[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Proposed Rules]
[Pages 45733-45735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18625]
[[Page 45733]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0798; FRL-9914-79-OAR]
Approval and Promulgation of Implementation Plans; Mississippi:
New Source Review (NSR)-Prevention of Significant Deterioration (PSD)
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of a revision 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. EPA is proposing to
approve these portions of Mississippi's SIP revision because the Agency
has preliminarily determined that they are consistent with the Clean
Air Act (CAA or Act) and EPA's NSR permitting regulations.
DATES: Comments must be received on or before September 5, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0798 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (404) 562-9019.
4. Mail: EPA-R04-OAR-2012-0798, Regulatory Development Section, Air
Planning Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief,
Regulatory Development Section, Air Planning Branch, Air, Pesticides
and Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2012-0798.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the
Mississippi SIP, contact Ms. Twunjala Bradley, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. Ms. Bradley's telephone number
is (404) 562-9352; email address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. What is EPA's analysis of Mississippi's SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA proposing?
On February 10, 2012, MDEQ submitted a SIP revision to EPA for
approval into the Mississippi SIP that includes changes to the State's
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 \1\ 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 PSD provisions promulgated in the carbon dioxide
(CO2) Biomass Deferral Rule,\2\ PM10 Surrogate
and Grandfather Policy Repeal,\3\ and Reasonable Possibility Rule.\4\
EPA is not proposing to approve 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.
[[Page 45734]]
Circuit) issued a decision on July 12, 2013, in Center for Biological
Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013) to vacate the rule.
Today, EPA is proposing to approve only the portions of Mississippi's
February 10, 2012, SIP revision addressing the Reasonable Possibility
Rule and the PM10 Surrogate and Grandfather Policy Repeal
Rule.\5\
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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'' Final Rule, 76 FR
28646, (May 18, 2011) (hereinafter 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).
\5\ Mississippi's February 10, 2012, SIP submission only
addresses the adoption of the three PSD permitting regulations
discussed above that the State requested for inclusion into the SIP.
Any previous SIP revisions submitted by MDEQ that adopted other PSD
permitting provisions captured in 40 CFR 52.21 as of November 4,
2011, were addressed by EPA in separate actions and are not relevant
to the State's February 10, 2012, submission or to today's proposed
approval into the SIP of the Reasonable Possibility Rule and the
PM10 Surrogate and Grandfather Policy Repeal Rule PSD
permitting provisions discussed in this rulemaking.
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II. What is the background for EPA's proposed action?
Today's proposed action to revise the Mississippi SIP relates to
PSD provisions promulgated in the PM10 Surrogate and
Grandfather Policy Repeal and the Reasonable Possibility Rule. More
details regarding these rules are found in the respective final
rulemakings and are summarized below.
A. Reasonable Possibility Rule
On June 24, 2005, the D.C. Circuit issued a decision on the
challenges to the 2002 NSR Reform Rules including reasonable
possibility. New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005).\6\ 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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\6\ On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 CFR parts 51 and 52 regarding the CAA's PSD and
nonattainment new source review programs. On November 7, 2003 (68 FR
63021), EPA published a notice of final action on the
reconsideration of the December 31, 2002, final rule changes. The
December 31, 2002, and the November 7, 2003, final actions are
collectively referred to as the ``2002 NSR Reform Rules.'' After the
2002 NSR Reform Rules were finalized and effective (March 3, 2003),
industry, state, and environmental petitioners challenged numerous
aspects of the 2002 NSR Reform Rules, along with portions of EPA's
1980 NSR Rules, 45 FR 52676 (August 7, 1980). In summary, the D.C.
Circuit vacated portions of the rules pertaining to clean units and
PCPs, remanded a portion of the rules regarding recordkeeping and
the term ``reasonable possibility'' found in 40 CFR 52.21(r)(6) and
40 CFR 51.165(a)(6) and 51.166(r)(6), and either upheld or did not
comment on the other provisions included as part of the 2002 NSR
Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action
to revise the 2002 NSR Reform Rules to remove from Federal law all
provisions pertaining to clean units and the PCPs exemption that
were vacated by the DC Circuit.
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In summary, the D.C. Circuit remanded a portion of the rules
regarding recordkeeping and the term ``reasonable possibility'' found
in 40 CFR 52.21(r)(6) and 40 CFR 51.165(a)(6) and 51.166(r)(6)
requiring that EPA either provide an acceptable explanation for its
``reasonable possibility'' standard or devise an appropriate
alternative. In response to the court's decision, EPA took final action
on December 21, 2007, to clarify that a ``reasonable possibility''
applies where source emissions equal or exceed 50 percent of the CAA
NSR significance levels for any pollutant. See 72 FR 72607. The
``reasonable possibility'' provision identifies for sources and
reviewing authorities the circumstances under which a major stationary
source undergoing a modification that does not trigger major NSR must
keep records. EPA's December 21, 2007, final rule on the record-keeping
and reporting provisions also explains state obligations with regard to
the reasonable possibility related rule changes.\7\ See 72 FR 72607 at
72613-14. The final rule gave states and local permitting authorities
three years from publication to submit revisions to incorporate the
reasonable possibility provisions or to submit notice to EPA that their
regulations fulfill these requirements.
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\7\ On January 14, 2009, EPA denied a petition by the State of
New Jersey (submitted February 15, 2008) for reconsideration and
stay of the December 21, 2007, final rule for ``reasonable
possibility.'' However, on March 11, 2009, New Jersey reiterated its
request for reconsideration, which EPA granted on April 24, 2009.
EPA has not taken action on the reconsideration; therefore, the
current recordkeeping rules established in the December 21, 2007,
final rule are approvable. See http://www.epa.gov/nsr/actions.html#2009 under Denial of Petitions to Reconsider Aspects of
the PM2.5 NSR Requirements and Reasonable Possibility Rule for
additional information on the New Jersey petition.
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MDEQ adopted the NSR Reform rules in the SIP on July 28, 2005,
however, MDEQ did not incorporate the ``reasonable possibility''
provision at that time 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.'' On July 10, 2006, EPA published the
final rulemaking approving Mississippi's SIP revision adopting the NSR
Reform Rule. See 71 FR 38773. In the approval, EPA acknowledged
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.''
B. PM10 Surrogate and Grandfather Policy Repeal
In the NSR PM2.5 Rule,\8\ 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 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.
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\8\ 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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III. What is EPA's analysis of Mississippi's SIP revision?
MDEQ's PSD preconstruction rules are found at Mississippi Rule APC-
S-5-Regulations for Prevention of Significant Deterioration for Air
Quality and apply to major stationary sources or modifications
constructed in areas designated attainment areas or unclassifiable/
attainment areas as required under part C of title I of the CAA with
respect to the NAAQS. MDEQ's February 10, 2012, SIP submittal updates
the IBR date in APC-S-5 to November 4, 2011, for the Federal PSD
permitting regulations at 40 CFR 52.21 to include the Federal PSD
permitting updates promulgated in the CO2 Biomass Deferral
Rule, the Reasonable Possibility Rule, and the PM10
Surrogate and Grandfather Policy Repeal. EPA is proposing to approve
the updates only as they relate to the Reasonable Possibility Rule and
the PM10 Surrogate and Grandfather Policy
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Repeal. EPA is not proposing to approve the portion of Mississippi's
February 10, 2012, SIP submission that IBR the CO2 Biomass
Deferral Rule at APC-S-5 as a result of the July 12, 2013, court
decision identified above. EPA may address this portion of
Mississippi's SIP submission in a separate rulemaking.
Regarding reasonable possibility, the 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.
Mississippi's February 10, 2012, SIP revision also adopts the
repeal of the PM2.5 Grandfathering Provision. Mississippi's
February 10, 2012, SIP submittal incorporates into the Mississippi SIP
the version of 40 CFR 52.21 as of November 4, 2011, which includes the
May 18, 2011, repeal of the grandfather provision. 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 the unnecessary language
pertaining to the grandfather provision from APC-S-5.
IV. Proposed Action
EPA is proposing to approve portions of Mississippi's February 10,
2012, SIP submission that update the IBR date in APC-S-5 to November 4,
2011, for the Federal PSD permitting regulations at 40 CFR 52.21 to
include the Reasonable Possibility Rule and the PM10
Surrogate and Grandfather Policy Repeal. EPA has made the preliminary
determination that these portions of the SIP revision are approvable
because they are consistent with section 110 of the CAA and EPA PSD
permitting regulations.
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. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves 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 Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 F43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 28, 2014.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2014-18625 Filed 8-5-14; 8:45 am]
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