55572 Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / Rules and Regulations 

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). 

5With 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. 

(Authority 38 U.S.C. 501, 1720, 1742) 

[FR Doc. 2011–22920 Filed 9–7–11; 8:45 am] 

BILLING CODE 8320–01–P 

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. 

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; email 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. 

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 GHGrelated 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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / Rules and Regulations 55573 

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. 

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). 

8On 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. 

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. 

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.7See 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 GHGemitting 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. 

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. 

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 


erowe on DSK5CLS3C1PROD with RULES
55574 Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / Rules and Regulations 

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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / Rules and Regulations 55575 

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. 

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. 

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. 

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. 

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 


erowe on DSK5CLS3C1PROD with RULES
55576 Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / Rules and Regulations 

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] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart L—Georgia 

■ 2. Section 52.570 (c) is amended by 

revising the entry for ‘‘391–3–1–.02(7)’’ 

to read as follows: 

§ 52.570 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED GEORGIA REGULATIONS

State citation Title/subject State effective date 

EPA approval 

date Explanation 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / Rules and Regulations 55577 

EPA APPROVED GEORGIA REGULATIONS—Continued 

State citation Title/subject State effective date 

EPA approval 

date Explanation 

*******

391–3–1–.02(7) .. Prevention of 

Significant Deterioration of 

Air Quality 

(PSD).

12/29/2010 9/8/2011, [Insert 

citation of publication].

Georgia’s PSD Rule 391–3–1–.02(7) incorporates by reference the 

regulations found at 40 CFR 52.21 as of June 3, 2010, with 

changes. This 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. 

* * * * * * * 

* * * * * 

■ 3. Section 52.572 is revised to read as 

follows: 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2011–0747; FRL–9460–4] 

Findings of Failure To Submit a 

Complete State Implementation Plan 

for Section 110(a) Pertaining to the 

2006 Fine Particulate Matter (PM2.5) 

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is making a finding 

that certain states, the District of 

Columbia, and the Commonwealth of 

Puerto Rico have not submitted a 

complete State Implementation Plan 

(SIP) that addresses basic program 

elements of the Clean Air Act (CAA or 

Act) necessary to implement, maintain, 

and enforce the 2006 24-hour Fine 

Particulate Matter (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS). The EPA refers to these SIP 

submissions as ‘‘infrastructure’’ SIPs, 

because they address basic structural 

requirements specified in section 

110(a)(1) and (2) that states must 

establish that they meet following the 

promulgation of a new or revised 

NAAQS. Specifically, the EPA is 

evaluating whether these states, the 

District of Columbia, and the 

Commonwealth of Puerto Rico made 

complete infrastructure SIP submissions 

to address the applicable requirements 

of section 110(a)(2)(A) through (M) 

necessary to implement the 2006 PM2.5

NAAQS, with the exception of section 

110(a)(2)(I), portions of section 

110(a)(2)(C) pertaining to nonattainment 

area requirements and section 

110(a)(2)(D)(i)(I). By this action, the EPA 

is identifying those states, the District of 

Columbia, and the Commonwealth of 

Puerto Rico that have failed to make a 

complete submission for some or all of 

these specific requirements. The finding 

of failure to submit for some or all of 

these specific elements establishes a 24- 

month deadline for the EPA to 

promulgate a Federal Implementation 

Plan (FIP) to address each state’s 

outstanding infrastructure SIP elements 

unless, prior to that time, the state 

submits, and the EPA approves, a 

submission that meets the required 

elements, or unless the state is already 

subject to an existing FIP that addresses 

the SIP deficiency. 

DATES: The effective date of this rule is 

October 11, 2011. 

FOR FURTHER INFORMATION CONTACT: 

David Sanders, Office of Air Quality 

Planning and Standards, Air Quality 

Policy Division, Mail Code C539–01, 

Research Triangle Park, NC 27709; 

telephone (919) 541–3356; fax number 

(919) 541–0824; email address: 

sanders.dave@epa.gov. 

SUPPLEMENTARY INFORMATION: Section 

553 of the Administrative Procedures 

Act, 5 U.S.C. 553(b)(B), provides that, 

when an agency for good cause finds 

that notice and public procedure are 

impracticable, unnecessary or contrary 

to the public interest, the agency may 

issue a rule without providing notice 

and an opportunity for public comment. 

The EPA has determined that there is 

good cause for making this rule final 

without prior proposal and opportunity 

for comment because no significant EPA 

judgment is involved in making a 

finding of failure to submit SIPs, or 

elements of SIPs, required by the CAA, 

where states have made no submissions, 

or incomplete submissions, to meet the 

requirement by the statutory date. Thus, 

notice and public procedure are 

unnecessary. The EPA finds that this 

constitutes good cause under 5 U.S.C. 

553(b)(B). 

For questions related to a specific 

state, the District of Columbia, and the 

Commonwealth of Puerto Rico, please 

contact the appropriate regional office 

below. 

Regional offices States 

Region II—Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290 Broadway, 25th Floor, New York, 

NY 10007–1866.

Puerto Rico. 


erowe on DSK5CLS3C1PROD with RULES