[Federal Register Volume 80, Number 43 (Thursday, March 5, 2015)]
[Rules and Regulations]
[Pages 11890-11893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05072]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 [email protected].
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.
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.''
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
State effective EPA approval
State citation Title/subject date date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
APC-S-5 Regulations for Prevention of Significant Deterioration for Air Quality
----------------------------------------------------------------------------------------------------------------
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.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2015-05072 Filed 3-4-15; 8:45 am]
BILLING CODE 6560-50-P