[Federal Register Volume 71, Number 131 (Monday, July 10, 2006)]
[Rules and Regulations]
[Pages 38773-38776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10745]



[[Page 38773]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-MS-0001-200612; FRL-8191-4]


Approval and Promulgation of Implementation Plans; Mississippi 
Prevention of Significant Deterioration and New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Mississippi State Implementation Plan (SIP) submitted on August 10, 
2005, which include changes made to Mississippi regulations entitled, 
``Permit Regulations for the Construction and/or Operation of Air 
Emissions Equipment'' and ``Regulations for the Prevention of 
Significant Deterioration of Air Quality.'' The revisions include 
changes to the State's permitting rules in order to address amendments 
to the federal New Source Review (NSR) regulations, which were 
promulgated by EPA on December 31, 2002 and reconsidered with minor 
changes on November 7, 2003 (collectively, these two final actions are 
called the ``2002 NSR reform rules''). The August 2005 submittal being 
approved today also includes changes made to the State's NSR program 
for minor stationary sources. Specifically, a new rule in Mississippi 
now allows construction to commence on certain minor sources prior to 
the applicant receiving a final permit to construct.

EFFECTIVE DATE: This rule will be effective August 9, 2006.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2005-MS-0001. 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 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 State Implementation Plan, contact Mr. Sean Lakeman, 
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. Telephone 
number: (404) 562-9043; e-mail address: [email protected]. For 
information regarding New Source Review, contact Ms. Kelly Fortin, Air 
Permits Section, at the same address above. Telephone number: (404) 
562-9117; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for This Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to approve revisions to the Mississippi 
SIP regarding Mississippi's NSR programs. On August 10, 2005, the State 
of Mississippi, through the Mississippi Department of Environmental 
Quality (MDEQ), submitted revisions to the Mississippi SIP. The SIP 
submittal consists of changes to the Mississippi Administrative Code 
(MAC) provisions for the ``Regulations for the Prevention, Abatement, 
and Control of Air Contaminants.'' Specifically, the SIP revisions 
include changes to MDEQ regulations entitled, ``Permit Regulations for 
the Construction and/or Operation of Air Emissions Equipment,'' Air 
Pollution Control Section 2 (APC-S-2), found at MAC 08-034-002, and 
``Regulations for the Prevention of Significant Deterioration of Air 
Quality,'' Air Pollution Control Section 5 (APC-S-5), found at MAC 08-
034-005. MDEQ submitted its revisions to APC-S-2 and APC-S-5 in 
response to EPA's December 31, 2002, changes to the federal NSR 
regulations. The State's major NSR rule revisions are an incorporation 
by reference of the federal rules, 40 CFR 52.21, as amended and 
promulgated by July 1, 2004, with appropriate changes made. The SIP 
revisions also include changes to Mississippi's NSR program for minor 
sources. The revised minor source program now allows construction to 
commence on certain minor sources prior to the applicant receiving a 
final permit to construct. EPA is now taking final action to approve 
Mississippi's August 2005 SIP revisions including changes to APC-S-2 
and APC-S-5.
    On March 23, 2006 (71 FR 14658), EPA published a notice of proposed 
rulemaking (NPR) in the Federal Register, proposing to approve the 
August 2005 SIP revisions. The March 23, 2006, NPR provides more 
detailed information about the proposed Mississippi SIP revisions being 
approved today. The public comment period for the proposed action ended 
on April 24, 2006. No comments, adverse or otherwise, were received on 
EPA's proposed action.

II. What Is the Background for This Action?

    On December 31, 2002 (67 FR 80186), EPA published final changes to 
40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the 
Clean Air Act's (CAA's) Prevention of Significant Deterioration (PSD) 
and Nonattainment New Source Review (NNSR) programs. On November 7, 
2003 (68 FR 63021), EPA published a notice of final action on its 
reconsideration of the 2002 rules. The purpose of today's action is to 
approve the August 2005 SIP submittal from the State of Mississippi, 
which includes EPA's 2002 NSR reform rules, and a change to 
Mississippi's minor source NSR program.
    After the 2002 NSR reform rules were finalized and effective (March 
3, 2003), various 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). On June 24, 2005, the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit Court) 
issued a decision on the challenges to the 2002 NSR reform rules. New 
York v. United States, 413 F.3d 3 (D.C. Cir. 2005). In summary, the 
D.C. Circuit Court vacated portions of the rules pertaining to clean 
units and pollution control projects, remanded a portion of the rules 
regarding recordkeeping and relating to language in 40 CFR 52.21(r)(6) 
and 40 CFR 51.166(r)(6), ``Source obligation,'' and either upheld or 
did not comment on the other provisions included as part of the 2002 
NSR reform rules.
    Today's action is consistent with the decision of the D.C. Circuit 
Court because EPA is not proposing to approve any portions of the 2002 
NSR reform rules that were vacated as part of the June 2005 decision. 
In addition,

[[Page 38774]]

Mississippi's rules regarding recordkeeping do not contain the language 
that was central to the Court's remand. In establishing its 
recordkeeping requirements, Mississippi incorporated the federal rule 
(40 CFR 52.21(r)(6)) by reference, but excluded the phrase, ``in 
circumstances where there is a reasonable possibility that a project 
that is not part of a major modification may result in a significant 
emission increase.'' APC-S-5, found at MAC 08-034-005(2.9). As a 
result, the Mississippi rule requires all sources that use the actual-
to-projected-actual methodology to meet the recordkeeping requirements. 
EPA continues to move forward with its evaluation of the portion of its 
NSR reform rules that were remanded by the D.C. Circuit Court and is 
preparing to respond to the D.C. Circuit Court'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. At this time, however, 
Mississippi's recordkeeping provisions are at least as stringent as the 
federal requirements, and are therefore, approvable.
    The 2002 NSR reform rules require that state agencies adopt and 
submit revisions to their part 51 permitting programs implementing the 
minimum program elements of the 2002 NSR reform rules no later than 
January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i), 
state agencies are now required to adopt and submit SIP revisions 
within three years after new amendments are published in the Federal 
Register.) State agencies may meet the requirements of 40 CFR part 51, 
and the 2002 NSR reform rules, with different but equivalent 
regulations. However, if a state decides not to implement any of the 
new applicability provisions, that state is required to demonstrate 
that its existing program is at least as stringent as the federal 
program.
    On August 10, 2005, the State of Mississippi submitted SIP 
revisions for the purpose of revising the State's NSR permitting 
provisions for both major and minor stationary sources. The affected 
regulations are, ``Permit Regulations for the Construction and 
Operation of Air Emissions Equipment,'' APC-S-2, and ``Regulations for 
the Prevention of Significant Deterioration of Air Quality,'' APC-S-5. 
The revisions were made to update the Mississippi NSR programs to make 
them consistent with changes to the federal NSR regulations published 
December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021). As 
noted earlier, Mississippi incorporated the federal rules (40 CFR 
52.21, as amended and promulgated by July 1, 2004) by reference, with 
minor edits to reflect, for example, that MDEQ is the permitting 
authority, and not EPA. As a result of Mississippi's incorporation by 
reference of the federal rules, the resulting State rules are at least 
as stringent as the federal rules. This is the case even with regard to 
the provisions where Mississippi made changes, such as, APC-S-5 (MAC 
08-034-005(2.9)), which corresponds to 40 CFR 51.21(r)(6), ``Source 
obligation,'' and is discussed above.
    Mississippi's minor source permit regulations, which contain a new 
provision, are likewise consistent with federal rules regarding minor 
source programs. Mississippi's new provision, APC-S-2, Section XV.B., 
entitled, ``Optional Pre-Permit Construction,'' allows construction to 
commence on certain non-major sources and non-major modifications prior 
to receiving a final permit to construct, provided certain conditions 
are met. The revisions to this minor source rule are consistent with 
the requirements of section 110(a)(2)(C) of the CAA and federal 
regulations found at 40 CFR 51.160 through 51.164, including 40 CFR 
51.160(b), which requires states to have legally enforceable procedures 
to prevent construction or modification of a source if it would violate 
any SIP control strategies or interfere with attainment or maintenance 
of the National Ambient Air Quality Standards.
    The March 23, 2006, NPR and the Docket for this final action 
contain more detailed information regarding the Mississippi SIP 
revisions being approved today, and the rationale for EPA's final 
action. Additional background information on EPA's 2002 NSR reform 
rules can be found at 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr. The public comment period for the final action being 
taken today ended on April 24, 2006. No comments, adverse or otherwise, 
were received on EPA's proposed action to approve Mississippi's August 
2005 submittal.

III. Final Action

    EPA is taking final action to approve revisions to the Mississippi 
SIP submitted by MDEQ on August 10, 2005. The submittal consists of 
revisions to the State ``Permit Regulations for the Construction and/or 
Operation of Air Emissions Equipment,'' APC-S-2, and ``Regulations for 
the Prevention of Significant Deterioration of Air Quality,'' APC-S-5.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final action is not a ``significant regulatory action'' and therefore 
is not subject to review by the Office of Management and Budget. For 
this reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This final 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this rule approves pre-existing requirements under state law 
and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    This final rule also does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This action also does not have 
Federalism implications because it does not have substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This final 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Therefore, it does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This final 
rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of

[[Page 38775]]

the Clean Air Act. In this context, in the absence of a prior existing 
requirement for the State to use voluntary consensus standards (VCS), 
EPA has no authority to disapprove a SIP submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This final 
rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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 rule 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 8, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: June 29, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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 Chapter title for 
``APC-S-2'' and ``APC-S-5'' and the entries under Chapter ``APC-S-2'' 
and ``APC-S-5'' 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                  APC-S-2 Regulations for the Construction and/or Operation of Air Emissions Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 1........................  General Requirements.......        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section II.......................  General Standards                  08/27/05  07/10/2006 [Insert citation of       ...................................
                                    Applicable to All Permits.                   publication]
Section III......................  Application for Permit to          08/27/05  07/10/2006 [Insert citation of       ...................................
                                    Construct and State Permit                   publication]
                                    to Operate New Stationary
                                    Source.
Section IV.......................  Public Participation and           08/27/05  07/10/2006 [Insert citation of       ...................................
                                    Public Availability of                       publication]
                                    Information.
Section V........................  Application Review.........        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section VI.......................  Compliance Testing.........        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section VII......................  Emissions Evaluation Report        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section VIII.....................  Procedures for Renewal of          08/27/05  07/10/2006 [Insert citation of       ...................................
                                    State Permit to Operate.                     publication]
Section IX.......................  Reporting & Recordkeeping..        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section X........................  Emission Reduction Schedule        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section XI.......................  General Permits............        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section XII......................  Multi-Media Permits........        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section XIII.....................  Exclusions.................        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section XIV......................  CAFOs......................        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section XV.......................  Options....................        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]
Section XVI......................  Permit Transfer............        08/27/05  07/10/2006 [Insert citation of       ...................................
                                                                                 publication]

[[Page 38776]]

 
Section XVII.....................  Severability...............        08/27/05  07/10/2006 [Insert citation of
                                                                                 publication]
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   APC-S-5 Regulations for the Prevention of Significant Deterioration of Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------
APC-S-5..........................  Regulations for the                08/27/05  07/10/2006 [Insert citation of       ...................................
                                    Prevention of Significant                    publication]
                                    Deterioration of Air
                                    Quality.
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
 [FR Doc. E6-10745 Filed 7-7-06; 8:45 am]
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