
[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Proposed Rules]
[Pages 68259-68265]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28005]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0811-201051; FRL-9222-9]


Approval and Promulgation of Implementation Plans; Mississippi: 
Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule 
Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a portion of a draft revision to 
the Mississippi State Implementation Plan (SIP), submitted by the State 
of Mississippi, through the Mississippi Department of Environmental 
Quality (MDEQ), to EPA on September 14, 2010, for parallel processing. 
The proposed SIP revision modifies Mississippi's New Source Review 
(NSR) Prevention of Significant Deterioration (PSD) program. 
Specifically, the proposed SIP revision establishes appropriate 
emission thresholds for determining which new stationary sources and 
modification projects become subject to Mississippi's PSD permitting 
requirements for their greenhouse gas (GHG) emissions. Mississippi's 
September 14, 2010, SIP revision is necessary because without it, on 
January 2, 2011, PSD requirements would apply at the 100 or 250 tons 
per year (tpy) levels provided under the Clean Air Act (CAA or Act), 
which would overwhelm Mississippi's permitting resources. EPA is 
proposing approval of Mississippi's September 14, 2010, SIP revision 
relating to PSD requirements for GHG-emitting sources because the 
Agency has made the preliminary determination that this SIP revision is 
in accordance with the CAA and EPA regulations regarding PSD permitting 
for GHGs.

DATES: Comments must be received on or before December 6, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-0811 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: benjamin.lynorae@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2010-0811, 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-
2010-0811.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://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 http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://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 e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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 
http://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 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.,

[[Page 68260]]

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, contact Ms. Heather Abrams, Air Permits 
Section, at the same address above. Ms. Abrams' telephone number is 
(404) 562-9185; e-mail address: abrams.heather@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing in today's notice?
II. What is the background for the action proposed by EPA in today's 
notice?
III. What is the relationship between today's proposed action and 
EPA's proposed GHG SIP call and GHG FIP?
IV. What is EPA's analysis of Mississippi's proposed SIP revision?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing in today's notice?

    On September 14, 2010, MDEQ submitted a draft revision to EPA for 
approval into the Mississippi SIP to establish appropriate emission 
thresholds for determining which new or modified stationary sources 
become subject to Mississippi's PSD permitting requirements for GHG 
emissions. Final approval of Mississippi's September 14, 2010, SIP 
revision will put in place the GHG emission thresholds for PSD 
applicability set forth in EPA's Tailoring Rule (75 FR 31514, June 3, 
2010), ensuring that smaller GHG sources emitting less than these 
thresholds will not be subject to permitting requirements when these 
requirements begin applying to GHGs on January 2, 2011. Pursuant to 
section 110 of the CAA, EPA is proposing to approve this revision into 
the Mississippi SIP.
    Because this draft SIP revision is not yet state-effective, 
Mississippi requested that EPA ``parallel process'' the SIP revision. 
Under this procedure, the EPA Regional Office works closely with the 
state while developing new or revised regulations. Generally, the state 
submits a copy of the proposed regulation or other revisions to EPA 
before conducting its public hearing. EPA reviews this proposed state 
action and prepares a notice of proposed rulemaking. EPA publishes this 
notice of proposed rulemaking in the Federal Register and solicits 
public comment in approximately the same time frame during which the 
state is holding its public hearing. The state and EPA thus provide for 
public comment periods on both the state and the Federal actions in 
parallel.
    After Mississippi submits the formal state-effective SIP revision 
request (including a response to all public comments raised during the 
state's public participation process), EPA will prepare a final 
rulemaking notice for the SIP revision. If changes are made to the SIP 
revision after EPA's notice of proposed rulemaking, such changes must 
be acknowledged in EPA's final rulemaking action. If the changes are 
significant, then EPA may be obliged to re-propose the action. In 
addition, if the changes render the SIP revision not approvable, EPA's 
re-proposal of the action would be a disapproval of the revision.
    Mississippi's September 14, 2010, SIP revision also incorporates 
two administrative changes to their PSD regulations (Air Pollution 
Control, Section 5 (APC-S-5)--Regulations for the Prevention of 
Significant Deterioration). These changes relate to Mississippi's pre-
existing exclusion of certain provisions of the Federal PSD regulations 
from its SIP, specifically, provisions pertaining to the ``reasonable 
possibility'' standard,\1\ ``clean units,'' and ``pollution control 
projects'' (PCPs).\2\ In today's action, EPA is proposing to approve 
these administrative changes into the Mississippi SIP.
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    \1\ On July 10, 2006 (71 FR 38773), EPA approved Mississippi's 
incorporation by reference of the 2002 NSR Reform Rules into the 
Mississippi SIP. The SIP-approved rule identifies certain provisions 
of the Federal rules that are not incorporated by reference. Among 
the excluded provisions are those set forth at 40 CFR 52.21(r)(6) 
pertaining to the ``reasonable possibility'' standard, which 
establishes criteria for when recordkeeping and reporting are 
required for a modification that does not trigger major NSR. In 
defining that exclusion, Mississippi's rule quoted the relevant 
language from the Federal PSD regulations. Subsequently, on December 
21, 2007 (73 FR 72607), EPA amended the reasonable possibility 
standard in response to a decision by the U.S. Court of Appeals for 
the DC Circuit. See New York v. EPA, 413 F.3d 3 (DC Cir. 2005). 
While Mississippi will continue to exclude the reasonable 
possibility provision from its PSD regulations, it is revising the 
exclusion to reflect the revised reasonable possibility language at 
40 CFR 52.21(r)(6) as promulgated on December 21, 2007.
    \2\ The Mississippi PSD regulations approved by EPA on July 10, 
2006 (71 FR 38773) specifically excluded from incorporation by 
reference the Federal regulatory provisions pertaining to ``clean 
units'' and PCPs. Subsequently, the DC Circuit vacated the Federal 
clean unit and PCP provisions. See New York v. EPA, 413 F.3d at 3. 
Mississippi's September 14, 2010, proposed SIP revision removes the 
reference to these vacated Federal regulations from its list of 
excluded Federal provisions.
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    In addition to changes to address the Tailoring Rule and the 
aforementioned administrative changes mentioned above, Mississippi's 
September 14, 2010, SIP revision also includes: (1) provisions to 
exclude facilities that produce ethanol through a natural fermentation 
process (hereafter referred to as the ``Ethanol Rule'') from the 
definition of ``chemical process plants'' in the major New Source 
Review (NSR) source permitting program; and (2) revision to incorporate 
by reference changes pursuant to EPA's Fugitive Emissions Rule (73 FR 
77882, December 19, 2008).\3\ In today's proposed rulemaking, EPA is 
not proposing to take action on Mississippi's changes to their PSD 
regulations to exclude facilities from the definition of ``chemical 
process plants'' in the major NSR permitting program, nor is EPA 
proposing to take action on Mississippi's changes to incorporate the 
provisions of the Fugitive Emission Rule.
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    \3\ On March 31, 2010, EPA stayed the Fugitive Emissions Rule 
(73 FR 77882) for 18 months to October 3, 2011, to allow the Agency 
time to propose, take comment and issue a final action regarding the 
inclusion of fugitive emissions in NSR applicability determinations. 
Therefore, the 40 CFR part 51 and part 52 administrative regulations 
that were amended by the Fugitive Emissions Rule are stayed through 
October 3, 2011.
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II. What is the background for the action proposed by EPA in today's 
notice?

    Today's proposed action on the Mississippi SIP relates to EPA's 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule,'' Final Rule (the Tailoring Rule). 75 FR 31514. In the 
Tailoring Rule, EPA established appropriate GHG emission thresholds for 
determining the applicability of PSD requirements to GHG-emitting 
sources. These applicability thresholds were designed to ensure that 
smaller GHG sources will not be subject to GHG permitting requirements. 
While Mississippi already has authority to issue PSD permits governing 
GHGs when PSD requirements begin applying to GHGs on January 2, 2011, 
Mississippi needs to amend its SIP to incorporate the Tailoring Rule's 
applicability thresholds. Today's notice announces EPA's proposed 
approval of a revision to Mississippi's SIP that would put these 
applicability thresholds in place.\4\
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    \4\ On September 2, 2010, EPA proposed a ``SIP Call'' that would 
require those states with SIPs that do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. 75 FR 
53892. In a companion rulemaking, EPA proposed a Federal 
implementation plan (FIP) that would apply in any state that is 
unable to submit the required SIP revision by its deadline. 75 FR 
53883 (September 2, 2010). Because Mississippi's SIP already 
authorizes Mississippi to regulate GHGs once GHGs become subject to 
PSD requirements on January 2, 2011, Mississippi is not subject to 
the proposed SIP Call or FIP.
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A. What are GHGs and their sources?

    A detailed explanation of GHGs, climate change and the impact on 
health, society, and the environment is

[[Page 68261]]

included in EPA's technical support document for EPA's GHG endangerment 
finding final rule (Document ID No. EPA-HQ-OAR-2009-0472-11292 at 
http://www.regulations.gov). The endangerment finding rulemaking is 
discussed later in this rulemaking. A summary of the nature and sources 
of GHGs is provided below.
    GHGs trap the Earth's heat that would otherwise escape from the 
atmosphere into space and form the greenhouse effect that helps keep 
the Earth warm enough for life. GHGs are naturally present in the 
atmosphere and are also emitted by human activities. Human activities 
are intensifying the naturally occurring greenhouse effect by 
increasing the amount of GHGs in the atmosphere, which is changing the 
climate in a way that endangers human health, society, and the natural 
environment.
    Some GHGs, such as carbon dioxide (CO2), are emitted to 
the atmosphere through natural processes as well as human activities. 
Other gases, such as fluorinated gases, are created and emitted solely 
through human activities. The well-mixed GHGs of concern directly 
emitted by human activities include CO2, methane 
(CH4), nitrous oxide (N2O), hydrofluorocarbons 
(HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride 
(SF6), hereafter referred to collectively as ``the six well-
mixed GHG,'' or, simply, GHGs. Together these six well-mixed GHGs 
constitute the ``air pollutant'' upon which the GHG thresholds in EPA's 
Tailoring Rule are based. These six gases remain in the atmosphere for 
decades to centuries where they become well-mixed globally in the 
atmosphere. When they are emitted more quickly than natural processes 
can remove them from the atmosphere, their concentrations increase, 
thus increasing the greenhouse effect.
    In the U.S., the combustion of fossil fuels (e.g., coal, oil, gas) 
is the largest source of CO2 emissions and accounts for 80 
percent of the total GHG emissions by mass. Anthropogenic 
CO2 emissions released from a variety of sources, including 
through the use of fossil fuel combustion and cement production from 
geologically stored carbon (e.g., coal, oil, and natural gas) that is 
hundreds of millions of years old, as well as anthropogenic 
CO2 emissions from land-use changes such as deforestation, 
perturb the atmospheric concentration of CO2, and the 
distribution of carbon within different reservoirs readjusts. More than 
half of the energy-related emissions come from large stationary sources 
such as power plants, while about a third come from transportation. Of 
the six well-mixed GHGs, four (CO2, CH4, 
N2O, and HFCs) are emitted by motor vehicles. In the U.S., 
industrial processes (such as the production of cement, steel, and 
aluminum), agriculture, forestry, other land use, and waste management 
are also important sources of GHGs.
    Different GHGs have different heat-trapping capacities. The concept 
of Global Warming Potential (GWP) was developed to compare the heat-
trapping capacity and atmospheric lifetime of one GHG to another. The 
definition of a GWP for a particular GHG is the ratio of heat trapped 
by one unit mass of the GHG to that of one unit mass of CO2 
over a specified time period. When quantities of the different GHGs are 
multiplied by their GWPs, the different GHGs can be summed and compared 
on a carbon dioxide equivalent (CO2e) basis. For example, 
CH4 has a GWP of 21, meaning each ton of CH4 
emissions would have 21 times as much impact on global warming over a 
100-year time horizon as 1 ton of CO2 emissions. Thus, on 
the basis of heat-trapping capability, 1 ton of CH4 would 
equal 21 tons of CO2e. The GWPs of the non-CO2 
GHG range from 21 (for CH4) up to 23,900 (for 
SF6). Aggregating all GHG on a CO2e basis at the 
source level allows a facility to evaluate its total GHG emissions 
contribution based on a single metric.

B. What are the general requirements of the PSD program?

1. Overview of the PSD Program
    The PSD program is a preconstruction review and permitting program 
applicable to new major stationary sources and major modifications at 
existing stationary sources. The PSD program applies in areas that are 
designated ``attainment'' or ``unclassifiable'' for a national ambient 
air quality standard (NAAQS). The PSD program is contained in part C of 
title I of the CAA. The ``nonattainment NSR'' program applies in areas 
not in attainment of a NAAQS or in the Ozone Transport Region, and it 
is implemented under the requirements of part D of title I of the CAA. 
Collectively, EPA commonly refers to these two programs as the major 
NSR program. The governing EPA rules are contained in 40 CFR 51.165, 
51.166, 52.21, 52.24, and part 51, Appendices S and W. There is no 
NAAQS for CO2 or any of the other well-mixed GHGs, nor has 
EPA proposed any such NAAQS; therefore, unless and until EPA takes 
further such action, the nonattainment NSR program does not apply to 
GHGs.
    The applicability of PSD to a particular source must be determined 
in advance of construction or modification and is pollutant-specific. 
The primary criterion in determining PSD applicability is whether the 
proposed project is sufficiently large (in terms of its emissions) to 
be a major stationary source or modification, both of which are 
described below. EPA has implemented these requirements in its 
regulations, which use somewhat different terminology than the CAA 
does, for determining PSD applicability.
a. Major Stationary Sources
    Under PSD, a ``major stationary source'' is any source belonging to 
a specified list of 28 source categories that emits or has the 
potential to emit 100 tpy or more of any air pollutant subject to 
regulation under the CAA, or any other source type that emits or has 
the potential to emit such pollutants in amounts equal to or greater 
than 250 tpy. See, e.g., 40 CFR 52.21(b)(1). We refer to these levels 
as the 100/250-tpy thresholds. A new source with a potential to emit 
(PTE) at or above the applicable ``major stationary source threshold'' 
is subject to major NSR. These limits originate from section 169 of the 
CAA, which applies PSD to any ``major emitting facility'' and defines 
the term to include any source that emits or has a PTE of 100 or 250 
tpy, depending on the source category. Note that the major source 
definition incorporates the phrase ``subject to regulation,'' which, as 
described later, will begin to include GHGs on January 2, 2011, under 
our interpretation of that phrase as discussed in the recent memorandum 
entitled, ``EPA's Interpretation of Regulations that Determine 
Pollutants Covered by Federal Prevention of Significant Deterioration 
(PSD) Permit Program.'' 75 FR 17004 (April 2, 2010).
b. Major Modifications
    PSD also applies to existing sources that undertake a ``major 
modification,'' which occurs when: (1) There is a physical change in, 
or change in the method of operation of, a ``major stationary source;'' 
(2) the change results in a ``significant'' emissions increase of a 
pollutant subject to regulation (equal to or above the significance 
level that EPA has set for the pollutant in 40 CFR 52.21(b)(23)); and 
(3) there is a ``significant net emissions increase'' of a pollutant 
subject to regulation that is equal to or above the significance level 
(defined in 40 CFR 52.21(b)(23)). Significance levels, which EPA has 
promulgated for criteria pollutants and certain other pollutants, 
represent a de minimis contribution to air quality problems. When EPA 
has not set a significance level for a regulated NSR

[[Page 68262]]

pollutant, PSD applies to an increase of the pollutant in any amount 
(that is, in effect, the significance level is treated as zero).
2. General Requirements for PSD
    This section provides a very brief summary of the main requirements 
of the PSD program. One principal requirement is that a new major 
source or major modification must apply best available control 
technology (BACT), which is determined on a case-by-case basis taking 
into account, among other factors, the cost effectiveness of the 
control and energy and environmental impacts. EPA has developed a 
``top-down'' approach for BACT review, which involves a decision 
process that includes identification of all available control 
technologies, elimination of technically infeasible options, ranking of 
remaining options by control and cost effectiveness, and then selection 
of BACT. Under PSD, once a source is determined to be major for any 
regulated NSR pollutant, a BACT review is performed for each attainment 
pollutant that exceeds its PSD significance level as part of new 
construction or for modification projects at the source, where there is 
a significant increase and a significant net emissions increase of such 
pollutant.\5\
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    \5\ EPA notes that the PSD program has historically operated in 
this fashion for all pollutants--when new sources or modifications 
are ``major,'' PSD applies to all pollutants that are emitted in 
significant quantities from the source or project. This rule does 
not alter that for sources or modifications that are major due to 
their GHG emissions.
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    In addition to performing BACT, the source must analyze impacts on 
ambient air quality to assure that sources do not cause or contribute 
to violation of any NAAQS or PSD increments and must analyze impacts on 
soil, vegetation, and visibility. In addition, sources or modifications 
that would impact Class I areas (e.g., national parks) may be subject 
to additional requirements to protect air quality related values 
(AQRVs) that have been identified for such areas. Under PSD, if a 
source's proposed project impacts a Class I area, the Federal Land 
Manager is notified and is responsible for evaluating a source's 
projected impact on the AQRVs and recommending either approval or 
disapproval of the source's permit application based on anticipated 
impacts. There are currently no NAAQS or PSD increments established for 
GHGs, and therefore these PSD requirements would not apply for GHGs, 
even when PSD is triggered for GHGs. However, if PSD is triggered for a 
GHG-emitting source, all regulated NSR pollutants that the new source 
emits in significant amounts would be subject to PSD requirements. 
Therefore, if a facility triggers NSR for non-GHG pollutants for which 
there are established NAAQS or increments, the air quality, additional 
impacts, and Class I requirements would apply to those pollutants.
    Pursuant to existing PSD requirements, the permitting authority 
must provide notice of its preliminary decision on a source's 
application for a PSD permit and must provide an opportunity for 
comment by the public, industry, and other interested persons. After 
considering and responding to comments, the permitting authority must 
issue a final determination on the construction permit. Usually NSR 
permits are issued by a State or local air pollution control agency 
that has its own authority to issue PSD permits under a permit program 
that has been approved by EPA for inclusion in its SIP. In some areas, 
EPA has delegated its authority to issue PSD permits under Federal 
regulations to the State or local agency. In other areas, EPA issues 
the permits under its own authority.

C. What are the CAA requirements to include the PSD program in the SIP?

    The CAA contemplates that the PSD program be implemented in the 
first instance by the states and requires that states include PSD 
requirements in their SIPs. CAA section 110(a)(2)(C) requires that--

    Each implementation plan * * * shall * * * include a program to 
provide for * * * regulation of the modification and construction of 
any stationary source within the areas covered by the plan as 
necessary to assure that national ambient air quality standards are 
achieved, including a permit program as required in part[] C * * * 
of this subchapter.

CAA section 110(a)(2)(J) requires that--

    Each implementation plan * * * shall * * * meet the applicable 
requirements of * * * part C of this subchapter (relating to 
significant deterioration of air quality and visibility protection).

CAA section 161 provides that--

    [E]ach applicable implementation plan shall contain emission 
limitations and such other measures as may be necessary, as 
determined under regulations promulgated under this part [C], to 
prevent significant deterioration of air quality in each region * * 
* designated * * * as attainment or unclassifiable.

    These provisions, read in conjunction with the PSD applicability 
provisions as well as other provisions such as the BACT provision under 
CAA Section 165(a)(4), mandate that SIPs include PSD programs that are 
applicable to, among other things, any air pollutant that is subject to 
regulation. As discussed below, this includes GHGs on and after January 
2, 2011.\6\
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    \6\ In the Tailoring Rule, EPA noted that commenters argued, 
with some variations, that the PSD provisions applied only to NAAQS 
pollutants, and not GHG, and EPA responded that the PSD provisions 
apply to all pollutants subject to regulation, including GHG. See 75 
FR at 31560-62. EPA maintains its position that the PSD provisions 
apply to all pollutants subject to regulation, and the Agency 
incorporates by reference the discussion of this issue in the 
Tailoring Rule.
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    A number of states do not have PSD programs approved into their 
SIPs. In those states, EPA's regulations at 40 CFR 52.21 govern, and 
either EPA or the state as EPA's delegatee acts as the permitting 
authority. However, most states have PSD programs that have been 
approved into their SIPs, and these states implement their PSD programs 
and act as the permitting authority. Mississippi has a SIP-approved PSD 
program.

D. What actions has EPA taken concerning PSD requirements for GHG-
emitting sources?

1. What are the Endangerment Finding, the Light Duty Vehicle Rule, and 
the Johnson Memo Reconsideration?
    By notice dated December 15, 2009, and pursuant to CAA section 
202(a), EPA issued two findings regarding GHGs that are commonly 
referred to as the ``Endangerment Finding'' and the ``Cause or 
Contribute Finding.'' ``Endangerment and Cause or Contribute Findings 
for Greenhouse Gases Under Section 202(a) of the Clean Air Act,'' 74 FR 
66496. In the Endangerment Finding, the Administrator found that six 
long-lived and directly emitted GHGs--CO2, CH4, 
N2O, HFCs, PFCs, and SF6--may reasonably be 
anticipated to endanger public health and welfare. In the Cause or 
Contribute Finding, the Administrator ``defin[ed] the air pollutant as 
the aggregate group of the same six * * * greenhouse gases,'' 74 FR at 
66536, and found that the combined emissions of this air pollutant from 
new motor vehicles and new motor vehicle engines contribute to the GHG 
air pollution that endangers public health and welfare.
    By notice dated May 7, 2010, EPA published what is commonly 
referred to as the ``Light-Duty Vehicle Rule'' (LDVR), which for the 
first time established Federal controls on GHGs emitted from light-duty 
vehicles. ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324. In 
its applicability provisions,

[[Page 68263]]

the LDVR specifies that it ``contains standards and other regulations 
applicable to the emission * * * of six greenhouse gases,'' including 
CO2, CH4, N2O, HFCs, PFCs, and 
SF6. 75 FR at 25686 (40 CFR 86.1818-12(a)).
    On December 18, 2008, EPA issued a memorandum, ``EPA's 
Interpretation of Regulations that Determine Pollutants Covered by 
Federal Prevention of Significant Deterioration (PSD) Permit Program'' 
(known as the ``Johnson Memo'' or the ``PSD Interpretive Memo,'' and 
referred to in this preamble as the ``Interpretive Memo''), that set 
forth EPA's interpretation regarding which EPA and state actions, with 
respect to a previously unregulated pollutant, cause that pollutant to 
become ``subject to regulation'' under the Act. Whether a pollutant is 
``subject to regulation'' is important for the purposes of determining 
whether it is covered under the Federal PSD permitting program. The 
Interpretive Memo established that a pollutant is ``subject to 
regulation'' only if it is subject to either a provision in the CAA or 
regulation adopted by EPA under the CAA that requires actual control of 
emissions of that pollutant (referred to as the ``actual control 
interpretation''). On February 17, 2009, EPA granted a petition for 
reconsideration on the Interpretive Memo and announced its intent to 
conduct a rulemaking to allow for public comment on the issues raised 
in the memorandum and on related issues. EPA also clarified that the 
Interpretive Memo would remain in effect pending reconsideration.
    On April 2, 2010, EPA published a notice conveying its decision to 
continue applying (with one limited refinement) the Interpretive Memo's 
interpretation of ``subject to regulation.'' ``Reconsideration of 
Interpretation of Regulations that Determine Pollutants Covered by 
Clean Air Act Permitting Programs,'' 75 FR 17004. EPA concluded that 
the ``actual control interpretation'' is the most appropriate 
interpretation to apply given the policy implications. However, EPA 
refined the Agency's interpretation in one respect: EPA established 
that PSD permitting requirements apply to a newly regulated pollutant 
at the time a regulatory requirement to control emissions of that 
pollutant ``takes effect'' (rather than upon promulgation or the legal 
effective date of the regulation containing such a requirement). In 
addition, based on the anticipated promulgation of the LDVR, EPA stated 
that the GHG requirements of the vehicle rule would take effect on 
January 2, 2011, because that is the earliest date that a 2012 model 
year vehicle may be introduced into commerce. In other words, the 
compliance obligation under the LDVR does not occur until a 
manufacturer may introduce into commerce vehicles that are required to 
comply with GHG standards, which will begin with model year 2012 and 
will not occur before January 2, 2011.
2. What is EPA's tailoring rule?
    On June 3, 2010 (effective August 2, 2010), EPA promulgated a final 
rulemaking, the Tailoring Rule, for the purpose of relieving 
overwhelming permitting burdens that would, in the absence of the rule, 
fall on permitting authorities and sources, the Tailoring Rule, 75 FR 
31514. EPA accomplished this by tailoring the applicability criteria 
that determine which GHG emission sources become subject to the PSD 
program \7\ of the CAA. In particular, EPA established in the Tailoring 
Rule a phase-in approach for PSD applicability and established the 
first two steps of the phase-in for the largest GHG-emitters. 
Additionally, EPA committed to certain follow-up actions regarding 
future steps beyond the first two, discussed in more detail later in 
this notice.
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    \7\ The Tailoring Rule also applies to the title V program, 
which requires operating permits for existing sources. However, 
today's action does not affect Mississippi's title V program.
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    For the first step of the Tailoring Rule, which will begin on 
January 2, 2011, PSD requirements will apply to major stationary source 
GHG emissions only if the sources are subject to PSD anyway due to 
their emissions of non-GHG pollutants. Therefore, in the first step, 
EPA will not require sources or modifications to evaluate whether they 
are subject to PSD requirements solely on account of their GHG 
emissions. Specifically, for PSD, Step 1 requires that as of January 2, 
2011, the applicable requirements of PSD, most notably, the BACT 
requirement, will apply to projects that increase net GHG emissions by 
at least 75,000 tpy CO2e, but only if the project also 
significantly increases emissions of at least one non-GHG pollutant.
    The second step of the Tailoring Rule, beginning on July 1, 2011, 
will phase in additional large sources of GHG emissions. New sources 
that emit, or have the potential to emit, at least 100,000 tpy 
CO2e will become subject to the PSD requirements. In 
addition, sources that emit or have the potential to emit at least 
100,000 tpy CO2e and that undertake a modification that 
increases net GHG emissions by at least 75,000 tpy CO2e will 
also be subject to PSD requirements. For both steps, EPA notes that if 
sources or modifications exceed these CO2e-adjusted GHG 
triggers, they are not covered by permitting requirements unless their 
GHG emissions also exceed the corresponding mass-based triggers in tpy.
    EPA believes that the costs to the sources and the administrative 
burdens to the permitting authorities of PSD permitting will be 
manageable at the levels in these initial two steps and that it would 
be administratively infeasible to subject additional sources to PSD 
requirements at those times. However, EPA also intends to issue a 
supplemental notice of proposed rulemaking in 2011, in which the Agency 
will propose or solicit comment on a third step of the phase-in that 
would include more sources, beginning on July 1, 2013. In the Tailoring 
Rule, EPA established an enforceable commitment that the Agency will 
complete this rulemaking by July 1, 2012, which will allow for 1 year's 
notice before Step 3 would take effect.
    In addition, EPA committed to explore streamlining techniques that 
may well make the permitting programs much more efficient to administer 
for GHG, and that therefore may allow their expansion to smaller 
sources. EPA expects that the initial streamlining techniques will take 
several years to develop and implement.
    In the Tailoring Rule, EPA also included a provision, that no 
source with emissions below 50,000 tpy CO2e, and no 
modification resulting in net GHG increases of less than 50,000 tpy 
CO2e, will be subject to PSD permitting before at least 6 
years (i.e., April 30, 2016). This is because EPA has concluded that at 
the present time, the administrative burdens that would accompany 
permitting sources below this level would be so great that even with 
the streamlining actions that EPA may be able to develop and implement 
in the next several years, and even with the increases in permitting 
resources that EPA can reasonably expect the permitting authorities to 
acquire, it would be impossible to administer the permit programs for 
these sources until at least 2016.
    As EPA explained in the Tailoring Rule, the threshold limitations 
are necessary because without them, PSD would apply to all stationary 
sources that emit or have the potential to emit more than 100 or 250 
tons of GHG per year beginning on January 2, 2011. This is the date 
when EPA's recently promulgated LDVR takes effect, imposing control 
requirements for the first time on CO2 and other GHGs. If 
this January 2, 2011, date were to pass without the Tailoring Rule 
being in

[[Page 68264]]

effect, PSD requirements would apply to GHG emissions at the 100/250 
tpy applicability levels provided under a literal reading of the CAA as 
of that date. From that point forward, a source owner proposing to 
construct any new major source that emits at or higher than the 
applicability levels (and which therefore may be referred to as a 
``major'' source) or modify any existing major source in a way that 
would increase GHG emissions would need to obtain a permit under the 
PSD program that addresses these emissions before construction or 
modification could begin.
    Under these circumstances, many small sources would be burdened by 
the costs of the individualized PSD control technology requirements and 
permit applications that the PSD provisions, absent streamlining, 
require. Additionally, state and local permitting authorities would be 
burdened by the extraordinary number of these permit applications, 
which are orders of magnitude greater than the current inventory of 
permits and would vastly exceed the current administrative resources of 
the permitting authorities. Permit gridlock would result since the 
permitting authorities would likely be able to issue only a tiny 
fraction of the permits requested.
    The Tailoring Rule's thresholds are based on CO2e for 
the aggregate sum of six GHGs that constitute the pollutant that will 
be subject to regulation, which we refer to as GHG.\8\ These gases are: 
CO2, CH4, N2O, HFCs, PFCs, and 
SF6. Thus, in EPA's Tailoring Rule, EPA provided that PSD 
applicability is based on the quantity that results when the mass 
emissions of each of these gases is multiplied by the GWP of that gas, 
and then summed for all six gases. However, EPA further provided that 
in order for a source's GHG emissions to trigger PSD requirements, the 
quantity of the GHG emissions must equal or exceed both the 
applicability thresholds established in the Tailoring Rule on a 
CO2e basis and the statutory thresholds of 100 or 250 tpy on 
a mass basis.\9\ Similarly, in order for a source to be subject to the 
PSD modification requirements, the source's net GHG emissions increase 
must exceed the applicable significance level on a CO2e 
basis and must also result in a net mass increase of the constituent 
gases combined.
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    \8\ The term ``greenhouse gases'' is commonly used to refer 
generally to gases that have heat-trapping properties. However, in 
this notice, unless noted otherwise, we use it to refer specifically 
to the pollutant regulated in the LDVR.
    \9\ The relevant thresholds are 100 tpy for title V, and 250 tpy 
for PSD, except for 28 categories listed in EPA regulations for 
which the PSD threshold is 100 tpy.
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    In the Tailoring Rule, EPA adopted regulatory language codifying 
the phase-in approach. As explained in that rulemaking, many state, 
local and tribal area programs will likely be able to immediately 
implement the approach without rule or statutory changes by, for 
example, interpreting the term ``subject to regulation'' that is part 
of the applicability provisions for PSD permitting. EPA has requested 
permitting authorities to confirm that they will follow this 
implementation approach for their programs, and if they cannot, then 
EPA has requested that they notify the Agency so that we can take 
appropriate follow-up action to narrow Federal approval of their 
programs before GHGs become subject to PSD permitting on January 2, 
2011.\10\ On July 28, 2010, Mississippi provided a letter to EPA 
confirming that the State has the authority to issue PSD permits 
governing GHG emissions as of January 2, 2011, but explaining that 
Mississippi needs to amend its SIP to enable it to implement the 
Tailoring Rule thresholds. See the docket for this proposed rulemaking 
for a copy of Mississippi's letter.
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    \10\ Narrowing EPA's approval will ensure that for Federal 
purposes, sources with GHG emissions that are less than the 
Tailoring Rule's emission thresholds will not be obligated under 
Federal law to obtain PSD permits during the gap between when GHG 
PSD requirements go into effect on January 2, 2011 and when either 
(1) EPA approves a SIP revision adopting EPA's tailoring approach, 
or (2) if a state opts to regulate smaller GHG-emitting sources, the 
state demonstrates to EPA that it has adequate resources to handle 
permitting for such sources. EPA expects to finalize the narrowing 
action prior to the January 2, 2011 deadline with respect to those 
states for which EPA will not have approved the Tailoring Rule 
thresholds in their SIPs by that time.
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3. What is the GHG SIP call?
    By Federal Register notice dated September 2, 2010, EPA proposed 
the GHG SIP Call. In that action, along with the companion GHG FIP 
rulemaking published at the same time, EPA took steps to ensure that in 
the 13 states that do not appear to have authority to issue PSD permits 
to GHG-emitting sources at present, either the state or EPA will have 
the authority to issue such permits by January 2, 2011. EPA explained 
that although for most states, either the state or EPA is already 
authorized to issue PSD permits for GHG-emitting sources as of that 
date, our preliminary information shows that these 13 states have EPA-
approved PSD programs that do not appear to include GHG-emitting 
sources and therefore do not appear to authorize these states to issue 
PSD permits to such sources. Therefore, EPA proposed to find that these 
13 states' SIPs are substantially inadequate to comply with CAA 
requirements and, accordingly, proposed to issue a SIP Call to require 
a SIP revision that applies their SIP PSD programs to GHG-emitting 
sources. In the companion GHG FIP rulemaking, EPA proposed a FIP that 
would give EPA authority to apply EPA's PSD program to GHG-emitting 
sources in any state that is unable to submit a corrective SIP revision 
by its deadline. Mississippi was not one of the states for which EPA 
proposed a SIP Call.

III. What is the relationship between today's proposed action and EPA's 
proposed GHG SIP call and GHG FIP?

    As noted above, by notice dated September 2, 2010, EPA proposed the 
GHG SIP Call. At the same time, EPA proposed a FIP to apply in any 
state that is unable to submit, by its deadline, a SIP revision to 
ensure that the state has authority to issue PSD permits to GHG-
emitting sources.\11\ As discussed in Section IV of this rulemaking, 
Mississippi interprets its current PSD regulations as providing it with 
the authority to regulate GHGs, and as such, Mississippi is not 
included on the list of areas for the proposed SIP call. Additionally, 
Mississippi would not be subject to the FIP to implement GHG for PSD 
applicability. Mississippi's September 14, 2010, proposed SIP revision 
(the subject of this rulemaking) merely modifies Mississippi's SIP to 
establish appropriate thresholds for determining which stationary 
sources and modification projects become subject to permitting 
requirements for GHG emissions under the PSD program of the CAA.
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    \11\ As explained in the proposed GHG SIP Call (75 FR at 53896), 
EPA intends to finalize its finding of substantial inadequacy and 
the SIP call for the 13 listed states by December 1, 2010. EPA 
requested that the states for which EPA is proposing a SIP call 
identify the deadline--between 3 weeks and 12 months from the date 
of signature of the final SIP Call--that they would accept for 
submitting their corrective SIP revision.
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IV. What is EPA's analysis of Mississippi's SIP revision?

    On September 14, 2010, MDEQ provided a revision to Mississippi's 
SIP to EPA for parallel processing and eventual approval. This revision 
to Mississippi's SIP is necessary because without it, PSD requirements 
would apply, as of January 2, 2011, at the 100- or 250-tpy levels 
provided under the CAA. This would greatly increase the number of 
required permits, imposing undue costs on small sources; which would 
overwhelm Mississippi's

[[Page 68265]]

permitting resources and severely impair the function of the program.
    The State of Mississippi's September 14, 2010, proposed SIP 
revision establishes thresholds for determining which stationary 
sources and modification projects become subject to permitting 
requirements for GHG emissions under Mississippi's PSD program. 
Specifically, Mississippi's September 14, 2010, proposed SIP revision 
incorporates by reference, the Federal tailoring rule provisions at 40 
CFR 52.21 (as amended June 3, 2010, and effective August 2, 2010), into 
the Mississippi SIP (APC-S-5--Regulations for the Prevention of 
Significant Deterioration \12\) to address the thresholds for GHG 
permitting applicability.
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    \12\ Mississippi's submittal also revises definitions for APC-S-
6--Air Emissions Operating Permit Regulations for the Purposes of 
Title V of the Federal Clean Air; however, these relate to title V 
and are not included in the SIP. As such, EPA is not proposing to 
take action to approve Mississippi's update to this regulation in 
this rulemaking.
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    Mississippi is currently a SIP-approved state for the PSD program, 
and has incorporated by reference EPA's 2002 NSR reform revisions for 
PSD at 40 CFR 52.21. In a letter provided to EPA on July 28, 2010, 
Mississippi notified EPA of its interpretation that the State's current 
PSD regulations provided MDEQ the authority to regulate GHG under 
Regulation APC-S-5 (which includes the preconstruction review program 
required by Part C of title I of the CAA). Mississippi's current PSD 
program incorporates by reference the Federal requirements, found at 40 
CFR 52.21 (adopted prior to the promulgation of EPA's Tailoring Rule), 
into the State's major source PSD program (which applies to major 
stationary sources having the potential to emit at least 100-tpy or 
250-tpy or more of a regulated NSR pollutant, depending on the type of 
source or modifications constructing in areas designated attainment or 
unclassifiable with respect to the NAAQS).
    This current SIP revision to APC-S-5 (the subject of this proposed 
rulemaking) incorporates by reference the provisions at 40 CFR 52.21 as 
amended and promulgated as of September 13, 2010. Specifically, 
Mississippi's September 14, 2010, 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. 
EPA has preliminarily determined that Mississippi's proposed SIP 
revision is consistent with the Tailoring Rule. Furthermore, EPA has 
preliminarily determined that this revision to Mississippi's SIP is 
consistent with section 110 of the CAA. See, e.g., Tailoring Rule, 75 
FR at 31561.

V. Proposed Action

    EPA is proposing to approve the Mississippi's September 14, 2010, 
SIP revision, relating to PSD requirements for GHG-emitting sources. 
Specifically, Mississippi's September 14, 2010, proposed SIP revision 
establishes appropriate emissions thresholds for determining PSD 
applicability with respect to new and modified GHG-emitting sources in 
accordance with EPA's Tailoring Rule. EPA has made the preliminary 
determination that this SIP revision is approvable because it is in 
accordance with the CAA and EPA regulations regarding PSD permitting 
for GHGs.

VI. 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 the state's law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by the state's 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 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 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, Intergovernmental 
relations, and Reporting and recordkeeping requirements.

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

    Dated: October 27, 2010.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2010-28005 Filed 11-4-10; 8:45 am]
BILLING CODE 6560-50-P


