[Federal Register Volume 87, Number 222 (Friday, November 18, 2022)]
[Rules and Regulations]
[Pages 69177-69183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25080]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2022-0219; FRL-9911-02-R4]
Air Plan Approval; Mississippi; Revision of Excess Emissions
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the Mississippi
Department of Environmental Quality (MDEQ) on November 17, 2016, on
[[Page 69178]]
behalf of the State of Mississippi. The revision was submitted in
response to EPA's SIP Call published on June 12, 2015, concerning
excess emissions during startup, shutdown, and malfunction (SSM)
events. EPA is approving the SIP revision and finds that such SIP
revision corrects the deficiencies identified in the June 12, 2015, SIP
Call.
DATES: This rule is effective December 19, 2022.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2022-0219. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be 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, Air Planning and
Implementation Branch, Air and Radiation 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: D. Brad Akers, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Akers can be
reached via electronic mail at [email protected] or via telephone at
(404) 562-9089.
SUPPLEMENTARY INFORMATION:
I. Background
On June 7, 2022, EPA proposed to approve MDEQ's November 17, 2016,
SIP revision. See 87 FR 34609. In that notice of proposed rulemaking
(NPRM), EPA also proposed to determine that the SIP revision corrects
the deficiency with respect to Mississippi that the Agency identified
in the June 12, 2015, action titled ``State Implementation Plans:
Response to Petition for Rulemaking; Restatement and Update of EPA's
SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and
SIP Calls to Amend Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction'' (``2015 SSM SIP
Action''). See 80 FR 33839 (June 12, 2015). The reasons for the
proposed approval and determination are stated in the proposed action
(87 FR 34609, June 7, 2022) and will not be restated here. The public
comment period for EPA's proposed approval and determination ended on
July 7, 2022. EPA received one set of comments in a joint letter
submitted by the Sierra Club and the Environmental Integrity Project
(hereinafter collectively referred to as the commenter) on this date.
The comments are available in the docket for this action.
II. Response to Comments
EPA will not address the comments that express support for the
proposed action. Instead, this section of the rulemaking will focus on
the portions of the July 7, 2022, letter which did not support the
proposed action or which called on EPA to provide advice to the State.
a. Rule 1.10.B(1) Is Not Approvable
Comment 1: The commenter asserts that Rule 1.10.B(1) is not fully
approvable as included in the November 17, 2016, submittal.
Specifically, the commenter states that as a standalone provision,
paragraph B(1) could be read to impermissibly exempt sources from
otherwise applicable SIP emission limits. Paragraph B(1) states,
``Startups and shutdowns are part of normal source operation. Emission
limitations apply during startups and shutdowns unless source-specific
emission limitations or work practice standards for startups and
shutdowns are defined by an applicable rule, regulation, or permit.''
The commenter goes on to note EPA's past comments on the proposed
changes to Rule 1.10.B in 2016 during prehearing review, which stated
that EPA was ``concerned that this provision appears to provide that an
`applicable rule, regulation, or permit' that is not approved into the
SIP might contain limitations that apply during startups and shutdowns
in lieu of an applicable SIP limit'' (emphasis in original).
The commenter points to EPA's analysis in the June 7, 2022, NPRM
which states that Rule 1.10.B(1) and B(2) ``taken together''
sufficiently address the finding of substantial inadequacy in the final
2015 SSM SIP Action, and argues that to ensure Rule 1.10.B(1) is
administered correctly, EPA should conditionally approve the SIP
revision pursuant to Clean Air Act (CAA) section 110(k)(4), requiring
Mississippi to submit, within one year of the effective date of the
final conditional approval, a corrective SIP revision. According to the
commenter, the corrective revision should either remove Rule 1.10.B(1)
or replace the phrase ``defined by an applicable rule, regulation, or
permit'' with ``defined by an applicable SIP provision or permit as
provided in section 1.10.B(2)(d) below.''
Response 1: EPA disagrees that Rule 1.10.B(1) is not approvable as
transmitted in the November 17, 2016, SIP submittal. As MDEQ notes in
its SIP revision responding to EPA's September 16, 2016, comment
letter, the regulatory language must be read in conjunction with other
air program regulations.\1\ Specifically, the language at Rule
1.10.B(1) correctly acknowledges that ``source specific emission
limitations or work practice standards for startups and shutdowns'' may
be established in applicable rules, regulations, or permits. First,
MDEQ has the ability to establish emission limitations via new or
revised regulatory requirements at 11 MAC, Part 2, Chapter 1, Air
Emission Regulations for the Prevention, Abatement, and Control of Air
Contaminants, or Chapter 11, Regulations for Ambient Air Quality
Nonattainment Areas, where MDEQ could consider whether any specific
alternative emission limitations (AELs) would be justifiable for
startups and/or shutdowns.
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\1\ MDEQ's response to EPA's September 16, 2016, comment letter
on the prehearing version of the regulatory changes is part of the
November 17, 2016, SIP submittal available in the docket for this
action.
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Next, MDEQ has the ability to establish emission limits in permits
pursuant to its program at 11 MAC, Part 2, Chapter 2, Permit
Regulations for the Construction and/or Operation of Air Emissions
Equipment, where MDEQ could consider establishing specific AELs for
startups and/or shutdowns. Pursuant to Rule 1.10.B(2), alternatives to
existing SIP emission limits in any such permits are not effective
until MDEQ adopts the alternatives into Rule 1.10.B, MDEQ submits them
to EPA for approval and inclusion in the SIP, and EPA approves them
into the SIP.
Other possible sources of an ``applicable rule [or] regulation''
are the New Source Performance Standards (NSPS) at 40 CFR part 60 and
the National Emissions Standards for Hazardous Air Pollutants (NESHAP)
at 40 CFR part 63,\2\ which MDEQ incorporates by reference at 11 MAC,
Part 2, Chapter 1, Rule 1.6, New Sources, at 1.6.C and Rule 1.8,
Provisions for Hazardous Air Pollutants,
[[Page 69179]]
at 1.8.A, respectively. Several of the NSPS and NESHAP include AELs
that ``impose different numerical levels during different modes of
source operation or impose emission limitations that are composed of a
combination of a numerical limitation during some modes of operation
and a specific technological control requirement or work practice
requirement during other modes of operation'' such as startup and
shutdown. See 80 FR 33839, 33889 (June 12, 2015). Rule 1.10.B(1)
accurately acknowledges that as to applicable emission limits in
general, the limits will apply during startup and shutdown periods
unless some applicable rule, regulation or permit specifies different
requirements for those periods. EPA interprets this to mean that those
other limits cannot replace or relax the SIP emission limit without EPA
approval via a SIP revision that meets CAA requirements.
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\2\ The NESHAP are found at 40 CFR parts 61 and 63, with NESHAP
promulgated after 1990 found at part 63.
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Our interpretation stems from MDEQ's assertion in its SIP revision
that the ability to establish AELs during startups and shutdowns does
not mean that alternatives to any SIP emission limits can be
established via the rules, regulations, or permit requirements without
a SIP revision. In response to EPA's comment letter, MDEQ revised its
Rule 1.10.B(2) to provide greater clarity that any specific AELs
established by rules, regulations, or permits not yet incorporated into
the SIP and applicable to startups and/or shutdowns would not replace
any existing SIP emission limit for those periods of operation unless
and until the AELs were approved into the SIP. Specifically, Rule
1.10.B(2)(d) provides, ``Following permit issuance, the emission
limitations or work practice standards are considered State-only
requirements until they have been adopted into [Rule 1.10] and approved
by the EPA into the SIP.'' In this way, Rule 1.10.B(2) operates in
conjunction with B(1) to explain what must happen in the context of
providing alternatives to existing SIP emission limits.
b. Rule 1.10.B(2) Should Not Only Consider a Source's Existing Control
Strategy
Comment 2: Among factors MDEQ will consider in possibly
establishing AELs for periods of startups and/or shutdowns, Rule
1.10.B(2)(a) provides, ``The source must demonstrate that it is
technically infeasible, considering its specific control strategy, to
comply with existing SIP emission limitations during startups and
shutdowns.'' The commenter argues that the phrase ``considering its
specific control strategy'' creates an ``illogical loophole that would
allow sources with pollution controls that are outdated, undersized,
not well maintained, not operated properly, or otherwise inadequate to
claim technical infeasibility based on their controls, even though
those sources, if properly designed, operated, and/or maintained, could
comply with applicable SIP emission limits.''
The commenter points to EPA's statement in the 2015 SSM SIP Action
that ``alternative requirements applicable to the source during startup
and shutdown should . . . take into account considerations such as . .
. the control technology that is feasible during startup and
shutdown.'' See 80 FR 33839, 33980 (June 12, 2015). The commenter
states that EPA should conditionally approve the SIP revision pursuant
to CAA section 110(k)(4), requiring Mississippi to submit, within one
year of the effective date of the final conditional approval, a
corrective SIP submission to remove the phrase ``considering its
specific control strategy.''
Response 2: EPA disagrees that Rule 1.10.B(2)(a) is not approvable
as transmitted in the November 17, 2016, SIP submittal. Consideration
of a specific control strategy is consistent with EPA guidance in the
2015 SSM SIP Action. Mississippi's SIP requires that any potential AELs
``be narrowly tailored and take into account considerations such as the
technological limitations of the specific source category and the
control technology that is feasible during startup and shutdown'' as
recommended by EPA. See 80 FR 33839, 33980. EPA's restatement of the
1999 SSM Guidance in the 2015 SSM SIP Action includes the following two
(of seven total) criteria recommended for developing a SIP revision
with potential AELs: ``(1) The revision is limited to specific,
narrowly defined source categories using specific control strategies
(e.g., cogeneration facilities burning natural gas and using selective
catalytic reduction); (2) Use of the control strategy for this source
category is technically infeasible during startup or shutdown
periods.'' Id. Mississippi Rule 1.10.B(2) is consistent with these
criteria, requiring at B(2)(c) that the AELs must be specific to the
source and its particular control strategy, which EPA interprets as the
control strategy that corresponds to the relevant narrowly defined
source category (e.g., cogeneration facilities burning natural gas and
using selective catalytic reduction), and requiring at B(2)(a) a
demonstration that the control strategy is technically infeasible
during startup and shutdown periods.
Additionally, EPA does not agree that the language at Rule
1.10.B(2)(a), or EPA's language in the 2015 SSM Action or the 1999 SSM
Guidance, would necessarily limit such a demonstration to considering
existing controls only. Rule 1.10.B(2)(a) makes no reference to actual
installed equipment. This rule requires the source to demonstrate that
its strategy for emissions control is not capable of achieving
compliance during startup and shutdown, and such demonstration should
be made based on an assumption of properly designed and maintained
equipment as well as the control strategy's suitability for the
narrowly defined source category.
Moreover, EPA and the public will have an opportunity to evaluate
any specific AELs, as they will be submitted as source-specific SIP
revisions to act as alternatives to SIP emission limits. The record
supporting any such AELs would show how the criteria at Rule 1.10.B(2)
were satisfied.
c. Numerical Emission Limits vs. Work Practice Standards
Comment 3: The commenter states that EPA should clarify in its
rulemaking record that ``even for those sources (if any) that truly
cannot meet normal limits during startup and shutdown, Rule 1.10.B(2)
should in most cases establish alternative numerical limits, rather
than allow for work practices.'' The commenter references the 2015 SSM
Action, 80 FR 33839, 33980, where EPA states: ``In cases in which
measurement of emissions during startup and/or shutdown is not
reasonably feasible, it may be appropriate for an emission limitation
to include as a component a control for startup and/or shutdown periods
other than a numerically expressed emission limitation.'' The commenter
asserts that under EPA's guidance, work practice standards are only
appropriate during those periods where emissions cannot be measured.
The commenter also states that EPA's approval should include the
guidance that numerical limits are preferable to work practice
standards because they are the ``most legally and practicably
enforceable SIP requirements,'' and cites to the 2015 SSM SIP Action,
80 FR 33839, 33974-75. The commenter goes on to state that for
situations in which a work practice is appropriate, EPA should advise
that pollution control equipment should be operated while fuel-burning
equipment are burning primary fuels or when power plants are generating
electricity, and that the SIP should require clean fuels to be burned
until the point at which the pollution controls are engaged.
[[Page 69180]]
Response 3: EPA does not believe clarification is necessary
regarding a preference for numerical emission limits versus work
practice standards. In this action, EPA is evaluating the November 17,
2016, SIP revision in light of the 2015 SSM SIP Action. Rule 1.10.B(2)
states that, where a source is unable to comply with an existing SIP
emission limit, MDEQ will consider establishing ``source specific
emission limitations or work practice standards for startups and
shutdowns'' as alternatives to those SIP limits. As outlined in the
June 7, 2022, NPRM, Rule 1.10.B(2) goes on to specify criteria that EPA
believes to be appropriate in considering establishing either a
numerical emission limit or a work practice standard to apply as an
AEL. Provisions 1.10.B(2)(a)-(d) are consistent with the guidance
criteria EPA has established for setting AELs, as discussed in the same
section of the 2015 SSM SIP Action cited by the
commenter.3 4
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\3\ See Memorandum to EPA Regional Administrators, Regions I-X
from Steven A. Herman and Robert Perciasepe, USEPA, ``State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999). This is
referred to as the 1999 SSM Guidance.
\4\ See 80 FR 33839, 33980 (June 12, 2015).
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As EPA notes in the 2015 SSM SIP Action, SIP emission limitations
``(i) do not need to be numerical in format; (ii) do not have to apply
the same limitation (e.g., numerical level) at all times; and (iii) may
be composed of a combination of numerical limitations, specific
technological control requirements and/or work practice requirements,
with each component of the emission limitation applicable during a
defined mode of source operation.'' See 80 FR 33839, 33889. Therefore,
if MDEQ establishes AELs comprised of work practice standards in some
part, pursuant to Rule 1.10.B(2), the emission limit overall ``must be
continuous, must meet applicable CAA stringency requirements, and must
be legally and practically enforceable.'' Id. Moreover, EPA and the
public will have an opportunity to evaluate any specific AELs, as they
will be submitted as source-specific SIP revisions to act as
alternatives to SIP emission limits. At that time, EPA can evaluate the
AELs in consideration of the criteria established in the SIP and the
guidance referenced above.
Next, in the 2015 SSM SIP Action, EPA noted that ``there may be
sources for which a numerically expressed emission limitation is the
most legally and practically enforceable,'' (emphasis added) and that
``there are many sources for which a numerically expressed emission
limitation will be the most appropriate and will result in the most
legally and practically enforceable SIP requirements. However, . . .
for some source categories, under some circumstances, it may be
appropriate for the SIP emission limitation to include a specific
technological control requirement or specific work practice requirement
that applies during specified modes of source operation such as startup
and shutdown.'' See id. at 33974-75. Therefore, EPA disagrees that the
approval of the November 17, 2016, SIP revision must include any
additional guidance regarding a preference for numerical emission
limits versus work practice standards.
Additionally, EPA does not agree with the commenter's conclusion
that the 2015 SSM SIP Action and EPA guidance would only find work
practice standards appropriate when emissions measurements cannot be
made during startup and/or shutdown. While the language referenced by
the commenter suggests that work practice standards may be appropriate
in cases in which measurement of emissions during startup or shutdown
is not reasonably feasible, EPA does not assert that this is the only
circumstance in which work practice standards may be utilized as part
of a continuous emission limitation. Thus, EPA believes that a work
practice standard could be a sufficient AEL in various other
circumstances. The 2015 SSM SIP Action notes, for example, regarding
sources of sulfur dioxide (SO2), ``if the otherwise
applicable numerical SO2 emission limitation in the SIP is
not achievable, and the otherwise required SO2 control
measure is not effective during startup and shutdown and/or measurement
of emissions during startup and shutdown is not reasonably feasible,
then it may be appropriate for that emission limitation to impose a
different control measure, such as use of low sulfur coal, applicable
during defined periods of startup and shutdown in lieu of a numerically
expressed emission limitation.'' See 80 FR 33839, 33975.
The 2015 SSM SIP Action goes on to discuss instances of where the
Agency has established work practice standards as components of
emission limits that are consistent with the definition of ``emission
limitation'' or ``emission standard'' at CAA section 302(k), such as 40
CFR part 63, subpart UUUUU, National Emission Standards for Hazardous
Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating
Units, and 40 CFR part 60, subpart Da, Standards of Performance for
Electric Utility Steam Generating Units. See id. at 33891. These
examples are rules which require use of continuous emission monitoring
systems, so measurement during periods of startup and/or shutdown would
not necessarily be infeasible, and yet EPA chose to establish work
practice standards as components of the emission limits applicable to
these sources. For the reasons stated above, EPA believes that
Mississippi's November 17, 2016, SIP revision adequately addresses
situations for which AELs may need to be established and appropriately
notes that the AELs can take the form of a numerical emission limit or
some work practice standard.
Finally, regarding potential work practice standards for fuel-
burning equipment, EPA does not find it appropriate to speculate on any
specific work practice requirements in absence of specific information
on the source or source category. However, EPA notes that the Agency
indicated regulations and technical materials supporting the NSPS and
NESHAP could be helpful in developing emission limits or AELs and that
definitions of startup and shutdown and work practices for those
periods could be appropriate for incorporation into a SIP. See 80 FR
33839, 33980. Several of the suggestions for fuel-burning equipment
made by the commenter are included in the NSPS and NESHAP, indicating
that these could be appropriate components of work practice
standards.\5\ So, although some of the suggestions made by the
commenter could be reasonable depending on the specific circumstances,
they are not relevant to this action; EPA will address the contents of
any proposed work practice standards in the source-specific SIP
revisions that Mississippi submits to EPA for approval and
incorporation into the SIP.
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\5\ See, e.g., 40 CFR 60.42Da(e)(1)(ii), 40 CFR 63.7500, 40 CFR
63.9991(a)(1).
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d. Reporting of Compliance With Work Practice Standards
Comment 4: The commenter states that Rule 1.10.B(2)(c)(iv) requires
sources ``only to document startup and shutdown events in
contemporaneous logs and does not require sources to report to the MDEQ
any information to assure that sources are complying with the
requirements of the rule.'' The commenter asserts that, as written, any
work practice standards would not be practically enforceable by MDEQ,
EPA, or citizens, and therefore, would not comply with CAA section
110(a)(2)(A). The commenter goes on to recommend
[[Page 69181]]
that EPA advise Mississippi that if work practices are selected for any
sources, that MDEQ should ``require the work-practice compliance
information from the proposed rule to be reported by sources through,
at the least, their quarterly Title V compliance reports.'' \6\
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\6\ The commenter refers to quarterly title V compliance
reports. EPA believes the commenter is referring to the requirement
at 40 CFR 70.6(a)(3)(iii)(A) requiring the submittal of reports of
any required monitoring at least every 6 months, i.e., semiannually.
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Response 4: EPA disagrees that it is necessary to advise
Mississippi regarding the reporting of work practice compliance
information. CAA section 110(a)(2)(C) provides that the SIP shall
include a program to provide for the enforcement of the measures
described in section 110(a)(2)(A), including a permit program to
regulate the construction and modification of stationary sources.
Therefore, the permitting process can establish the means by which an
emission limitation is enforceable, including recordkeeping and
reporting requirements, particularly in the case of source-specific
emission limits submitted for inclusion in the SIP. Generally, Rule
1.10.B(2)(d) provides that any source-specific emission limitations or
work practice standards intended as an alternative to existing SIP
emission limits must be established in a permit issued pursuant to 11
MAC Part 2, Chapter 2, and then submitted to EPA for incorporation into
the SIP. MDEQ's Rule 2.2, General Standards Applicable to All Permits,
and Rule 2.9, Recordkeeping and Reporting, provide that the permit
board in Mississippi has the authority to establish requirements for
determining compliance with applicable requirements, including
recordkeeping and reporting of necessary monitoring. EPA will review
these permit conditions as part of any source-specific SIP revision and
evaluate the adequacy of the AELs (including the practicable
enforceability of any applicable work practice standards) pursuant to
the CAA and EPA guidance.
Additionally, for any major sources, facilities will also be
subject to semiannual reporting, which would outline any deviations
from permit requirements, and annual certification, pursuant to EPA's
title V regulations at 40 CFR part 70 and Mississippi's federally
approved title V program at 11 MAC Part 2, Chapter 6, Air Emissions
Operating Permit Regulations for Purposes of Title V of the Federal
Clean Air Act.\7\ These reporting requirements would include the
information needed for determining compliance with any applicable
source-specific work practices standards, including those that may be
approved into the SIP. For example, 11 MAC Part 2, Chapter 2, Rule
6.3(C)(5) provides requirements for a ``compliance certification with
terms and conditions contained in the permit, including emission
limitations, standards, or work practices,'' consistent with 40 CFR
70.6(c)(5).
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\7\ See, e.g., 40 CFR 70.6(a)(3)(iii)(A) and (c)(5), 11 MAC Part
2, Chapter 6, Rule 6.3(A)(3)(c)(1), and 11 MAC Part 2, Chapter 6,
Rule 6.3(C)(5).
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Furthermore, as stated in the NPRM, EPA considers the requirements
of Rule 1.10.B(2) to be consistent with the seven criteria EPA has
recommended for the development of AELs and that this provision is
sufficient to guide the development of specific AELs. In the 2015 SSM
SIP Action, EPA recommended that ``to be approvable (i.e., meet CAA
requirements)'' an AEL should be developed with seven specific
criteria, including that it ``requires that the owner or operator's
actions during startup and shutdown periods are documented by properly
signed, contemporaneous operating logs or other relevant evidence.''
\8\ Mississippi's Rule 1.10.B(2)(c)(iv) fulfills that recommendation by
providing that ``the source must document all startups and shutdowns
using properly signed contemporaneous logs or other relevant
evidence.''
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\8\ See also the 1999 SSM Guidance.
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e. Definitions of Startup and Shutdown
Comment 5: The commenter states that EPA should require Mississippi
to more narrowly define ``startup'' and ``shutdown'' in Rule 1.2,
Definitions. The commenter asserts that these definitions are vague and
would allow for unlimited periods of startup or shutdown. As an
example, the commenter claims that the term ``operation,'' as used in
the definitions of these two terms, is ambiguous. The commenter states
that the terms must be specific and narrowly tailored, citing to a
section of EPA's 2015 SSM SIP Action that addresses the seven criteria
EPA developed in the 1999 SSM Guidance and clarified in the 2015 SSM
SIP Action, for approval of alternative emissions limits. The commenter
then claims that it is preferable that ``startup'' be defined as
beginning when primary fuel-burning sources start burning their primary
fuel, and ``shutdown'' be defined as beginning when fuel-burning
sources stop burning their primary fuel. The commenter closes by
stating that CAA section 110(a)(2) would be violated if these
definitions are not properly bounded.
Response 5: EPA disagrees that the Agency should require
Mississippi to more narrowly define the terms ``startup'' and
``shutdown'' in its general definitions rule as part of this
rulemaking. First, Rule 1.2, Definitions, is not part of the SIP call
in EPA's 2015 SSM Action and is not part of the SIP revision before EPA
for consideration in this rulemaking.
Second, Mississippi's definitions of startup and shutdown are
consistent with the definitions used in the 2015 SSM SIP Action and are
not inconsistent with 40 CFR part 51, which does not define these
terms.9 10 Mississippi's definitions and those used in the
2015 SSM SIP Action are designed to generally convey what these modes
of operation consist of and when they begin. As noted in the 2015 SSM
Action, it may be appropriate in individual SIP provisions to include a
specifically tailored definition to address a particular source
category for a particular purpose. However, EPA does not believe that
Mississippi's definitions need to be further tailored because emission
limits now apply during startup and shutdown periods, and sources must
comply with those limits during startup and shutdown periods unless an
AEL is approved. Presently, there are no specific AELs approved for
periods of startup or shutdown in the SIP, and therefore, there are no
current concerns about unlimited periods of startups or shutdowns.
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\9\ Mississippi defines ``startup'' at Rule 1.2.HH as, ``[t]he
bringing into operation from a non-operative condition. Relative to
fuel-burning equipment, a startup shall be construed to occur only
when a unit is taken from a non-fired to a fired state.'' The 2015
SSM SIP Action defines ``startup'' as ``generally, the setting in
operation of a source for any reason. In this document, the EPA uses
this term in the generic sense. In an individual SIP provision it
may be appropriate to include a specifically tailored definition of
this term to address a particular source category for a particular
purpose.''
\10\ Mississippi defines ``shutdown'' at Rule 1.2.CC as, ``[t]he
termination of operation of equipment. Relative to fuel-burning
equipment, a shutdown shall be construed to occur only when a unit
is taken from a fired to a non-fired state.'' The 2015 SSM SIP
Action defines ``shutdown'' as ``generally, the cessation of
operation of a source for any reason. In this document, the EPA uses
this term in the generic sense. In individual SIP provisions it may
be appropriate to include a specifically tailored definition of this
term to address a particular source category for a particular
purpose.''
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Third, any future AELs will need to adequately define the modes of
operation during which the AELs apply. The requirements of Rule
1.10.B(2) are consistent with the seven criteria EPA has recommended
for the development of AELs--including the third criteria regarding
minimizing the frequency and duration of startup and shutdown
[[Page 69182]]
modes \11\--and this rule is sufficient to guide the development of
specific AELs. Specifically, Rule 1.10.B(2)(c)(i) states: ``the source
must limit the frequency and duration of startups and shutdowns to the
greatest extent practicable.'' Thus, MDEQ will establish the necessary
requirements specific to the source in the permit or rule, including
the boundaries of the startup and shutdown periods during which the
AELs will apply. Subsequently, those conditions will be reviewed by EPA
and the public through EPA's proposed action to approve or disapprove
the source-specific AELs replacing any applicable SIP emission limits
for startups and/or shutdowns. EPA will review the contents of any
source-specific SIP revision and evaluate the adequacy of the AELs
(including the startup and shutdown parameters) pursuant to the CAA and
EPA guidance.
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\11\ The third criteria states, ``[t]he alternative emission
limitation requires that the frequency and duration of operation in
startup or shutdown mode are minimized to the greatest extent
practicable.'' See 80 FR 33839, 33980.
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Therefore, EPA disagrees that Mississippi must revise its current
SIP-approved definitions of ``startup'' and ``shutdown'' included in
Rule 1.2 and that these definitions are inconsistent with the CAA.
f. Clarification of State-Only Versus SIP-Approved Requirements
Comment 6: Regarding MDEQ's revised rules at Rule 1.10.B generally,
the commenter states that ``EPA should advise Mississippi that it
should help provide clarity for the public and regulated entities by
including notes or parenthetical information in its published
regulations about which requirements are state-only and which are SIP-
approved.''
Response 6: EPA notes that this action clearly delineates which
portions of Rule 1.10 are not approved into the SIP, including notation
at 40 CFR 52.1270(c), and will ultimately also be reflected in the
compilation of approved Mississippi rules available at EPA's
website.\12\ Regarding any further notation that MDEQ may elect to
include in the portions of the rules which are state-only, EPA has no
authority to prescribe such alterations of the text. Therefore, this
comment is outside the scope of this action.
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\12\ This website is located at https://www.epa.gov/sips-ms/epa-approved-statutes-and-regulations-mississippi-sip. It is a sub-site
of the website titled ``Approved Air Quality Implementation Plans in
Mississippi,'' located at https://www.epa.gov/sips-ms, which is a
sub-site of the website titled ``Approved Air Quality Implementation
Plans in Region 4,'' located at https://www.epa.gov/air-quality-implementation-plans/approved-air-quality-implementation-plans-region-4.
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III. Final Action
EPA is approving Mississippi's November 17, 2016, SIP submission
revising Rule 1.10.B, Startups and Shutdowns, and requesting removal of
Rule 1.10.A, Upsets, Rule 1.10.B(3), and Rule 1.10.C, Maintenance, from
the Mississippi SIP-approved version of Rule 1.10, Provisions for
Upsets, Startups, and Shutdowns. EPA has also determined that this SIP
revision corrects the deficiency identified in the 2015 SSM SIP Action.
Mississippi is retaining Rules 1.10.A and Rule 1.10.B(3) for state law
purposes only, with changes to clarify that the upset provisions of
Rule 1.10.A apply to enforcement actions by the State (specifically,
the Mississippi Commission on Environmental Quality) only and ``are not
intended to prohibit EPA or third-party enforcement actions.'' \13\ See
87 FR 34609.
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\13\ Additionally, the existing Rule 1.10.B(3) is being removed
from the SIP as requested, and the revised Rule 1.10.B(3) is not
being requested for SIP approval, as the revised provision simply
provides that ``upset'' provisions at Rule 1.10.A apply if an upset
occurs during periods of startup and shutdown.
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IV. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, as discussed in Sections I and II of this preamble, EPA is
finalizing the incorporation by reference of 11 Mississippi
Administrative Code, Part 2, Chapter 1, Rule 1.10, Provisions for
Upsets, Startups, and Shutdowns, state effective December 10, 2016,
except for Rule 1.10.A and 1.10.B(3), which MDEQ is not requesting EPA
to incorporate into the SIP. EPA has made, and will continue to make,
these materials generally available through www.regulations.gov and at
the EPA Region 4 Office (please contact the person identified in the
FOR FURTHER INFORMATION CONTACT section of this preamble for more
information). Therefore, these materials have been approved by EPA for
inclusion in the SIP, have been incorporated by reference by EPA into
that plan, are fully federally enforceable under sections 110 and 113
of the CAA as of the effective date of the final rulemaking of EPA's
approval, and will be incorporated by reference in the next update to
the SIP compilation.\14\
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\14\ See 62 FR 27968 (May 22, 1997).
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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. See 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. 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 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).
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,
[[Page 69183]]
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 January 17, 2023. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 10, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
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. In Sec. 52.1270(c), amend the table by revising the entry for
``Rule 1.10,'' under the center heading ``11 MAC Part 2--Chapter 1 Air
Emission Regulations for the Prevention, Abatement, and Control of Air
Contaminants,'' to read as follows:
Sec. 52.1270 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Mississippi Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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* * * * * * *
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11 MAC Part 2--Chapter 1 Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants
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* * * * * * *
Rule 1.10.................. Provisions for 12/10/2016 11/18/2022, [Insert Except for Rule
Upsets, Startups, citation of 1.10.A and
and Shutdowns. publication]. 1.10.B(3).
* * * * * * *
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* * * * *
[FR Doc. 2022-25080 Filed 11-17-22; 8:45 am]
BILLING CODE 6560-50-P