[Federal Register Volume 87, Number 222 (Friday, November 18, 2022)]
[Rules and Regulations]
[Pages 69177-69183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25080]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0219; FRL-9911-02-R4]


Air Plan Approval; Mississippi; Revision of Excess Emissions 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Mississippi 
Department of Environmental Quality (MDEQ) on November 17, 2016, on

[[Page 69178]]

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. EPA is approving the SIP revision and finds that such SIP 
revision corrects the deficiencies identified in the June 12, 2015, SIP 
Call.

DATES: This rule is effective December 19, 2022.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2022-0219. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information may not be 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, Air Planning and 
Implementation Branch, Air and Radiation 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: 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 June 7, 2022, EPA proposed to approve MDEQ's November 17, 2016, 
SIP revision. See 87 FR 34609. In that notice of proposed rulemaking 
(NPRM), EPA also proposed to determine that the SIP revision corrects 
the deficiency with respect to Mississippi that the Agency identified 
in the June 12, 2015, action titled ``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'' (``2015 SSM SIP 
Action''). See 80 FR 33839 (June 12, 2015). The reasons for the 
proposed approval and determination are stated in the proposed action 
(87 FR 34609, June 7, 2022) and will not be restated here. The public 
comment period for EPA's proposed approval and determination ended on 
July 7, 2022. EPA received one set of comments in a joint letter 
submitted by the Sierra Club and the Environmental Integrity Project 
(hereinafter collectively referred to as the commenter) on this date. 
The comments are available in the docket for this action.

II. Response to Comments

    EPA will not address the comments that express support for the 
proposed action. Instead, this section of the rulemaking will focus on 
the portions of the July 7, 2022, letter which did not support the 
proposed action or which called on EPA to provide advice to the State.

a. Rule 1.10.B(1) Is Not Approvable

    Comment 1: The commenter asserts that Rule 1.10.B(1) is not fully 
approvable as included in the November 17, 2016, submittal. 
Specifically, the commenter states that as a standalone provision, 
paragraph B(1) could be read to impermissibly exempt sources from 
otherwise applicable SIP emission limits. Paragraph B(1) states, 
``Startups and shutdowns are part of normal source operation. 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.'' 
The commenter goes on to note EPA's past comments on the proposed 
changes to Rule 1.10.B in 2016 during prehearing review, which stated 
that EPA was ``concerned that this provision appears to provide that an 
`applicable rule, regulation, or permit' that is not approved into the 
SIP might contain limitations that apply during startups and shutdowns 
in lieu of an applicable SIP limit'' (emphasis in original).
    The commenter points to EPA's analysis in the June 7, 2022, NPRM 
which states that Rule 1.10.B(1) and B(2) ``taken together'' 
sufficiently address the finding of substantial inadequacy in the final 
2015 SSM SIP Action, and argues that to ensure Rule 1.10.B(1) is 
administered correctly, EPA should conditionally approve the SIP 
revision pursuant to Clean Air Act (CAA) section 110(k)(4), requiring 
Mississippi to submit, within one year of the effective date of the 
final conditional approval, a corrective SIP revision. According to the 
commenter, the corrective revision should either remove Rule 1.10.B(1) 
or replace the phrase ``defined by an applicable rule, regulation, or 
permit'' with ``defined by an applicable SIP provision or permit as 
provided in section 1.10.B(2)(d) below.''
    Response 1: EPA disagrees that Rule 1.10.B(1) is not approvable as 
transmitted in the November 17, 2016, SIP submittal. As MDEQ notes in 
its SIP revision responding to EPA's September 16, 2016, comment 
letter, the regulatory language must be read in conjunction with other 
air program regulations.\1\ Specifically, the language at Rule 
1.10.B(1) correctly acknowledges that ``source specific emission 
limitations or work practice standards for startups and shutdowns'' may 
be established in applicable rules, regulations, or permits. First, 
MDEQ has the ability to establish emission limitations via new or 
revised regulatory requirements at 11 MAC, Part 2, Chapter 1, Air 
Emission Regulations for the Prevention, Abatement, and Control of Air 
Contaminants, or Chapter 11, Regulations for Ambient Air Quality 
Nonattainment Areas, where MDEQ could consider whether any specific 
alternative emission limitations (AELs) would be justifiable for 
startups and/or shutdowns.
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    \1\ MDEQ's response to EPA's September 16, 2016, comment letter 
on the prehearing version of the regulatory changes is part of the 
November 17, 2016, SIP submittal available in the docket for this 
action.
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    Next, MDEQ has the ability to establish emission limits in permits 
pursuant to its program at 11 MAC, Part 2, Chapter 2, Permit 
Regulations for the Construction and/or Operation of Air Emissions 
Equipment, where MDEQ could consider establishing specific AELs for 
startups and/or shutdowns. Pursuant to Rule 1.10.B(2), alternatives to 
existing SIP emission limits in any such permits are not effective 
until MDEQ adopts the alternatives into Rule 1.10.B, MDEQ submits them 
to EPA for approval and inclusion in the SIP, and EPA approves them 
into the SIP.
    Other possible sources of an ``applicable rule [or] regulation'' 
are the New Source Performance Standards (NSPS) at 40 CFR part 60 and 
the National Emissions Standards for Hazardous Air Pollutants (NESHAP) 
at 40 CFR part 63,\2\ which MDEQ incorporates by reference at 11 MAC, 
Part 2, Chapter 1, Rule 1.6, New Sources, at 1.6.C and Rule 1.8, 
Provisions for Hazardous Air Pollutants,

[[Page 69179]]

at 1.8.A, respectively. Several of the NSPS and NESHAP include AELs 
that ``impose different numerical levels during different modes of 
source operation or impose emission limitations that are composed of a 
combination of a numerical limitation during some modes of operation 
and a specific technological control requirement or work practice 
requirement during other modes of operation'' such as startup and 
shutdown. See 80 FR 33839, 33889 (June 12, 2015). Rule 1.10.B(1) 
accurately acknowledges that as to applicable emission limits in 
general, the limits will apply during startup and shutdown periods 
unless some applicable rule, regulation or permit specifies different 
requirements for those periods. EPA interprets this to mean that those 
other limits cannot replace or relax the SIP emission limit without EPA 
approval via a SIP revision that meets CAA requirements.
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    \2\ The NESHAP are found at 40 CFR parts 61 and 63, with NESHAP 
promulgated after 1990 found at part 63.
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    Our interpretation stems from MDEQ's assertion in its SIP revision 
that the ability to establish AELs during startups and shutdowns does 
not mean that alternatives to any SIP emission limits can be 
established via the rules, regulations, or permit requirements without 
a SIP revision. In response to EPA's comment letter, MDEQ revised its 
Rule 1.10.B(2) to provide greater clarity that any specific AELs 
established by rules, regulations, or permits not yet incorporated into 
the SIP and applicable to startups and/or shutdowns would not replace 
any existing SIP emission limit for those periods of operation unless 
and until the AELs were approved into the SIP. Specifically, Rule 
1.10.B(2)(d) provides, ``Following permit issuance, the emission 
limitations or work practice standards are considered State-only 
requirements until they have been adopted into [Rule 1.10] and approved 
by the EPA into the SIP.'' In this way, Rule 1.10.B(2) operates in 
conjunction with B(1) to explain what must happen in the context of 
providing alternatives to existing SIP emission limits.

b. Rule 1.10.B(2) Should Not Only Consider a Source's Existing Control 
Strategy

    Comment 2: Among factors MDEQ will consider in possibly 
establishing AELs for periods of startups and/or shutdowns, Rule 
1.10.B(2)(a) provides, ``The source must demonstrate that it is 
technically infeasible, considering its specific control strategy, to 
comply with existing SIP emission limitations during startups and 
shutdowns.'' The commenter argues that the phrase ``considering its 
specific control strategy'' creates an ``illogical loophole that would 
allow sources with pollution controls that are outdated, undersized, 
not well maintained, not operated properly, or otherwise inadequate to 
claim technical infeasibility based on their controls, even though 
those sources, if properly designed, operated, and/or maintained, could 
comply with applicable SIP emission limits.''
    The commenter points to EPA's statement in the 2015 SSM SIP Action 
that ``alternative requirements applicable to the source during startup 
and shutdown should . . . take into account considerations such as . . 
. the control technology that is feasible during startup and 
shutdown.'' See 80 FR 33839, 33980 (June 12, 2015). The commenter 
states that EPA should conditionally approve the SIP revision pursuant 
to CAA section 110(k)(4), requiring Mississippi to submit, within one 
year of the effective date of the final conditional approval, a 
corrective SIP submission to remove the phrase ``considering its 
specific control strategy.''
    Response 2: EPA disagrees that Rule 1.10.B(2)(a) is not approvable 
as transmitted in the November 17, 2016, SIP submittal. Consideration 
of a specific control strategy is consistent with EPA guidance in the 
2015 SSM SIP Action. Mississippi's SIP requires that any potential AELs 
``be narrowly tailored and take into account considerations such as the 
technological limitations of the specific source category and the 
control technology that is feasible during startup and shutdown'' as 
recommended by EPA. See 80 FR 33839, 33980. EPA's restatement of the 
1999 SSM Guidance in the 2015 SSM SIP Action includes the following two 
(of seven total) criteria recommended for developing a SIP revision 
with potential AELs: ``(1) The revision is limited to specific, 
narrowly defined source categories using specific control strategies 
(e.g., cogeneration facilities burning natural gas and using selective 
catalytic reduction); (2) Use of the control strategy for this source 
category is technically infeasible during startup or shutdown 
periods.'' Id. Mississippi Rule 1.10.B(2) is consistent with these 
criteria, requiring at B(2)(c) that the AELs must be specific to the 
source and its particular control strategy, which EPA interprets as the 
control strategy that corresponds to the relevant narrowly defined 
source category (e.g., cogeneration facilities burning natural gas and 
using selective catalytic reduction), and requiring at B(2)(a) a 
demonstration that the control strategy is technically infeasible 
during startup and shutdown periods.
    Additionally, EPA does not agree that the language at Rule 
1.10.B(2)(a), or EPA's language in the 2015 SSM Action or the 1999 SSM 
Guidance, would necessarily limit such a demonstration to considering 
existing controls only. Rule 1.10.B(2)(a) makes no reference to actual 
installed equipment. This rule requires the source to demonstrate that 
its strategy for emissions control is not capable of achieving 
compliance during startup and shutdown, and such demonstration should 
be made based on an assumption of properly designed and maintained 
equipment as well as the control strategy's suitability for the 
narrowly defined source category.
    Moreover, EPA and the public will have an opportunity to evaluate 
any specific AELs, as they will be submitted as source-specific SIP 
revisions to act as alternatives to SIP emission limits. The record 
supporting any such AELs would show how the criteria at Rule 1.10.B(2) 
were satisfied.

c. Numerical Emission Limits vs. Work Practice Standards

    Comment 3: The commenter states that EPA should clarify in its 
rulemaking record that ``even for those sources (if any) that truly 
cannot meet normal limits during startup and shutdown, Rule 1.10.B(2) 
should in most cases establish alternative numerical limits, rather 
than allow for work practices.'' The commenter references the 2015 SSM 
Action, 80 FR 33839, 33980, where EPA states: ``In cases in which 
measurement of emissions during startup and/or shutdown is not 
reasonably feasible, it may be appropriate for an emission limitation 
to include as a component a control for startup and/or shutdown periods 
other than a numerically expressed emission limitation.'' The commenter 
asserts that under EPA's guidance, work practice standards are only 
appropriate during those periods where emissions cannot be measured. 
The commenter also states that EPA's approval should include the 
guidance that numerical limits are preferable to work practice 
standards because they are the ``most legally and practicably 
enforceable SIP requirements,'' and cites to the 2015 SSM SIP Action, 
80 FR 33839, 33974-75. The commenter goes on to state that for 
situations in which a work practice is appropriate, EPA should advise 
that pollution control equipment should be operated while fuel-burning 
equipment are burning primary fuels or when power plants are generating 
electricity, and that the SIP should require clean fuels to be burned 
until the point at which the pollution controls are engaged.

[[Page 69180]]

    Response 3: EPA does not believe clarification is necessary 
regarding a preference for numerical emission limits versus work 
practice standards. In this action, EPA is evaluating the November 17, 
2016, SIP revision in light of the 2015 SSM SIP Action. Rule 1.10.B(2) 
states that, where a source is unable to comply with an existing SIP 
emission limit, MDEQ will consider establishing ``source specific 
emission limitations or work practice standards for startups and 
shutdowns'' as alternatives to those SIP limits. As outlined in the 
June 7, 2022, NPRM, Rule 1.10.B(2) goes on to specify criteria that EPA 
believes to be appropriate in considering establishing either a 
numerical emission limit or a work practice standard to apply as an 
AEL. Provisions 1.10.B(2)(a)-(d) are consistent with the guidance 
criteria EPA has established for setting AELs, as discussed in the same 
section of the 2015 SSM SIP Action cited by the 
commenter.3 4
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    \3\ 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). This is 
referred to as the 1999 SSM Guidance.
    \4\ See 80 FR 33839, 33980 (June 12, 2015).
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    As EPA notes in the 2015 SSM SIP Action, SIP emission limitations 
``(i) do not need to be numerical in format; (ii) do not have to apply 
the same limitation (e.g., numerical level) at all times; and (iii) may 
be composed of a combination of numerical limitations, specific 
technological control requirements and/or work practice requirements, 
with each component of the emission limitation applicable during a 
defined mode of source operation.'' See 80 FR 33839, 33889. Therefore, 
if MDEQ establishes AELs comprised of work practice standards in some 
part, pursuant to Rule 1.10.B(2), the emission limit overall ``must be 
continuous, must meet applicable CAA stringency requirements, and must 
be legally and practically enforceable.'' Id. Moreover, EPA and the 
public will have an opportunity to evaluate any specific AELs, as they 
will be submitted as source-specific SIP revisions to act as 
alternatives to SIP emission limits. At that time, EPA can evaluate the 
AELs in consideration of the criteria established in the SIP and the 
guidance referenced above.
    Next, in the 2015 SSM SIP Action, EPA noted that ``there may be 
sources for which a numerically expressed emission limitation is the 
most legally and practically enforceable,'' (emphasis added) and that 
``there are many sources for which a numerically expressed emission 
limitation will be the most appropriate and will result in the most 
legally and practically enforceable SIP requirements. However, . . . 
for some source categories, under some circumstances, it may be 
appropriate for the SIP emission limitation to include a specific 
technological control requirement or specific work practice requirement 
that applies during specified modes of source operation such as startup 
and shutdown.'' See id. at 33974-75. Therefore, EPA disagrees that the 
approval of the November 17, 2016, SIP revision must include any 
additional guidance regarding a preference for numerical emission 
limits versus work practice standards.
    Additionally, EPA does not agree with the commenter's conclusion 
that the 2015 SSM SIP Action and EPA guidance would only find work 
practice standards appropriate when emissions measurements cannot be 
made during startup and/or shutdown. While the language referenced by 
the commenter suggests that work practice standards may be appropriate 
in cases in which measurement of emissions during startup or shutdown 
is not reasonably feasible, EPA does not assert that this is the only 
circumstance in which work practice standards may be utilized as part 
of a continuous emission limitation. Thus, EPA believes that a work 
practice standard could be a sufficient AEL in various other 
circumstances. The 2015 SSM SIP Action notes, for example, regarding 
sources of sulfur dioxide (SO2), ``if the otherwise 
applicable numerical SO2 emission limitation in the SIP is 
not achievable, and the otherwise required SO2 control 
measure is not effective during startup and shutdown and/or measurement 
of emissions during startup and shutdown is not reasonably feasible, 
then it may be appropriate for that emission limitation to impose a 
different control measure, such as use of low sulfur coal, applicable 
during defined periods of startup and shutdown in lieu of a numerically 
expressed emission limitation.'' See 80 FR 33839, 33975.
    The 2015 SSM SIP Action goes on to discuss instances of where the 
Agency has established work practice standards as components of 
emission limits that are consistent with the definition of ``emission 
limitation'' or ``emission standard'' at CAA section 302(k), such as 40 
CFR part 63, subpart UUUUU, National Emission Standards for Hazardous 
Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating 
Units, and 40 CFR part 60, subpart Da, Standards of Performance for 
Electric Utility Steam Generating Units. See id. at 33891. These 
examples are rules which require use of continuous emission monitoring 
systems, so measurement during periods of startup and/or shutdown would 
not necessarily be infeasible, and yet EPA chose to establish work 
practice standards as components of the emission limits applicable to 
these sources. For the reasons stated above, EPA believes that 
Mississippi's November 17, 2016, SIP revision adequately addresses 
situations for which AELs may need to be established and appropriately 
notes that the AELs can take the form of a numerical emission limit or 
some work practice standard.
    Finally, regarding potential work practice standards for fuel-
burning equipment, EPA does not find it appropriate to speculate on any 
specific work practice requirements in absence of specific information 
on the source or source category. However, EPA notes that the Agency 
indicated regulations and technical materials supporting the NSPS and 
NESHAP could be helpful in developing emission limits or AELs and that 
definitions of startup and shutdown and work practices for those 
periods could be appropriate for incorporation into a SIP. See 80 FR 
33839, 33980. Several of the suggestions for fuel-burning equipment 
made by the commenter are included in the NSPS and NESHAP, indicating 
that these could be appropriate components of work practice 
standards.\5\ So, although some of the suggestions made by the 
commenter could be reasonable depending on the specific circumstances, 
they are not relevant to this action; EPA will address the contents of 
any proposed work practice standards in the source-specific SIP 
revisions that Mississippi submits to EPA for approval and 
incorporation into the SIP.
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    \5\ See, e.g., 40 CFR 60.42Da(e)(1)(ii), 40 CFR 63.7500, 40 CFR 
63.9991(a)(1).
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d. Reporting of Compliance With Work Practice Standards

    Comment 4: The commenter states that Rule 1.10.B(2)(c)(iv) requires 
sources ``only to document startup and shutdown events in 
contemporaneous logs and does not require sources to report to the MDEQ 
any information to assure that sources are complying with the 
requirements of the rule.'' The commenter asserts that, as written, any 
work practice standards would not be practically enforceable by MDEQ, 
EPA, or citizens, and therefore, would not comply with CAA section 
110(a)(2)(A). The commenter goes on to recommend

[[Page 69181]]

that EPA advise Mississippi that if work practices are selected for any 
sources, that MDEQ should ``require the work-practice compliance 
information from the proposed rule to be reported by sources through, 
at the least, their quarterly Title V compliance reports.'' \6\
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    \6\ The commenter refers to quarterly title V compliance 
reports. EPA believes the commenter is referring to the requirement 
at 40 CFR 70.6(a)(3)(iii)(A) requiring the submittal of reports of 
any required monitoring at least every 6 months, i.e., semiannually.
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    Response 4: EPA disagrees that it is necessary to advise 
Mississippi regarding the reporting of work practice compliance 
information. CAA section 110(a)(2)(C) provides that the SIP shall 
include a program to provide for the enforcement of the measures 
described in section 110(a)(2)(A), including a permit program to 
regulate the construction and modification of stationary sources. 
Therefore, the permitting process can establish the means by which an 
emission limitation is enforceable, including recordkeeping and 
reporting requirements, particularly in the case of source-specific 
emission limits submitted for inclusion in the SIP. Generally, Rule 
1.10.B(2)(d) provides that any source-specific emission limitations or 
work practice standards intended as an alternative to existing SIP 
emission limits must be established in a permit issued pursuant to 11 
MAC Part 2, Chapter 2, and then submitted to EPA for incorporation into 
the SIP. MDEQ's Rule 2.2, General Standards Applicable to All Permits, 
and Rule 2.9, Recordkeeping and Reporting, provide that the permit 
board in Mississippi has the authority to establish requirements for 
determining compliance with applicable requirements, including 
recordkeeping and reporting of necessary monitoring. EPA will review 
these permit conditions as part of any source-specific SIP revision and 
evaluate the adequacy of the AELs (including the practicable 
enforceability of any applicable work practice standards) pursuant to 
the CAA and EPA guidance.
    Additionally, for any major sources, facilities will also be 
subject to semiannual reporting, which would outline any deviations 
from permit requirements, and annual certification, pursuant to EPA's 
title V regulations at 40 CFR part 70 and Mississippi's federally 
approved title V program at 11 MAC Part 2, Chapter 6, Air Emissions 
Operating Permit Regulations for Purposes of Title V of the Federal 
Clean Air Act.\7\ These reporting requirements would include the 
information needed for determining compliance with any applicable 
source-specific work practices standards, including those that may be 
approved into the SIP. For example, 11 MAC Part 2, Chapter 2, Rule 
6.3(C)(5) provides requirements for a ``compliance certification with 
terms and conditions contained in the permit, including emission 
limitations, standards, or work practices,'' consistent with 40 CFR 
70.6(c)(5).
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    \7\ See, e.g., 40 CFR 70.6(a)(3)(iii)(A) and (c)(5), 11 MAC Part 
2, Chapter 6, Rule 6.3(A)(3)(c)(1), and 11 MAC Part 2, Chapter 6, 
Rule 6.3(C)(5).
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    Furthermore, as stated in the NPRM, EPA considers the requirements 
of Rule 1.10.B(2) to be consistent with the seven criteria EPA has 
recommended for the development of AELs and that this provision is 
sufficient to guide the development of specific AELs. In the 2015 SSM 
SIP Action, EPA recommended that ``to be approvable (i.e., meet CAA 
requirements)'' an AEL should be developed with seven specific 
criteria, including that it ``requires that the owner or operator's 
actions during startup and shutdown periods are documented by properly 
signed, contemporaneous operating logs or other relevant evidence.'' 
\8\ Mississippi's Rule 1.10.B(2)(c)(iv) fulfills that recommendation by 
providing that ``the source must document all startups and shutdowns 
using properly signed contemporaneous logs or other relevant 
evidence.''
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    \8\ See also the 1999 SSM Guidance.
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e. Definitions of Startup and Shutdown

    Comment 5: The commenter states that EPA should require Mississippi 
to more narrowly define ``startup'' and ``shutdown'' in Rule 1.2, 
Definitions. The commenter asserts that these definitions are vague and 
would allow for unlimited periods of startup or shutdown. As an 
example, the commenter claims that the term ``operation,'' as used in 
the definitions of these two terms, is ambiguous. The commenter states 
that the terms must be specific and narrowly tailored, citing to a 
section of EPA's 2015 SSM SIP Action that addresses the seven criteria 
EPA developed in the 1999 SSM Guidance and clarified in the 2015 SSM 
SIP Action, for approval of alternative emissions limits. The commenter 
then claims that it is preferable that ``startup'' be defined as 
beginning when primary fuel-burning sources start burning their primary 
fuel, and ``shutdown'' be defined as beginning when fuel-burning 
sources stop burning their primary fuel. The commenter closes by 
stating that CAA section 110(a)(2) would be violated if these 
definitions are not properly bounded.
    Response 5: EPA disagrees that the Agency should require 
Mississippi to more narrowly define the terms ``startup'' and 
``shutdown'' in its general definitions rule as part of this 
rulemaking. First, Rule 1.2, Definitions, is not part of the SIP call 
in EPA's 2015 SSM Action and is not part of the SIP revision before EPA 
for consideration in this rulemaking.
    Second, Mississippi's definitions of startup and shutdown are 
consistent with the definitions used in the 2015 SSM SIP Action and are 
not inconsistent with 40 CFR part 51, which does not define these 
terms.9 10 Mississippi's definitions and those used in the 
2015 SSM SIP Action are designed to generally convey what these modes 
of operation consist of and when they begin. As noted in the 2015 SSM 
Action, it may be appropriate in individual SIP provisions to include a 
specifically tailored definition to address a particular source 
category for a particular purpose. However, EPA does not believe that 
Mississippi's definitions need to be further tailored because emission 
limits now apply during startup and shutdown periods, and sources must 
comply with those limits during startup and shutdown periods unless an 
AEL is approved. Presently, there are no specific AELs approved for 
periods of startup or shutdown in the SIP, and therefore, there are no 
current concerns about unlimited periods of startups or shutdowns.
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    \9\ Mississippi defines ``startup'' at Rule 1.2.HH as, ``[t]he 
bringing into operation from a non-operative condition. Relative to 
fuel-burning equipment, a startup shall be construed to occur only 
when a unit is taken from a non-fired to a fired state.'' The 2015 
SSM SIP Action defines ``startup'' as ``generally, the setting in 
operation of a source for any reason. In this document, the EPA uses 
this term in the generic sense. In an individual SIP provision it 
may be appropriate to include a specifically tailored definition of 
this term to address a particular source category for a particular 
purpose.''
    \10\ Mississippi defines ``shutdown'' at Rule 1.2.CC as, ``[t]he 
termination of operation of equipment. Relative to fuel-burning 
equipment, a shutdown shall be construed to occur only when a unit 
is taken from a fired to a non-fired state.'' The 2015 SSM SIP 
Action defines ``shutdown'' as ``generally, the cessation of 
operation of a source for any reason. In this document, the EPA uses 
this term in the generic sense. In individual SIP provisions it may 
be appropriate to include a specifically tailored definition of this 
term to address a particular source category for a particular 
purpose.''
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    Third, any future AELs will need to adequately define the modes of 
operation during which the AELs apply. The requirements of Rule 
1.10.B(2) are consistent with the seven criteria EPA has recommended 
for the development of AELs--including the third criteria regarding 
minimizing the frequency and duration of startup and shutdown

[[Page 69182]]

modes \11\--and this rule is sufficient to guide the development of 
specific AELs. Specifically, Rule 1.10.B(2)(c)(i) states: ``the source 
must limit the frequency and duration of startups and shutdowns to the 
greatest extent practicable.'' Thus, MDEQ will establish the necessary 
requirements specific to the source in the permit or rule, including 
the boundaries of the startup and shutdown periods during which the 
AELs will apply. Subsequently, those conditions will be reviewed by EPA 
and the public through EPA's proposed action to approve or disapprove 
the source-specific AELs replacing any applicable SIP emission limits 
for startups and/or shutdowns. EPA will review the contents of any 
source-specific SIP revision and evaluate the adequacy of the AELs 
(including the startup and shutdown parameters) pursuant to the CAA and 
EPA guidance.
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    \11\ The third criteria states, ``[t]he alternative emission 
limitation requires that the frequency and duration of operation in 
startup or shutdown mode are minimized to the greatest extent 
practicable.'' See 80 FR 33839, 33980.
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    Therefore, EPA disagrees that Mississippi must revise its current 
SIP-approved definitions of ``startup'' and ``shutdown'' included in 
Rule 1.2 and that these definitions are inconsistent with the CAA.

f. Clarification of State-Only Versus SIP-Approved Requirements

    Comment 6: Regarding MDEQ's revised rules at Rule 1.10.B generally, 
the commenter states that ``EPA should advise Mississippi that it 
should help provide clarity for the public and regulated entities by 
including notes or parenthetical information in its published 
regulations about which requirements are state-only and which are SIP-
approved.''
    Response 6: EPA notes that this action clearly delineates which 
portions of Rule 1.10 are not approved into the SIP, including notation 
at 40 CFR 52.1270(c), and will ultimately also be reflected in the 
compilation of approved Mississippi rules available at EPA's 
website.\12\ Regarding any further notation that MDEQ may elect to 
include in the portions of the rules which are state-only, EPA has no 
authority to prescribe such alterations of the text. Therefore, this 
comment is outside the scope of this action.
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    \12\ This website is located at https://www.epa.gov/sips-ms/epa-approved-statutes-and-regulations-mississippi-sip. It is a sub-site 
of the website titled ``Approved Air Quality Implementation Plans in 
Mississippi,'' located at https://www.epa.gov/sips-ms, which is a 
sub-site of the website titled ``Approved Air Quality Implementation 
Plans in Region 4,'' located at https://www.epa.gov/air-quality-implementation-plans/approved-air-quality-implementation-plans-region-4.
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III. Final Action

    EPA is approving Mississippi's November 17, 2016, SIP submission 
revising Rule 1.10.B, Startups and Shutdowns, and requesting removal of 
Rule 1.10.A, Upsets, Rule 1.10.B(3), and Rule 1.10.C, Maintenance, from 
the Mississippi SIP-approved version of Rule 1.10, Provisions for 
Upsets, Startups, and Shutdowns. EPA has also determined that this SIP 
revision corrects the deficiency identified in the 2015 SSM SIP Action. 
Mississippi is retaining Rules 1.10.A and Rule 1.10.B(3) for state law 
purposes only, with changes to 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.'' \13\ See 
87 FR 34609.
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    \13\ Additionally, the existing Rule 1.10.B(3) is being removed 
from the SIP as requested, and the revised Rule 1.10.B(3) is not 
being requested for SIP approval, as the revised provision simply 
provides that ``upset'' provisions at Rule 1.10.A apply if an upset 
occurs during periods of startup and shutdown.
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IV. Incorporation by Reference

    In this document, EPA is finalizing 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 
finalizing the incorporation by reference of 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 
to 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). Therefore, these materials have been approved by EPA for 
inclusion in the SIP, have been incorporated by reference by EPA into 
that plan, are fully federally enforceable under sections 110 and 113 
of the CAA as of the effective date of the final rulemaking of EPA's 
approval, and will be incorporated by reference in the next update to 
the SIP compilation.\14\
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    \14\ See 62 FR 27968 (May 22, 1997).
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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 
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 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,

[[Page 69183]]

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 January 17, 2023. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 10, 2022.
Daniel Blackman,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

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. In Sec.  52.1270(c), amend the table by revising the entry for 
``Rule 1.10,'' under the center heading ``11 MAC Part 2--Chapter 1 Air 
Emission Regulations for the Prevention, Abatement, and Control of Air 
Contaminants,'' to read as follows:


Sec.  52.1270   Identification of plan.

* * * * *
    (c) * * *

                                      EPA-Approved Mississippi Regulations
----------------------------------------------------------------------------------------------------------------
                                                         State
       State citation            Title/subject      effective date    EPA approval date         Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
11 MAC Part 2--Chapter 1 Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Rule 1.10..................  Provisions for             12/10/2016  11/18/2022, [Insert    Except for Rule
                              Upsets, Startups,                      citation of            1.10.A and
                              and Shutdowns.                         publication].          1.10.B(3).
 
                                                  * * * * * * *
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* * * * *
[FR Doc. 2022-25080 Filed 11-17-22; 8:45 am]
BILLING CODE 6560-50-P


