
[Federal Register Volume 80, Number 43 (Thursday, March 5, 2015)]
[Rules and Regulations]
[Pages 11890-11893]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05072]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0798; FRL 9923-92-Region 4]


Approval and Promulgation of Implementation Plans; Mississippi: 
New Source Review--Prevention of Significance Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the Mississippi State Implementation 
Plan (SIP) submitted by the State of Mississippi, through the 
Mississippi Department of Environmental Quality (MDEQ), on February 10, 
2012. The SIP revision modifies Mississippi's New Source Review (NSR) 
Prevention of Significant Deterioration (PSD) program to incorporate by 
reference (IBR) certain Federal PSD regulations. The revision also 
removes certain language from the SIP that is no longer relevant. EPA 
is approving Mississippi's February 10, 2012, revision to Mississippi's 
SIP because the Agency has determined that the changes are consistent 
with the Clean Air Act (CAA or Act) and EPA's PSD permitting 
regulations.

DATES: This rule is effective April 6, 2015.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0798. All documents in the docket 
are listed on the 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 www.regulations.gov or in hard 
copy at the Air Regulatory Management Section (formerly the Regulatory 
Development Section), Air Planning and Implementation Branch (formerly 
the 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 a.m. to 4:30 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory and 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, Region 4, U.S. Environmental 
Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. 
The telephone number is (404) 562-9088. Ms. Bell can also be reached 
via electronic mail at bell.tiereny@epa.gov.

SUPPLEMENTARY INFORMATION:

[[Page 11891]]

I. Background

    EPA is taking final action to approve Mississippi's February 10, 
2012, SIP revision to IBR \1\ federal requirements for NSR permitting. 
Mississippi's February 10, 2012, SIP revision includes changes to the 
air quality regulations in Air Pollution Control, Section 5 (APC-S-5)--
Regulations for the Prevention of Significant Deterioration of Air 
Quality. These rule changes were provided to comply with Federal NSR 
PSD permitting requirements. The February 10, 2012, SIP submission 
updates the IBR date at APC-S-5 to November 4, 2011, for the Federal 
PSD permitting regulations at 40 CFR 52.21 and portions of 51.166 to 
include PSD provisions promulgated in the Carbon Dioxide 
(CO2) Biomass Deferral Rule,\2\ Particulate Matter 
(PM10), Surrogate and Grandfather Policy Repeal,\3\ and 
Reasonable Possibility Rule.\4\ However, EPA cannot act on the portion 
of Mississippi's SIP submission that IBR the July 20, 2011, 
CO2 Biomass Deferral Rule because the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) issued a 
decision on July 12, 2013, in Center for Biological Diversity v. EPA, 
722 F.3d 401 (D.C. Cir. 2013) vacating the rule. Accordingly, 
Mississippi has since submitted a letter to EPA dated October 22, 2014, 
requesting that the Biomass Deferral Rule provisions from the February 
10, 2012, SIP submission be withdrawn from EPA's consideration; 
therefore these provisions are no longer before EPA for consideration. 
The letter can be found in Docket ID: EPA-R04-OAR-2012-0798.
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    \1\ Throughout this rulemaking the acronym IBR means 
``incorporate by reference'' or ``incorporates by reference.''
    \2\ ``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) (hereinafter referred to as the ``CO2 
Biomass Deferral Rule'').
    \3\ Implementation of the New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5); 
Final Rule To Repeal Grandfather Provision, 76 FR 28646 (May 18, 
2011) (hereafter referred to as the ``PM10 Surrogate and 
Grandfather Policy Repeal'').
    \4\ ``Prevention of Significant Deterioration and Nonattainment 
New Source Review: Reasonable Possibility in Recordkeeping'' Final 
Rule, 72 FR 72607, (December 21, 2007) (hereinafter referred to as 
the ``Reasonable Possibility Rule'').
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    On August 6, 2014, EPA published a proposed rulemaking to approve 
the aforementioned changes to MDEQ's NSR program at APC-S-5. See 79 FR 
45733. Comments on the proposed rulemaking were due on or before 
September 5, 2014. No comments, adverse or otherwise, were received on 
EPA's August 6, 2014, proposed rulemaking. Pursuant to section 110 of 
the CAA, EPA is now taking final action to approve the changes to 
Mississippi's NSR program as provided in EPA's August 6, 2014, proposed 
rulemaking. EPA's August 6, 2014, proposed rulemaking contains more 
detailed information regarding Mississippi's SIP revision being 
approved today, and the rationale for today's final action. Detailed 
information regarding the Reasonable Possibility Rule and 
PM10 Surrogate and Grandfather Policy Repeal can be found in 
EPA's August 6, 2014, proposed rulemaking as well as in the 
aforementioned final rulemakings. See 72 FR 72607 (December 21, 2007) 
and 76 FR 28646 (May 18, 2011), respectively. These rulemakings are 
summarized below. This final action approves a revision to the 
Mississippi SIP that (1) IBR the PSD provisions promulgated in the 
PM10 Surrogate and Grandfather Policy Repeal and the 
Reasonable Possibility Rule, and (2) removes language from the SIP 
relating to the PM10 Surrogate and Grandfather Policy and 
the Reasonable Possibility Rule that is no longer relevant.

A. Reasonable Possibility Rule

    On December 14, 2007, EPA issued a final rule that provides 
additional explanation and more detailed criteria to clarify the 
``reasonable possibility'' recordkeeping and reporting standard found 
in 40 CFR 52.21(r)(6) and 40 CFR 51.165(a)(6) and 51.166(r)(6) of the 
2002 NSR reform rules.\5\ The ``reasonable possibility'' standard 
establishes for sources and reviewing authorities the criteria for 
determining when recordkeeping and reporting are required for a major 
stationary source undergoing a physical change or change in the method 
of operation that does not trigger major NSR permitting requirements. 
The standard also specifies the recordkeeping and reporting 
requirements for such sources. The December 14, 2007, final rule 
clarified and required recordkeeping and reporting when the projected 
increase in emissions to which the ``reasonable possibility'' test 
applies equals or exceeds 50 percent of the Act's NSR significance 
levels for any pollutant. See 72 FR 72607. NSR significance levels are 
pollutant-specific threshold emission rates (tons per year). If a 
project results in an emissions increase of a regulated NSR pollutant 
that equals or exceeds the significance level for that pollutant, the 
increase is a ``significant emissions increase'' and NSR permitting 
requirements would apply. EPA's December 14, 2007, rulemaking 
clarifying the reasonable possibility provision was in response to the 
June 24, 2005, remand from the D.C. Circuit Court requiring that EPA 
either provide an acceptable explanation for its ``reasonable 
possibility'' standard or devise an appropriately supported 
alternative.
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    \5\ Prevention of Significant Deterioration and Nonattainment 
New Source Review: Reasonable Possibility in Recordkeeping, 72 FR 
72607 (December 21, 2007) (hereafter referred to as the Reasonable 
Possibility Rule). For additional information on the 2002 NSR Reform 
Rules, see 67 FR 80186 (December 31, 2002) and http://www.epa.gov/nsr.
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    MDEQ adopted the NSR Reform rules in the SIP on July 28, 2005, but 
did not incorporate the ``reasonable possibility'' provision into their 
SIP at APC-S-5 due to the remand. In its 2005 PSD regulations at APC-S-
5(2.6), MDEQ excluded the following phrase from its IBR of 40 CFR 
52.21: ``In circumstances where there is a reasonable possibility, 
within the meaning of paragraph (r)(6)(vi) of 40 CFR 52.21, that a 
project that is not a part of a major modification may result in a 
significant emissions increase.'' \6\ MDEQ's February 10, 2012, SIP 
revision removes the ``reasonable possibility'' exclusion at APC-S-
5(2.6) and IBR EPA's December 21, 2007, revised definition of 
``reasonable possibility'' into its SIP.
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    \6\ On July 10, 2006, EPA published the final rulemaking 
approving Mississippi's SIP revision adopting the NSR Reform Rule.1 
See 71 FR 38773. In the approval, EPA acknowledged that 
Mississippi's rule did not contain the reasonable possibility 
language that was included in the remand and stated, ``EPA continues 
to move forward with its evaluation of the portion of its NSR reform 
rules that were remanded by the D.C. Circuit and is preparing to 
respond to the D.C. Circuit's remand. EPA's final decision with 
regard to the remand may require EPA to take further action on this 
portion of Mississippi's rules.''
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B. PM10 Surrogate and Grandfather Policy Repeal

    In the NSR PM2.5 Rule,\7\ EPA finalized regulations to 
establish the framework for implementing preconstruction permit review 
for the PM2.5 NAAQS in both attainment and nonattainment 
areas. This rule included a grandfather provision that 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

[[Page 11892]]

their application to demonstrate compliance directly with the new 
PM2.5 requirements. See 73 FR 28321. On May 12, 2011, 
Mississippi submitted a SIP revision that excluded the PM10 
surrogate grandfathering provision at 40 CFR 52.21(i)(1)(xi) from the 
state's PSD regulations. EPA approved portions of Mississippi's May 12, 
2011, SIP revision on September 26, 2012 (77 FR 59095). 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. 
Mississippi's February 10, 2012, SIP revision IBR the version of 40 CFR 
52.21 that includes the PM10 Surrogate and Grandfathering 
Rule Repeal and removes the May 12, 2011, PM10 surrogate 
exclusion language from the PSD regulations at APC-S-5.
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    \7\ This rulemaking established regulations to implement the NSR 
program for the PM2.5 NAAQS on May 16, 2008. See 73 FR 
28321. As a result of EPA's final NSR PM2.5 Rule, states 
were required to submit SIP revisions to EPA no later than May 16, 
2011, to address these requirements for both the PSD and NNSR 
programs. On May 12, 2011, Mississippi submitted a SIP revision to 
IBR the NSR PM2.5 Rule into the state's SIP at APC-S-5. 
EPA approved portions of the NSR PM2.5 rule into the 
Mississippi SIP PSD program on September 26, 2012. See 77 FR 59095.
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II. This Action

    EPA is taking final action to approve Mississippi's February 10, 
2012, SIP submission that updates the IBR date in Mississippi's SIP (at 
APC-S-5) to November 4, 2011, for 40 CFR 52.21 and portions of 51.166, 
to include PSD provisions promulgated in the PM10 Surrogate 
and Grandfather Policy Repeal and Reasonable Possibility Rule. As 
stated above and in EPA's August 6, 2014, proposed rulemaking, EPA is 
not approving the CO2 Biomass Deferral Rule into the 
Mississippi SIP because of the D.C. Circuit court's July 12, 2013, 
decision to vacate the rule. Accordingly, on October 22, 2014, MDEQ 
submitted a letter to EPA requesting that the CO2 Biomass 
Deferral Rule provisions in the February 10, 2012, SIP submission be 
withdrawn from EPA consideration; therefore these provisions are no 
longer before EPA for consideration. Regarding the 2007 Reasonable 
Possibility Rule, Mississippi's February 10, 2012, SIP revision removes 
the ``reasonable possibility'' exclusion at APC-S-5(2.6) and IBR EPA's 
December 21, 2007, revised definition of ``reasonable possibility.''
    Mississippi's February 10, 2012, SIP submittal also incorporates 
into the Mississippi SIP the version of 40 CFR 52.21 as of November 4, 
2011, which includes the May 18, 2011, PM10 Surrogate and 
Grandfather Policy Repeal. Thus, the language previously approved into 
Mississippi SIP at APC-S-5(2.7) that excludes the grandfathering 
provision is no longer necessary. Mississippi's February 10, 2012, SIP 
submittal removes this unnecessary language.

III. Final Action

    EPA is taking final action to approve Mississippi's February 10, 
2012, SIP revision that (1) updates the IBR date in APC-S-5 to November 
4, 2011, for the Federal PSD permitting regulations at 40 CFR 52.21 and 
portions of 51.166 to include the Reasonable Possibility Rule and the 
PM10 Surrogate and Grandfather Policy Repeal, and (2) 
removes language from the SIP at APC-S-5 pertaining to the 
PM10 Surrogate and Grandfather Policy and the Reasonable 
Possibility Rule that is no longer relevant. EPA has made the 
determination that these changes to Mississippi's SIP are approvable 
because they are consistent with section 110 of the CAA and EPA's PSD 
permitting 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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 Clean Air Act; 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, the SIP is not approved to apply on any Indian reservation 
land or in any other area where EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), nor will it impose substantial 
direct costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 4, 2015. 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, Reporting and recordkeeping 
requirements.

    Dated: February 13, 2015.
V. Anne Heard,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

[[Page 11893]]

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 entries under the 
heading ``APC-S-5'' to read as follows:


Sec.  52.1270  Identification of plan.

* * * * *
    (c) * * *

                                      EPA Approved Mississippi Regulations
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                                               State effective     EPA approval
    State citation         Title/subject             date              date                 Explanation
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                                                  * * * * * * *
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                 APC-S-5 Regulations for Prevention of Significant Deterioration for Air Quality
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All..................  .....................         12/14/2011  3/5/2015         The approval does not include
                                                                  [Insert          incorporation by reference of
                                                                  Federal          the CO2 Biomass Deferral
                                                                  Register         which was withdrawn by the
                                                                  citation].       State on October 22, 2014. On
                                                                                   9-26-2012, EPA approved a
                                                                                   revision to APC-S-5 which
                                                                                   incorporated by reference the
                                                                                   regulations found at 40 CFR
                                                                                   52.21 as of March 22, 2011.
                                                                                   This approval did not include
                                                                                   Mississippi's revision to IBR
                                                                                   (at Rule APC-S-5) the term
                                                                                   ``particulate matter
                                                                                   emissions'' (as promulgated
                                                                                   in the May 16, 2008 NSR PM2.5
                                                                                   Rule (at 40 CFR
                                                                                   51.166(b)(49)(vi)) and the
                                                                                   PM2.5 SILs threshold and
                                                                                   provisions (as promulgated in
                                                                                   the October 20, 2010 PM2.5
                                                                                   PSD Increment-SILs-SMC Rule
                                                                                   at 40 CFR 52.21(k)(2)). Note:
                                                                                   On October 22, 2014,
                                                                                   Mississippi withdrew the
                                                                                   PM2.5 SILs provision from
                                                                                   Mississippi's May 18, 2011
                                                                                   SIP Submission.
                                                                                  On December 29, 2010, EPA
                                                                                   approved a revision to APC-S-
                                                                                   5 which incorporated by
                                                                                   reference the regulations
                                                                                   found at 40 CFR 52.21 as of
                                                                                   September 13, 2010. See 75 FR
                                                                                   81858. That action approved
                                                                                   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).
                                                                                   Additionally, that final EPA
                                                                                   action did not incorporate by
                                                                                   reference, into the
                                                                                   Mississippi SIP, the
                                                                                   administrative regulations
                                                                                   that were amended in the
                                                                                   Fugitive Emissions Rule (73
                                                                                   FR 77882) and are stayed
                                                                                   through October 3, 2011.
 
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[FR Doc. 2015-05072 Filed 3-4-15; 8:45 am]
 BILLING CODE 6560-50-P


