[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]



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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.

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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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