Approval and Promulgation of Implementation Plans; Georgia; Prevention of Significant Deterioration and Nonattainment New Source Review Rules, 71018-71023 [2010-29246]
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Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
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regulation has been in effect since 2008;
however, the bridge for which the
regulation was in place (a pontoon
bridge) no longer exists. With the
completion of the new bridge (a swing
bridge) in April 2010, there has been an
average of less than one opening per
month, which is down from an average
of 70 per month in previous years.
Currently the land traffic outpaces
marine traffic but most all traffic is local
and marine traffic is recreational.
Vessels will be able to pass under the
bridge during the deviation and
therefore no alternate routes are
recommended at this time.
This request is in conjunction with a
Notice of Proposed Rulemaking to make
the test deviation schedule changes
permanent.
This deviation is effective from
December 7, 2010 through January 6,
2011.
Vessel counts were collected and
analyzed by the owner and reflect a
marked reduction in the number of
required openings since the completion
of the new bridge and removal of the old
one. The expected impact on navigation
during the test period will be minimal
based on the increase in vertical
clearance. The test deviation will allow
the bridge to remain unmanned during
most of the day by requiring a two-hour
notice for an opening of the draw.
Coordination will be through Public
Notice and Local Notice to Mariners
upon date of publication in the Federal
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In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period.
This deviation from the operating
regulations is authorized under 33 CFR
117.35.
section of this notice.
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FOR FURTHER INFORMATION CONTACT
Dated: October 26, 2010.
David M. Frank,
Bridge Administrator.
[FR Doc. 2010–29299 Filed 11–19–10; 8:45 am]
Basis and Purpose
The subject bridge is the S443 Swing
Bridge across the Bayou Liberty at mile
2.0, in St. Tammany Parish. The vertical
clearance is 7.59 feet (2.31m) above the
2% flowline, elevation 2.5 feet (0.76m)
NAVD 1988.
Presently, under 33 CFR 117.469, the
draw of the S433 Bridge, mile 2.0, at
Slidell, shall open on signal, except that
between 7 p.m. and 7 a.m., the draw
shall open on signal if at least two hours
notice is given.
The owner requests a test to allow the
public to experience the new schedule
and determine if the two hour advance
notice is sufficient. The current
BILLING CODE 9110–04–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2006–0649–201059; FRL–
9229–5]
Approval and Promulgation of
Implementation Plans; Georgia;
Prevention of Significant Deterioration
and Nonattainment New Source
Review Rules
Environmental Protection
Agency (EPA).
AGENCY:
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ACTION:
Final rule.
EPA is taking final action to
approve portions of the revisions to the
Georgia State Implementation Plan (SIP)
submitted by the State of Georgia in
three submittals dated October 31, 2006,
March 5, 2007, and August 22, 2007.
The revisions modify Georgia’s
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NNSR) permitting rules in the
SIP to address changes to the federal
New Source Review (NSR) regulations,
which were promulgated by EPA on
December 31, 2002, and reconsidered
with minor changes on November 7,
2003 (collectively, these two final
actions are referred to as the ‘‘2002 NSR
Reform Rules’’). EPA proposed to
approve these revisions on September 4,
2008; one comment letter was received.
EPA’s response to comments is included
in this notice.
DATES: This rule will be effective
December 22, 2010.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2006–0649. All documents in the docket
are listed on the https://
www.regulations.gov Web site. 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 https://
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: Ms.
Kelly Fortin, Air Permits Section, Air
Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303. Telephone
number: (404) 562–9117; e-mail address:
fortin.kelly@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, references
SUMMARY:
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to ‘‘EPA,’’ ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ are
intended to mean the U.S.
Environmental Protection Agency. The
supplementary information is arranged
as follows:
I. What action is EPA taking?
II. What is the background for EPA’s action?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
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I. What action is EPA taking?
EPA is now taking action, consistent
with section 110(k)(3) of the Clean Air
Act (CAA or Act), to approve portions
of SIP submittals made by the State of
Georgia, through the Georgia
Environmental Protection Division
(EPD), on October 31, 2006, March 5,
2007, and August 22, 2007. These SIP
submittals consist of changes to the
Georgia Rules for Air Quality Control,
Chapter 391–3–1. Specifically, the
October 31, 2006, revisions included
changes to Rules 391–3–1–.02(7)
‘‘Prevention of Significant Deterioration
of Air Quality’’ and 391–3–1–.03(8)(c)
‘‘Permit Requirements’’ related to NNSR.
The March 5, 2007, submittal included
changes to Rules 391–3–1–.02(7)
‘‘Prevention of Significant Deterioration
of Air Quality,’’ and 391–3–1–.03(13)(c)
‘‘Emission Reduction Credits.’’ Finally,
the August 22, 2007, submittal included
changes to Rules 391–3–1–.02(7)
‘‘Prevention of Significant Deterioration
of Air Quality,’’ and 391–3–1–.03(8)
‘‘Permit Requirements.’’
EPA approved most of the non-NSR
Reform portions of the submittals (rules
391–3–1–.01(llll), 391–3–1–.02(2)(jjj),
391–3–1–.02(6)(a)4, 391–3–1–.02(12),
and 391–3–1–.03(6)(b)) in a previous
action (74 FR 62249, November 27,
2009). EPA has not yet acted on rule
391–3–1–.02(2)(ooo). In addition, EPA is
not acting on revisions to rules 391–3–
1–.02(8)b, and 391–3–1–.03(9), because
these rules are not part of the federallyapproved SIP. EPA disapproved a
portion of the March 5, 2007, submittal,
subparagraph 391–3–1–.03(13)(c),
related to ‘‘Emissions Reduction
Credits,’’ in a previous action (73 FR
79653, December 30, 2008).
II. What is the background for EPA’s
action?
On December 31, 2002 (67 FR 80186),
EPA published final rule changes to 40
Code of Federal Regulations (CFR) parts
51 and 52, regarding the CAA’s PSD and
NNSR programs. On November 7, 2003
(68 FR 63021), EPA published a notice
of final action on the reconsideration of
the December 31, 2002, final rule
changes. The December 31, 2002, and
the November 7, 2003, final actions are
collectively referred to as the ‘‘2002 NSR
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Reform Rules.’’ For additional
information on the 2002 NSR Reform
Rules, see 67 FR 80186 (December 31,
2002). For information on the
subsequent revisions to these rules, see
https://www.epa.gov/nsr.
On October 31, 2006, March 5, 2007,
and August 22, 2007, EPD submitted
revisions to EPA for the purpose of
including the revised State NSR
permitting rules in the SIP. Copies of
Georgia’s revised NSR rules, as well as
the State’s Technical Support
Document, can be obtained from the
Docket, as discussed in the ADDRESSES
section above.
On September 4, 2008 (73 FR 51606),
EPA proposed to approve portions of
the above-summarized SIP submittals as
they pertain to Georgia’s NSR program,
with the exception of the revision to
subparagraph 391–3–1–.03(13)(c),
related to ‘‘Emissions Reduction
Credits,’’ which EPA proposed to
disapprove.1 In response to requests for
an extension of the public comment
period, EPA extended the public
comment period on that proposal
through November 6, 2008 (73 FR
58084). One comment letter was
received and it contained adverse
comments. EPA’s response to this
comment letter is below in section III,
Response to Comments. EPA’s analysis
of the State’s NSR reform SIP submittals
is contained in the September 4, 2008,
Notice of Proposed Rulemaking (NPR).
The NPR, the comment letter, and
additional information regarding this
action may be obtained from the Docket,
as discussed in the ADDRESSES section
above.
III. Response to Comments
EPA received one comment letter
from the National Resource Defense
Council (NRDC) on the September 4,
2008, NPR; this letter included adverse
comments. NRDC primarily commented
on the requirements of the federal NSR
rules, not Georgia’s application of the
federal requirements in its own rules.
Notably, NRDC participated in litigation
challenging EPA’s 2002 promulgation of
the NSR Reform Rules, where similar
arguments were made by NRDC and
dismissed by the DC Circuit Court. New
York v. EPA, 413 F.3d 3 (DC Cir. 2005).
NRDC’s comments, including exhibits,
do not raise any specific concerns with
Georgia’s rules, but rather, reiterate
arguments made by NRDC to the DC
1 EPA took final action to disapprove the revision
to subparagraph 391–3–1–.03(13)(c), related to
‘‘Emissions Reduction Credits,’’ in a previous action
(73 FR 79653, December 30, 2008).
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Circuit regarding Sections 110(l) and
193 of the CAA.2
While NRDC’s comments provide
citations to five portions of the Georgia
rules, the comments make no attempt to
specifically explain or demonstrate how
those identified provisions are
inconsistent with either Section 110(l)
or Section 193 of the CAA. Furthermore,
NRDC provides no evidence supporting
its allegations that approval of the
specific provisions would result in a
violation of the CAA or otherwise be
‘‘arbitrary, capricious, an abuse of
discretion, and otherwise not in
accordance with law.’’ NRDC Comments
at 2.
The NRDC comments include a list of
31 exhibits which the comment letter
incorporates by reference into the
comments. NRDC Comments at 1. The
31 exhibits appear to all be related to
the DC Circuit Court case New York v.
EPA, and were either submitted to that
Court for review, or are relevant to that
adjudication. To the extent that these
exhibits were provided to the DC
Circuit, those issues were previously
resolved by the Court and/or already
responded to by EPA in its responsive
court papers. Any other documents
included in the 31 exhibits that were
not provided to the DC Circuit Court do
not provide EPA with any comments
specific to the Georgia rules at issue.
Despite the lack of Georgia-specific
discussion in NRDC’s letter, EPA has
responded to the few comments that
appear related to the September 4, 2008,
NPR to approve portions of Georgia’s
SIP submittals pertaining to EPA’s 2002
NSR Reform Rules.
Summary of Comments Regarding
Section 110(l)—NRDC Comments at
1–6
NRDC stated that finalizing the EPA
rulemaking proposal at issue here
would violate section 110(l) of the Act.
As support for its conclusion, NRDC
asserted that ‘‘[t]he 2002 NSR Reform
Rule provisions that were not vacated
by the DC Circuit in New York v. EPA
[citation omitted] allow previouslyprohibited emissions-increases to
occur.’’ NRDC Comments at 3. Further,
that ‘‘Georgia nevertheless made no
2 NRDC notes that, ‘‘[t]he 2002 rule provisions
considered by the DC Circuit in New York v. EPA
were EPA regulations, not state ones. The court thus
had no occasion to decide whether EPA could
approve any state’s versions of any of the 2002 rule
provisions consistently with section 110(l) of the
Act.’’ NRDC Comments at 3. The Georgia rules at
issue here track the federally approved rules, as
upheld by the DC Circuit (which NRDC admits—
NRDC Comments at 4) and NRDC supported all its
comments with information related to the challenge
of EPA’s 2002 NSR Reform Rules. NRDC provided
no Georgia-specific support for its comments.
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‘demonstration that the emissions that
are allowed by its revised rule but are
prohibited by the current SIP would not
interfere with attainment or other
applicable requirements.’ ’’ As a result,
NRDC stated that, ‘‘it cannot be said of
Georgia’s plan that it ‘will cause no
degradation of air quality.’ ’’ NRDC
Comments at 5. NRDC also stated that
EPA has not made any findings that
Georgia’s rule will not cause
degradation of air quality or interfere
with any applicable requirements
concerning attainment and reasonable
further progress, or any other applicable
requirements of the CAA. NRDC
Comments at 5.
EPA Response to Section 110(l)
Comments
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EPA’s 2002 NSR Reform Rules were
upheld by the DC Circuit Court which
reviewed them, with the exception of
the pollution control project and clean
unit provisions (and the remanded
matters). The three significant changes
in NSR Reform that were upheld by the
DC Circuit were (1) Plantwide
applicability limits (PALs), (2) the 2-in10 baseline, and (3) the actual-toprojected actual emission test. The
Supplemental Environmental Analysis
of the Impact of the 2002 Final NSR
Improvement Rules (November 21,
2002) (Supplemental Analysis)
discussed each of these three changes
individually, and addresses some of the
issues raised by NRDC.
With regard to PALs, the
Supplemental Analysis explained, ‘‘[t]he
EPA expects that the adoption of PAL
provisions will result in a net
environmental benefit. Our experience
to date is that the emissions caps found
in PAL-type permits result in real
emissions reductions, as well as other
benefits.’’ Supplemental Analysis at 6.
EPA further explained that,
Although it is impossible to predict how
many and which sources will take PALs, and
what actual reductions those sources will
achieve for what pollutants, we believe that,
on a nationwide basis, PALs are certain to
lead to tens of thousands of tons of
reductions of volatile organic compounds
from source categories where frequent
operational changes are made, where these
changes are time-sensitive, and where there
are opportunities for economical air
pollution control measures. These reductions
occur because of the incentives that the PAL
creates to control existing and new units in
order to provide room under the cap to make
necessary operational changes over the life of
the PAL.
Supplemental Analysis at 7. The
Supplemental Analysis, and particularly
Appendix B, provided additional details
regarding EPA’s analysis of PALs and
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anticipated associated emissions
decreases.
With regard to the 2-in-10 baseline,
EPA concluded that, ‘‘[t]he EPA believes
that the environmental impact from the
change in baseline EPA is now
finalizing will not result in any
significant change in benefits derived
from the NSR program.’’ Supplemental
Analysis at 13. This is mainly because
‘‘the number of sources receiving
different baselines likely represents a
very small fraction of the overall NSR
permit universe, excludes new sources
and coal fired power plants, and
because the baseline may shift in either
direction, we conclude that any overall
consequences would be negligible.’’
Supplemental Analysis at 14.
Additional information regarding the 2in-10 baseline changes is available in
the Supplemental Analysis, Appendix
F.
With regard to the actual-to-projected
actual test, EPA concluded, ‘‘we believe
that the environmental impacts of the
switch to the actual-to-projected actual
test are likely to be environmentally
beneficial. However, as with the change
to the baseline, we believe the vast
majority of sources, including new
sources, new units, electric utility steam
generating units, and units that actually
increase emissions as a result of a
change, will be unaffected by this
change. Thus, the overall impacts of the
NSR changes are likely to be
environmentally beneficial, but only to
a small extent.’’ Supplemental Analysis
at 14 (see also Supplemental Analysis
Appendix G).
For more information on the 2002
NSR Reform Rules, and its supporting
technical documents, see, https://
www.epa.gov/nsr/actions.html#2002
(last visited November 2, 2010).
Section 110(l) of the CAA states, in
relevant part, that ‘‘[t]he Administrator
shall not approve a revision of a plan if
the revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress * * * or any other applicable
requirement of this chapter.’’ CAA, 42
U.S.C. 7410(l). In ‘‘Approval and
Promulgation of Implementation Plans;
New Source Review; State of Nevada,
Clark County Department of Air Quality
and Environmental Management,’’ 69 FR
54006 (September 7, 2004), EPA stated
that Section 110(l) does not preclude
SIP relaxations. Rather, EPA stated that
Section 110(l) only requires that the
‘‘relaxations not interfere with specified
requirements of the Act including
requirements for attainment and
reasonable further progress,’’ and that,
therefore, a state can relax its SIP
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provisions if it is able to show that it can
attain or maintain the National Ambient
Air Quality Standards (NAAQS) and
meet any applicable reasonable further
progress goals or other specific
requirements. 69 FR at 54011–12.
Georgia’s Proposed NSR reform rules
track the federal NSR Reform Rules,
with enhancements, as described in
Georgia’s submittal. EPA evaluated
Georgia’s rules consistent with its
evaluation of the federal rules, and
determined that Georgia’s rules were
equivalent to or more stringent than the
2002 NSR Reform Rules. Overall, as
summarized above, EPA expects that
changes in air quality as a result of
implementing Georgia’s rules will be
consistent with EPA’s position on the
federal NSR Reform Rules—that there
will be somewhere between neutral and
providing a modest contribution to
reasonable further progress between the
NSR Reform and pre-Reform provisions.
EPA’s analysis for the environmental
impacts of the three components of the
NSR Reform rules (discussed earlier) is
informative of how Georgia’s adoption
of NSR Reform (based on the federal
rules) will affect emissions. EPA has no
reason to believe that the environmental
impacts will be different from those
discussed in the Supplemental Analysis
for the NSR Reform rules, and thus,
approval of Georgia’s SIP revision
would not be contrary to Section 110(l)
of the CAA.
NRDC cites to five general portions of
Georgia’s rules as provisions that would
violate Section 110(l). These provisions
are: Administrative Code of Georgia
(ACG) 391–3–1–.02(7)(a), (7)(b)15, and
(7)(b)(21) (from Georgia’s PSD rules);
and 391–3–1–.03(8)(c) and (8)(g) (from
Georgia’s NNSR rules). NRDC
Comments at 2. NRDC provides no
evidence supporting its contention that
these specific provisions violate Section
110(l). The first provision noted by
NRDC, 391–3–1–.02(7)(a), represents
general requirements regarding
Georgia’s PSD program, which do
include some changes per the SIP
revision at issue. Nonetheless, without
further specificity, it is not clear why or
how NRDC believes this provision is a
violation of Section 110(l). In addition,
NRDC has provided no Georgia-specific
documentation that indicates that EPA’s
analysis and conclusions regarding the
impact of NSR Reform, in the
Supplemental Analysis, is not
applicable to Georgia’s rules, which are
equivalent to or more stringent than the
federal rules.
In evaluating Georgia’s SIP
submissions, EPA compared Georgia’s
rules with the existing federal rules and
determined that Georgia’s rules were
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equivalent to or more stringent than the
NSR reform (federal) rules. EPA also
considered Georgia’s approximately
thirty enhancements to the federal NSR
Reform provisions, including specific
anti-backsliding provisions. This
comparison was discussed in the
proposal to approve Georgia’s SIP
revision. Georgia’s anti-backsliding
provisions are discussed in their SIP
submittal and included in EPA’s docket.
EPA also considered Georgia’s
numerous responses to comments,
included as part of the submittals,
wherein Georgia discussed the two-year
stakeholder process, as well as
answered questions as to why it was
including anti-backsliding provisions
and discussed the NSR Reform changes
in relation to their air quality program.
Georgia determined that ‘‘the NAAQS,
PSD increment, RFP demonstration and
visibility will be protected if these SIP
revisions are approved and
implemented.’’ See Technical Support
for SIP Submittal dated August 4, 2007.
Finally, EPA also considered the
Supplemental Analysis in reviewing
Georgia’s submittal and NRDC’s
comments. EPA concluded that
approval of Georgia’s SIP revision
would not be contrary to Section 110(l)
of the CAA. Absent more explicit
information demonstrating that
Georgia’s plan for implementation of a
specific provision of its rules would
interfere with any applicable
requirement of the CAA and thus
should be disapproved under Section
110(l), Georgia’s Technical Support and
the Supplemental Analysis support
approval. As a result, there is no basis
to determine that approval of Georgia’s
rules would violate Section 110(l).
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Summary of Comments Regarding
Section 193 of the CAA—NRDC
Comments at 7–10
NRDC states that NSR is a ‘‘control
requirement’’ and thus the requirements
of Section 193 apply to the NSR rules
at issue in the Georgia SIP revision.
NRDC Comments at 7. NRDC further
alleges that Georgia’s revisions ‘‘ensure
that emissions will not be reduced as
much as under the pre-existing rules. In
fact, the modifications allow emissions
to increase in Georgia’s nonattainment
areas.’’ NRDC Comments at 9. Finally,
NRDC states that ‘‘because section 193
lies within part D,’’ ‘‘if EPA approves
Georgia’s revised plan, that action will
additionally exceed the agency’s
authority under section 110(k)(3) and
violate section 100(l).’’ (Note, the last
citation to 100(l) appears to be a typo
and should read 110(l).) NRDC
Comments at 10.
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EPA Response to Section 193 Related
Comments
The response to the Section 193
issues raised by NRDC involves many of
the same elements of the response
above, to the Section 110(l) comments,
which is also incorporated by reference
here.
Section 193 states, in relevant 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.’’
Assuming for purposes of this
discussion that Section 193 does apply
to the instant action, as was discussed
earlier in this notice, EPA has
previously determined and explained in
the Supplemental Analysis, that
implementation of the 2002 NSR Reform
Rule provisions still in effect (that is,
those not vacated by the DC Circuit) are
expected to have at least a neutral
environmental benefit. In addition,
Georgia’s rules include several
differences from the federal rule that are
likely to result in greater environmental
protection. These provisions include,
among others: (1) Adjusting the PAL
limits downward upon renewal if
average actual emissions are less than
80 percent of the PAL limit; (2) antibacksliding provisions included in the
major source baseline date to ensure
that baseline dates established prior to
the effective date of the rule changes
remain in effect; (3) additional
requirements related to the definition of
projected actual emissions intended to
result in more accurate estimates of
emissions increases; (4) provisions that
make the ‘‘demand growth’’ exclusion
optional, and require additional
recordkeeping to ensure the rules are
implemented properly; (5) a
requirement that baseline actual
emissions not be based on a period for
which there is inadequate information;
(6) a requirement to adjust baseline
actual emissions for new applicable
requirements; (7) provisions that require
submission of an application prior to
construction for all major and minor
sources; (8) requirements that the
‘‘reasonable possibility’’ recordkeeping
reporting requirements are triggered
whenever a minor source permit is
required. Therefore, even if Section 193
did apply to this action, EPA does not
agree with commenter’s assertions that
the SIP submissions approved in this
action raise a Section 193 concern.
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71021
In addition, the core of NRDC’s
argument seems to revolve around the
DC Circuit Court decision in South
Coast Air Quality Management District
v. EPA, 472 F.3d 882 (DC Cir. 2006)
(finding that NSR associated with the 1hour ozone standard included control
requirements). At issue in South Coast
was EPA’s determination regarding the
revocation of the entire 1-hour ozone
program (and corresponding SIP
elements), including all the 1-hour
nonattainment NSR elements, and
whether such elements would continue
to be required as part of SIPs
implementing the new (at that time)
8-hour ozone standard. The facts in the
South Coast case are distinguishable
from the instant matter where the
Georgia SIP is merely being updated to
include changes to the Federal NSR
program. EPA is not removing the
entirety of Georgia’s NNSR program
from the SIP as it pertains to a particular
NAAQS. Rather, EPA is simply
approving Georgia’s SIP revision that
implements rules equivalent to or more
stringent than the federal rules; and as
discussed earlier in this notice, EPA
developed a Supplemental Analysis to
support adoption of the federal rules.
The Georgia SIP will continue to operate
with the full suite of NSR related
elements, including a comprehensive
minor source program, and the
restrictive ‘de-minimus rule,’ which
requires sources to aggregate 5-year
emissions increases and offset emissions
increases greater than 25 tons.
IV. Final Action
EPA is taking final action to approve
portions of three revisions to the
Georgia SIP submitted by the State of
Georgia on October 31, 2006, March 5,
2007, and August 22, 2007, which
address changes to Georgia’s PSD and
NNSR programs.
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. This action merely ensures
that State law meets 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
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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 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).
In addition, this 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.
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 January 21, 2011. 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,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 12, 2010.
Gwendolyn Keyes-Fleming,
Regional Administrator, Region 4.
■
40 CFR part 52 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 et seq.
Subpart L—Georgia
2. In § 52.570(c) the table is amended
by revising the entries for ‘‘391–3–1–
.02(7)’’ and ‘‘391–3–1–.03’’ to read as
follows:
■
§ 52.570
*
Identification of plan.
*
*
*
*
(c) * * *
EPA APPROVED GEORGIA REGULATIONS
State effective
date
State citation
Title/subject
*
391–3–1–.02(7) ......
*
*
Prevention of Significant Deterioration of Air Quality (PSD).
*
7/25/2007
*
11/22/2010 [Insert
publication].
citation
of
*
*
This rule contains NOX as a precursor to ozone for PSD and
NSR.
*
391–3–1–.03 ...........
*
*
Permits ........................................
*
7/25/2007
*
11/22/2010 [Insert
publication].
citation
of
*
*
Changes specifically to (8)—Permit Requirements.
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Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
[FR Doc. 2010–29246 Filed 11–19–10; 8:45 am]
Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
BILLING CODE 6560–50–P
FOR FURTHER INFORMATION CONTACT:
*
*
*
*
*
Domenico Mastrangelo, Air Program,
U.S. Environmental Protection Agency,
Region 8, Mailcode 8P–AR, 1595
Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6416,
mastrangelo.domenico@epa.gov.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2009–0557; FRL–9229–1]
SUPPLEMENTARY INFORMATION:
Approval and Promulgation of State
Implementation Plan Revisions; State
of North Dakota; Interstate Transport
of Pollution for the 1997 PM2.5 and 8Hour Ozone NAAQS: ‘‘Interference
With Maintenance’’ Requirement
Definitions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is partially approving the
State Implementation Plan revisions
submitted by the State of North Dakota
on April 6, 2009. Specifically, EPA is
approving the portions of the ‘‘Interstate
Transport of Air Pollution’’ revisions
addressing the ‘‘interference with
maintenance’’ requirement of Clean Air
Act (CAA) section 110(a)(2)(D)(i) for the
1997 PM2.5 and 8-hour ozone National
Ambient Air Quality Standards
(NAAQS). The ‘‘interference with
maintenance’’ requirement of section
110(a)(2)(D)(i) prohibits a state’s
emissions from interfering with
maintenance of the NAAQS by any
other state. This action is being taken
under section 110 of the CAA.
DATES: Effective Date: This final rule is
effective December 22, 2010.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2009–0557. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(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 through
https://www.regulations.gov, or in hard
copy at the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
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For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iii) The initials SIP mean or refer to
State Implementation Plan.
(iv) The words State or North Dakota
mean the State of North Dakota, unless
the context indicates otherwise.
Table of Contents
I . Background
II . Response to Comments
III. Final Action
IV. Statutory and Executive Order Review
I. Background
On July 18, 1997, EPA promulgated
new standards for 8-hour ozone and fine
particulate matter (PM2.5). This action is
being taken in response to the July 18,
1997 revision to the 8-hour ozone
NAAQS, and PM2.5 NAAQS. This action
does not address the requirements for
the 2006 24- hour PM2.5 NAAQS, or the
2008 8-hour ozone NAAQS; those
standards will be addressed in a later
action.
Section 110(a)(1) of the CAA requires
states to submit SIPs to address a new
or revised NAAQS within 3 years after
promulgation of such standards, or
within such shorter period as EPA may
prescribe. Section 110(a)(2) lists the
elements that such new SIPs must
address, as applicable, including section
110(a)(2)(D)(i) which pertains to
interstate transport of certain emissions.
Section 110(a)(2)(D)(i) of the CAA
requires that a state’s SIP must contain
adequate provisions prohibiting any
source or other type of emissions
activity within the state from emitting
any air pollutant in amounts which will:
(1) Contribute significantly to
nonattainment of the NAAQS in any
other state; (2) interfere with
maintenance of the NAAQS by any
other state; (3) interfere with any other
state’s required measures to prevent
significant deterioration of air quality;
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71023
or (4) interfere with any other state’s
required measures to protect visibility.
On April 6, 2009 the State of North
Dakota submitted a SIP addressing the
section 110(a)(2)(D)(i) four
requirements, noted above, for the 1997
8-hour ozone NAAQS and for the 1997
annual and 24-hour PM2.5 NAAQS. The
state based its submittal on EPA’s 2006
Guidance discussed below. As noted
earlier, in this rulemaking EPA is
addressing the requirement that pertains
to preventing sources in the State from
emitting pollutants in amounts which
will interfere with the maintenance of
the 1997 ozone and PM2.5 NAAQS by
any other state.
On August 15, 2006, EPA issued its
‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality
Standards’’ (2006 Guidance) for SIP
submissions that states should use to
address the requirements of section
110(a)(2)(D)(i). EPA developed this
guidance to make recommendations to
states for making submissions to meet
the requirements of section
110(a)(2)(D)(i) for the 1997 ozone
NAAQS and 1997 PM2.5 NAAQS.
In a Federal Register action dated
September 17, 2010, EPA proposed
approval of the North Dakota Interstate
Transport SIP portions addressing the
interference with maintenance
requirement of section 110(a)(2)(D)(i).
EPA concluded in its proposed action
that the various factual and technical
considerations supported a
determination that emissions from
North Dakota do not interfere with
maintenance by any states with areas at
risk for maintenance of the 1997 8-hour
ozone NAAQS or for maintenance of the
1997 annual and 24-hour PM2.5 NAAQS.
EPA did not receive comments that
persuade the Agency that there is such
interference with maintenance for the
1997 ozone or PM2.5 NAAQS and thus
in today’s final action EPA is making a
final regulatory determination that
North Dakota’s sources do not interfere
with maintenance of the 1997 8-hour
ozone NAAQS, and the 1997 PM2.5
NAAQS in any other state.
II. Response to Comments
EPA received one letter dated October
18, 2010 with comments from the
WildEarth Guardians (WG)
environmental organization. The WG
letter includes three separate comments
identifiable under sections A., B., and
C., and is accessible online at
regulations.gov under Docket No. EPA–
R08–OAR–2009–0057. Later in this
section EPA responds to the significant
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[Federal Register Volume 75, Number 224 (Monday, November 22, 2010)]
[Rules and Regulations]
[Pages 71018-71023]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29246]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2006-0649-201059; FRL-9229-5]
Approval and Promulgation of Implementation Plans; Georgia;
Prevention of Significant Deterioration and Nonattainment New Source
Review Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve portions of the
revisions to the Georgia State Implementation Plan (SIP) submitted by
the State of Georgia in three submittals dated October 31, 2006, March
5, 2007, and August 22, 2007. The revisions modify Georgia's Prevention
of Significant Deterioration (PSD) and Nonattainment New Source Review
(NNSR) permitting rules in the SIP to address changes to the federal
New Source Review (NSR) regulations, which were promulgated by EPA on
December 31, 2002, and reconsidered with minor changes on November 7,
2003 (collectively, these two final actions are referred to as the
``2002 NSR Reform Rules''). EPA proposed to approve these revisions on
September 4, 2008; one comment letter was received. EPA's response to
comments is included in this notice.
DATES: This rule will be effective December 22, 2010.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2006-0649. All documents in the docket
are listed on the https://www.regulations.gov Web site. 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 https://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: Ms. Kelly Fortin, Air Permits Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303. Telephone number: (404) 562-9117; e-mail
address: fortin.kelly@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, references
[[Page 71019]]
to ``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the U.S.
Environmental Protection Agency. The supplementary information is
arranged as follows:
I. What action is EPA taking?
II. What is the background for EPA's action?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is now taking action, consistent with section 110(k)(3) of the
Clean Air Act (CAA or Act), to approve portions of SIP submittals made
by the State of Georgia, through the Georgia Environmental Protection
Division (EPD), on October 31, 2006, March 5, 2007, and August 22,
2007. These SIP submittals consist of changes to the Georgia Rules for
Air Quality Control, Chapter 391-3-1. Specifically, the October 31,
2006, revisions included changes to Rules 391-3-1-.02(7) ``Prevention
of Significant Deterioration of Air Quality'' and 391-3-1-.03(8)(c)
``Permit Requirements'' related to NNSR. The March 5, 2007, submittal
included changes to Rules 391-3-1-.02(7) ``Prevention of Significant
Deterioration of Air Quality,'' and 391-3-1-.03(13)(c) ``Emission
Reduction Credits.'' Finally, the August 22, 2007, submittal included
changes to Rules 391-3-1-.02(7) ``Prevention of Significant
Deterioration of Air Quality,'' and 391-3-1-.03(8) ``Permit
Requirements.''
EPA approved most of the non-NSR Reform portions of the submittals
(rules 391-3-1-.01(llll), 391-3-1-.02(2)(jjj), 391-3-1-.02(6)(a)4, 391-
3-1-.02(12), and 391-3-1-.03(6)(b)) in a previous action (74 FR 62249,
November 27, 2009). EPA has not yet acted on rule 391-3-1-.02(2)(ooo).
In addition, EPA is not acting on revisions to rules 391-3-1-.02(8)b,
and 391-3-1-.03(9), because these rules are not part of the federally-
approved SIP. EPA disapproved a portion of the March 5, 2007,
submittal, subparagraph 391-3-1-.03(13)(c), related to ``Emissions
Reduction Credits,'' in a previous action (73 FR 79653, December 30,
2008).
II. What is the background for EPA's action?
On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52,
regarding the CAA's PSD and NNSR programs. On November 7, 2003 (68 FR
63021), EPA published a notice of final action on the reconsideration
of the December 31, 2002, final rule changes. The December 31, 2002,
and the November 7, 2003, final actions are collectively referred to as
the ``2002 NSR Reform Rules.'' For additional information on the 2002
NSR Reform Rules, see 67 FR 80186 (December 31, 2002). For information
on the subsequent revisions to these rules, see https://www.epa.gov/nsr.
On October 31, 2006, March 5, 2007, and August 22, 2007, EPD
submitted revisions to EPA for the purpose of including the revised
State NSR permitting rules in the SIP. Copies of Georgia's revised NSR
rules, as well as the State's Technical Support Document, can be
obtained from the Docket, as discussed in the ADDRESSES section above.
On September 4, 2008 (73 FR 51606), EPA proposed to approve
portions of the above-summarized SIP submittals as they pertain to
Georgia's NSR program, with the exception of the revision to
subparagraph 391-3-1-.03(13)(c), related to ``Emissions Reduction
Credits,'' which EPA proposed to disapprove.\1\ In response to requests
for an extension of the public comment period, EPA extended the public
comment period on that proposal through November 6, 2008 (73 FR 58084).
One comment letter was received and it contained adverse comments.
EPA's response to this comment letter is below in section III, Response
to Comments. EPA's analysis of the State's NSR reform SIP submittals is
contained in the September 4, 2008, Notice of Proposed Rulemaking
(NPR). The NPR, the comment letter, and additional information
regarding this action may be obtained from the Docket, as discussed in
the ADDRESSES section above.
---------------------------------------------------------------------------
\1\ EPA took final action to disapprove the revision to
subparagraph 391-3-1-.03(13)(c), related to ``Emissions Reduction
Credits,'' in a previous action (73 FR 79653, December 30, 2008).
---------------------------------------------------------------------------
III. Response to Comments
EPA received one comment letter from the National Resource Defense
Council (NRDC) on the September 4, 2008, NPR; this letter included
adverse comments. NRDC primarily commented on the requirements of the
federal NSR rules, not Georgia's application of the federal
requirements in its own rules. Notably, NRDC participated in litigation
challenging EPA's 2002 promulgation of the NSR Reform Rules, where
similar arguments were made by NRDC and dismissed by the DC Circuit
Court. New York v. EPA, 413 F.3d 3 (DC Cir. 2005). NRDC's comments,
including exhibits, do not raise any specific concerns with Georgia's
rules, but rather, reiterate arguments made by NRDC to the DC Circuit
regarding Sections 110(l) and 193 of the CAA.\2\
---------------------------------------------------------------------------
\2\ NRDC notes that, ``[t]he 2002 rule provisions considered by
the DC Circuit in New York v. EPA were EPA regulations, not state
ones. The court thus had no occasion to decide whether EPA could
approve any state's versions of any of the 2002 rule provisions
consistently with section 110(l) of the Act.'' NRDC Comments at 3.
The Georgia rules at issue here track the federally approved rules,
as upheld by the DC Circuit (which NRDC admits--NRDC Comments at 4)
and NRDC supported all its comments with information related to the
challenge of EPA's 2002 NSR Reform Rules. NRDC provided no Georgia-
specific support for its comments.
---------------------------------------------------------------------------
While NRDC's comments provide citations to five portions of the
Georgia rules, the comments make no attempt to specifically explain or
demonstrate how those identified provisions are inconsistent with
either Section 110(l) or Section 193 of the CAA. Furthermore, NRDC
provides no evidence supporting its allegations that approval of the
specific provisions would result in a violation of the CAA or otherwise
be ``arbitrary, capricious, an abuse of discretion, and otherwise not
in accordance with law.'' NRDC Comments at 2.
The NRDC comments include a list of 31 exhibits which the comment
letter incorporates by reference into the comments. NRDC Comments at 1.
The 31 exhibits appear to all be related to the DC Circuit Court case
New York v. EPA, and were either submitted to that Court for review, or
are relevant to that adjudication. To the extent that these exhibits
were provided to the DC Circuit, those issues were previously resolved
by the Court and/or already responded to by EPA in its responsive court
papers. Any other documents included in the 31 exhibits that were not
provided to the DC Circuit Court do not provide EPA with any comments
specific to the Georgia rules at issue.
Despite the lack of Georgia-specific discussion in NRDC's letter,
EPA has responded to the few comments that appear related to the
September 4, 2008, NPR to approve portions of Georgia's SIP submittals
pertaining to EPA's 2002 NSR Reform Rules.
Summary of Comments Regarding Section 110(l)--NRDC Comments at 1-6
NRDC stated that finalizing the EPA rulemaking proposal at issue
here would violate section 110(l) of the Act. As support for its
conclusion, NRDC asserted that ``[t]he 2002 NSR Reform Rule provisions
that were not vacated by the DC Circuit in New York v. EPA [citation
omitted] allow previously-prohibited emissions-increases to occur.''
NRDC Comments at 3. Further, that ``Georgia nevertheless made no
[[Page 71020]]
`demonstration that the emissions that are allowed by its revised rule
but are prohibited by the current SIP would not interfere with
attainment or other applicable requirements.' '' As a result, NRDC
stated that, ``it cannot be said of Georgia's plan that it `will cause
no degradation of air quality.' '' NRDC Comments at 5. NRDC also stated
that EPA has not made any findings that Georgia's rule will not cause
degradation of air quality or interfere with any applicable
requirements concerning attainment and reasonable further progress, or
any other applicable requirements of the CAA. NRDC Comments at 5.
EPA Response to Section 110(l) Comments
EPA's 2002 NSR Reform Rules were upheld by the DC Circuit Court
which reviewed them, with the exception of the pollution control
project and clean unit provisions (and the remanded matters). The three
significant changes in NSR Reform that were upheld by the DC Circuit
were (1) Plantwide applicability limits (PALs), (2) the 2-in-10
baseline, and (3) the actual-to-projected actual emission test. The
Supplemental Environmental Analysis of the Impact of the 2002 Final NSR
Improvement Rules (November 21, 2002) (Supplemental Analysis) discussed
each of these three changes individually, and addresses some of the
issues raised by NRDC.
With regard to PALs, the Supplemental Analysis explained, ``[t]he
EPA expects that the adoption of PAL provisions will result in a net
environmental benefit. Our experience to date is that the emissions
caps found in PAL-type permits result in real emissions reductions, as
well as other benefits.'' Supplemental Analysis at 6. EPA further
explained that,
Although it is impossible to predict how many and which sources
will take PALs, and what actual reductions those sources will
achieve for what pollutants, we believe that, on a nationwide basis,
PALs are certain to lead to tens of thousands of tons of reductions
of volatile organic compounds from source categories where frequent
operational changes are made, where these changes are time-
sensitive, and where there are opportunities for economical air
pollution control measures. These reductions occur because of the
incentives that the PAL creates to control existing and new units in
order to provide room under the cap to make necessary operational
changes over the life of the PAL.
Supplemental Analysis at 7. The Supplemental Analysis, and particularly
Appendix B, provided additional details regarding EPA's analysis of
PALs and anticipated associated emissions decreases.
With regard to the 2-in-10 baseline, EPA concluded that, ``[t]he
EPA believes that the environmental impact from the change in baseline
EPA is now finalizing will not result in any significant change in
benefits derived from the NSR program.'' Supplemental Analysis at 13.
This is mainly because ``the number of sources receiving different
baselines likely represents a very small fraction of the overall NSR
permit universe, excludes new sources and coal fired power plants, and
because the baseline may shift in either direction, we conclude that
any overall consequences would be negligible.'' Supplemental Analysis
at 14. Additional information regarding the 2-in-10 baseline changes is
available in the Supplemental Analysis, Appendix F.
With regard to the actual-to-projected actual test, EPA concluded,
``we believe that the environmental impacts of the switch to the
actual-to-projected actual test are likely to be environmentally
beneficial. However, as with the change to the baseline, we believe the
vast majority of sources, including new sources, new units, electric
utility steam generating units, and units that actually increase
emissions as a result of a change, will be unaffected by this change.
Thus, the overall impacts of the NSR changes are likely to be
environmentally beneficial, but only to a small extent.'' Supplemental
Analysis at 14 (see also Supplemental Analysis Appendix G).
For more information on the 2002 NSR Reform Rules, and its
supporting technical documents, see, https://www.epa.gov/nsr/actions.html#2002 (last visited November 2, 2010).
Section 110(l) of the CAA states, in relevant part, that ``[t]he
Administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress * * * or any other applicable
requirement of this chapter.'' CAA, 42 U.S.C. 7410(l). In ``Approval
and Promulgation of Implementation Plans; New Source Review; State of
Nevada, Clark County Department of Air Quality and Environmental
Management,'' 69 FR 54006 (September 7, 2004), EPA stated that Section
110(l) does not preclude SIP relaxations. Rather, EPA stated that
Section 110(l) only requires that the ``relaxations not interfere with
specified requirements of the Act including requirements for attainment
and reasonable further progress,'' and that, therefore, a state can
relax its SIP provisions if it is able to show that it can attain or
maintain the National Ambient Air Quality Standards (NAAQS) and meet
any applicable reasonable further progress goals or other specific
requirements. 69 FR at 54011-12.
Georgia's Proposed NSR reform rules track the federal NSR Reform
Rules, with enhancements, as described in Georgia's submittal. EPA
evaluated Georgia's rules consistent with its evaluation of the federal
rules, and determined that Georgia's rules were equivalent to or more
stringent than the 2002 NSR Reform Rules. Overall, as summarized above,
EPA expects that changes in air quality as a result of implementing
Georgia's rules will be consistent with EPA's position on the federal
NSR Reform Rules--that there will be somewhere between neutral and
providing a modest contribution to reasonable further progress between
the NSR Reform and pre-Reform provisions. EPA's analysis for the
environmental impacts of the three components of the NSR Reform rules
(discussed earlier) is informative of how Georgia's adoption of NSR
Reform (based on the federal rules) will affect emissions. EPA has no
reason to believe that the environmental impacts will be different from
those discussed in the Supplemental Analysis for the NSR Reform rules,
and thus, approval of Georgia's SIP revision would not be contrary to
Section 110(l) of the CAA.
NRDC cites to five general portions of Georgia's rules as
provisions that would violate Section 110(l). These provisions are:
Administrative Code of Georgia (ACG) 391-3-1-.02(7)(a), (7)(b)15, and
(7)(b)(21) (from Georgia's PSD rules); and 391-3-1-.03(8)(c) and (8)(g)
(from Georgia's NNSR rules). NRDC Comments at 2. NRDC provides no
evidence supporting its contention that these specific provisions
violate Section 110(l). The first provision noted by NRDC, 391-3-
1-.02(7)(a), represents general requirements regarding Georgia's PSD
program, which do include some changes per the SIP revision at issue.
Nonetheless, without further specificity, it is not clear why or how
NRDC believes this provision is a violation of Section 110(l). In
addition, NRDC has provided no Georgia-specific documentation that
indicates that EPA's analysis and conclusions regarding the impact of
NSR Reform, in the Supplemental Analysis, is not applicable to
Georgia's rules, which are equivalent to or more stringent than the
federal rules.
In evaluating Georgia's SIP submissions, EPA compared Georgia's
rules with the existing federal rules and determined that Georgia's
rules were
[[Page 71021]]
equivalent to or more stringent than the NSR reform (federal) rules.
EPA also considered Georgia's approximately thirty enhancements to the
federal NSR Reform provisions, including specific anti-backsliding
provisions. This comparison was discussed in the proposal to approve
Georgia's SIP revision. Georgia's anti-backsliding provisions are
discussed in their SIP submittal and included in EPA's docket. EPA also
considered Georgia's numerous responses to comments, included as part
of the submittals, wherein Georgia discussed the two-year stakeholder
process, as well as answered questions as to why it was including anti-
backsliding provisions and discussed the NSR Reform changes in relation
to their air quality program. Georgia determined that ``the NAAQS, PSD
increment, RFP demonstration and visibility will be protected if these
SIP revisions are approved and implemented.'' See Technical Support for
SIP Submittal dated August 4, 2007. Finally, EPA also considered the
Supplemental Analysis in reviewing Georgia's submittal and NRDC's
comments. EPA concluded that approval of Georgia's SIP revision would
not be contrary to Section 110(l) of the CAA. Absent more explicit
information demonstrating that Georgia's plan for implementation of a
specific provision of its rules would interfere with any applicable
requirement of the CAA and thus should be disapproved under Section
110(l), Georgia's Technical Support and the Supplemental Analysis
support approval. As a result, there is no basis to determine that
approval of Georgia's rules would violate Section 110(l).
Summary of Comments Regarding Section 193 of the CAA--NRDC Comments at
7-10
NRDC states that NSR is a ``control requirement'' and thus the
requirements of Section 193 apply to the NSR rules at issue in the
Georgia SIP revision. NRDC Comments at 7. NRDC further alleges that
Georgia's revisions ``ensure that emissions will not be reduced as much
as under the pre-existing rules. In fact, the modifications allow
emissions to increase in Georgia's nonattainment areas.'' NRDC Comments
at 9. Finally, NRDC states that ``because section 193 lies within part
D,'' ``if EPA approves Georgia's revised plan, that action will
additionally exceed the agency's authority under section 110(k)(3) and
violate section 100(l).'' (Note, the last citation to 100(l) appears to
be a typo and should read 110(l).) NRDC Comments at 10.
EPA Response to Section 193 Related Comments
The response to the Section 193 issues raised by NRDC involves many
of the same elements of the response above, to the Section 110(l)
comments, which is also incorporated by reference here.
Section 193 states, in relevant 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.''
Assuming for purposes of this discussion that Section 193 does
apply to the instant action, as was discussed earlier in this notice,
EPA has previously determined and explained in the Supplemental
Analysis, that implementation of the 2002 NSR Reform Rule provisions
still in effect (that is, those not vacated by the DC Circuit) are
expected to have at least a neutral environmental benefit. In addition,
Georgia's rules include several differences from the federal rule that
are likely to result in greater environmental protection. These
provisions include, among others: (1) Adjusting the PAL limits downward
upon renewal if average actual emissions are less than 80 percent of
the PAL limit; (2) anti-backsliding provisions included in the major
source baseline date to ensure that baseline dates established prior to
the effective date of the rule changes remain in effect; (3) additional
requirements related to the definition of projected actual emissions
intended to result in more accurate estimates of emissions increases;
(4) provisions that make the ``demand growth'' exclusion optional, and
require additional recordkeeping to ensure the rules are implemented
properly; (5) a requirement that baseline actual emissions not be based
on a period for which there is inadequate information; (6) a
requirement to adjust baseline actual emissions for new applicable
requirements; (7) provisions that require submission of an application
prior to construction for all major and minor sources; (8) requirements
that the ``reasonable possibility'' recordkeeping reporting
requirements are triggered whenever a minor source permit is required.
Therefore, even if Section 193 did apply to this action, EPA does not
agree with commenter's assertions that the SIP submissions approved in
this action raise a Section 193 concern.
In addition, the core of NRDC's argument seems to revolve around
the DC Circuit Court decision in South Coast Air Quality Management
District v. EPA, 472 F.3d 882 (DC Cir. 2006) (finding that NSR
associated with the 1-hour ozone standard included control
requirements). At issue in South Coast was EPA's determination
regarding the revocation of the entire 1-hour ozone program (and
corresponding SIP elements), including all the 1-hour nonattainment NSR
elements, and whether such elements would continue to be required as
part of SIPs implementing the new (at that time) 8-hour ozone standard.
The facts in the South Coast case are distinguishable from the instant
matter where the Georgia SIP is merely being updated to include changes
to the Federal NSR program. EPA is not removing the entirety of
Georgia's NNSR program from the SIP as it pertains to a particular
NAAQS. Rather, EPA is simply approving Georgia's SIP revision that
implements rules equivalent to or more stringent than the federal
rules; and as discussed earlier in this notice, EPA developed a
Supplemental Analysis to support adoption of the federal rules. The
Georgia SIP will continue to operate with the full suite of NSR related
elements, including a comprehensive minor source program, and the
restrictive `de-minimus rule,' which requires sources to aggregate 5-
year emissions increases and offset emissions increases greater than 25
tons.
IV. Final Action
EPA is taking final action to approve portions of three revisions
to the Georgia SIP submitted by the State of Georgia on October 31,
2006, March 5, 2007, and August 22, 2007, which address changes to
Georgia's PSD and NNSR programs.
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. This action merely
ensures that State law meets 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
[[Page 71022]]
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 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).
In addition, this 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.
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 January 21, 2011. 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, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 12, 2010.
Gwendolyn Keyes-Fleming,
Regional Administrator, Region 4.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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. In Sec. 52.570(c) the table is amended by revising the entries for
``391-3-1-.02(7)'' and ``391-3-1-.03'' to read as follows:
Sec. 52.570 Identification of plan.
* * * * *
(c) * * *
EPA Approved Georgia Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
391-3-1-.02(7)............... Prevention of 7/25/2007 11/22/2010 [Insert This rule contains
Significant citation of NOX as a precursor
Deterioration of Air publication]. to ozone for PSD
Quality (PSD). and NSR.
* * * * * * *
391-3-1-.03.................. Permits.............. 7/25/2007 11/22/2010 [Insert Changes specifically
citation of to (8)--Permit
publication]. Requirements.
* * * * * * *
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[[Page 71023]]
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[FR Doc. 2010-29246 Filed 11-19-10; 8:45 am]
BILLING CODE 6560-50-P
