
[Federal Register: December 20, 2010 (Volume 75, Number 243)]
[Rules and Regulations]               
[Page 79300-79302]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de10-10]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0041-201058; FRL-9241-1]

 
Approval and Promulgation of Implementation Plans; Mississippi; 
Prevention of Significant Deterioration Rules: Nitrogen Oxides as a 
Precursor to Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve a portion of a revision 
to the Mississippi State Implementation Plan (SIP), submitted by the 
Mississippi Department of Environmental Quality (MDEQ), to EPA on 
November 28, 2007. The revision amends Mississippi's prevention of 
significant deterioration (PSD) permitting regulations in the SIP to 
address permit requirements promulgated in the 1997 8-Hour Ozone 
National Ambient Air Quality Standards (NAAQS) Implementation Rule-
Phase II (hereafter referred to as the ``Ozone Implementation New 
Source Review (NSR) Update''). The Ozone Implementation NSR Update 
revised permit requirements relating to the implementation of the 1997 
8-hour ozone NAAQS specifically incorporating nitrogen oxides 
(NOX) as a precursor to ozone. EPA's approval of 
Mississippi's provisions to include NOX as an ozone 
precursor into the Mississippi SIP is based on EPA's determination that 
Mississippi's SIP revision related to these provisions complies with 
Federal requirements.

DATES: Effective Date: This rule will be effective January 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0041. 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 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 
Mississippi 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. Telephone number: (404) 562-
9352; e-mail address: bradley.twunjala@epa.gov. For information 
regarding NSR/PSD, contact Ms. Yolanda Adams, Air Permits Section, at 
the same address above. Telephone number: (404) 562-9214; e-mail 
address: adams.yolanda@epa.gov. For information regarding 8-hour ozone 
NAAQS, contact Ms. Jane Spann, Regulatory Development Section, at the 
same address above. Telephone number: (404) 562-9029; e-mail address: 
spann.jane@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Today's Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of 
0.08 parts per million--also referred to as the 1997 8-hour ozone 
NAAQS. On April 30, 2004, EPA designated areas as attainment, 
nonattainment and unclassifiable for the 1997 8-hour ozone NAAQS. As 
part of the 2004 designations, EPA also promulgated an implementation 
rule for the 1997 8-hour ozone NAAQS in two phases. Phase I of EPA's 
1997 8-hour ozone implementation rule (Phase 1 Rule), published on 
April 30, 2004, and effective on June 15, 2004, provided the 
implementation requirements for designating areas under subpart 1 and 
subpart 2 of the CAA. 69 FR 23857.
    On November 29, 2005, EPA promulgated the second phase for 
implementation provisions related to the 1997 8-hour ozone NAAQS which 
finalized regulations to implement the 8-hour NAAQS for PSD permitting 
purposes--also known as the Phase II Rule. 70 FR 71612. The Phase II 
Rule addressed control and planning requirements as they applied to 
areas

[[Page 79301]]

designated nonattainment for the 1997 8-hour ozone NAAQS which included 
NSR requirements. Specific to this rulemaking, the Phase II Rule made 
changes to Federal regulations 40 CFR 51.165, 51.166, and 52.21, which 
govern the nonattainment (NNSR) and PSD permitting programs. The 
revisions to the NSR permitting requirements in the Phase II Rule are 
also known as the Ozone Implementation NSR Update.
    Specifically, the Phase II Rule requirements included, among other 
changes, a new provision stating that NOX is an ozone 
precursor. 70 FR 71612 at 71679 (November 29, 2005). In the Phase II 
Rule, EPA stated as follows:

    ``The EPA has recognized NOX as an ozone precursor in 
several national rules because of its contribution to ozone 
transport and the ozone nonattainment problem. The EPA's recognition 
of NOX as an ozone precursor is supported by scientific 
studies, which have long recognized the role of NOX in 
ozone formation and transport. Such formation and transport is not 
limited to nonattainment areas. Therefore, we believe NOX 
should be treated consistently as an ozone precursor in both our PSD 
and nonattainment NSR regulations. For these reasons we have 
promulgated final regulations providing that NOX is an 
ozone precursor * * *''

In the Phase II Rule, EPA established that States must submit SIPs 
incorporating required changes (including the addition of 
NOX as a precursor for ozone) no later than June 15, 2007. 
See 70 FR 71612 at 71683.
    On November 28, 2007, the State of Mississippi, through MDEQ, 
submitted a SIP revision to EPA for approval, which revised the PSD 
permitting regulations in order to comply with the Phase II Rule. This 
revision incorporates by reference EPA's Federal regulations specified 
in the Ozone Implementation NSR Update relating to NOX as an 
ozone precursor. Specifically, the SIP revision amends Mississippi's 
Air Quality Regulations, Air Pollution Control, Section 5 (APC-S-5)--
``Regulations for the Prevention of Significant Deterioration of Air 
Quality.'' Mississippi's November 28, 2007, SIP submittal revises the 
PSD regulations at APC-S-5 by updating their IBR date of Federal 
regulations promulgated in 40 CFR 52.21. This final action addresses 
only one portion of the November 28, 2007, submittal--the Ozone 
Implementation NSR Update requirements, as contained in 40 Code of 
Federal Regulations (CFR) 52.21 and promulgated on November 29, 2005, 
as part of EPA's Ozone Implementation NSR Update.
    Also included in Mississippi's November 28, 2007, SIP revision were 
two provisions for which EPA is not taking action at this time. The 
first provision is regarding Mississippi's incorporation by reference 
of provisions promulgated by EPA on May 1, 2007, which excludes from 
the NSR major source permitting requirements ``chemical process 
plants'' that produce ethanol through a natural fermentation process. 
EPA may consider further action for the aforementioned provision in a 
future rulemaking. The second is Mississippi's compliance with Section 
110(a)(2)(D)(i) of the CAA regarding interstate air pollution transport 
for the 1997 8-hour ozone and fine particulate matter NAAQS as it 
pertains to the prevention of significant deterioration of air quality 
and visibility. EPA is also not addressing Mississippi's submission 
regarding interstate transport in today's action.

II. Today's Action

    Mississippi's November 28, 2007, SIP revision to APC-S-5 
incorporates by reference the provisions at 40 CFR 52.21 as amended and 
promulgated as of June 15, 2007, and updates Mississippi's existing 
incorporation by reference of the Federal NSR program to include the 
NOX as an ozone precursor Federal provisions set forth in 
the Phase II Rule. EPA has determined that Mississippi's SIP revision, 
which became State-effective on September 24, 2007, meets the 
requirements of the Phase II Rule and is consistent with section 110 of 
the CAA.
    On October 7, 2010, EPA published a rulemaking proposing to approve 
the aforementioned revision into the Mississippi SIP. 75 FR 62024. The 
comment period closed on November 13, 2010, and no comments, adverse or 
otherwise, were received. Details regarding the November 28, 2007, SIP 
revision are discussed in the proposed rulemaking and describe the 
basis on which EPA is now taking final action on the Mississippi SIP 
revision.

III. Final Action

    Pursuant to Section 110 of the CAA, EPA is taking final action to 
approve Mississippi's November 28, 2007, SIP revision, which 
incorporates NOX as an ozone precursor for PSD purposes into 
the Mississippi SIP. The revision included in Mississippi's PSD 
permitting program is equivalent to the provision in the Ozone 
Implementation NSR Update. EPA is approving these revisions into the 
Mississippi SIP because they are consistent with Section 110 CAA and 
its implementing regulations.

IV. 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.

[[Page 79302]]

    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 February 18, 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 section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, and Volatile organic 
compounds.

    Dated: December 8, 2010.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart Z--Mississippi

0
2. Section 52.1270 (c) is amended by revising the entry for ``APC-S-5'' 
to read as follows:


Sec.  52.1270  Identification of plan.

* * * * *
    (c) * * *

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

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   APC-S-5--Regulations for the Prevention of Significant Deterioration of Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------
All................................  .....................  9/24/2007............  12/20/10 [Insert       APC-S-5 incorporates by reference the
                                                                                    citation of            regulations found at 40 CFR 52.21 as of June
                                                                                    publication].          15, 2007; This EPA action is approving the
                                                                                                           incorporation by reference with the exception
                                                                                                           of the phrase ``except ethanol production
                                                                                                           facilities producing ethanol by natural
                                                                                                           fermentation under the North American
                                                                                                           Industry Classification System (NAICS) codes
                                                                                                           325193 or 312140,'' APC-S-5 incorporated by
                                                                                                           reference from 40 CFR 52.21(b)(1)(i)(a) and
                                                                                                           (b)(1(iii)(t). APC-S-5.
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-31893 Filed 12-17-10; 8:45 am]
BILLING CODE 6560-50-P

