and
                                                                                          sections (oooo)
                                                                                          (pppp), (qqqq)1., and
                                                                                          (qqqq)3. through
                                                                                          (qqqq)8. which are not
                                                                                          in the SIP.
 
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[FR Doc. 2020-09602 Filed 5-28-20; 8:45 am]
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