[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Proposed Rules]
[Pages 34609-34612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12068]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0219; FRL-9911-01-R4]


Air Plan Approval; Mississippi; Revision of Excess Emissions 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
Mississippi Department of Environmental Quality (MDEQ) on November 17, 
2016, on behalf of the State of Mississippi. The revision was submitted 
in response to EPA's SIP call published on June 12, 2015, concerning 
excess emissions during startup, shutdown, and malfunction (SSM) 
events. The submittal requests the revision of provisions identified in 
the 2015 SIP call for the Mississippi SIP. EPA is proposing approval of 
the SIP revision and proposing to determine that such SIP revision 
corrects the deficiencies identified in the June 12, 2015, SIP call.

DATES: Comments must be received on or before July 7, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0219 at www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. EPA may publish any comment received to 
its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written

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comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Akers can be 
reached via electronic mail at [email protected] or via telephone at 
(404) 562-9089.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 22, 2013, EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the Clean Air Act (CAA or Act) with regard to excess emission 
events.\1\ For each SIP provision that EPA determined to be 
inconsistent with the CAA, EPA proposed to find that the existing SIP 
provision--an exemption or director's discretion provision--was 
substantially inadequate to meet CAA requirements and thus proposed to 
issue a SIP call under CAA section 110(k)(5). On September 17, 2014, 
EPA issued a document supplementing and revising what the Agency had 
previously proposed on February 22, 2013, in light of a United States 
Court of Appeals for the District of Columbia Circuit decision that 
determined the CAA precludes authority of EPA to create affirmative 
defense provisions applicable to private civil suits. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP provisions and proposed SIP calls for 
those provisions where appropriate. See 79 FR 55920 (September 17, 
2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' 80 FR 33839 (June 12, 2015), hereinafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states, including Mississippi, were substantially inadequate to 
meet CAA requirements and issued a SIP call to those states to submit 
SIP revisions to address the inadequacies. EPA established an 18-month 
deadline by which the affected states had to submit such SIP revisions. 
States were required to submit corrective revisions to their SIPs in 
response to the SIP calls by November 22, 2016.
    EPA issued a memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Mississippi in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
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    \2\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\4\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
regarding EPA's plans to review and potentially modify or withdraw 
particular SIP calls. That statement no longer reflects EPA's intent. 
EPA intends to implement the principles laid out in the 2015 SSM SIP 
Action as the Agency takes action on SIP submissions, including the 
November 17, 2016, SIP submittal provided by MDEQ in response to the 
2015 SIP call.
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    \3\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ See 80 FR 33839, 33985.
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    With regard to the Mississippi SIP, in the 2015 SSM SIP Action, EPA 
determined that 11-1-2 Miss. Code R. 10, Provisions for Upsets, 
Startups, and Shutdowns, at sections 10.1, 10.2, and 10.3, were 
substantially inadequate to meet CAA requirements. See 80 FR 33839, 
33963 (June 12, 2015). These provisions have since been recodified as 
Title 11 of the Mississippi Administrative Code, Part 2, Chapter 1, 
Rule (11 Miss. Admin. Code, Pt. 2, Ch.1, R.) 1.10, Provisions for 
Upsets, Startups, and Shutdowns, at sections 1.10.A, 1.10.B, and 
1.10.C.\5\
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    \5\ EPA approved the non-substantive recodification of MDEQ's 
rules in a letter notice on February 21, 2020. See 85 FR 10070.
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    In the existing SIP, Rule 1.10.A, Upsets, generally provides that 
the occurrence of an ``upset,'' which is consistent with EPA's 
description of ``malfunction'' in the 2015 SSM SIP Action, 
``constitutes an affirmative defense to an enforcement action brought 
for noncompliance with emission standards or other requirements of 
Applicable Rules and Regulations or any applicable permit if the source 
demonstrates through properly signed contemporaneous operating logs, or 
other relevant evidence that include'' specific information listed in 
the Rule. Next, in the existing SIP, Rule 1.10.B, Startups and 
Shutdowns, generally provides that ``[e]missions limitations applicable 
to normal operation apply during startups and shutdowns'' except in 
circumstances outlined in the Rule,

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including ``infrequent'' periods of startups and shutdowns for which 
the ``duration of excess emissions is brief.'' Finally, in the existing 
SIP, Rule 1.10.C generally provides that while maintenance should be 
performed during planned shutdown or repair, ``[u]navoidable 
maintenance that results in brief periods of excess emissions and that 
is necessary to prevent or minimize emergency conditions or equipment 
malfunctions constitutes an affirmative defense to an enforcement 
action brought for noncompliance with emission standards, or other 
regulatory requirements'' if the source can demonstrate that certain 
criteria in the Rule are met. The rationale underlying EPA's 
determination that the provisions were substantially inadequate to meet 
CAA requirements, and its decision to therefore issue a SIP call to 
Mississippi to remedy the deficiencies, is detailed in the 2015 SSM SIP 
Action and the accompanying proposals.
    Mississippi submitted a SIP revision on November 17, 2016, in 
response to the SIP call issued in the 2015 SSM SIP Action. In its 
submission, Mississippi is requesting that EPA revise the Mississippi 
SIP by: (1) Removing Rule 1.10.A from the Mississippi SIP; (2) revising 
Rule 1.10.B by deleting exemptions for excess emissions during periods 
of startup or shutdown, instead providing that emission limitations 
apply at all times, including startups and shutdowns, unless 
alternative emission limitations (AELs) are developed for such periods 
in accordance with requirements in the rule, including that AELs must 
be incorporated into a permit and are effective for State purposes only 
until incorporated into Rule 1.10.B and approved by EPA into the SIP; 
and (3) removing Rule 1.10.C from the Mississippi SIP.

II. Analysis of the November 17, 2016, SIP Submission

    Regarding Rule 1.10.A, Mississippi is requesting that this 
provision be removed in its entirety from the SIP. Mississippi is 
retaining Rule 1.10.A for state law purposes only, with revisions to, 
among other things, clarify that the upset provisions of Rule 1.10.A 
apply to enforcement actions by the State (specifically, the 
Mississippi Commission on Environmental Quality) only and ``are not 
intended to prohibit EPA or third-party enforcement actions.'' 
Mississippi provided the text of Rule 1.10.A in the November 17, 2016 
SIP submission solely for informational purposes to show a complete 
record of the changes adopted; the State does not request approval of 
the revised provision into the SIP. Based on Mississippi's request to 
remove Rule 1.10.A from the Mississippi SIP, EPA proposes to approve 
that removal because it is consistent with CAA requirements and 
adequately addresses the specific deficiencies that EPA identified in 
the 2015 SSM SIP Action with respect to this provision.
    Regarding the changes to Rule 1.10.B, the revised rule included for 
incorporation into Mississippi's SIP provides at B(1) that emission 
limitations apply during startups and shutdowns ``unless source 
specific emission limitations or work practice standards for startups 
and shutdowns are defined by an applicable rule, regulation, or 
permit.'' Rule 1.10.B(2) goes on to provide that where a source is 
unable to comply with existing SIP emission limitations during startups 
and shutdowns, MDEQ may establish source-specific emission limitations 
or work practice standards, i.e., AELs, which would be effective for 
State purposes only until submitted to and approved by EPA as SIP 
revisions. Paragraphs (a), (b), and (c) of Rule 1.10.B(2) set forth 
requirements to which any such AELs are subject. These requirements 
(e.g., minimization of the frequency and duration of operation in 
startup and shutdown mode) are consistent with the criteria EPA 
recommended in the 2015 SSM SIP Action for such AELs.\6\ Last, Rule 
1.10.B(3), as revised, simply notes that if an ``upset'' occurs during 
a startup or shutdown period, the upset provisions of Rule 1.10.A 
apply. As noted previously, MDEQ is requesting that upset provisions be 
removed from the SIP, is retaining them for state law purposes only, 
and is not submitting the revised upset provisions for approval in the 
SIP. Thus, the existing Rule 1.10.B(3) \7\ is requested to be removed 
from the SIP, and the revised Rule 1.10.B(3) is not being requested for 
SIP approval.\8\
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    \6\ See 80 FR 33839, 33980 (recommending seven specific criteria 
as appropriate considerations for developing emission limitations in 
SIP provisions that apply during startup and shutdown).
    \7\ The existing SIP-called version of Rule 1.10.B(3) provides 
that if Rule 1.10.B conflicts with other requirements for startup 
and shutdown, then the more stringent requirement applies.
    \8\ On April 19, 2022, EPA received email confirmation from MDEQ 
that Rule 1.10.B(3), as revised, is not submitted for approval into 
the SIP. See the document titled ``MS-52 SSM SIP Call Response Email 
Clarification_4-19-2022.pdf'' in the docket for this proposed 
action.
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    Taken together, the changes to Rule 1.10.B(1) and (2) provide that 
emission limitations in the Mississippi SIP apply at all times, 
including periods of startup and shutdown, and that AELs can be 
developed in specific circumstances for inclusion in the SIP as source-
specific AELs, which the State refers to as ``source specific emission 
limitations or work practice standards.'' Moreover, Rule 1.10.B(2) 
provides that these AELs must be developed using considerations 
consistent with EPA guidance discussed in the 2015 SSM SIP Action.\9\ 
SIP emission limitations remain federally enforceable during periods of 
startup and shutdown unless and until source specific alternative 
limitations are established by an applicable rule, regulation, or 
permit and are approved into the SIP. Therefore, based on Mississippi's 
changes to Rule 1.10.B and the State's request to include the revised 
language in the Mississippi SIP, EPA proposes to find that 
Mississippi's November 17, 2016, SIP revision is consistent with CAA 
requirements and adequately addresses the specific deficiencies that 
EPA identified in the 2015 SSM SIP Action with respect to this 
provision in the Mississippi SIP.
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    \9\ See Memorandum to EPA Regional Administrators, Regions I-X 
from Steven A. Herman and Robert Perciasepe, USEPA, ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999).
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    Finally, regarding the changes to Rule 1.10.C, Mississippi 
requested that EPA remove this provision from the Mississippi SIP and 
removed it from the Mississippi Administrative Code. Based on 
Mississippi's request to remove Rule 1.10.C from the Mississippi SIP, 
EPA proposes to find that Mississippi's November 17, 2016, SIP revision 
is consistent with CAA requirements and adequately addresses the 
specific deficiencies that EPA identified in the 2015 SSM SIP Action 
with respect to this provision in the Mississippi SIP.

III. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, as discussed in Sections I and II of 
this preamble, EPA is proposing to incorporate by reference 11 
Mississippi Administrative Code, Part 2, Chapter 1, Rule 1.10, 
Provisions for Upsets, Startups, and Shutdowns, state effective 
December 10, 2016, except for Rule 1.10.A and 1.10.B(3), which MDEQ is 
not requesting EPA incorporate into the SIP. EPA has made, and will 
continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region 4 office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

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IV. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is 
proposing to approve Mississippi's November 17, 2016, SIP submission 
requesting changes to 11 Mississippi Administrative Code, Part 2, 
Chapter 1, Rule 1.10, Provisions for Upsets, Startups, and Shutdowns, 
into the Mississippi SIP. Specifically, EPA is proposing to remove Rule 
1.10.A and Rule 1.10.C from the Mississippi SIP, and to approve the 
revised version of Rule 1.10.B into the Mississippi SIP, except for 
Rule 1.10.B(3), which EPA is proposing to remove from the SIP. EPA is 
proposing approval of the SIP revision because the Agency has 
determined that it is consistent with the requirements for SIP 
provisions under the CAA. EPA is further proposing to determine that 
such SIP revision adequately addresses the specific deficiencies that 
EPA identified in the 2015 SSM SIP Action with respect to the 
Mississippi SIP. EPA is not reopening the 2015 SSM SIP Action and is 
taking comment only on whether this SIP revision is consistent with CAA 
requirements and whether it addresses the substantial inadequacy in the 
specific Mississippi SIP provisions (originally 11-1-2 Miss. Code R. 
sections 10.1, 10.2, and 10.3, since recodified as 11 Miss. Admin. 
Code, Pt. 2, Ch. 1, R. 1.10, sections 1.10.A, 1.10.B, and 1.10.C) 
identified in the 2015 SSM SIP Action.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 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. This action merely 
proposes to approve state law as meeting Federal requirements and does 
not impose additional requirements beyond those imposed by state law. 
For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive 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 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).
    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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: May 31, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-12068 Filed 6-6-22; 8:45 am]
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