Approval and Promulgation of Implementation Plans Georgia: Approval of Revisions to Minor Source Permit Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[GA-033-1-7037a; FRL-5276-1]

Approval and Promulgation of Implementation Plans Georgia:

Approval of Revisions to Minor Source Permit Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Georgia State Implementation

Plan (SIP) to allow the State of Georgia to issue Federally enforceable

state operating permits (FESOP). On March 15, 1995, the State of

Georgia through the Georgia Department of Natural Resources,

Environmental Protection Division (EPD) submitted a SIP revision

fulfilling the requirements necessary for a state FESOP program to

become Federally enforceable. In order to extend the Federal

enforceability of Georgia's FESOP program to hazardous air pollutants

(HAP), EPA is also approving Georgia's FESOP program pursuant to

section 112 of the Clean Air Act as amended in 1990 (CAA) so that the

State may issue FESOP for HAP.

DATES: This final rule will be effective October 30, 1995 unless

adverse or critical comments are received by September 29, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments should be addressed to Yolanda Adams, at

the EPA Regional Office listed below. Copies of the documents relative

to this action are available for public inspection during normal

business hours at the following locations. The interested persons

wanting to examine these documents should make an appointment with the

appropriate office at least 24 hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 4 Air Programs Branch, 345

Courtland Street, NE, Atlanta, Georgia 30365.

Air Protection Branch, Environmental Protection Division, Georgia

Department of Natural Resources, 4244 International Parkway, Suite 120,

Atlanta, Georgia 30354.

FOR FURTHER INFORMATION CONTACT: Yolanda Adams, Air Programs Branch,

Air, Pesticides & Toxics Management Division, Region 4 Environmental

Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365.

The telephone number is 404/347-3555 x4149. Reference file GA033-01-

7037.

SUPPLEMENTARY INFORMATION: On March 15, 1995, the State of Georgia

through the EPD submitted a SIP revision designed to make certain

permits issued under Georgia's existing minor source operating permit

program Federally enforceable pursuant to EPA requirements as specified

in a Federal Register document, ``Requirements for the preparation,

adoption, and submittal of implementation plans; air quality, new

source review; final rules.'' (see 54 FR 22274, June 28, 1989). The

State will continue to issue permits which are not Federally

enforceable under its existing minor source operating permit rules as

[[Page 45049]]

it has done in the past. The SIP revision which is the subject of

today's rulemaking adds additional requirements to the State's current

minor source operating permit program which allows the State to issue

Federally enforceable operating permits, and provides for the issuance

of generic operating permits.1 This voluntary SIP revision allows

EPA and citizens under the CAA to enforce terms and conditions of

Georgia's FESOP program. Operating permits that are issued under the

State's FESOP program that is approved into the State SIP and under

section 112(l) will provide Federally enforceable limits to an air

pollution source's potential to emit. Limiting of a source's potential

to emit through Federally enforceable operating permits can affect a

source's applicability to Federal regulations such as title V operating

permits, New Source Review (NSR) preconstruction permits, Prevention of

Significant Deterioration (PSD) preconstruction permits for criteria

pollutants and Federal air toxics requirements mandated under section

112 of the CAA.

\1\ A generic permit is a single operating permit that

establishes terms and conditions that must be complied with by all

sources subject to that permit.

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In the aforementioned June 28, 1989, Federal Register document, EPA

listed five criteria necessary to make a State's minor source operating

permit program Federally enforceable and, therefore, approvable into

the SIP. This revision satisfies the five criteria for Federal

enforceability of the State's FESOP program.

The first criteria for a state's operating permit program to become

Federally enforceable is that the permit program that the state wishes

to be Federally enforceable must be approved into the SIP. On March 15,

1995, the State of Georgia submitted through the EPD a SIP revision

designed to meet the five criteria for Federal enforceability. Today's

action will approve these regulations into the Georgia SIP, thereby,

meeting the first criteria for Federal enforceability.

The second criteria for a state's operating permit program to

become Federally enforceable is that the regulations approved into the

SIP impose a legal obligation that operating permit holders adhere to

the terms and limitations of such permits. Georgia's regulations meet

this criteria in Rule 391-3-1-.03, subsections (2)(g) and (12)(a), by

requiring that under penalty of law, the holder of any Air Quality

Permit must adhere to the terms, limitations, and conditions of that

permit and subsequent revisions of that permit. Hence, the second

criteria for Federal enforceability is met.

The third criteria necessary for a state's operating permit program

to be Federally enforceable is that the state operating permit program

require that all emissions limitations, controls, and other

requirements imposed by such permits will be at least as stringent as

any other applicable limitations and requirements contained in the SIP

or enforceable under the SIP, and that the program may not issue

permits that waive, or make less stringent, any limitations or

requirements contained in or issued pursuant to the SIP, or that are

otherwise ``Federally enforceable'' (e.g. standards established under

sections 111 and 112 of the Act). Georgia satisfies this criteria in

Rule 391-3-1-.03, subsection (2)(c) by stating that an operating permit

will be issued upon evidence of compliance with the provisions of the

Act and the rules and regulations promulgated thereunder. Said permit

shall specify the conditions under which the facility shall be operated

in order to comply with the Act and rules and regulations. As a

condition for the issuance of an operating permit, Georgia may require

the applicant to conduct performance tests and monitoring and provide

reports concerning operations, to demonstrate compliance with the Act

and the rules and regulations. Therefore, this subsection of Georgia's

permits rule satisfies the third criteria for Federal enforceability.

The fourth criteria for a state's operating permit program to

become Federally enforceable is that limitations, controls, and

requirements in the operating permits are quantifiable, and otherwise

enforceable as a practical matter. Georgia's Rule 391-3-1-.03,

subsections (2)(h) and (12)(b), requires that the limitations,

controls, and requirements in Federally enforceable operating permits

be permanent, quantifiable, and otherwise enforceable as a practical

matter. Therefore, the Georgia FESOP program satisfies the fourth

criteria for Federal enforceability.

The fifth criteria for a state's operating permit program to become

Federally enforceable is to provide EPA and the public with timely

notice of the proposal and issuance of such permits, and to provide

EPA, on a timely basis, with a copy of each proposed (or draft) and

final permit intended to be Federally enforceable. This process also

must provide for an opportunity for public comment on the permit

applications prior to issuance of the final permit. Rule 391-3-1-.03,

subsections (2)(i) and (12)(c), states that prior to the issuance of

any Federally enforceable operating permit, EPA and the public will be

notified and given a chance for comment on the draft permit. EPA notes

that any permit which has not gone through an opportunity for public

comment and EPA review under the Georgia FESOP program will not be

Federally enforceable.

In addition to requesting approval into the SIP, Georgia has also

requested approval of its FESOP program under section 112(l) of the Act

for the purpose of creating Federally enforceable limitations on the

potential to emit of HAP through the issuance of Federally enforceable

state operating permits. Approval under section 112(l) is necessary

because the proposed SIP approval discussed above only extends to the

control of criteria pollutants.

EPA believes that the five approval criteria for approving FESOP

programs into the SIP, as specified in the June 28, 1989, Federal

Register document, are also appropriate for evaluating and approving

the programs under section 112(l). The June 28, 1989, document does not

address HAP because it was written prior to the 1990 amendments to

section 112, not because it establishes requirements unique to criteria

pollutants.

In addition to meeting the criteria in the June 28, 1989, document,

a FESOP program that addresses HAP must meet the statutory criteria for

approval under section 112(l)(5). Section 112(l) allows EPA to approve

a program only if it: (1) contains adequate authority to assure

compliance with any section 112 standards or requirements; (2) provides

for adequate resources; (3) provides for an expeditious schedule for

assuring compliance with section 112 requirements; and (4) is otherwise

likely to satisfy the objectives of the CAA.

EPA plans to codify the approval criteria for programs limiting

potential to emit of HAP, such as FESOP programs, through amendments to

Subpart E of Part 63, the regulations promulgated to implement section

112(l) of the CAA. (See 58 Fed. Reg. 62262, November 26, 1993.) EPA

anticipates that these regulatory criteria, as they apply to FESOP

programs, will mirror those set forth in the June 28, 1989, document.

The EPA also anticipates that since FESOP programs approved pursuant to

section 112(l) prior to the planned Subpart E revisions will have been

approved as meeting these criteria, further approval actions for those

programs will not be necessary.

EPA has authority under section 112(l) to approve programs to limit

potential to emit of HAP directly under section 112(l) prior to this

revision to

[[Page 45050]]

Subpart E. Section 112(l)(5) requires the EPA to disapprove programs

that are inconsistent with guidance required to be issued under section

112(l)(2). This might be read to suggest that the ``guidance'' referred

to in section 112(l)(2) was intended to be a binding rule. Even under

this interpretation, EPA does not believe that section 112(l) requires

this rulemaking to be comprehensive. That is, it need not address every

possible instance of approval under section 112(l). EPA has already

issued regulations under section 112(l) that would satisfy any section

112(l)(2) requirement for rulemaking. Given the severe timing problems

posed by impending deadlines set forth in ``maximum achievable control

technology'' (MACT) emission standards under section 112 and for

submittal of title V permit applications, EPA believes it is reasonable

to read section 112(l) to allow for approval of programs to limit

potential to emit prior to promulgation of a rule specifically

addressing this issue. Therefore, EPA is approving Georgia's FESOP

program so that Georgia may begin to issue Federally enforceable

operating permits as soon as possible.

EPA believes that Georgia's FESOP program meets the approval

criteria specified in the June 28, 1989 Federal Register document and

in section 112(l)(5) of the CAA. As discussed previously in this

document, Georgia's FESOP program meets the five criteria necessary for

Federal enforceability.

Regarding the statutory criteria of section 112(l)(5) referred to

above, EPA believes Georgia's FESOP program contains adequate authority

to assure compliance with section 112 requirements because the third

criterion of the June 28, 1989, document is met, that is, because the

program does not allow for the waiver of any section 112 requirement.

Sources that become minor through a permit issued pursuant to this

program would still be required to meet section 112 requirements

applicable to non-major sources.

Regarding the requirement for adequate resources, EPA believes

Georgia has demonstrated that it can provide for adequate resources to

support the FESOP program. EPA expects that resources will continue to

be adequate to administer that portion of the State's minor source

operating permit program under which Federally enforceable operating

permits will be issued since Georgia has administered a minor source

operating permit program for several years. EPA will monitor Georgia's

implementation of its FESOP program to ensure that adequate resources

are in fact available. EPA also believes that Georgia's FESOP program

provides for an expeditious schedule for assuring compliance with

section 112 requirements. This program will be used to allow a source

to establish a voluntary limit on potential to emit to avoid being

subject to a CAA requirement applicable on a particular date. Nothing

in Georgia's FESOP program would allow a source to avoid or delay

compliance with a CAA requirement if it fails to obtain an appropriate

Federally enforceable limit by the relevant deadline. Finally, EPA

believes it is consistent with the intent of section 112 and the CAA

for states to provide a mechanism through which sources may avoid

classification as a major source by obtaining a Federally enforceable

limit on potential to emit.

Eligibility for Federal enforceability of permits extends not only

to permits issued after the effective date of this rule but also

extends to permits issued under the State's current rule prior to the

effective date of today's rulemaking. If the State followed its own

procedures, each permit issued under this regulation to establish a

title I condition (e.g. for a source to have minor source potential to

emit) was subject to public notice and prior EPA review. Therefore, EPA

will consider all such operating permits issued which were processed in

a manner consistent with both the State regulations and the five

criteria to be federally enforceable with the promulgation of this rule

provided that any permits that the State wishes to make federally

enforceable are submitted to EPA and accompanied by documentation that

the procedures approved today have been followed. EPA will

expeditiously review any individual permits so submitted to ensure

their conformity to the program requirements.

With the addition of these provisions, Georgia's FESOP program

satisfies all the requirements listed in the June 28, 1989, Federal

Register document. EPA is approving this revision to the State of

Georgia's SIP thus making the State's FESOP program Federally

enforceable.

Final Action

In this action, EPA is approving the Georgia FESOP program. EPA is

publishing this action without prior proposal because the Agency views

this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document elsewhere in this Federal

Register, EPA is proposing to approve the SIP revision should adverse

or critical comments be filed. This action will be effective October

30, 1995 unless, by September 29, 1995, adverse or critical comments

are received. If EPA receives such comments, this action will be

withdrawn before the effective date by publishing a subsequent document

that will withdraw the final action. All public comments received will

then be addressed in a subsequent final rule based on this action

serving as a proposed rule. EPA will not institute a second comment

period on this action. Any parties interested in commenting on this

action should do so at this time. If no such comments are received, the

public is advised that this action will be effective October 30, 1995.

The Agency has reviewed this request for revision of the Federally-

approved SIP for conformance with the provisions of the 1990 Amendments

enacted on November 15, 1990. EPA has determined that this action

conforms with those requirements.

Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),

petitions for judicial review of this action must be filed in the

United States Court of Appeals for the appropriate circuit by October

30, 1995. Filing a petition for reconsideration by the Administrator of

this final rule does not affect the finality of this rule for purposes

of judicial review nor does it extend the time within which a petition

for judicial review may be filed, and shall not postpone the

effectiveness of such rule or action. This action may not be challenged

later in proceedings to enforce its requirements. (See section

307(b)(2) of the CAA, 42 U.S.C. 7607 (b)(2)). The Office of Management

and Budget has exempted this action from review under Executive Order

12866.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in

[[Page 45051]]

association with proposed or final rules that include a Federal mandate

that may result in estimated costs of $100 million or more to the

private sector, or to State, local, or tribal governments in the

aggregate.

Through submission of this state implementation plan or plan

revision, the State has elected to adopt the program provided for under

Section 110 of the Clean Air Act. These rules may bind the State

government to perform certain actions and also require the private

sector to perform certain duties. To the extent that the rules being

approved by this action would impose no new requirements; such sources

are already subject to these regulations under State law. Accordingly,

no additional costs to the State government, or to the private sector,

result from this action. EPA has also determined that this final action

does not include a mandate that may result in estimated costs of $100

million or more to the State government in the aggregate or to the

private sector.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action.

The CAA forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. section 7410(a)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Lead, Nitrogen dioxide,

Intergovernmental relations, Particulate matter, Ozone, Sulfur oxides.

Dated: August 3, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart L--Georgia

2. Section 52.570 is amended by adding paragraph (c)(46) to read as

follows:

Sec. 52.570 Identification of plan.

* * * * *

(c) * * *

(46) Revisions to minor source permit rules submitted by the

Georgia Environmental Protection Division on March 15, 1995.

(i) Incorporation by reference. Revised Rule 391-3-1-.03,

``Permits'', sections (1), (2), and (12), effective August 17, 1994.

(ii) Other material. None.

[FR Doc. 95-21466 Filed 8-29-95; 8:45 am]

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