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[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Rules and Regulations]
[Pages 55572-55577]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22666]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0816-201106; FRL-9458-1]

Approval and Promulgation of Implementation Plans; Georgia: 
Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule 
and Fine Particulate Matter Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve portions of a revision 
to the State Implementation Plan (SIP), submitted by the State of 
Georgia, through the Georgia Department of Natural Resources' 
Environmental Protection Division (EPD), to EPA on September 30, 2010, 
for parallel processing. Georgia submitted the final version of this 
SIP revision on January 13, 2011. The portions of the SIP revision 
approved by this action incorporate two updates to Georgia's air 
quality regulations under Georgia's New Source Review (NSR) Prevention 
of Significant Deterioration (PSD) program. First, the SIP revision 
establishes appropriate emission thresholds for determining which new 
stationary sources and modification projects become subject to 
Georgia's PSD permitting requirements for its greenhouse gas (GHG) 
emissions. Second, the SIP revision incorporates provisions for 
implementing the PSD program for the fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS). EPA 
is approving Georgia's January 13, 2011, SIP revision because the 
Agency has made the determination that this SIP revision is in 
accordance with the Clean Air Act (CAA or Act) and EPA regulations, 
including those relating to PSD permitting for GHGs and the 
PM2.5 NAAQS. Additionally, EPA is responding to adverse 
comments received on EPA's November 29, 2010, proposed approval of 
Georgia's September 30, 2010, draft SIP revision.

DATES: Effective Date: This rule will be effective October 11, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0816. All documents in the docket 
are listed on the http://www.regulations.gov web site. Although listed 
in the index, some information is not 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 http://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 for further information. The Regional Office's official hours 
of business are Monday through Friday, 8:30 to 4:30, excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Georgia 
SIP, contact Ms. Twunjala Bradley, 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. Ms. Bradley's telephone number is (404) 
562-9352; e-mail address: bradley.twunjala@epa.gov. For information 
regarding the Tailoring Rule and the NSR PM2.5 Rule, contact 
Ms. Heather Abrams, Air Permits Section, at the same address above. Ms. 
Abrams' telephone number is (404) 562-9185; e-mail address: 
abrams.heather@epa.gov. For information regarding the PM2.5 
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the 
same address above. Mr. Huey's telephone number is (404) 562-9104;  e-
mail address: huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the Georgia SIP. Four of these actions include, as they are commonly 
called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson 
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and 
the ``Tailoring Rule.'' \4\ Taken together and in conjunction with the 
CAA, these actions established regulatory requirements for GHGs emitted 
from new motor vehicles and new motor vehicle engines; determined that 
such regulations, when they took effect on January 2, 2011, subjected 
GHGs emitted from stationary sources to PSD requirements; and limited 
the applicability of PSD requirements to GHG sources on a phased-in 
basis.
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    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    With regard to the PM2.5 NAAQS, EPA finalized a rule on 
May 16, 2008, including changes to the NSR program (hereafter referred 
to as the ``2008 NSR PM2.5 Rule''). See 73 FR 28321. The 
2008 NSR PM2.5 Rule revised the NSR program requirements to 
establish the framework for implementing preconstruction permit review 
for the PM2.5 NAAQS in both attainment and nonattainment 
areas. States were required to provide SIP submissions to address the 
requirements for the 2008 NSR PM2.5 Rule by May 16, 2011.
    On September 30, 2010,\5\ in response to the Tailoring Rule, 
earlier GHG-related EPA rules and the 2008 NSR PM2.5 Rule, 
EPD submitted a draft revision to EPA for approval into the Georgia SIP 
to: (1) Establish appropriate emission thresholds for determining which 
new or modified stationary sources become subject to Georgia's PSD 
permitting requirements for GHG emissions; and (2) incorporate 
provisions for implementing the PSD program for the PM2.5 
NAAQS. Subsequently, on November 29, 2010, EPA published a proposed 
rulemaking to approve portions of Georgia's September 30, 2010, SIP 
revision under parallel processing. See 75 FR 73017. Specifically, EPA 
proposed to approve

[[Page 55573]]

the portions of Georgia's September 30, 2010, draft SIP revision that 
incorporate by reference the thresholds for GHG permitting 
applicability at 40 CFR 52.21 (as amended June 3, 2010, and effective 
August 2, 2010), into Georgia's SIP (391-3-1-.02(7)--Prevention of 
Significant Deterioration of Air Quality),\6\ and that incorporate the 
federal requirements related to the 2008 NSR PM2.5 Rule. 
Detailed background information and EPA's rationale for the proposed 
approval are provided in EPA's November 29, 2010, Federal Register 
notice.
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    \5\ With respect to the PM2.5 NAAQS, Georgia's 
January 13, 2011, SIP revision only addresses PSD requirements. 
Regarding the nonattainment NSR provisions for the PM2.5 
NAAQS, EPA is awaiting final SIP submittal from Georgia for the 
nonattainment NSR PM2.5 provisions.
    \6\ Georgia's submittal also includes revised title V operating 
permit provisions, which are not included in the SIP. As such, EPA 
is not taking final action to approve Georgia's update to its title 
V regulations in this rulemaking.
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    EPA's November 29, 2010, proposed approval was contingent upon 
Georgia providing a final SIP revision that was substantively the same 
as the revision proposed for approval by EPA in the November 29, 2010, 
proposed rulemaking. See 75 FR 73017. Georgia provided its final SIP 
revision on January 13, 2011. There were no differences between 
Georgia's September 30, 2010, draft SIP revision, and the January 13, 
2011, final SIP revision.
    On December 30, 2010, EPA published a final rule narrowing its 
previous approval of PSD programs as applicable to GHG-emitting sources 
in SIPs for 24 states, including Georgia.\7\ See 75 FR 82536 (PSD 
Narrowing Rule). Specifically, in the PSD Narrowing Rule, EPA withdrew 
its previous approval of Georgia's SIP to the extent it applied PSD to 
GHG-emitting sources below the thresholds in the Tailoring Rule. The 
effect of the PSD Narrowing Rule on the approved Georgia SIP was to 
establish that new and modified sources are subject to PSD permitting 
requirements for their GHG emissions only if they emit GHGs at or above 
the Tailoring Rule's emission thresholds. As result of today's action 
approving Georgia's incorporation of the appropriate GHG permitting 
thresholds into its SIP, paragraph (b) in 40 CFR 52.572, as included in 
EPA's Narrowing Rule, is no longer necessary. Thus, today's action also 
amends 40 CFR 52.572 to remove this unnecessary regulatory language.
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    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).
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    In addition to changes to address PSD permitting requirements for 
GHGs and PM2.5 discussed above, Georgia's January 13, 2011, 
SIP revision incorporated by reference provisions in 40 CFR 52.21 that: 
(1) Exclude facilities that produce ethanol through a natural 
fermentation process from the definition of ``chemical process plants'' 
in the major NSR source permitting program as provided by the Ethanol 
Rule (72 FR 24060, May 1, 2007), and (2) implement EPA's Fugitive 
Emissions Rule (73 FR 77882, December 19, 2008).\8\ The SIP revision 
also includes a provision (at 391-3-1-.02(7)(a)(iv)) that would 
automatically rescind portions of Georgia's SIP in the wake of certain 
court decisions or other events (the automatic rescission clause). At 
this time, EPA is not taking final action to approve these three 
additional provisions into the Georgia SIP.
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    \8\ On March 31, 2010, EPA stayed the Fugitive Emissions Rule 
(73 FR 77882) for 18 months to October 3, 2011, to allow the Agency 
time to propose, take comment and issue a final action regarding the 
inclusion of fugitive emissions in NSR applicability determinations. 
The March 31, 2010, stay was established as a result of EPA granting 
Natural Resource Defense Council's petition for reconsideration on 
the original Fugitive Emissions Rule. See 73 FR 77882. On March 30, 
2011 (76 FR 17548), EPA proposed an interim rule that superseded the 
March 31, 2010, stay to clarify and extend the stay of the Fugitive 
Emission Rule until EPA completes its reconsideration. The interim 
rule simply reverts the CFR text back to the language that existed 
prior to the Fugitive Emissions Rule changes in the December 19, 
2008 rulemaking. EPA plans to issue a final rule approving the 
interim rule. Until the interim rule is final, the Fugitive Emission 
Rule is still currently stayed through October 3, 2011.
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II. What is EPA's response to comments received on this action?

    EPA received two sets of adverse comments on the November 29, 2010, 
proposed rulemaking to approve revisions to Georgia's SIP. One set of 
comments, provided by the Air Permitting Forum, raised concerns 
regarding the SIP revisions relating to PSD permitting for GHGs. The 
other set of comments, provided by Oglethorpe Power Corporation, 
expressed concern over EPA not proposing action on the automatic 
rescission clause contained in Georgia's September 30, 2010, draft SIP 
revision. A full set of the comments provided by both Oglethorpe Power 
Corporation and Air Permitting Forum (hereinafter referred to as the 
``Commenter'') is provided in the docket for today's final action. The 
comments can be accessed at http://www.regulations.gov using Docket ID 
No.: EPA-R04-OAR-2010-0816. A summary of the adverse comments and EPA's 
responses are provided below.
    Generally, the adverse comments fall into four categories. First, 
one Commenter states that PSD requirements cannot be triggered by GHGs. 
Second, a Commenter expresses concerns regarding a footnote in the 
November 29, 2010, proposal describing EPA's previously announced 
intention to narrow its prior approval of some SIPs to ensure that 
sources with GHG emissions that are less than the Tailoring Rule's 
thresholds will not be obligated under federal law to obtain PSD 
permits prior to a SIP revision incorporating those thresholds. The 
Commenter states that the planned SIP approval narrowing action ``is 
illegal.'' Third, a Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. Lastly, 
both Commenters express concern over EPA not proposing action in the 
November 29, 2010, rulemaking on the automatic rescission clause 
(labeled the ``severability provision'' by one Commenter, and the 
``sunsetting clause'' by the other Commenter) included in Georgia's 
September 30, 2010, draft SIP revision. EPA's response to these four 
categories of comments is provided below.
    Comment 1: The Commenter asserts that PSD requirements cannot be 
triggered by GHGs. In its letter, the Commenter reiterates EPA's 
statement that without the Tailoring Rule thresholds, PSD will apply as 
of January 2, 2011, to all stationary sources that emit or have the 
potential to emit, depending on the source category, either 100 or 250 
tons of GHGs per year. The Commenter also reiterates EPA's statement 
that beginning January 2, 2011, a source owner proposing to construct 
any new major source that emits at or higher than the GHG applicability 
levels, or to modify any existing major source in a way that would 
increase GHG emissions, would need to obtain a PSD permit that 
addresses these emissions before construction could begin. In raising 
concerns with the two aforementioned statements, the Commenter states: 
``No area in the State of Georgia has been designated attainment or 
unclassifiable for greenhouse gases (GHGs), as there is no national 
ambient air quality standard (NAAQS) for GHGs. Therefore, GHGs cannot 
trigger PSD permitting.'' The Commenter notes that it made this 
argument in detail in comments submitted to EPA on the Tailoring Rule 
and other related GHG rulemakings. The Commenter attached those 
previously submitted comments to its comments on the proposed 
rulemaking related to today's action. Finally, the Commenter states 
that ``EPA should immediately provide notice that it is now 
interpreting the Act not to require that GHGs trigger PSD and allow 
Georgia to

[[Page 55574]]

rescind that portion of its rules that would allow GHGs to trigger 
PSD.''
    Response 1: EPA established the requirement that PSD applies to all 
pollutants newly subject to regulation, including non-NAAQS pollutants 
such as GHGs, in earlier national rulemakings concerning the PSD 
program, and EPA has not re-opened that issue in today's rulemaking. In 
an August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710-52712, and 45 
FR 52735, EPA stated that a ``major stationary source'' was one which 
emitted ``any air pollutant subject to regulation under the Act'' at or 
above the specified numerical thresholds; and defined a ``major 
modification,'' in general, as a physical or operational change that 
increased emissions of ``any pollutant subject to regulation under the 
Act'' by more than an amount that EPA variously termed as de minimis or 
significant. In addition, EPA's 2002 NSR Reform rules added to the PSD 
regulations the new definition of ``regulated NSR pollutant'' 
(currently codified at 40 CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)) 
and noted that EPA added this term based on a request from a commenter 
to ``clarify which pollutants are covered under the PSD program.'' 
Further, EPA explained that in addition to criteria pollutants for 
which a NAAQS has been established, ``[t]he PSD program applies 
automatically to newly regulated NSR pollutants, which would include 
final promulgation of an NSPS [new source performance standard] 
applicable to a previously unregulated pollutant.'' See 67 FR 80186, 
80240 and 80264 (December 31, 2002). Among other things, the definition 
of ``regulated NSR pollutant'' includes ``[a]ny pollutant that 
otherwise is subject to regulation under the Act.'' See 40 CFR 
52.21(b)(50)(d)(iv); 40 CFR 51.166(a)(49)(iv).
    EPA disagrees with the Commenter's underlying premise that PSD 
requirements were not triggered for GHGs when GHGs became subject to 
regulation on January 2, 2011. This has been well established and 
discussed in connection with prior EPA actions, including, most 
recently, the Johnson Reconsideration and the Tailoring Rule. In 
addition, EPA's November 29, 2010, proposed rulemaking provides the 
general basis for the Agency's rationale that GHGs, while not a NAAQS 
pollutant, can trigger PSD permitting requirements. The November 29, 
2010, action also refers the reader to the preamble of the Tailoring 
Rule for further information on this rationale. In that rulemaking, EPA 
addressed at length the comment that PSD can be triggered only by 
pollutants subject to the NAAQS, and concluded such an interpretation 
of the Act would contravene Congress' unambiguous intent. See 75 FR 
31560-31562. Further discussion of EPA's rationale for concluding that 
PSD requirements are triggered by non-NAAQS pollutants such as GHGs 
appears in the Tailoring Rule Response-to-Comments document 
(``Prevention of Significant Deterioration and Title V GHG Tailoring 
Rule: EPA's Response to Public Comments''), pp. 34-41; and in EPA's 
response to motions for a stay filed in the litigation concerning those 
rules (``EPA's Response to Motions for Stay,'' Coalition for 
Responsible Regulation v. EPA, D.C. Cir. No. 09-1322 (and consolidated 
cases)), at pp. 47-59, and are incorporated by reference here. These 
documents have been placed in the docket for today's action and can be 
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-0816.
    Comment 2: The Commenter expresses concerns regarding a footnote in 
which EPA describes its previously announced intention to narrow its 
prior approval of some SIPs. In the footnote, EPA explained that such 
narrowing would ensure that sources with GHG emissions that are less 
than the Tailoring Rule's thresholds are not obligated under federal 
law to obtain PSD permits during any gap between the effective date of 
GHG-permitting requirements (January 2, 2011) and the date that a SIP 
is revised to incorporate the Tailoring Rule thresholds. The Commenter 
asserts that EPA's narrowing of its prior SIP approvals ``is illegal.'' 
Further, the Commenter states that ``EPA has not proposed to narrow 
Georgia's SIP approval here and any such proposal must be explicit and 
address the action specifically made with respect to Georgia. EPA 
cannot sidestep these important procedural requirements.''
    Response 2: While EPA does not agree with the Commenter's assertion 
that the narrowing approach discussed in EPA's Tailoring Rule is 
illegal, the narrowing approach was not the subject of EPA's November 
29, 2010, proposed rulemaking to approve Georgia's September 30, 2010, 
SIP revision. Rather, the narrowing approach was the subject of a 
separate rulemaking, which was considered and finalized in the PSD 
Narrowing Rule in an action separate from today's rulemaking. See 75 FR 
82536 (December 30, 2010). In today's final action, EPA is acting to 
approve a SIP revision submitted by Georgia, and is not otherwise 
narrowing its approval of previously approved provisions in the Georgia 
SIP. Accordingly, the legality of the narrowing approach is not at 
issue in today's rulemaking.
    Comment 3: The Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. 
Specifically, the Commenter refers to the statutory and executive 
orders for the Paperwork Reduction Act, the Regulatory Flexibility Act 
(RFA), Unfunded Mandates Reform Act, and Executive Order 13132 
(Federalism). Additionally, the Commenter mentions that EPA has never 
analyzed the costs and benefits associated with triggering PSD for 
stationary sources in Georgia, much less nationwide.
    Response 3: EPA disagrees with the Commenter's statement that EPA 
has failed to meet applicable statutory and executive order review 
requirements. As stated in EPA's proposed approval of Georgia's 
September 30, 2010, draft SIP revision, today's action merely approves 
state law as meeting federal requirements and does not impose 
additional requirements beyond those imposed by state law. Accordingly, 
EPA approval, in and of itself, does not impose any new information 
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would 
require additional review under the Paperwork Reduction Act. In 
addition, because today's action simply approves existing state law, it 
will not have a significant economic impact on a substantial number of 
small entities beyond the impact of existing state law requirements. 
Thus, a regulatory flexibility analysis is not required under the RFA. 
Accordingly, this rule is appropriately certified under section 605(b) 
of the RFA. Moreover, as this action approves pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it does not contain any unfunded 
mandates or significantly or uniquely affect small governments, such 
that it would be subject to the Unfunded Mandates Reform Act. Finally, 
this action does not have federalism implications that would make 
Executive Order 13132 applicable because it merely approves a state 
rule implementing a federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CAA.
    In sum, today's rule is a routine approval of a SIP revision, 
approving state law, and does not impose any requirements beyond those 
imposed by state law. To the extent these comments are directed more 
generally to the application of the statutory and executive order 
reviews to the required regulation of GHGs under PSD

[[Page 55575]]

programs, EPA provided an extensive response to similar comments in 
promulgating the Tailoring Rule. EPA refers the Commenter to the 
sections in the Tailoring Rule entitled ``VII. Comments on Statutory 
and Executive Order Reviews,'' 75 FR 31601-31603, and ``VI. What are 
the economic impacts of the final rule?'' 75 FR 31595-31601. EPA also 
notes that today's action does not in-and-of itself trigger the 
regulation of GHGs. To the contrary, by helping to clarify that higher 
PSD applicability thresholds for GHGs apply than would otherwise be in 
effect under the Act, this rulemaking, as well as EPA's Tailoring Rule, 
is part of the effort to provide relief to smaller GHG-emitting sources 
that would otherwise be subject to PSD permitting requirements for 
their GHG emissions.
    Comment 4: The Commenters object to EPA not proposing to take 
action (in the November 29, 2010, proposed rulemaking) on the automatic 
rescission clause included in Georgia's September 30, 2010, draft SIP 
revision. One Commenter states: ``EPA refuses to take action on this 
provision, proposing neither approval nor disapproval of the 
severability provision in the Georgia SIP.'' This Commenter further 
states that, at a minimum, EPA is required, pursuant to section 
110(k)(2) of the CAA, to take action within 12 months after the State's 
submission of a complete SIP revision. The other Commenter asserts that 
EPA cannot take action on any portion of the Georgia SIP revision 
without taking action on the automatic rescission clause because, in 
the Commenter's opinion, the rescission clause is not ``separable.'' 
The Commenter goes on to state that EPA is changing the intended scope 
of the State's regulations. Further, the Commenter states: ``EPA's 
failure to `act' on this provision would have the effect of codifying a 
provision more stringent than what Georgia submitted to EPA because it 
would effectively make the tailoring thresholds permanent until EPA 
revises the SIP in the future. EPA must follow Section 110(k)(3) and 
its own guidance, and approve the submitted provisions as a whole.''
    Response 4: Contrary to the comments described above, EPA is not 
refusing to take action on the automatic rescission clause. Rather, EPA 
is in the process of evaluating the approvability of the automatic 
rescission clause included in Georgia's January 13, 2011, final SIP 
revision, and will continue to work with the State to resolve 
outstanding concerns and reach a final decision. As noted by one 
Commenter, section 110(k)(3) of the Act provides EPA with 12 months to 
act on a SIP revision once the State's submission is complete, and that 
time period has not yet expired with respect to Georgia's automatic 
rescission clause.
    One Commenter cites the Seventh Circuit finding in Bethlehem Steel 
v. Gorsuch, 742 F.2d 1028 (7th Cir. 1984) that EPA may not act 
separately on a portion of a SIP revision submittal that is not 
separable from the rest, and the commenter defines ``separable'' as 
meaning that approving only a portion of the SIP revision ``should not 
result in the approved portions of the SIP submission being more 
stringent than the State would have anticipated.'' However, in an e-
mail dated May 10, 2011, Georgia agreed to allow EPA to take action on 
the majority of this SIP revision now, and reserve action on the 
automatic rescission clause for a later date. The May 10, 2011, e-mail 
to EPA Region 4 Air Planning Branch, Regulatory Development Section 
Chief Lynorae Benjamin from Georgia EPD Air Protection Branch Chief 
James Capp states: ``Georgia would like you to move forward with final 
approval for the GHG Rule and not wait on the resolution for the 
rescission clause. However, we would like to continue working with you 
on obtaining approval of the rescission clause.'' See Docket ID No. 
EPA-R04-OAR-2010-0816. Given Georgia's agreement to EPA's proposed 
course of action, EPA is not acting in a way that makes its approval 
more stringent than the state would anticipate and the 7th Circuit's 
analysis in Bethlehem Steel is not implicated. Moreover, regardless of 
whether EPA eventually approves the automatic rescission clause into 
Georgia's SIP, if the federal GHG regulations are eliminated for some 
reason, Georgia will be able to revise its SIP accordingly using the 
SIP revision procedures set forth in section 110 of the CAA. EPA notes 
that it has not yet decided on the approvability of the rescission 
clause that the State submitted with its January 13, 2011 SIP revision, 
but will continue to work with the State in consideration of a final 
course of action.

III. What is the effect of this final action?

    Final approval of Georgia's January 13, 2011, SIP revision will 
incorporate the GHG emission thresholds for PSD applicability set forth 
in EPA's Tailoring Rule (75 FR 31514, June 3, 2010) and adopted as 
state law, confirming that smaller GHG sources emitting less than these 
thresholds will not be subject to PSD permitting requirements under the 
approved Georgia SIP. Pursuant to section 110 of the CAA, EPA is 
approving the changes made in Georgia's January 13, 2011, SIP revision 
into Georgia's SIP, with the exception of certain provisions noted 
above.
    Georgia's January 13, 2011, revision updates its existing 
incorporation by reference of the federal NSR program to include the 
relevant federal Tailoring Rule provisions set forth at 40 CFR 52.21 
into the Georgia SIP at 391-3-1-.02(7)--Prevention of Significant 
Deterioration of Air Quality.\9\ EPA has determined that the portions 
of Georgia's January 13, 2011, SIP revision, approved by today's action 
are consistent with EPA's regulations, including the Tailoring Rule. 
Furthermore, EPA has determined that these portions of the January 13, 
2011, revision to Georgia's SIP are consistent with section 110 of the 
CAA. See, e.g., Tailoring Rule, at 75 FR 31561.
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    \9\ Georgia's submittal also relates to title V provisions, 
which are not included in the SIP. As such, EPA is not taking action 
to approve Georgia's update to its title V regulations in this 
rulemaking.
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    Additionally, Georgia's January 13, 2011, SIP revision incorporates 
by reference the provisions at 40 CFR 52.21 as amended by the 
promulgation of the NSR PM2.5 Rule for PSD.\10\ EPA has 
determined that these portions of Georgia's January 13, 2011, SIP 
revision approved by today's action are consistent with EPA's 
regulations, including the NSR PM2.5 Rule for PSD, and with 
section 110 of the CAA.
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    \10\ Georgia's January 13, 2011, SIP revision excludes adoption 
of the relevant grandfathering provision at 40 CFR 52.21(i)(1)(ix). 
On May 18, 2011, (76 FR 28646) EPA took final action to repeal the 
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi) 
which ends the use of the 1997 PM10 Surrogate Policy for 
PSD permits under the federal PSD program at 40 CFR 52.
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IV. Final Action

    EPA is taking final action to approve, with certain exceptions, 
Georgia's January 13, 2011, SIP revision, which updates Georgia's air 
quality regulations, 391-3-1-.02(7)--Prevention of Significant 
Deterioration of Air Quality, to reflect changes in federal 
requirements. Specifically, Georgia's January 13, 2011, SIP revision 
incorporates appropriate emissions thresholds for determining PSD 
applicability with respect to new or modified GHG-emitting sources in 
accordance with EPA's Tailoring Rule, and incorporates those thresholds 
in the form in which they are stated in state law. In addition, the SIP 
revision incorporates provisions for implementing the PSD program for 
the PM2.5 NAAQS. EPA determined that the portions of the 
January 13, 2011, SIP revision addressed by today's action are 
approvable because they are in

[[Page 55576]]

accordance with the CAA and EPA regulations.
    As result of EPA's approval of Georgia's changes to its air quality 
regulations to incorporate the appropriate thresholds for GHG 
permitting applicability into Georgia's SIP, paragraph (b) in 40 CFR 
52.572, as included in EPA's PSD Narrowing Rule, is no longer 
necessary. In this final action, EPA is amending 40 CFR 52.572 to 
remove this unnecessary regulatory language.

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. Accordingly, 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 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 November 7, 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 CAA section 307(b)(2). For purposes of 
judicial review, each of the SIP revisions approved by today's action 
are severable from one another.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: August 16, 2011.
 A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    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. Section 52.570 (c) is amended by revising the entry for ``391-3-
1-.02(7)'' to read as follows:

Sec.  52.570  Identification of plan.

* * * * *
    (c) * * *

                                                            EPA Approved Georgia Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    State
            State citation                   Title/subject        effective       EPA approval date                        Explanation
                                                                     date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 

[[Page 55577]]

 
                                                                      * * * * * * *
391-3-1-.02(7).......................  Prevention of              12/29/2010  9/8/2011, [Insert         Georgia's PSD Rule 391-3-1-.02(7) incorporates
                                        Significant                            citation of               by reference the regulations found at 40 CFR
                                        Deterioration of Air                   publication].             52.21 as of June 3, 2010, with changes. This
                                        Quality (PSD).                                                   EPA action is approving the incorporation by
                                                                                                         reference with the exception of the following
                                                                                                         provisions: (1) the provisions amended in the
                                                                                                         Ethanol Rule (72 FR 24060) which exclude
                                                                                                         facilities that produce ethanol through a
                                                                                                         natural fermentation process from the
                                                                                                         definition of ``chemical process plants'' in
                                                                                                         the major NSR source permitting program found
                                                                                                         at 40 CFR 52.21(b)(1)(i)(a) and (b)(1(iii)(t);
                                                                                                         and 2) the administrative regulations amended
                                                                                                         in the Fugitive Emissions Rule (73 FR 77882).
                                                                                                         Additionally, this EPA action is not approving
                                                                                                         the ``automatic rescission clause'' provision
                                                                                                         at 391-3-1-.02(7)(a)2.(iv).
                                                                                                        This rule contains NOX as a precursor to ozone
                                                                                                         for PSD and NSR.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Section 52.572 is revised to read as follows:

Sec.  52.572  Approval Status.

    With the exceptions set forth in this subpart, the Administrator 
approves Georgia's plans for the attainment and maintenance of the 
national standards under section 110 of the Clean Air Act. Furthermore, 
the Administrator finds the plans satisfy all requirements of Part D, 
Title I, of the Clean Air Act as amended in 1977.

[FR Doc. 2011-22666 Filed 9-7-11; 8:45 am]
BILLING CODE 6560-50-P
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