[Federal Register Volume 65, Number 111 (Thursday, June 8, 2000)]
[Rules and Regulations]
[Pages 36358-36362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14166]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[GA-T5-2000-01a; FRL-6711-2]


Clean Air Act Full Approval of Operating Permit Program; Georgia

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

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SUMMARY:  EPA is taking final action to fully approve the operating 
permit program of the State of Georgia. Georgia's operating permit 
program was submitted in response to the directive in the 1990 Clean 
Air Act (CAA) Amendments that States develop, and submit to EPA, 
programs for issuing operating permits to all major stationary sources 
and to certain other sources within the States' jurisdiction. EPA 
granted interim approval to Georgia's operating permit program on 
November 22, 1995. Georgia revised its program to satisfy the 
conditions of the interim approval and this action approves those 
revisions.

DATES:  This direct final rule is effective on August 7, 2000 without 
further notice unless EPA receives adverse comments in writing by July 
10, 2000. If adverse comment is received, EPA will publish a timely 
withdrawal of this direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES:  Written comments on this action should be addressed to Kim 
Pierce, Regional Title V Program Manager, Operating Source Section, Air 
& Radiation Technology Branch, EPA, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303. Copies of the State's submittals and other supporting 
documentation

[[Page 36359]]

relevant to this action are available for inspection during normal 
business hours at EPA, Air & Radiation Technology Branch, 61 Forsyth 
Street, SW, Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT:  Kim Pierce, EPA, Region 4, at (404) 
562-9124.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is the operating permit program?
What is being addressed in this document?
What are the program changes that EPA is approving?
What is involved in this final action?

What Is the Operating Permit Program?

    The CAA Amendments of 1990 required all States to develop operating 
permit programs that met certain Federal criteria. In implementing the 
operating permit programs, the States require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. The focus of the operating permit program is to improve 
enforcement by issuing each source a permit that consolidates all of 
the applicable CAA requirements into a Federally enforceable document. 
By consolidating all of the applicable requirements for a facility, the 
source, the public, and the permitting authorities can more easily 
determine what CAA requirements apply and how compliance with those 
requirements is determined.
    Sources required to obtain an operating permit under this program 
include: ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of major sources include those 
that have the potential to emit 100 tons per year or more of volatile 
organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen 
oxides, or particulate matter (PM<INF>10</INF>); those that emit 10 
tons per year of any single hazardous air pollutant (specifically 
listed under the CAA); or those that emit 25 tons per year or more of a 
combination of hazardous air pollutants (HAPs). In areas that are not 
meeting the National Ambient Air Quality Standards for ozone, carbon 
monoxide, or particulate matter, major sources are defined by the 
gravity of the nonattainment classification. For example, in ozone 
nonattainment areas classified as serious, such as the metropolitan 
Atlanta area in Georgia, major sources include those with the potential 
of emitting 50 tons per year or more of volatile organic compounds or 
nitrogen oxides.

What Is Being Addressed in This Document?

    Where an operating permit program substantially, but not fully, met 
the criteria outlined in the implementing regulations codified at 40 
Code of Federal Regulations (CFR) part 70, EPA granted interim approval 
contingent on the State revising its program to correct the 
deficiencies. Because Georgia's operating permit program substantially, 
but not fully, met the requirements of part 70, EPA granted interim 
approval to the program in a rulemaking published on November 22, 1995 
(60 FR 57836). The interim approval notice stipulated three conditions 
that had to be met in order for Georgia's program to receive full 
approval. Georgia submitted revisions to its interimly approved 
operating permit program on March 10, 1997, February 11, 1998, 
September 30, 1999, November 15, 1999, and January 11, 2000. This 
document describes the changes that have been made in Georgia's 
operating permit program.

What Are the Program Changes That EPA Is Approving?

    One condition for full approval of Georgia's operating permit 
program was a rule revision to require that operating permits contain 
terms and conditions allowing for the trading of emissions changes 
within the facility. These emissions trades are solely for the purpose 
of complying with a Federally-enforceable emissions cap in accordance 
with 40 CFR 70.4(b)(12)(iii). Moreover, the permittee must provide 
written notification to EPA at least seven (7) days in advance of any 
change to the permit, and the written notification must state when the 
change will occur and describe the changes in emissions that will 
result and how these increases and decreases in emissions will comply 
with the terms and conditions of the permit. Georgia took action in 
December 1997 to include these requirements in Rule 391-3-
1-.03(10)(d)1.(ii) and submitted the final State-effective rule changes 
to EPA on February 11, 1998.
    Another condition for full approval of Georgia's operating permit 
program was a rule revision to ensure that the permit shield provision 
in 40 CFR 70.6(f) would apply to any changes in emissions resulting 
from emissions trading within a facility solely for the purpose of 
complying with a Federally-enforceable emissions cap. The revised Rule 
391-3-.03(10)(d)1.(ii) containing this provision was submitted to EPA 
on February 11, 1998.
    The third, and final, condition for full approval of Georgia's 
operating permit program was correction of the deficient insignificant 
activities provisions in the State's rules. One deficiency concerned 
the exemption of insignificant activities from permit requirements. 
While the State has considerable discretion regarding the degree of 
monitoring, recordkeeping and reporting required for insignificant 
activities, these units cannot be categorically exempted from title V 
permitting requirements. Moreover, Georgia's rules did not make the 
distinction between activities which could be omitted from permit 
applications and those that were considered to be insignificant but 
were still required to be included in the application.
    In response to this interim approval issue, the State revised its 
approach to insignificant activities by adding Rule 391-3-1-.03(10)(g), 
which identifies specific insignificant activities that must be 
included in the permit application. Moreover, rule revisions were made 
to eliminate the exemption from permitting requirements for 
insignificant activities. The final State-effective rule changes were 
submitted to EPA on February 11, 1998.
    Georgia made additional program changes after the interim approval 
became effective on December 22, 1995. The State revised its title V 
permit application form to address the title VI requirements for 
stratospheric ozone and to incorporate the flexibility described in the 
EPA's July 10, 1995 guidance memorandum entitle ``White Paper for 
Streamlined Development of Part 70 Permit Applications'' (White Paper). 
The revised form was submitted to EPA on March 10, 1997 and is 
available for review on Georgia's Web site at www.dnr.state.ga.us/dnr/environ. The revised form incorporated the following aspects of the 
White Paper:
    (1) The White Paper allowed industry to submit checklists, rather 
than emission descriptions, for insignificant activities based on size 
or production rate. As a result, Georgia included several different 
categories of insignificant activities in checklist format in section 
4.10 of the permit application form. Georgia also removed the 
requirement for detailed information regarding air pollution control 
devices, since this information is requested in the preconstruction 
permit application.
    (2) The White Paper allowed for group treatment of emissions units 
subject to the broadly applicable requirements that are often found in 
State Implementation Plans (SIPs). The State, therefore, created 
section 4.20 of the application form to group emissions units and

[[Page 36360]]

activities that were subject to the following four State rules that are 
generic SIP requirements: Rule 391-3-1-.02(2)(b) entitled ``Visible 
Emissions,'' Rule 391-3-1-.02(2)(d) entitled ``Fuel-burning 
Equipment,'' Rule 391-3-1-.02(2)(e) entitled ``Particulate Emissions 
from Manufacturing Process,'' and Rule 391-3-1-.02(2)(n) entitled 
``Fugitive Dust.''
    (3) The White Paper allowed for the generic treatment of short-term 
activities, so the State developed section 4.40 to address those 
activities that occur infrequently or for short durations.
    (4) The White Paper identified a number of trivial activities that 
could be excluded from permit applications, so Georgia included a 
similar list in the instructions for its permit application form.
    (5) The White Paper allows industry to provide descriptions, rather 
than estimates, for emissions not regulated at the source, unless such 
estimates were needed for other purposes such as calculating permit 
fees. As a result, the State developed sections 2.10 and 2.20 of its 
permit application form to only require estimates of facility-wide 
potential and anticipated actual emissions in tons per year. All 
significant facility emissions are still required to be listed by 
pollutant in section 7.10.
    (6) The white Paper provided that where an emissions unit is 
subject to a specific standard, the emissions data could be reported in 
the units of that standard. Georgia revised its permit application form 
accordingly.
    (7) In order to reduce the size and cost of preparing title V 
permit applications, the White Paper allowed for the submittal of 
sample calculations to illustrate the methodology used. As a result, 
the State revised its permit application form to require the submittal 
of sample calculations to support the emissions summary information 
contained in section 7.10
    The other programmatic change made by Georgia involves the 
mechanism for determining the annual title V fee amount. The State's 
operating permit program received interim approval based on use of the 
``presumptive minimum'' described in 40 CFR 70.9(b)(2)(i), but Georgia 
has been using a mechanism based on 40 CFR 70.9(b)(1) since September 
1997. This mechanism involves establishing a fee schedule that results 
in the collection and retention of revenues sufficient to cover the 
costs of the operating permit program. To accomplish this, the State 
develops a biennial budget projection of title V program costs and 
adjusts the fee amount accordingly. Georgia described its revised 
mechanism for assessing fees in a letter to EPA dated January 11, 2000. 
The State submitted a fee program update on September 30, 1999 
demonstrating that its operating permit program is adequately funded by 
operating permit fees.

What Is Involved in This Final Action?

    The State of Georgia has fulfilled the conditions of the interim 
approval granted on November 22, 1995, so EPA is taking final action to 
fully approve the State's operating permit program. EPA is also taking 
action to approve other program changes made by the State since the 
interim approval was granted.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to grant final full approval should 
adverse comments be filed. This action will be effective August 7, 2000 
unless the Agency receives adverse comments by July 10, 2000.
    If EPA receives such comments, then EPA will withdraw the final 
rule and inform the public that the rule will not take effect. All 
public comments received will then be addressed in a subsequent final 
rule based on the proposed rule. EPA will not institute a second 
comment period. Parties interested in commenting should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on August 7, 2000 and no further action will be 
taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 12988

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the Executive Order. This rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant regulatory action as defined in Executive 
Order 12866, and it does not involve decisions intended to mitigate 
environmental health or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''

[[Page 36361]]

    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
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 Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because part 70 approvals under section 502 of 
the Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this approval does not create any new requirements, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of State 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 
255-266 (1976); 42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

H. Submission to Congress and the Comptroller General

    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 rule 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).

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 7, 2000. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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).)

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    In reviewing operating permit programs, EPA's role is to approve 
State choices, provided that they meet the criteria of the Clean Air 
Act. In this context, in the absence of a prior existing requirement 
for the State to use VCS, SPA has no authority to disapprove an 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of an operating permit program that

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otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of NTTAA do not apply.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: May 15, 2000.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.


    For reasons set out in the preamble, Appendix A of part 70 of title 
40, chapter I, of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by revising paragraph (b) in 
the entry for Georgia to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Georgia

    (b) The Georgia Department of Natural Resources submitted 
program revisions on March 10, 1997, February 11, 1998, September 
30, 1999, November 15, 1999, and January 11, 2000. The rule 
revisions contained in the February 11, 1998 submittal adequately 
addressed the conditions of the interim approval effective on 
December 22, 1995, and which would expire on June 1, 2000. The State 
is hereby granted final full approval effective on August 7, 2000.

[FR Doc. 00-14166 Filed 6-7-00; 8:45 am]
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