[Federal Register Volume 78, Number 9 (Monday, January 14, 2013)]
[Proposed Rules]
[Pages 2871-2878]
[FR Doc No: 2013-00581]

Vol. 78

Monday,

No. 9

January 14, 2013

Part IV

Environmental Protection Agency

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49 CFR Parts 571 and 585

Approval and Promulgation of Implementation Plans; Georgia: New Source
Review--Prevention of Significant Deterioration; Proposed Rules

Federal Register / Vol. 78, No. 9 / Monday, January 14, 2013 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0622; FRL-9770-2]

Approval and Promulgation of Implementation Plans; Georgia: New
Source Review--Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve portions of two SIP revisions to
the Georgia State Implementation Plan (SIP) submitted by the State of
Georgia, through the Georgia Department of Natural Resources''
Environmental Protection Division (EPD), on September 26, 2006(with a
clarifying revision submitted on November 6, 2006) and July 26, 2012.
The September 26, 2006, SIP submission makes multiple changes to the
Georgia SIP including the State's permit exemption provisions. The July
26, 2012, submission includes changes to Georgia's New Source Review
(NSR), Prevention of Significant Deterioration (PSD) program to
incorporate by reference (IBR) federal PSD requirements regarding fine
particulate matter (PM2.5) increments, significant impact
levels (SILs), significant monitoring concentration (SMC) and the
deferral of, until July 21, 2014, PSD applicability to biogenic carbon
dioxide (CO2) emissions from bioenergy and other biogenic
stationary sources as well as additional air quality rule revisions.
EPA is proposing to approve portions of both SIP revisions because the
Agency has preliminarily determined that they are consistent with
section 110 of the Clean Air Act (CAA or Act) and EPA regulations
regarding NSR permitting.

DATES: Comments must be received on or before February 13, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0622 by one of the following methods:
    1. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: EPA-R04-OAR-2012-0622, 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.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief,
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. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2012-0622.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online www.regulations.gov. including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov. or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov. Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov. your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov.
or in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: 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; email address<EMAIL_ADDRESS>For information
regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the
same address above. Ms. Adams' telephone number is<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>For information regarding the
PM2.5 national ambient air quality standards (NAAQS),
contact Mr. Joel Huey, Regulatory Development Section, at the same
address above. Mr. Huey's telephone number is<PHONE_NUMBER>; email
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. What is EPA's analysis of Georgia's SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On July 26, 2012, EPD submitted a SIP revision to EPA for approval
into the Georgia SIP to IBR \1\ federal NSR PSD permitting requirements
at Georgia's Air Quality Control Rule 391-3-1-.02(7)--Prevention of
Significant Deterioration of Air Quality. These rule changes were
provided to comply with federal NSR permitting regulations and include
provisions related to the implementation of the PM2.5 NAAQS
for the PSD program as promulgated in the rule entitled ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact

Levels (SILs) and Significant Monitoring Concentration (SMC), Final
Rule,'' 75 FR 64864 (October 20, 2010) (hereafter referred to as
``PM2.5 PSD Increment-SILs-SMC Rule'') and the deferral
until July 21, 2014, of the application of PSD permitting requirement
to biogenic CO2 emissions from bioenergy and other biogenic
stationary sources as promulgated in the rule entitled, ``Deferral for
CO2 Emissions From Bioenergy and Other Biogenic Sources
Under the Prevention of Significant Deterioration (PSD) and Title V
Programs,'' Final Rule, 76 FR 43490 (July 20, 2011) (hereafter referred
to as CO2 Biomass Deferral Rule). Additionally, the July 26,
2012, SIP revision (1) IBR into Georgia SIP EPA's interim rulemaking
entitled ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Reconsideration of Inclusion of
Fugitive Emissions; Interim Rule; Stay and Revisions,'' 76 FR 17548
(March 30, 2011) (hereafter referred to as the ``Fugitive Emissions
Interim Rule''); (2) requests that EPA remove from the SIP the
exclusion language at Rule 391-3-1-.02(7) regarding the coarse particle
pollution (PM10) surrogate and grandfathering provision
promulgated in the ``Implementation of the New Source Review Program
for Particulate Matter Less Than 2.5 Micrometers,'' 73 FR 28321, May
16, 2008 (hereafter referred to as ``NSR PM2.5 Rule''); (3)
amends the definitions Rule 391-3-1-.01(nnn)--Definitions regarding
testing and monitoring of air pollutants; (4) amends Rules 391-3-
1-.02(2)(c)--Incinerators; and (5) revises Rule 391-3-1-.03(6)--
Exemptions by adding a new exemption for cumulative small modifications
at an existing quarry where the quarry is not a major source and the
associated emissions increase is less than 10 tons per year of
particulate matter and PM10. In addition, EPA is proposing
to approve a portion of Georgia's September 26, 2006, SIP submittal \2\
which adds new text at 391-3-1-.03(6)(i)(3) regarding Georgia's permit
exemptions.
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    \1\ Throughout this document IBR means incorporate or
incorporates by reference.
    \2\ On September 26, 2006, Georgia submitted to EPA multiple SIP
revisions to Georgia's Air Quality Rules found at Chapter 391-3-1. A
clarifying revision was submitted on November 6, 2006. EPA took
action on a portion of Georgia's September 26, 2006, submittal in
multiple actions published in the Federal Register on February 9,
2010 (75 FR 6309) and December 1, 2010 (75 FR 74624). Action on the
remaining portions of the September 26, 2006, submittal is still
under consideration and will be addressed in separate actions. See
75 FR 74624.
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    The two elements of EPD's July 26, 2012, SIP submittal that EPA is
not proposing to approve in this action are: (1) Incorporation of the
SIL thresholds and provisions promulgated in EPA's PM2.5 PSD
Increment-SILs-SMC Rule (for reasons explained later in this notice);
and (2) Rules 391-3-1-.02(www)--Sewage Sludge Incineration, 391-3-
1-.03(9)--Permit Fees, 391-3-1-.02(8)(b)--New Source Performance
Standards and 391-3-1-.02(9)(b)--Emissions Standards for Hazardous Air
Pollutants, as these regulations are not part of Georgia's federally
approved SIP.

II. What is the background for EPA's proposed action?

    Today's proposed action to revise the Georgia SIP relates to PSD
provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC
Rule and CO2 Biomass Deferral Rule. Additionally, the July
26, 2012, SIP revision addresses EPA's repeal of the grandfathering
provision as promulgated in the Rule entitled ``Implementation of the
New Source Review Program for Particulate Matter Less Than 2.5
Micrometers (PM2.5); Final Rule to Repeal Grandfather
Provision'' (76 FR 28646, May 18, 2011) and the extension of the stay
in the Fugitive Emissions Interim Rule. More details regarding these
rules are found in the respective final rulemakings and are summarized
below. For more information on the NSR Program and the PM2.5
NAAQS please refer to the PM2.5 PSD Increment-SILs-SMC Rule
and the NSR PM2.5 Rule.

A. PM2.5 PSD Increment-SILs-SMC-Rule

    On October 20, 2010, EPA finalized the PM2.5 PSD
Increment-SILs-SMC Rule to provide additional regulatory requirements
under the PSD program regarding the implementation of the
PM2.5 NAAQS for NSR. Specifically, the rule establishes: (1)
PM2.5 increments pursuant to section 166(a) of the CAA to
prevent significant deterioration of air quality in areas meeting the
NAAQS; (2) SILs used as a screening tool (by a major source subject to
PSD) to evaluate the impact a proposed major source or modification may
have on the NAAQS or PSD increment; and (3) a SMC (also a screening
tool) used by a major source subject to PSD to determine if a source
must submit to the permitting authority one year of pre-construction
air quality monitoring data prior to constructing or modifying a
facility. As part of the response to comments on the October 20, 2010,
final rulemaking, EPA explained that the Agency agrees that the SILs
and SMCs used as de minimis \3\ thresholds for the various pollutants
are useful tools that enable permitting authorities and PSD applicants
to screen out ``insignificant'' activities; however, these values are
not required by the Act as part of an approvable SIP program. EPA
believes that most states are likely to adopt the SILs and SMCs because
of the useful purpose they serve regardless of EPA's position that the
values are not mandatory. Alternatively, states may develop more
stringent values if they desire to do so. In any case, states are not
under any statutory deadline for revising their PSD programs to add
these screening tools. See 75 FR 64864, 64900.
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    \3\ The de minimis principle is grounded in the decision
described by the court case Alabama Power Co. v. Costle, 636 F.2d
323, 360 (D.C. Cir. 1980). In this case, reviewing EPA's 1978 PSD
regulations, the court recognized that ``there is likely a basis for
an implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value.'' 636
F.2d at 360.
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    Georgia's July 26, 2012, SIP revision IBR the NSR changes
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be
consistent with the federal NSR regulations and to appropriately
implement the State's NSR program for the PM2.5 NAAQS. More
detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found
in EPA's October 20, 2010, final rule and is summarized below. See 75
FR 64864. For the reasons explained below, EPA is not proposing to take
action to approve the SILs (promulgated in the PM2.5 PSD
Increment-SILs-SMC Rule) into the Georgia SIP in this rulemaking. EPA's
authority to implement the SILs and SMC for PSD purposes has been
challenged by the Sierra Club. Sierra Club v. EPA, Case No. 10-1413
(D.C. Circuit Court).\4\ More details regarding Georgia's changes to
its PSD regulations are also summarized below in Section III.
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    \4\ On April 6, 2012, EPA filed a brief with the D.C. Circuit
Court defending the Agency's authority to implement SILs and SMC for
PSD purposes.
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What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program
protects public health from adverse effects of air pollution by
ensuring that construction of new or modified sources in attainment or
unclassifiable areas does not lead to significant deterioration of air
quality while simultaneously ensuring that economic growth will occur
in a manner consistent with preservation of clean air resources. Under
section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate
that emissions from the proposed construction and operation of a
facility ``will not cause, or contribute to, air pollution in excess of
any maximum allowable increase or allowable concentration for any
pollutant.'' In other words, when a source applies for a permit to emit
a regulated pollutant in an area that meets the NAAQS, the state

and EPA must determine if emissions of the regulated pollutant from the
source will cause significant deterioration in air quality. Significant
deterioration occurs when the amount of the new pollution exceeds the
applicable PSD increment, which is the ``maximum allowable increase''
of an air pollutant allowed to occur above the applicable baseline
concentration \5\ for that pollutant. PSD increments prevent air
quality in clean areas from deteriorating to the level set by the
NAAQS. Therefore, an increment is the mechanism used to estimate
``significant deterioration'' of air quality for a pollutant in an
area.
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    \5\ Section 169(4) of the CAA provides that the baseline
concentration of a pollutant for a particular baseline area is
generally the air quality at the time of the first application for a
PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular
pollutant emitted from a source includes the attainment or
unclassifiable area in which the source is located as well as any other
attainment or unclassifiable area in which the source's emissions of
that pollutant are projected (by air quality modeling) to result in an
ambient pollutant increase of at least 1 microgram per meter cubed
([mu]g/m\3\) (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's
existing regulations, the establishment of a baseline area for any PSD
increment results from the submission of the first complete PSD permit
application and is based on the location of the proposed source and its
emissions impact on the area. Once the baseline area is established,
subsequent PSD sources locating in that area need to consider that a
portion of the available increment may have already been consumed by
previous emissions increases. In general, the submittal date of the
first complete PSD permit application in a particular area is the
operative ``baseline date'' after which new sources must evaluate
increment consumption.\6\ On or before the date of the first complete
PSD application, emissions generally are considered to be part of the
baseline concentration, except for certain emissions from major
stationary sources. Most emissions increases that occur after the
baseline date will be counted toward the amount of increment consumed.
Similarly, emissions decreases after the baseline date restore or
expand the amount of increment that is available. See 75 FR 64864. As
described in the PM2.5 PSD Increment-SILs-SMC Rule, and
pursuant to the authority under section 166(a) of the CAA, EPA
promulgated numerical increments for PM2.5 as a new
pollutant \7\ for which NAAQS were established after August 7, 1977,\8\
and derived 24-hour and annual PM2.5 increments for the
three area classifications (Class I, II and III) using the ``contingent
safe harbor'' approach. See 75 FR 64864 at 64869 and ambient air
increment table at 40 CFR 51.166(c)(1) and 52.21(c).
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    \6\ Baseline dates are pollutant specific. That is, a complete
PSD application establishes the baseline date only for those
regulated NSR pollutants that are projected to be emitted in
significant amounts (as defined in the regulations) by the
applicant's new source or modification. Thus, an area may have
different baseline dates for different pollutants.
    \7\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQS with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM2.5 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2010).
    \8\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the
PM2.5 PSD Increment-SILs-SMC Rule amended the definition at
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor
source baseline date'' (including trigger dates) to establish the
PM2.5 NAAQS specific dates associated with the
implementation of PM2.5 PSD increments. See 75 FR 64864. In
accordance with section 166(b) of the CAA, EPA required the states to
submit revised implementation plans to EPA for approval (to adopt the
PM2.5 PSD increments) within 21 months from promulgation of
the final rule (by July 20, 2012). Regardless of when a state submits
its revised SIP, the emissions from major sources subject to PSD for
PM2.5 for which construction commenced after October 20,
2010 (major source baseline date), consume PM2.5 increment
and should be included in the increment analyses occurring after the
minor source baseline date is established for an area under the state's
revised PSD program. See 75 FR 64864. As discussed in detail in Section
III, Georgia's July 26, 2012, SIP revision IBR the PM2.5 PSD
increment permitting requirements promulgated in the PM2.5
PSD Increment-SILs-SMC Rule.
What are significant monitoring concentrations?
    Under the CAA and EPA regulations, an applicant for a PSD permit is
required to gather preconstruction monitoring data in certain
circumstances. CAA Section 165(a)(7) calls for ``such monitoring as may
be necessary to determine the effect which emissions from any such
facility may have, or is having, on air quality in any areas which may
be affected by emissions from such source.'' In addition, CAA section
165(e) requires an analysis of the air quality in areas affected by a
proposed major facility or major modification and calls for gathering
one year of monitoring data unless the reviewing authority determines
that a complete and adequate analysis may be accomplished in a shorter
period. These requirements are codified in EPA's PSD regulations at 40
CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline
for Air Quality Modeling (40 CFR part 51, appendix W), the
preconstruction monitoring data are primarily used to determine
background concentrations in modeling conducted to demonstrate that the
proposed source or modification will not cause or contribute to a
violation of the NAAQS. See 40 CFR part 51, appendix W, section 9.2.
SMCs are numerical values that represent thresholds of insignificant
(i.e., de minimis), monitored (ambient) impacts on pollutant
concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule,
EPA established a SMC of 4 [mu]g/m\3\ for PM2.5.
    Using the SMC as a screening tool, sources may be able to
demonstrate that the modeled air quality impact of emissions from the
new source or modification, or the existing air quality level in the
area where the source would construct, is less than the SMC (i.e., de
minimis), and as such, may be allowed to forego the preconstruction
monitoring requirement for a particular pollutant at the discretion of
the reviewing authority. See 40 CFR 51.166(i)(5) and 52.21(i)(5). SMCs
are not minimum required elements of an approvable SIP under the CAA.
This de minimis value is widely considered to be a useful component for
implementing the PSD program, but is not absolutely necessary for the
states to implement PSD programs. States can satisfy the statutory
requirements for a PSD program by requiring each PSD applicant to
submit air quality monitoring data for PM2.5 without using
de minimis thresholds to exempt certain sources from such requirements.
See 75 FR 64864. The PM2.5 SMC became effective under the
federal PSD program on December 20, 2010. States with EPA-approved PSD
programs that adopt the SMC for PM2.5, however, may use the
SMC, once it is part of an approved SIP, to determine when it may be
appropriate to exempt a particular major stationary source or major
modification from the monitoring requirements under

its state PSD program. Georgia's July 26, 2012, revision IBR the SMC
provision into the Georgia SIP.
    Recently, the Sierra Club filed suit challenging EPA's authority to
implement the PM2.5 SILs \9\ as well as the SMC for PSD
purposes as promulgated in the October 20, 2010, rule. Sierra Club v.
EPA, Case No 10-1413, D.C. Circuit Court. Specifically regarding the
SMC, Sierra Club claims that the use of SMC to exempt a source from
submitting a year's worth of monitoring data is inconsistent with the
CAA. EPA responded to Sierra Club's claims in a brief dated April 6,
2012, which describes the Agency's authority to develop and promulgate
SMCs.\10\ A copy of EPA's April 6, 2012, brief can be found in the
docket for today's rulemaking at http://www.regulations.gov using
docket ID: EPA-R04-OAR-2012-0622.
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    \9\ As mentioned earlier, due to litigation by the Sierra Club,
EPA is not proposing to take action on the SILs portion of the
Georgia's July 26, 2012, SIP revision at this time but will take
action once the court case regarding SILs implementation is
resolved.
    \10\ Additional information on this issue can also be found in
an April 25, 2012, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at http://www.regulations.gov using docket ID:
EPA-R04-OAR-2012-0622.
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B. CO2 Biomass Deferral

1. The GHG Tailoring Rule
    On June 3, 2010 (effective August 2, 2010), EPA promulgated a final
rulemaking, entitled ``Prevention of Significant Deterioration and
Title V Greenhouse Gas Tailoring Rule; Final Rule'' (hereafter referred
to as the GHG Tailoring Rule), for the purpose of relieving
overwhelming permitting burdens from the regulation of greenhouse gases
(GHG) that would, in the absence of the rule, fall on permitting
authorities and sources. See 75 FR 31514. EPA accomplished this by
tailoring the applicability criteria that determine which GHG emission
sources become subject to the PSD program of the CAA. In particular,
EPA established in the GHG Tailoring Rule a phase-in approach for PSD
applicability and established the first two steps of the phase-in for
the largest GHG emitters.\11\ On January 13, 2011, EPD submitted a SIP
revision to EPA to IBR into the Georgia SIP (at 391-3-1-.02(7)), the
version of 40 CFR 52.21 as of June 3, 2010, which included the GHG
Tailoring Rule thresholds.\12\ EPA took final action to approve
Georgia's SIP revision on September 8, 2011. See 76 FR 55572. Please
refer to the GHG Tailoring Rule for specific details on the PSD
thresholds.
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    \11\ Please refer to the July 12, 2012 rulemaking finalizing GHG
Tailoring Rule Step 3. See 77 FR 41051.
    \12\ Georgia's submittal also revised the State's title V
operating permit provisions (which are not included in the federally
approved SIP) to incorporate the GHG Tailoring Rule provisions. As
such, EPA did not taking final action to approve Georgia's update to
its title V.
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2. EPA's CO2 Biomass Deferral Rule
    In the July 20, 2011, final rulemaking, EPA deferred until July 21,
2014, the consideration of CO2 emissions from bioenergy and
other biogenic sources (hereafter referred to as ``biogenic
CO2 emissions'') when determining whether a stationary
source meets the PSD and title V applicability thresholds, including
those for the application of best available control technology
(BACT).\13\ See 76 FR 43490. Thus, under the federal PSD rules,
stationary sources that combust biomass (or otherwise emit biogenic
CO2 emissions) and construct or modify during the deferral
period will not be subject to the application of PSD to the biogenic
CO2 emissions resulting from those actions. The deferral
applies only to biogenic CO2 emissions and does not affect
non-GHG pollutants or other GHGs (e.g., methane and nitrous oxide)
emitted from the combustion of biomass fuel. Also, the deferral only
pertains to regulation of biogenic CO2 emissions under the
PSD and title V programs and does not pertain to any other EPA programs
such as the GHG Reporting Program.
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    \13\ As with the Tailoring Rule, the Biomass Deferral addresses
both PSD and title V requirements. However, EPA is only taking
action on Georgia's PSD program as part of this action.
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    Biogenic CO2 emissions are defined as emissions of
CO2 from a stationary source directly resulting from the
combustion or decomposition of biologically-based materials other than
fossil fuels and mineral sources of carbon. Examples of ``biogenic
CO2 emissions'' include, but are not limited to:
     CO2 generated from the biological decomposition
of waste in landfills, wastewater treatment, or manure management
processes;
     CO2 from the combustion of biogas collected
from biological decomposition of waste in landfills, wastewater
treatment, or manure management processes;
     CO2 from fermentation during ethanol production
or other industrial fermentation processes;
     CO2 from combustion of the biological fraction
of municipal solid waste or biosolids;
     CO2 from combustion of the biological fraction
of tire-derived fuel; and
     CO2 derived from combustion of biological
material, including all types of wood and wood waste, forest residue,
and agricultural material.
    The deferral is intended to be a temporary measure, in effect for
no more than three years, to allow the Agency time to conduct detailed
examination of the science and technical issues related to accounting
for biogenic CO2 emissions, and determine what, if any,
treatment of biogenic CO2 emissions should be in the PSD and
title V programs. The biomass deferral rule is not EPA's final
determination on the treatment of biogenic CO2 emissions in
those programs. The Agency plans to complete its science and technical
review and any follow-up rulemakings within the three-year deferral
period and further believes that three years is ample time to complete
these tasks. It is possible that the subsequent rulemaking, depending
on the nature of EPA's determinations, would supersede the biomass
deferral rulemaking and become effective in fewer than three years. In
that event, Georgia may revise its SIP accordingly.
    EPA's final biomass deferral rule is an interim deferral for
biogenic CO2 emissions only and does not relieve sources of
the obligation to meet the PSD and title V permitting requirements for
other pollutant emissions that are otherwise applicable to the source
during the deferral period or that may be applicable to the source at a
future date pending the results of EPA's study and subsequent
rulemaking action. This means, for example, that if the deferral is
applicable to biogenic CO2 emissions from a particular
source during the three-year effective period and the study and future
rulemaking do not provide for a permanent exemption from PSD and title
V permitting requirements for the biogenic CO2 emissions
from a source with particular characteristics, then the deferral would
end for that type of source and its biogenic CO2 emissions
would have to be appropriately considered in any applicability
determinations that the source may need to conduct for future
stationary source permitting purposes, consistent with that subsequent
rulemaking and the final GHG Tailoring Rule (e.g., a major source
determination for title V purposes or a major modification
determination for PSD purposes). EPA also wishes to clarify that the
agency does not require that a PSD permit issued during the deferral
period be amended or that any PSD

requirements in a PSD permit existing at the time the deferral took
effect, such as BACT limitations, be revised or removed from an
effective PSD permit for any reason related to the deferral or when the
deferral period expires.
    Under 40 CFR 52.21(w), any PSD permit shall remain in effect,
unless and until it expires or it is rescinded, under the limited
conditions specified in that provision. Thus, a PSD permit that is
issued to a source while the deferral was effective need not be
reopened or amended if the source is no longer eligible to exclude its
biogenic CO2 emissions from PSD applicability after the
deferral expires. However, if such a source undertakes a modification
that could potentially require a PSD permit and the source is not
eligible to continue excluding its biogenic CO2 emissions
after the deferral expires, the source will need to consider its
biogenic CO2 emissions in assessing whether it needs a PSD
permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the
deferral for biogenic sources are beyond the scope of the biomass
deferral action and this proposed approval of the deferral into the
Georgia SIP, and will be addressed through subsequent rulemaking. The
results of EPA's review of the science related to net atmospheric
impacts of biogenic CO2 and the framework to properly
account for such emissions in title V and PSD permitting programs based
on the study are prospective and unknown. Thus, EPA is unable to
predict which biogenic CO2 sources, if any, currently
subject to the deferral as incorporated into the Georgia SIP would be
subject to any permanent exemptions or which currently deferred sources
would be potentially required to account for their emissions in the
future rulemaking EPA has committed to undertake for such purposes in
three or fewer years. Only in that rulemaking can EPA address the
question of extending the deferral or putting in place requirements
that would have the equivalent effect on sources covered by the biomass
deferral. Once that rulemaking has occurred, Georgia may address
related revisions to its SIP.

III. What is EPA's analysis of Georgia's SIP revision?

    Georgia currently has a SIP-approved NSR program for new and
modified stationary sources. EPD's PSD preconstruction rules are found
at Georgia Air Quality Control Rule 391-3-1-.02(7)--Prevention of
Significant Deterioration of Air Quality and apply to major stationary
sources or modifications constructed in areas designated attainment
areas or unclassifiable/attainment areas as required under part C of
title I of the CAA with respect to the NAAQS. Georgia's Rule 391-3-
1-.02(7) IBR the federal NSR PSD regulations at 40 CFR 52.21 into the
Georgia SIP. In effect, EPD's July 26, 2012, SIP revision revises Rule
391-3-1-.02(7) by updating the State's IBR date to July 20, 2011, which
includes the federal PSD permitting updates promulgated in the
PM2.5 PSD Increment-SILs-SMC Rule, the CO2
Biomass Deferral Rule and the extension of the stay in the Fugitive
Emissions Interim Rule. Additionally, the July 26, 2012, SIP submission
revises Rule 391-3-1-.02(7) by removing language to address EPA's
repeal of the PM10 surrogate and grandfathering provisions
and clarifies at subparagraph (a)(1) of 391-3-1-.01 that all dates
associated with IBR of the federal PSD rules (at 40 CFR 52.21) refer to
the date of publication of those rules in the Federal Register. In
addition to changes to Rule 391-3-1-.02(7), the July 26, 2012, SIP
revision also (1) amends Georgia's definitions at 391-3-1-.01 by
revising subparagraph (nnnn) to reference the February 1, 2012, update
to Georgia's ``Procedures for Testing and Monitoring Sources of Air
Pollutants,'' and; (2) revises 391-3-1-.02(2)--Incinerators to add
exemptions to subparagraph (c)(6)(ix)-(xiii) to exempt certain
incinerators from the state rule that are subject to more stringent,
state adopted federal standards at Rule 391-3-1.02; and (3) modifies
Georgia's provisions at Rule 391-3-1-.03(6)(i)(4) regarding permit
exemptions.
    Georgia's September 26, 2006 SIP (with a clarifying revision
submitted on November 6, 2006) also revises the permit exemption
provisions at Rule 391-1-.03(6)(i)(3). Both 391-3-1-.03(6)(i)(3) and
the new provision at (i)(4) provide exemptions from the requirement of
a source to obtain a SIP permit for cumulative modifications where the
combined emission increases are below specific de minimis thresholds.
The September 26, 2006, SIP revision to Rule 391-3-1-.03(6)(i)(3) adds
text that excludes contemporaneous emission decreases from the combined
emission increases for cumulative modifications when determining if
they are below specific emission thresholds for carbon monoxide, lead,
particulate matter, PM10, sulfur dioxide, nitrogen oxide,
volatile organic compounds and any hazardous air pollutant. In addition
the exemption in Rule, 391-3-1-.03(6)(i)(3) applies to any existing
source. The July 26, 2012, SIP revision, adds Rule 391-3-1.03(6)(i)(4)
which is an alternative to the exemption (i)(3) that only applies to
small modifications at existing quarry sources that are not major
sources where the combined emission increases can include
contemporaneous emission decreases from all nonexempt modified
activities and are less than 10 tons per year of particulate matter and
PM10. Neither exemptions may be used to lower the potential
to emit below ``major source'' thresholds, or avoid any ``applicable
requirement'' as defined in 40 CFR 70.2. See Georgia Rule 391-3-
1-.03(6).
    The changes to Georgia's rules submitted September 26, 2006 (with a
clarifying revision submitted on November 6, 2006) and July 26, 2012,
became state effective on March 27, 2006, and August 9, 2012,
respectively. EPA is proposing to approve changes to Georgia's Rule
391-3-1-.02(7), to update the State's existing SIP-approved PSD program
to be consistent with federal NSR regulations (at 40 CFR 52.21) and the
CAA. EPA is also proposing to approve Georgia's requested changes to
Rules 391-3-1-.01, .02(2) and .03. More details on EPA's analysis and
proposed approval of the portions of Georgia's July 26, 2012, SIP
submittal addressing PSD provisions promulgated in the PM2.5
PSD Increment-SILs-SMC Rule, the CO2 Deferral Rule, the
Fugitive Emissions Interim Rule and the NSR PM2.5 Rule
(grandfathering provision) are discussed below.

A. Rule 391-3-1-.02(7) SIP Revision

1. PM2.5 PSD Increment-SILs-SMC Rule
    EPD's July 26, 2012, SIP revision IBR the following provisions into
the Georgia SIP at regulation 391-3-1-.02(7) as promulgated in the
October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD
increments for PM2.5 annual and 24-hour NAAQS pursuant to
section 166(a) of the CAA; (2) SILs used as a screening tool (used by a
major source subject to PSD) to evaluate the impact a proposed major
source or modification may have on the NAAQS or PSD increment; and (3)
SMC to determine the level of data gathering required of a major source
in support of its PSD permit application for PM2.5
emissions.
    Specifically, Georgia's July 26, 2012, SIP revision IBR into the
Georgia SIP (at 391-3-1-.02(7)) the PM2.5 PSD increments as
amended in the tables at 40 CFR 52.21(c) and (p)(5) (for Class I
Variances) the amendments to the terms ``major source baseline date''
(as amended at 40 CFR 52.21(b)(14)(i)(c)); ``minor source baseline
date'' (including

establishment of the ``trigger date'') (40 CFR 52.21(b)(14)(ii)(c));
and the definition of ``baseline area'' (as amended at 40 CFR
52.21(b)(15)(i) and (ii)). These changes provide for the implementation
of the PM2.5 PSD increments for the PM2.5 NAAQS
in the State's PSD program. In today's action, EPA is proposing to
approve Georgia's July 26, 2012, SIP revision to address
PM2.5 PSD increments.
    Regarding the SILs and SMC established in the October 20, 2010,
PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has
challenged EPA's authority to implement SILs and SMC. In a brief filed
in the D.C. Circuit on April 6, 2012, EPA described the Agency's
authority under the CAA to promulgate and implement the SMCs and SILs
de minimis thresholds. With respect to the SMC, Georgia's July 26,
2012, SIP revision IBR the SMC of 4 g/m3 for PM2.5 NAAQS at
391-3-1-.02(7). Georgia's July 26, 2012, SIP revision is consistent
with EPA's current promulgated provisions in the October 20, 2010,
PM2.5 PSD Increment-SILs-SMC Rule. EPA is proposing to
approve this promulgated threshold into the Georgia SIP as EPA believes
the SMC is a valid exercise of the Agency's de minimis authority.
However, EPA notes that future court action may require subsequent rule
revisions and SIP revisions from the State of Georgia.
    The July 26, 2012, SIP revision submitted by Georgia to IBR the new
PSD requirements for PM2.55 pursuant to the PM2.5
PSD Increment-SILs-SMC Rule also includes the new regulatory text at 40
CFR 52.21(k)(2), concerning the implementation of SILs for
PM2.5. EPA stated in the preamble to the October 20, 2010,
final rule that we do not consider the SILs to be a mandatory SIP
element, but regard them as discretionary on the part of a regulating
authority for use in the PSD permitting process. Nevertheless, the
PM2.5 SILs are currently the subject of litigation before
the U.S. Court of Appeals. Sierra Club v. EPA, Case No 10-1413 (D.C.
Circuit). In response to that litigation, EPA has requested that the
court remand and vacate the regulatory text in EPA's PSD regulations at
paragraph (k)(2) so that EPA can make necessary rulemaking revisions to
that text. In light of EPA's request for remand and vacatur and the
acknowledgement of the need to revise the regulatory text presently
contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does
not believe that it is appropriate at this time to approve that portion
of Georgia's SIP revision that contains the affected regulatory text in
the State's PSD regulations, at 391-3-1-0.2(7). Instead, EPA is taking
no action at this time with regard to that specific provision contained
in the SIP revision. EPA will take action on the SILs portion of
Georgia's July 26, 2012, SIP revision in a separate rulemaking once the
issue regarding the court case has been resolved.
2. CO2 Biomass Deferral
    In the July 20, 2011, CO2 Biomass Deferral Rule, similar
to the approach with the GHG Tailoring Rule, EPA incorporated the
biomass deferral into the Federal PSD program by amending the
definition of ``subject to regulation'' under 40 CFR 51.166 and 52.21,
respectively. Georgia's July 26, 2012, SIP revision IBR into the
Georgia SIP 40 CFR 52.21 as of July 20, 2011, which includes the
CO2 Biomass Deferral revision to the definition of ``subject
to regulation'' deferring, until July 21, 2014, PSD applicability to
biogenic carbon dioxide (CO2) emissions from bioenergy and
other biogenic stationary sources. EPA is proposing to approve
Georgia's IBR of the CO2 Biomass Deferral Rule.
3. Fugitive Emissions Interim Rule
    Georgia's July 26, 2012, SIP revision also IBR the extension of the
stay of the Fugitive Emissions Rule into the Georgia PSD program at
391-3-1-.02(7). On December 19, 2008, EPA issued a final rule revising
the requirements of the NSR permitting program regarding the treatment
of fugitive emissions. See 73 FR 77882. The final rule required
fugitive emissions to be included in determining whether a physical or
operational change results in a major modification only for sources in
industries that have been designated through rulemaking under section
302(j) \14\ of the CAA. As a result of EPA granting the Natural
Resource Defense Council's petition for reconsideration on the original
Fugitive Emissions Rule \15\ on March 31, 2010, EPA stayed the Fugitive
Emissions Rule (73 FR 77882) for 18 months to October 3, 2011. The stay
allowed the Agency time to propose, take comment and issue a final
action regarding the inclusion of fugitive emissions in NSR
applicability determinations. On March 30, 2011 (76 FR 17548), EPA
proposed an interim rule which superseded the March 31, 2010, stay and
clarified and extended 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 affirming the interim rule as final. The final rule will
remain in effect until EPA completes its reconsideration. EPA is
proposing to approve Georgia's IBR of the interim rulemaking extending
the stay of the Fugitives Emissions Rule into its SIP at Rule 391-3-
1-.02(7).
---------------------------------------------------------------------------

    \14\ Pursuant to CAA section 302(j), examples of these industry
sectors include oil refineries, Portland cement plants, and iron and
steel mills.
    \15\ On April 24, 2009, EPA agreed to reconsider the approach to
handling fugitive emissions and granted a 3-month administrative
stay of the Fugitive Emissions Rule. The administrative stay of the
Fugitive Emissions Rule became effective on September 30, 2009. EPA
put an additional three-month stay in place from December 31, 2009,
until March 31, 2010.
---------------------------------------------------------------------------

4. PM2.5 Grandfathering Provision
    In the NSR PM2.5 Rule, EPA finalized regulations to
establish the framework for implementing preconstruction permit review
for the PM2.5 NAAQS in both attainment and nonattainment
areas including the grandfather provision which allowed PSD applicants
that submitted their complete permit application prior to the July 15,
2008 effective date of the NSR PM2.5 Rule to continue to
rely on the 1997 PM10 Surrogate Policy rather than amend
their application to demonstrate compliance directly with the new
PM2.5 requirements. See 73 FR 28321. On January 13, 2011,
Georgia submitted a SIP revision to IBR into the Georgia SIP the
version of 40 CFR 52.21 as of June 3, 2010 which included language that
excluded the grandfathering exemption (at 40 CFR 52.21(i)(1)(xi)) from
the state's PSD regulations (at Rule 391-3-1-.02(7)(b)(6)(i)) ensuring
that sources were not subject to the grandfathering provision. EPA
approved Georgia's January 13, 2011, SIP revision on September 8, 2011
(76 FR 55572).
    On May 18, 2011, EPA took final action to repeal the
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi).
See 76 FR 28646. Georgia's July 26, 2012, SIP submittal incorporates
into the Georgia SIP the version of 40 CFR 52.21 as of July 20, 2011,
which includes the May 18, 2011, repeal of the grandfather provision.
Thus, the language previously approved into Georgia's SIP at Rule 391-
3-1-.02(7)(b)(6)(i) that excludes the grandfathering provision is no
longer necessary. Georgia's July 26, 2012, SIP submittal removes the
unnecessary language pertaining to the grandfather provision from Rule
391-3-1-.02(7)(b)(6)(i).\16\ EPA is proposing to

approve this portion of Georgia's July 26, 2012, SIP submittal.
---------------------------------------------------------------------------

    \16\ Georgia's previous incorporation by reference of 40 CFR
52.21 at 391-3-1-.02(7) was as of June 3, 2010, which did not
include the May 18, 2011, repeal of the PM10 Surrogate
Policy; therefore the grandfathering exclusion language at 391-3-
1-.02(7)(b)(6)(i) was necessary at that time. The June 3, 2010, IBR
date was approved into the Georgia SIP on September 8, 2011.
---------------------------------------------------------------------------

IV. Proposed Action

    EPA is proposing to approve, into the Georgia SIP, portions of
Georgia's September 26, 2006 (with a clarifying revision submitted on
November 6, 2006) and the July 26, 2012, SIP revisions adopting federal
regulations amended in the October 20, 2010, PM2.5 PSD
Increment-SILs-SMC rule; the June 3, 2010, CO2 Biomass
Deferral Rule; and the March 30, 2011, Fugitive Emissions Interim Rule,
amendments regarding the PM2.5 Grandfathering Provision,
definition changes regarding testing and monitoring, and changes
regarding exemptions from the requirement to obtain a SIP permit and
exemptions for incinerators. EPA is not however proposing to approve in
this rulemaking Georgia's July 26, 2012, SIP revision regarding the SIL
thresholds and provisions and Rules 391-3-1-.02(www)--Sewage Sludge
Incineration, 391-3-1-.03(9)--Permit Fees, 391-3-1-.02(8)(b)--New
Source Performance Standards and 391-3-1-.02(9)(b)--Emissions Standards
for Hazardous Air Pollutants. EPA has made the preliminary
determination that these SIP revisions, with regard to the
aforementioned proposed actions, are approvable because they are
consistent with section 110 of the CAA and EPA regulations regarding
NSR permitting.

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
proposed 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 proposed 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 F43255, 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 proposed 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.

List of Subjects in 40 CFR Part 52

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

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

    Dated: January 4, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
 [FR Doc. 2013-00581 Filed 1-11-13; 8:45 am]
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