[Federal Register Volume 77, Number 187 (Wednesday, September 26, 2012)]
[Rules and Regulations]
[Pages 59095-59100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23570]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0081; FRL-9728-2]


Approval and Promulgation of Implementation Plans; Mississippi: 
New Source Review-Prevention of Significant Deterioration; Fine 
Particulate Matter (PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve changes to the 
Mississippi State Implementation Plan (SIP), submitted by the 
Mississippi Department of Environmental Quality (MDEQ) Division of Air 
Pollution Control to EPA on May 12, 2011. The May 12, 2011, SIP 
revision modifies Mississippi's New Source Review (NSR) Prevention of 
Significant Deterioration (PSD) permitting regulations to incorporate 
by reference, into the Mississippi SIP, federal NSR PSD requirements 
for the fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS) as promulgated in EPA's 2008 NSR 
PM2.5 Implementation Rule and the 2010 PM2.5 PSD 
Increment, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC) Rule. EPA is approving portions of Mississippi's 
May 12, 2011, SIP revision because they are consistent with the Clean 
Air Act (CAA or Act) and EPA regulations regarding NSR permitting.

DATES: Effective Date: This rule will be effective October 26, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0081. 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 a.m. to 4:30 p.m., 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]. For 
information regarding NSR, contact Ms.

[[Page 59096]]

Yolanda Adams, Air Permits Section, at the same address above. Ms. 
Adams' telephone number is (404) 562-9214; email address: 
[email protected]. For information regarding the PM2.5 
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the 
same address above. Mr. Huey's telephone number is (404) 562-9104; 
email address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    EPA is taking final action on portions of Mississippi's May 12, 
2011, SIP revision to incorporate by reference (IBR) \1\ federal 
requirements for NSR permitting. Mississippi's May 12, 2011, SIP 
revision includes changes to its air quality regulations in Air 
Pollution Control, Section 5 (APC-S-5)--Regulations for the Prevention 
of Significant Deterioration of Air Quality. The May 12, 2011, changes 
IBR federal PSD permitting regulations promulgated in the final 
rulemakings entitled ``Implementation of the New Source Review (NSR) 
Program for Particulate Matter Less than 2.5 Micrometers 
(PM2.5),'' 73 FR 28321 (May 16, 2008), hereafter referred to 
as the ``NSR PM2.5 Rule,'' and ``Prevention of Significant 
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels SILs and 
Significant Monitoring Concentration (SMC),'' 75 FR 64864 (October 20, 
2010) hereafter referred to as the ``PM2.5 PSD Increment-
SILs-SMC Rule''). Additionally, Mississippi's SIP revision requests 
that EPA remove from the SIP the exclusion language at APC-S-5 (2.7) 
regarding the NSR PM2.5 Rule provisions. EPA is not 
approving in this action: (1) incorporation of the SIL thresholds and 
provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC 
Rule, 75 FR 64864 (October 20, 2010); and (2) incorporation of the 
provision regarding the applicability of the term ``particulate matter 
emissions'' when accounting for condensable particles in applicability 
determinations and in establishing emissions limitations in PSD 
permits.\2\
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    \1\ Throughout this document IBR means incorporate or 
incorporates by reference.
    \2\ Today's final action approves the incorporation by reference 
of 40 CFR 52.21 into the Mississippi SIP as of March 22, 2011 apart 
from the exclusions stated in this final rulemaking and at 40 CFR 
52.1270(c). Any previous EPA exclusions to APS-S-5 at 40 CFR 
52.1270(c) remain in effect.
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    On July 23, 2012, EPA published a proposed rulemaking to approve 
the aforementioned changes to Mississippi's NSR PSD program at APC-S-5. 
See 77 FR 43032. Comments on the proposed rulemaking were due on or 
before August 22, 2012. No comments, adverse or otherwise, were 
received on EPA's July 23, 2012, proposed rulemaking. Pursuant to 
section 110 of the CAA, EPA is now taking final action to approve the 
changes to Mississippi's NSR PSD program as provided in EPA's July 23, 
2012, proposed rulemaking. A summary of the background for today's 
final action is provided below. EPA's July 23, 2012, proposed 
rulemaking contains more detailed information regarding the Mississippi 
SIP revision being approved today, and the rationale for today's final 
action. Detailed information regarding the PM2.5 NAAQS and 
NSR Program can also be found in EPA's July 23, 2012, proposed 
rulemaking as well as the abovementioned final rulemakings.

A. NSR PM2.5 Rule

    EPA finalized the NSR PM2.5 Rule on May 16, 2008, which 
revised the NSR program requirements to establish the framework for 
implementing preconstruction permit review for the PM2.5 
NAAQS in both attainment areas and nonattainment areas (NAAs) that: (1) 
Require NSR permits to address directly emitted PM2.5 and 
precursor pollutants; (2) establish significant emission rates for 
direct PM2.5 and precursor pollutants (including sulfur 
dioxide (SO2) and nitrogen oxides (NOx)); (3) establish 
PM2.5 emission offsets; (4) provide exceptions to the 
grandfathering policy for permits being reviewed under the 
PM10 surrogate program; and (5) require states to account 
for gases that condense to form particles (condensables) in 
PM2.5 and PM10 emission limits in PSD or 
nonattainment NSR (NNSR) permits. Additionally, the NSR 
PM2.5 Rule authorized states to adopt provisions in their 
NNSR rules that would allow interpollutant offset trading. See 73 FR 
28321. States were required to provide SIP submissions to address the 
requirements for the NSR PM2.5 Rule by May 16, 2011. 
Mississippi's May 12, 2011, SIP revision addresses only the PSD 
requirements related to EPA's May 16, 2008, NSR PM2.5 
Rule.\3\
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    \3\ Mississippi's May 12, 2011, SIP revision only addresses the 
State's PSD permitting program and does not adopt the NNSR 
permitting requirements for PM2.5 emission offsets, 
condensable provision or the discretionary interpollutant trading 
policy and ratios promulgated in the 2008 NSR PM2.5 Rule. 
Moreover, Mississippi is attainment for the 1997 annual and 2006 24-
hour PM2.5 NAAQS.
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1. PM10 Surrogate and Grandfathering Policy
    In the NSR PM2.5 Rule, EPA required that major 
stationary sources seeking permits must begin directly satisfying the 
PM2.5 requirements, as of the effective date of the rule, 
rather than relying on PM10 as a surrogate, with two 
exceptions.\4\ The first exception is a ``grandfathering'' provision in 
the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering 
provision applied to sources that had applied for, but had not yet 
received, a final and effective PSD permit before the July 15, 2008, 
effective date of the May 2008 final rule. The second exception was 
that states with SIP-approved PSD programs could continue to implement 
the Seitz Memo's PM10 Surrogate Policy for up to three years 
(until May 2011) or until the individual revised state PSD programs for 
PM2.5 are approved by EPA, whichever comes first. On May 18, 
2011 (76 FR 28646), EPA took final action to repeal the grandfathering 
provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of 
the 1997 PM10 Surrogate Policy for PSD permits under the 
federal PSD program at 40 CFR 52.21. In effect, any PSD permit 
applicant previously covered by the grandfathering provision (for 
sources that completed and submitted a permit application before July 
15, 2008) \5\ that did not have a final and effective PSD permit before 
the effective date of the repeal will not be able to rely on the 1997 
p.m.10 Surrogate Policy to satisfy the PSD requirements for 
PM2.5 unless the application includes a valid surrogacy 
demonstration.\6\ See 76 FR

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28646. In its May 12, 2011, SIP revision, Mississippi did not adopt the 
grandfathering provision at 40 CFR 52.21(i)(1)(xi) into its PSD 
regulations. Therefore, Mississippi's SIP is consistent with current 
federal regulations regarding the repeal of the grandfathering 
provision.
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    \4\ After EPA promulgated the NAAQS for PM2.5 in 
1997, the Agency issued guidance documents related to using 
PM10 as a surrogate for PM2.5 entitled: 
``Interim Implementation of New Source Review Requirements for 
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the 
``Seitz Memo'') and ``Implementation of New Source Review 
Requirements in PM2.5 Nonattainment Areas'' (the ``2005 
PM2.5 NNSR Guidance''). The Seitz Memo was designed to 
help states implement NSR requirements pertaining to the new 
PM2.5 NAAQS in light of technical difficulties posed by 
PM2.5 at that time. The 2005 PM2.5 NNSR 
Guidance provided direction regarding implementation of the NNSR 
provisions in PM2.5 NAA in the interim period between the 
effective date of the PM2.5 NAA designations (April 5, 
2005) and EPA's promulgation of final PM2.5 NNSR 
regulations (this included recommending that until EPA promulgated 
the PM2.5 major NSR regulations, ``States should use a 
PM10 nonattainment major NSR program as a surrogate to 
address the requirements of nonattainment major NSR for the 
PM2.5 NAAQS.'').
    \5\ Sources that applied for a PSD permit under the federal PSD 
program on or after July 15, 2008, are already excluded from using 
the 1997 PM10 Surrogate Policy as a means of satisfying 
the PSD requirements for PM2.5. See 76 FR 28321.
    \6\ Additional information on this issue can also be found in an 
August 12, 2009, final order on a title V petition describing the 
use of PM10 as a surrogate for PM2.5. In the 
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3, 
Order on Petition (August 12, 2009).
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2. ``Condensable'' Provision
    In the NSR PM2.5 Rule, EPA revised the definition of 
``regulated NSR pollutant'' for PSD to add a paragraph providing that 
``particulate matter (PM) emissions, PM2.5 emissions and 
PM10 emissions'' shall include gaseous emissions from a 
source or activity which condense to form particulate matter at ambient 
temperatures and that on or after January 1, 2011, such condensable 
particulate matter shall be accounted for in applicability 
determinations and in establishing emissions limitations for PM, 
PM2.5 and PM10 in permits issued. See 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset 
Interpretative Ruling'' (40 CFR Part 51, Appendix S). On March 16, 
2012, EPA proposed a rulemaking to amend the definition of ``regulated 
NSR pollutant'' promulgated in the NSR PM2.5 Rule regarding 
the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 
52.21(b)(50)(i) and EPA's Emissions Offset Interpretative Ruling. See 
77 FR 15656. The rulemaking proposes to remove the inadvertent 
requirement in the NSR PM2.5 Rule that the measurement of 
condensable ``particulate matter emissions'' be included as part of the 
measurement and regulation of ``particulate matter emissions.'' \7\ 
Mississippi's May 12, 2011, SIP revision adopts EPA's definition for 
``regulated NSR pollutant'' for condensables (at 40 CFR 
51.166(b)(49)(vi)), including the term ``particulate matter 
emissions,'' as promulgated in the NSR PM2.5 Rule. On June 
26, 2012, the State of Mississippi provided a letter to EPA clarifying 
the State's intent in light of EPA's March 12, 2012, proposed 
rulemaking and requesting that EPA not approve into the Mississippi SIP 
the term ``particulate matter emissions'' (as part of the definition 
for ``regulated NSR pollutant'') regarding the inclusion of condensable 
emissions in applicability determinations and in establishing emissions 
limitations for PM.
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    \7\ The term ``particulate matter emissions'' includes particles 
that are larger than PM2.5 and PM10 and is an 
indicator measured under various New Source Performance Standards 
(NSPS) at 40 CFR part 60. In addition to the NSPS for PM, it is 
noted that states have regulated ``particulate matter emissions'' 
for many years in their SIPs for PM, and the same indicator has been 
used as a surrogate for determining compliance with certain 
standards contained in 40 CFR part 63, regarding National Emission 
Standards for Hazardous Air Pollutants.
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3. NOX Insignificance Demonstration
    In addition to direct PM2.5 emissions, pollutants that 
can contribute to ambient PM2.5 concentrations (known as 
``precursors'') include SO2, NOx, volatile 
organic compounds (VOC) and ammonia (all of which undergo chemical 
reactions to form secondary PM). In the NSR PM2.5 Rule, EPA 
established a ``presumed-in'' approach for NOx as a 
PM2.5 precursor. This approach is warranted based on the 
well-known transformation of NOx into nitrates, coupled with 
the fact that nitrate concentrations vary significantly around the 
country. The final NSR PM2.5 Rule requires that states treat 
NOx as a PM2.5 precursor in all areas unless the 
state demonstrates to the Administrator's satisfaction or EPA 
demonstrates that emissions of NOx from sources in a 
specific area are not a significant contributor to that area's ambient 
PM2.5 concentrations.\8\ See 40 CFR 51.166(b)(49)(i), 
51.165(a)(1)(xxxvii) and 52.21(b)(50)(i). If EPA makes such a 
demonstration, or a state makes such a demonstration and it is approved 
by EPA, NOx would not be considered a PM2.5 
precursor under the NSR program in that area. If a State or EPA does 
not make such a demonstration, NOx must be regulated as a 
precursor under the PSD, NNSR, and minor source programs for 
PM2.5. Mississippi's May 12, 2011, SIP revision IBR the 
provision that NOx is presumed to be a precursor for 
PM2.5. However, MDEQ also submitted to EPA a NOx 
insignificance demonstration to show that NOx emissions in 
the State of Mississippi are not contributing significantly to ambient 
PM2.5 concentrations in the State. At this time, EPA is 
still considering Mississippi's NOx insignificance 
demonstration and will take action on this portion of MDEQ's May 12, 
2011, SIP revision in a separate rulemaking.
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    \8\ The NSR PM2.5 Rule presumes that VOC and ammonia 
are not precursors to PM2.5 unless a state or EPA 
demonstrates that these pollutants are significantly contributing to 
the ambient PM2.5 concentrations in a specific area. The 
rule requires that SO2 be treated as a precursor to 
PM2.5 in all areas.
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B. PM2.5 PSD Increment SILs-SMC Rule

    The PM2.5 PSD Increment-SILs-SMC Rule provided 
additional regulatory requirements under the PSD program regarding the 
implementation of the PM2.5 NAAQS for NSR, including (1) 
PM2.5 increments pursuant to section 166(a) of the CAA to 
prevent significant deterioration of air quality in areas meeting the 
NAAQS; (2) SILs used as a screening tool (by a major source subject to 
PSD) to evaluate the impact a proposed major source or modification may 
have on the NAAQS or PSD increment; and (3) a SMC, (also a screening 
tool) used by a major source subject to PSD to determine the subsequent 
level of data gathering required for a PSD permit application for 
emissions of PM2.5. The SILs and SMC are numerical values 
that represent thresholds of insignificant, i.e., de minimis,\9\ 
modeled source impacts or monitored (ambient) concentrations, 
respectively. EPA established such values to be used as screening tools 
by a major source subject to PSD to determine the subsequent level of 
PM2.5 analysis and data gathering required for a PSD permit 
application. EPA's authority to implement the SILs and SMC for PSD 
purposes has been challenged by the Sierra Club. Sierra Club v. EPA, 
Case No 10-1413 (DC Circuit Court).\10\
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    \9\ The de minimis principle is grounded in a decision described 
by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 (DC 
Cir. 1980). In this case, reviewing EPA's 1978 PSD regulations, the 
court recognized that ``there is likely a basis for an implication 
of de minimis authority to provide exemption when the burdens of 
regulation yield a gain of trivial or no value.'' 636 F.2d at 360. 
See 75 FR 64864.
    \10\ On April 6, 2012, EPA filed a brief with the DC Circuit 
court defending the Agency's authority to implement SILs and SMC for 
PSD purposes.
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1. PSD Increments
    PSD increments prevent air quality in clean areas from 
deteriorating to the level set by the NAAQS. Therefore, an increment is 
the mechanism used to estimate ``significant deterioration'' \11\ of 
air quality for a pollutant in an area. Under section 165(a)(3) of the 
CAA, a PSD permit applicant must demonstrate that emissions from the 
proposed construction and operation of a facility ``will not cause, or 
contribute to, air pollution in excess of any maximum allowable 
increase or allowable concentration for any pollutant.'' When a source 
applies for a permit to emit a regulated pollutant in an area that 
meets the NAAQS, the state and EPA must determine if emissions of the 
regulated pollutant from the source will cause

[[Page 59098]]

significant deterioration in air quality. As described in the 
PM2.5 PSD Increment-SILs-SMC Rule, pursuant to the authority 
under section 166(a) of the CAA, EPA promulgated numerical PSD 
increments for PM2.5 as a new pollutant \12\ for which NAAQS 
were established after August 7, 1977,\13\ and derived 24-hour and 
annual PM2.5 increments for the three area classifications 
(Class I, II and III) using the ``contingent safe harbor'' approach. 
See 75 FR 64869 and ambient air increment tables at 40 CFR 51.166(c)(1) 
and 52.21(c). In addition to PSD increments for the PM2.5 
NAAQS, the PM2.5 PSD Increment-SILs-SMC Rule amended the 
definition at 40 CFR 51.166 and 52.21 for ``major source baseline 
date'' and ''minor source baseline date'' (including trigger date) to 
establish the PM2.5 NAAQS specific dates associated with the 
implementation of PM2.5 PSD increments. See 75 FR 64864.
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    \11\ Significant deterioration occurs when the amount of the new 
pollution exceeds the applicable PSD increment, which is the 
``maximum allowable increase'' of an air pollutant allowed to occur 
above the applicable baseline concentration \11\ for that pollutant. 
Section 169(4) of the CAA provides that the baseline concentration 
of a pollutant for a particular baseline area is generally the air 
quality at the time of the first application for a PSD permit in the 
area.
    \12\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM2.5 as if 
PM2.5 was a new pollutant even though EPA had already 
developed air quality criteria for PM generally. See 75 FR 64864 
(October 20, 2012).
    \13\ EPA interprets 166(a) to authorize EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which EPA 
promulgates a NAAQS after 1977.
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2. Significant Monitoring Concentrations
    As mentioned above, the SMC numerical value represents a threshold 
of insignificant (i.e., de minimis) monitored ambient impacts on 
pollutant concentrations. In the PM2.5 PSD Increment-SILs-
SMC Rule, EPA established a PM2.5 SMC of 4 [micro]g/m\3\ to 
be used as a screening tool by a major source subject to PSD to 
determine the subsequent level of PM2.5 data gathering 
required for a PSD permit application. Using the SMC as a screening 
tool, sources may be able to demonstrate that the modeled air quality 
impact of emissions from the new source or modification, or the 
existing air quality level in the area where the source would 
construct, is less than the SMC (i.e., de minimis), and as such, may be 
allowed to forego the preconstruction monitoring requirement for a 
particular pollutant at the discretion of the reviewing authority.
    Recently, the Sierra Club filed suit challenging EPA's authority to 
implement the PM2.5 SILs \14\ as well as the SMC for PSD 
purposes as promulgated in the October 20, 2012, rule. Sierra Club v. 
EPA, Case No. 10-1413, DC Circuit Court. Specifically, regarding the 
SMC, Sierra Club claims that the use of SMCs to exempt a source from 
submitting a year's worth of monitoring data is inconsistent with the 
CAA. EPA responded to Sierra Club's claims in a Brief dated April 6, 
2012, which describes the Agency's authority to develop and promulgate 
SMC.\15\ A copy of EPA's April 6, 2010, Brief can be found in the 
docket for today's final rulemaking at www.regulations.gov using docket 
ID: EPA-R04-OAR-2012-0081.
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    \14\ As mentioned earlier, due to litigation by the Sierra Club, 
EPA is not taking final action on the SILs portion of the 
Mississippi May 12, 2011, SIP revision at this time but will take 
action once the court case regarding SILs implementation is 
resolved.
    \15\ Additional information on this issue can also be found in 
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana 
Department of Environmental Quality regarding the SILs-SMC 
litigation. A copy of this letter can be found in the docket for 
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0081.
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II. This Action

    EPA is taking final action to approve into the Mississippi SIP 
portions of the State's May 12, 2011, SIP revision, which IBR the PSD 
permitting regulations to implement the PM2.5 NAAQS. 
Mississippi's regulation APC-S-5 IBR the federal NSR PSD regulations at 
40 CFR 51.166 and 52.21 into the Mississippi SIP. In effect, MDEQ's May 
12, 2011, SIP revision updates the State's IBR date for APC-S-5 to 
March 22, 2011, to include PSD permitting regulations promulgated in 
the NSR PM2.5 Rule and the PM2.5 PSD Increment-
SILs-SMC Rule in the Mississippi SIP. These changes to Mississippi's 
regulation APC-S-5 became state effective on June 2, 2011. MDEQ's SIP 
revision IBR the NSR PM2.5 Rule PSD provisions at regulation 
APC-S-5, including: (1) The requirement for NSR permits to address 
directly emitted PM2.5 and precursor pollutants; (2) 
significant emission rates for direct PM2.5 and precursor 
pollutants (SO2 and NOX) and establishing 
PM2.5 precursors (as amended at 40 CFR 51.166(b)(23)(i)) for 
the definition of ``significant'' and ``regulated NSR pollutant,'' 
respectively; and (3) PSD requirement for states to address condensable 
PM in establishing enforceable emission limits for PM10 and 
PM2.5 (as amended at definition of ``regulated NSR pollutant 
``at 40 CFR 51.166(b)(49)).
    Regarding the condensable provision, in light of Mississippi's 
request in its June 26, 2012, letter and EPA's intention to amend the 
definition of ``regulated NSR pollutant'' as discussed in the March 12, 
2012, correction rulemaking, EPA is not taking final action to approve 
the terminology ``particulate matter emissions'' into the Mississippi 
SIP (at APC-S-5) for the condensable provision in the definition of 
``regulated NSR pollutant.'' See 77 FR 15656. EPA is, however, taking 
final action to approve into the Mississippi SIP the remaining 
condensable requirement at 40 CFR 51.166(b)(49)(vi), which requires 
that condensable emissions be accounted for in applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10. Mississippi's May 12, 2011, SIP 
revision did not IBR the grandfathering provision at 40 CFR 
52.21(i)(1)(xi) in accordance with the repeal of the PM2.5 
grandfathering provision. Rather, the SIP revision includes new 
language at APC-S-5(2.7) that excludes the provision for 
PM2.5 (at 40 CFR 52.21(i)(1)(xi)) from the PSD program 
regulations.
    As stated in Mississippi's May 12, 2011, SIP revision, 
NOX will be considered a precursor to PM2.5 in 
Mississippi until such time as EPA takes action on the State's 
NOX insignificance demonstration or upon plan disapproval. 
As part of MDEQ's May 12, 2011, revision to IBR the federal regulations 
at 40 CFR 51.166 and 52.21, EPA is taking final action, at this time, 
to approve into the Mississippi SIP that NOX is a presumed 
PM2.5 precursor. EPA is considering Mississippi's 
NOX insignificance demonstration and will take action on 
this portion of the May 12, 2011, SIP submission in a separate 
rulemaking. Mississippi's May 12, 2011, SIP revision also removes from 
APC-S-5(2.7) language that excludes NSR PM2.5 Rule 
permitting requirements from inclusion into the Mississippi SIP.\16\ 
Because MDEQ's May 12, 2011, SIP revision adopts the aforementioned 
provisions promulgated in the May 16, 2008, NSR PM2.5 Rule, 
the exclusion language is no longer necessary.
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    \16\ In Mississippi's December 9, 2010, Greenhouse Gas Tailoring 
Rule final SIP revision, MDEQ added specific language at APC-S-
5(2.7) excluding from the IBR of 40 CFR 52.21 the PSD NSR 
PM2.5 Rule provisions promulgated in the May 16, 2008, 
rule and stated they would submit a separate rulemaking to address 
those PSD requirements.
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    With respect to the PM2.5 PSD Increment-SILs SMC Rule, 
EPA is taking final action to also approve into the Mississippi SIP the 
PSD increments for PM2.5 annual and 24-hour NAAQS pursuant 
to section 166(a) of the CAA and SMC of 4 [micro]g/m\3\ for 
PM2.5 NAAQS. The May 12, 2011, SIP revision IBR the 
PM2.5 increments established in the ambient air increment 
tables at 40 CFR 51.166(c)(1) and (p)(4) and 52.21(c); the amendments 
to the ``major source

[[Page 59099]]

baseline date'' (at 40 CFR 51.166(b)(14)(i)(c)) and 
52.21(b)(14)(i)(c)); the ``minor source baseline date'' and 
establishment of the ``trigger date'' (40 CFR 51.166(b)(14)(ii)(c) and 
52.21(b)(14)(ii)(c)); and the definition of ``baseline area'' (at 40 
CFR 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i) and (ii)).
    Regarding the SILs and SMC, EPA's authority to implement the 
PM2.5 SILs and SMC is currently the subject of litigation by 
the Sierra Club. In a brief filed in the DC Circuit on April 6, 2012, 
EPA described the Agency's authority under the CAA to promulgate and 
implement the SMCs and SILs de minimis thresholds. Sierra Club v. EPA, 
Case No 10-1413 DC Circuit. However, EPA is finalizing approval of the 
promulgated SMC thresholds into the Mississippi SIP because the Agency 
believes the SMC is a valid exercise of the Agency's de minimis 
authority as well as the fact they are consistent with EPA's 
promulgated levels in the PM2.5 PSD Increment-SILs-SMC Rule. 
The ongoing litigation may result in the court decision that may 
require subsequent rule revisions and SIP revisions from Mississippi.
    In response to the litigation, EPA requested that the court remand 
and vacate the new regulatory text at 40 CFR 51.166(k)(2) and 
52.21(k)(2) concerning the implementation of SILs for PM2.5 
so that EPA can make necessary rulemaking revisions to that text.\17\ 
In light of EPA's request for remand and vacatur and our 
acknowledgement of the need to revise the regulatory text presently 
contained at paragraph (k)(2) of sections 51.166 and 52.21, the Agency 
has determined at this time not to approve the SILs portion of the 
MDEQ's May 12, 2011, SIP revision that contains the affected regulatory 
text in Mississippi's PSD regulations at APC-S-5. EPA will take action 
on the SILs portion of Mississippi's May 12, 2011, SIP revision in a 
separate rulemaking once the issue regarding the court case has been 
resolved.\18\
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    \17\ In the preamble to the October 20, 2010, final rule EPA 
indicates that the Agency does not consider the SILs to be a 
mandatory SIP element, but regard them as discretionary on the part 
of regulating authority for use in the PSD permitting process. See 
75 FR 64864 at 64899.
    \18\ EPA is currently developing guidance to provide provisional 
course of action to implement the PM2.5 SILs pending 
revision to the (k)(2) provisions and the litigation. The guidance 
will ensure that the PM2.5 SILs are properly applied as 
part of a PSD compliance demonstration to show that a source's 
impact will not cause or contribute to a violation of the 
PM2.5 NAAQS or increment.
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III. Final Action

    EPA is taking final action to approve portions of Mississippi's May 
12, 2011, SIP revisions (with the exception of the term ``particulate 
matter emissions'' and the SILs threshold and provisions) that IBR 
federal regulations amended in the NSR PM2.5 and the 
PM2.5 PSD Increment-SILs-SMC Rules to implement the 
PM2.5 NAAQS for the NSR program because they are consistent 
with section 110 of the CAA and its regulations regarding NSR 
permitting.

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 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 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).

In addition, this 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.
    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 November 26, 2012. 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, Particulate matter, Reporting 
and recordkeeping requirements and Volatile organic compounds.

    Dated: September 6, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    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.

[[Page 59100]]

Subpart Z--Mississippi

0
2. Section 52.1270(c) is amended by revising entry ``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..................  .....................         06/2/2011  9-26-12 [Insert   As of 9-26-2012 EPA is
                                                                 citation of       approving a revision to APC-S-
                                                                 publication].     5 incorporating by reference
                                                                                   the regulations found at 40
                                                                                   CFR 52.21 as of March 22,
                                                                                   2011. See [Insert citation of
                                                                                   publication]. This approval
                                                                                   does 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)).
                                                                                  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. 2012-23570 Filed 9-25-12; 8:45 am]
BILLING CODE 6560-50-P