Approval and Promulgation of Implementation Plans; Mississippi: Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule Revision, 81858-81863 [2010-32667]

Download as PDF 81858 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. srobinson on DSKHWCL6B1PROD with RULES Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a ‘‘significant energy action’’ under that order because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are VerDate Mar<15>2010 18:32 Dec 28, 2010 Jkt 223001 technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction. An environmental analysis checklist and a categorical exclusion determination will be uploaded to the docket as indicated under ADDRESSES. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. ■ For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for Part 165 continues to read as follows: ■ Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.06–1, 6.05–6 AND 160.5; Pub. L. 107–295, 116 STAT. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A new temporary § 165.T08–1087 is added to read as follows: ■ § 165.T08–1087 Slip. Security Zone, Michoud (a) Location. The following area is a security zone: Michoud Slip, encompassing the entire slip from position 30°0′34.2″ N, 89°55′40.7″ W to position 30°0′29.5″ N, 89°55′52.6″ W across the mouth of the slip. (b) Effective period. This section is effective from January 1, 2011, through December 31, 2011. (c) Regulations. (1) In accordance with the general regulation in 33 CFR part 165, subpart D, vessels are prohibited PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 from entering or transiting the security zone created by this section. (2) Persons or vessels requiring deviations from this rule must request permission from the Captain of the Port New Orleans. The Captain of the Port New Orleans may be contacted at telephone (504) 365–2543. (3) All persons and vessels shall comply with the instructions of the Captain of the Port New Orleans and designated personnel. Designated personnel include commissioned, warrant and petty officers of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans. Dated: December 8, 2010. E.M. Stanton, Captain, U.S. Coast Guard, Captain of the Port New Orleans. [FR Doc. 2010–32720 Filed 12–28–10; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2010–0811–201070; FRL– 9244–4] Approval and Promulgation of Implementation Plans; Mississippi: Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule Revision Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is taking final action to approve a revision to the State Implementation Plan (SIP), submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), to EPA on September 14, 2010, for parallel processing. MDEQ submitted the final version of this SIP revision on December 9, 2010. The SIP revision incorporates updates to MDEQ’s air quality regulations impacting the regulation of greenhouse gas (GHG) under Mississippi’s New Source Review (NSR) Prevention of Significant Deterioration (PSD) program. Specifically, the SIP revision establishes appropriate emission thresholds for determining which new stationary sources and modification projects become subject to Mississippi’s PSD permitting requirements for their GHG emissions. The change is necessary because without it, on January 2, 2011, PSD requirements would apply at the 100 or 250 tons per year (tpy) levels otherwise SUMMARY: E:\FR\FM\29DER1.SGM 29DER1 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations provided under the Clean Air Act (CAA or Act), which would overwhelm Mississippi’s permitting resources. EPA is approving Mississippi’s December 9, 2010, SIP revision because the Agency has made the determination that this SIP revision is in accordance with the CAA and EPA regulations, including regulations pertaining to PSD permitting for GHGs. Additionally, EPA is responding to adverse comments received on EPA’s November 5, 2010, proposed approval of Mississippi’s September 14, 2010, draft SIP revision. Effective Date: This rule will be effective January 2, 2011. DATES: EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR– 2010–0811. All documents in the docket are listed on the https:// 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 https:// 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 for further information. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. ADDRESSES: 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; e-mail address: bradley.twunjala@epa.gov. For information regarding the Tailoring Rule, contact Ms. Heather Abrams, Air Permits Section, at the same address above. Ms. Abrams’ telephone number is (404) 562–9185; e-mail address: abrams.heather@epa.gov. srobinson on DSKHWCL6B1PROD with RULES FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 18:32 Dec 28, 2010 Jkt 223001 Table of Contents I. What is the background for today’s final action? II. What is EPA’s response to comments received on this action? III. What is the effect of today’s final action? IV. When is today’s action effective? V. Final Action VI. Statutory and Executive Order Reviews I. What is the background for today’s final action? EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today’s final action on the Mississippi SIP.1 Four of these actions include, as they are commonly called, the ‘‘Endangerment Finding’’ and ‘‘Cause or Contribute Finding,’’ which EPA issued in a single final action,2 the ‘‘Johnson Memo Reconsideration,’’ 3 the ‘‘Light-Duty Vehicle Rule,’’ 4 and the ‘‘Tailoring Rule.’’ 5 Taken together, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they take effect on January 2, 2011, will subject GHGs emitted from stationary sources to PSD requirements; and limited the applicability of PSD requirements to GHG sources on a phased-in basis. On September 14, 2010, in response to the Tailoring Rule and earlier GHGrelated EPA rules, MDEQ submitted a draft revision to EPA for approval into the Mississippi SIP to establish appropriate emission thresholds for determining which new or modified stationary sources become subject to Mississippi’s PSD permitting requirements for GHG emissions. Subsequently, on November 5, 2010, 1 On December 13, 2010, EPA finalized a ‘‘SIP Call’’ that would require those states with SIPs that do not authorize PSD permitting for GHGs to submit a SIP revision providing such authority. 75 FR 77698. In a companion rulemaking, EPA proposed a federal implementation plan (FIP) that would apply in any state that is unable to submit the required SIP revision by its deadline. 75 FR 53883 (September 2, 2010). Because Mississippi’s SIP already authorizes Mississippi to regulate GHGs once GHGs become subject to PSD requirements on January 2, 2011, Mississippi is not subject to the proposed SIP Call or FIP. 2 ‘‘Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.’’ 74 FR 66496 (December 15, 2009). 3 ‘‘Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.’’ 75 FR 17004 (April 2, 2010). 4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 5 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 FR 31514 (June 3, 2010). PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 81859 EPA published a proposed rulemaking to approve a portion of Mississippi’s September 14, 2010, SIP revision under parallel processing. 75 FR 68259. Specifically, Mississippi’s September 14, 2010, draft SIP revision incorporates by reference the Tailoring Rule provisions at 40 CFR 52.21 (as amended June 3, 2010, and effective August 2, 2010), into the Mississippi SIP (APC–S– 5—Regulations for the Prevention of Significant Deterioration) to address the thresholds for GHG permitting applicability. Detailed background information and EPA’s rationale for the proposed approval are provided in EPA’s November 5, 2010, Federal Register notice. EPA’s November 5, 2010, proposed approval was contingent upon Mississippi providing a final SIP revision that was substantively the same as the revision proposed for approval by EPA in the November 5, 2010, proposed rulemaking. 75 FR 68259. Mississippi provided its final SIP revision on December 9, 2010. There was a minor change to correct an error for a citation noted in Mississippi’s September 14, 2010, draft SIP revision. Specifically, in providing the citation for the NSR PM2.5 Implementation Rule, Mississippi provided 73 FR 38349 in its September 14, 2010, draft SIP revision under APC– S–5, Section 2–7. In Mississippi’s December 9, 2010, SIP revision, the State corrects this citation to read 73 FR 28321 instead of 73 FR 38349. Besides the correction of the citation, there were no differences between Mississippi’s September 14, 2010, draft SIP revision, and the final SIP revision which was provided on December 9, 2010. Mississippi’s December 9, 2010, SIP revision also incorporates two administrative changes to their PSD regulations (Air Pollution Control, Section 5 (APC–S–5)—Regulations for the Prevention of Significant Deterioration). These changes relate to Mississippi’s pre-existing exclusion of certain provisions of the federal PSD regulations from its SIP, specifically, provisions pertaining to the ‘‘reasonable possibility’’ standard,6 ‘‘clean units,’’ and 6 On July 10, 2006 (71 FR 38773), EPA approved Mississippi’s incorporation by reference of the 2002 NSR Reform Rules into the Mississippi SIP. The SIP-approved rule excludes certain provisions of the federal rules that were not incorporated by reference. Among the excluded provisions are those set forth at 40 CFR 52.21(r)(6) pertaining to the ‘‘reasonable possibility’’ standard, which establishes criteria for when recordkeeping and reporting are required for a modification that does not trigger major NSR. In defining that exclusion, Mississippi’s rule quoted the relevant language from the federal PSD regulations. Subsequently, on December 21, 2007 (73 FR 72607), EPA amended the reasonable possibility standard in response to a decision by the E:\FR\FM\29DER1.SGM Continued 29DER1 81860 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations ‘‘pollution control projects’’ (PCPs).7 In today’s action, EPA is finalizing approval of these administrative changes into the Mississippi SIP. EPA’s November 5, 2010, proposal addressed these revisions. In addition to changes to address the Tailoring Rule and the aforementioned administrative changes mentioned above, Mississippi’s December 9, 2010, SIP revision also includes: (1) Provisions to exclude facilities that produce ethanol through a natural fermentation process (hereafter referred to as the ‘‘Ethanol Rule’’) from the definition of ‘‘chemical process plants’’ in the major NSR source permitting program; and (2) revision to incorporate by reference changes pursuant to EPA’s Fugitive Emissions Rule (73 FR 77882, December 19, 2008).8 In today’s final rulemaking, EPA is not taking final action on Mississippi’s changes to its PSD regulations to exclude facilities from the definition of ‘‘chemical process plants’’ in the major NSR permitting program, nor is EPA taking final action on Mississippi’s changes to incorporate the provisions of the Fugitive Emission Rule. srobinson on DSKHWCL6B1PROD with RULES II. What is EPA’s response to comments received on this action? EPA received two sets of comments on the November 5, 2010, proposed rulemaking to approve revisions to Mississippi’s SIP. One set of comments, provided by the Sierra Club, was in favor of EPA’s November 5, 2010, proposed action. The other set of comments, provided by the Air Permitting Forum, raised concerns with final action on EPA’s November 5, 2010, proposed action. A full set of the comments provided by both the Sierra Club and Air Permitting Forum (hereinafter referred to as ‘‘the U.S. Court of Appeals for the DC Circuit. See New York v. EPA, 413 F.3d 3 (DC Cir. 2005). While Mississippi will continue to exclude the reasonable possibility provision from its PSD regulations, it is revising the exclusion to reflect the revised reasonable possibility language at 40 CFR 52.21(r)(6) as promulgated on December 21, 2007. 7 The Mississippi PSD regulations approved by EPA on July 10, 2006 (71 FR 38773), specifically excluded from incorporation by reference the federal regulatory provisions pertaining to ‘‘clean units’’ and PCPs. Subsequently, the DC Circuit vacated the federal clean unit and PCP provisions. See New York v. EPA, 413 F.3d at 3. Mississippi’s September 14, 2010, proposed SIP revision removes the reference to these vacated federal regulations from its list of excluded Federal provisions. 8 On March 31, 2010, EPA stayed the Fugitive Emissions Rule (73 FR 77882) for 18 months to October 3, 2011, to allow the Agency time to propose, take comment and issue a final action regarding the inclusion of fugitive emissions in NSR applicability determinations. Therefore, the 40 CFR part 51 and part 52 administrative regulations that were amended by the Fugitive Emissions Rule are stayed through October 3, 2011. VerDate Mar<15>2010 18:32 Dec 28, 2010 Jkt 223001 Commenter’’) is provided in the docket for today’s final action. A summary of the adverse comments and EPA’s responses are provided below. Generally, the adverse comments fall into four categories. First, the Commenter asserts that PSD requirements cannot be triggered by GHGs. Second, the Commenter expresses concerns regarding a footnote in the November 5, 2010, proposal describing EPA’s previously announced intention to narrow its prior approval of some SIPs to ensure that sources with GHG emissions that are less than the Tailoring Rule’s thresholds will not be obligated under federal law to obtain PSD permits prior to a SIP revision incorporating those thresholds. The Commenter explains that the planned SIP approval narrowing action ‘‘is illegal.’’ Third, the Commenter states that EPA has failed to meet applicable statutory and executive order review requirements. Lastly, the Commenter states: ‘‘EPA should explicitly state in any final rule that the continued enforceability of these provisions in the Mississippi SIP is limited to the extent to which the Federal requirements remain enforceable.’’ EPA’s response to these four categories of comments is provided below. Comment 1: The Commenter asserts that PSD requirements cannot be triggered by GHGs. In its letter, the Commenter reiterates EPA’s statement that without the Tailoring Rule thresholds, PSD will apply as of January 2, 2011, to all stationary sources that emit or have the potential to emit, depending on the source category, either 100 or 250 tons of GHG per year. The Commenter also reiterates EPA’s statement that beginning January 2, 2011, a source owner proposing to construct any new major source that emits at or higher than the GHG applicability levels, or modify any existing major source in a way that would increase GHG emissions, would need to obtain a PSD permit that addresses these emissions before construction could begin. In raising concerns with the two aforementioned statements, the Commenter states: ‘‘No area in the State of Mississippi has been designated attainment or unclassifiable for greenhouse gases (GHGs), as there is no national ambient air quality standard (NAAQS) for GHGs. Therefore, GHGs cannot trigger PSD permitting.’’ The Commenter notes that it made this argument in detail in comments submitted to EPA on the Tailoring Rule and other related GHG rulemakings. The Commenter attached those previously submitted comments to its comments on the proposed rulemaking related to this PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 action. Finally, the Commenter states that ‘‘EPA should immediately provide notice that it is now interpreting the Act not to require that GHGs trigger PSD and allow Mississippi to rescind that portion of its rules that would allow GHGs to trigger PSD.’’ Response 1: EPA established the requirement that PSD applies to all pollutants newly subject to regulation, including non-NAAQS pollutants, in earlier national rulemakings concerning the PSD program, and EPA has not reopened that issue in this rulemaking. In an August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710–52712, and 45 FR 52735, EPA stated that a ‘‘major stationary source’’ was one which emitted ‘‘any air pollutant subject to regulation under the Act’’ at or above the specified numerical thresholds; and defined a ‘‘major modification,’’ in general, as a physical or operational change that increased emissions of ‘‘any pollutant subject to regulation under the Act’’ by more than an amount that EPA variously termed as de minimis or significant. In addition, in EPA’s NSR Reform rule at 67 FR 80186 and 67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the new definition of ‘‘regulated NSR pollutant’’ (currently codified at 40 CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)); noted that EPA added this term based on a request from a commenter to ‘‘clarify which pollutants are covered under the PSD program;’’ and explained that in addition to criteria pollutants for which a NAAQS has been established, ‘‘[t]he PSD program applies automatically to newly regulated NSR pollutants, which would include final promulgation of an NSPS [new source performance standard] applicable to a previously unregulated pollutant.’’ Id. at 67 FR 80240 and 67 FR 80264. Among other things, the definition of ‘‘regulated NSR pollutant’’ includes ‘‘[a]ny pollutant that otherwise is subject to regulation under the Act.’’ See 40 CFR 52.21(b)(50)(d)(iv); see also id. 40 CFR 51.166(a)(49)(iv). In any event, EPA disagrees with the Commenter’s underlying premise that PSD requirements are not triggered for GHGs when GHGs become subject to regulation as of January 2, 2011. As just noted, this has been well established and discussed in connection with prior EPA actions, including, most recently, the Johnson Reconsideration and the Tailoring Rule. In addition, EPA’s November 5, 2010, proposed rulemaking notice provides the general basis for the Agency’s rationale that GHGs (while not a NAAQS pollutant) can trigger PSD permitting requirements. The November 5, 2010, notice also refers the reader to E:\FR\FM\29DER1.SGM 29DER1 srobinson on DSKHWCL6B1PROD with RULES Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations the preamble to the Tailoring Rule for further information on this rationale. In that rulemaking, EPA addressed at length the comment that PSD can be triggered only by pollutants subject to the NAAQS, and concluded such an interpretation of the Act would contravene Congress’ unambiguous intent. See 75 FR 31560–31562. Further discussion of EPA’s rationale for concluding that PSD requirements are triggered by non-NAAQS pollutants such as GHGs appears in the Tailoring Rule Response-to-Comments document (‘‘Prevention of Significant Deterioration and Title V GHG Tailoring Rule: EPA’s Response to Public Comments’’), pp. 34– 41; and in EPA’s response to motions for a stay filed in the litigation concerning those rules (‘‘EPA’s Response to Motions for Stay,’’ Coalition for Responsible Regulation v. EPA, DC Cir. No. 09–1322 (and consolidated cases)), at pp. 47–59, and are incorporated by reference here. These documents have been placed in the docket for today’s action. Comment 2: The Commenter expresses concerns regarding a footnote in which EPA describes its previously announced intention to narrow its prior approval of some SIPs to ensure that sources with GHG emissions that are less than the Tailoring Rule’s thresholds will not be obligated under federal law to obtain PSD permits during any gap between when GHG permitting requirements go into effect and when the SIP is revised to incorporate the Tailoring Rule thresholds. The Commenter explains that narrowing ‘‘is illegal.’’ Further, the Commenter states that ‘‘EPA has not proposed to narrow Mississippi’s SIP approval here and any such proposal must be explicit and address the action specifically made with respect to Mississippi. EPA cannot sidestep these important procedural requirements.’’ Response 2: While EPA does not agree with the Commenter’s assertion that the narrowing approach discussed in EPA’s Tailoring Rule is illegal, the narrowing approach was not the subject of EPA’s November 5, 2010, proposed rulemaking to approve Mississippi’s September 14, 2010, SIP revision. Rather the narrowing approach was the subject of a separate rulemaking, and any action to use this approach for Mississippi’s SIP will be considered and finalized in an action separate from today’s rulemaking. In today’s final action, EPA is acting to approve a SIP revision submitted by Mississippi, and is not otherwise narrowing its approval of prior submitted and approved provisions in the Mississippi SIP. Accordingly, the legality of the narrowing approach is not at issue in this rulemaking. VerDate Mar<15>2010 18:32 Dec 28, 2010 Jkt 223001 Comment 3: The Commenter states that EPA has failed to meet applicable statutory and executive order review requirements. Specifically, the Commenter refers to the statutory and executive orders for the Paperwork Reduction Act, the Regulatory Flexibility Act (RFA), Unfunded Mandates Reform Act, and Executive Order 13132 (Federalism). Additionally, the Commenter mentions that EPA has never analyzed the costs and benefits associated with triggering PSD for stationary sources in Mississippi, much less nationwide. Response 3: EPA disagrees with the Commenter’s statement that EPA has failed to meet applicable statutory and executive order review requirements. As stated in EPA’s proposed approval of Mississippi’s December 9, 2010, SIP revision, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. Accordingly, EPA approval, in and of itself, does not impose any new information collection burden, as defined in 5 CFR 1320.3(b) and (c), that would require additional review under the Paperwork Reduction Act. In addition, this SIP approval will not have a significant economic impact on a substantial number of small entities, beyond that which would be required by the state law requirements, so a regulatory flexibility analysis is not required under the RFA. Accordingly, this rule is appropriately certified under section 605(b) of the RFA. Moreover, as this action approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandates or significantly or uniquely affect small governments, such that it would be subject to the Unfunded Mandates Reform Act. Finally, this action does not have federalism implications that would make Executive Order 13132 applicable because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. In sum, today’s rule is a routine approval of a SIP revision, approving state law, and does not impose any requirements beyond those imposed by state law. To the extent these comments are directed more generally to the application of the statutory and executive order reviews to the required regulation of GHGs under PSD programs, these comments are irrelevant to the approval of state law in today’s action. However, EPA provided an PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 81861 extensive response to similar comments in promulgating the Tailoring Rule. EPA refers the Commenter to the sections in the Tailoring Rule entitled ‘‘VII. Comments on Statutory and Executive Order Reviews,’’ 75 FR 31601–31603, and ‘‘VI. What are the economic impacts of the final rule?,’’ 75 FR 31595–31601. EPA also notes that today’s action does not in-and-of itself trigger the regulation of GHGs. To the contrary, by putting in place higher PSD applicability thresholds for GHGs than would otherwise be in effect under the Act, this rulemaking, as well as EPA’s Tailoring Rule, provides relief to smaller GHG-emitting sources that would otherwise be subject to PSD permitting requirements for their GHG emissions. Comment 4: The Commenter states that ‘‘[i]f EPA proceeds with this action, it must condition approval on the continued validity of its determination that PSD can be triggered by or is applicable to GHGs.’’ Further, the Commenter remarks on the ongoing litigation in the U.S. Court of Appeals for the DC Circuit. Specifically, regarding EPA’s determination that PSD can be triggered by GHGs or is applicable to GHGs, the Commenter mentions that ‘‘EPA should explicitly state in any final rule that continued enforceability of these provisions in the Mississippi SIP is limited to the extent to which the federal requirements remain enforceable.’’ The Commenter notes that if a stay is issued, these requirements should also be stayed. Response 4: EPA believes that it is most appropriate to take actions that are consistent with the federal regulations that are in place at the time the action is being taken. To the extent that any changes to federal regulations related to today’s action result from pending legal challenges or other actions, EPA will process appropriate SIP revisions in accordance with the procedures provided in the Act and EPA’s regulations. EPA notes that in an order dated December 9, 2010, the United States Court of Appeals for the DC Circuit denied motions to stay EPA’s regulatory actions related to GHGs. Coalition for Responsible Regulation, Inc. v. EPA, Nos. 09–1322, 10–1073, 10– 1092 (and consolidated cases), Slip Op. at 3 (DC Cir. December 10, 2010) (order denying stay motions). III. What is the effect of today’s final action? Final approval of Mississippi’s December 9, 2010, SIP revision will put in place the GHG emission thresholds for PSD applicability set forth in EPA’s Tailoring Rule (75 FR 31514, June 3, 2010), ensuring that smaller GHG E:\FR\FM\29DER1.SGM 29DER1 81862 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations sources emitting less than these thresholds will not be subject to permitting requirements when these requirements begin applying to GHGs on January 2, 2011. Pursuant to section 110 of the CAA, EPA is approving a portion of the changes made in Mississippi’s December 9, 2010, SIP revision into Mississippi’s SIP. Mississippi’s December 9, 2010, revision updates its existing incorporation by reference of the federal NSR program to include the relevant federal Tailoring Rule provisions set forth at 40 CFR 52.21 into the Mississippi SIP at APC–S–5— Regulations for the Prevention of Significant Deterioration.9 EPA has determined that Mississippi’s December 9, 2010, SIP revision is consistent with the Tailoring Rule. Furthermore, EPA has determined that the December 9, 2010, revision to Mississippi’s SIP is consistent with section 110 of the CAA. See, e.g., Tailoring Rule, at 75 FR 31561. srobinson on DSKHWCL6B1PROD with RULES IV. When is today’s action effective? In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective on January 2, 2011. This is because a delayed effective date is unnecessary due to the nature of Mississippi’s changes to its PSD regulations to establish appropriate emissions thresholds for determining PSD applicability with respect to new or modified GHG-emitting sources in accordance with EPA’s Tailoring Rule, thereby relieving the State from certain CAA requirements that would otherwise apply to it. The January 2, 2011, effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule ‘‘grants or recognizes an exemption or relieves a restriction,’’ and section 553(d)(3), which allows an effective date less than 30 days after publication ‘‘as otherwise provided by the agency for good cause found and published with the rule.’’ The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today’s rule, however, does not create any new regulatory requirements such that affected parties would need time to 9 Mississippi’s December 9, 2010, submittal also revises definitions for APC–S–6—Air Emissions Operating Permit Regulations for the Purposes of Title V of the Federal Clean Air Act; however, these relate to title V and are not included in the SIP. As such, EPA is not taking action to approve Mississippi’s update to this regulation in this rulemaking. VerDate Mar<15>2010 18:32 Dec 28, 2010 Jkt 223001 prepare before the rule takes effect. Rather, today’s rule relieves the sources within Mississippi from considering the lower emissions thresholds for GHG permitting purposes. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective January 2, 2011. V. Final Action EPA is taking final action to approve Mississippi’s December 9, 2010, SIP revision which includes updates to Mississippi’s air quality regulations, APC–S–5—Regulations for the Prevention of Significant Deterioration. Specifically, Mississippi’s December 9, 2010, SIP revision establishes appropriate emissions thresholds for determining PSD applicability with respect to new or modified GHGemitting sources in accordance with EPA’s Tailoring Rule. EPA has made the determination that the December 9, 2010, SIP revision is approvable because it is in accordance with the CAA and EPA regulations, including regulations pertaining to PSD permitting for GHGs. VI. 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); PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 • 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 February 28, 2011. 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, Greenhouse gases, E:\FR\FM\29DER1.SGM 29DER1 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements. PART 52—[AMENDED] ■ ■ Dated: December 20, 2010. Gwendolyn Keyes Fleming, Regional Administrator, Region 4. ■ Subpart Z—Mississippi 1. The authority citation for part 52 continues to read as follows: 81863 Authority: 42 U.S.C. 7401 et seq. 2. In § 52.1270(c) the table is amended by revising the following entry for ‘‘APC–S–5’’ to read as follows: § 52.1270 * 40 CFR part 52 is amended as follows: Identification of plan. * * (c) * * * * * EPA-APPROVED MISSISSIPPI REGULATIONS State citation State effective date Title/subject EPA approval date Explanation * * * * * * * APC–S–5 Regulations for the Prevention of Significant Deterioration of Air Quality All ........................................ .................... 12/1/2010 12/29/2010 ......................... APC–S–5 incorporates by reference the regulations [Insert citation of publicafound at 40 CFR 52.21 as of September 13, 2010. tion]. This EPA action is approving 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) APC– S–5. In addition, this EPA action is not incorporating 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. 2010–32667 Filed 12–28–10; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2010–0697–201072; FRL– 9244–5] Approval and Promulgation of Implementation Plans; Alabama: Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule Revision Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is taking final action to approve a revision to the State Implementation Plan (SIP), submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), to EPA on August 17, 2010, for parallel processing. ADEM submitted the final version of this SIP revision on December 14, 2010. The SIP revision incorporates updates to ADEM’s air quality regulations impacting the regulation of greenhouse gas (GHG) under Alabama’s New Source Review (NSR) Prevention of Significant Deterioration (PSD) program. srobinson on DSKHWCL6B1PROD with RULES SUMMARY: VerDate Mar<15>2010 18:32 Dec 28, 2010 Jkt 223001 Specifically, the SIP revision establishes appropriate emission thresholds for determining which new stationary sources and modification projects become subject to Alabama’s PSD permitting requirements for their GHG emissions. The change is necessary because without it, on January 2, 2011, PSD requirements would apply at the 100 or 250 tons per year (tpy) levels otherwise provided under the Clean Air Act (CAA or Act), which would overwhelm Alabama’s permitting resources. EPA is approving Alabama’s December 14, 2010, SIP revision because the Agency has made the determination that this SIP revision is in accordance with the CAA and EPA regulations, including regulations pertaining to PSD permitting for GHGs. Additionally, EPA is responding to adverse comments received on EPA’s November 5, 2010, proposed approval of Alabama’s August 17, 2010, draft SIP revision. Effective Date: This rule will be effective January 18, 2011. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR– 2010–0697. All documents in the docket are listed on the https:// www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential DATES: PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 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 https:// 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 for further information. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays. For information regarding the Alabama 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; e-mail address: bradley.twunjala@epa.gov. For FOR FURTHER INFORMATION CONTACT: E:\FR\FM\29DER1.SGM 29DER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81858-81863]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32667]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0811-201070; FRL-9244-4]

Approval and Promulgation of Implementation Plans; Mississippi:
Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule
Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the State
Implementation Plan (SIP), submitted by the State of Mississippi,
through the Mississippi Department of Environmental Quality (MDEQ), to
EPA on September 14, 2010, for parallel processing. MDEQ submitted the
final version of this SIP revision on December 9, 2010. The SIP
revision incorporates updates to MDEQ's air quality regulations
impacting the regulation of greenhouse gas (GHG) under Mississippi's
New Source Review (NSR) Prevention of Significant Deterioration (PSD)
program. Specifically, the SIP revision establishes appropriate
emission thresholds for determining which new stationary sources and
modification projects become subject to Mississippi's PSD permitting
requirements for their GHG emissions. The change is necessary because
without it, on January 2, 2011, PSD requirements would apply at the 100
or 250 tons per year (tpy) levels otherwise

[[Page 81859]]

provided under the Clean Air Act (CAA or Act), which would overwhelm
Mississippi's permitting resources. EPA is approving Mississippi's
December 9, 2010, SIP revision because the Agency has made the
determination that this SIP revision is in accordance with the CAA and
EPA regulations, including regulations pertaining to PSD permitting for
GHGs. Additionally, EPA is responding to adverse comments received on
EPA's November 5, 2010, proposed approval of Mississippi's September
14, 2010, draft SIP revision.

DATES: Effective Date: This rule will be effective January 2, 2011.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2010-0811. All documents in the docket
are listed on the https://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 https://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 for further information. 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; e-mail address: bradley.twunjala@epa.gov. For
information regarding the Tailoring Rule, contact Ms. Heather Abrams,
Air Permits Section, at the same address above. Ms. Abrams' telephone
number is (404) 562-9185; e-mail address: abrams.heather@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for today's final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of today's final action?
IV. When is today's action effective?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What is the background for today's final action?

EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's final action on
the Mississippi SIP.\1\ Four of these actions include, as they are
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and
the ``Tailoring Rule.'' \5\ Taken together, these actions established
regulatory requirements for GHGs emitted from new motor vehicles and
new motor vehicle engines; determined that such regulations, when they
take effect on January 2, 2011, will subject GHGs emitted from
stationary sources to PSD requirements; and limited the applicability
of PSD requirements to GHG sources on a phased-in basis.
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\1\ On December 13, 2010, EPA finalized a ``SIP Call'' that
would require those states with SIPs that do not authorize PSD
permitting for GHGs to submit a SIP revision providing such
authority. 75 FR 77698. In a companion rulemaking, EPA proposed a
federal implementation plan (FIP) that would apply in any state that
is unable to submit the required SIP revision by its deadline. 75 FR
53883 (September 2, 2010). Because Mississippi's SIP already
authorizes Mississippi to regulate GHGs once GHGs become subject to
PSD requirements on January 2, 2011, Mississippi is not subject to
the proposed SIP Call or FIP.
\2\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\3\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
\4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\5\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
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On September 14, 2010, in response to the Tailoring Rule and
earlier GHG-related EPA rules, MDEQ submitted a draft revision to EPA
for approval into the Mississippi SIP to establish appropriate emission
thresholds for determining which new or modified stationary sources
become subject to Mississippi's PSD permitting requirements for GHG
emissions. Subsequently, on November 5, 2010, EPA published a proposed
rulemaking to approve a portion of Mississippi's September 14, 2010,
SIP revision under parallel processing. 75 FR 68259. Specifically,
Mississippi's September 14, 2010, draft SIP revision incorporates by
reference the Tailoring Rule provisions at 40 CFR 52.21 (as amended
June 3, 2010, and effective August 2, 2010), into the Mississippi SIP
(APC-S-5--Regulations for the Prevention of Significant Deterioration)
to address the thresholds for GHG permitting applicability. Detailed
background information and EPA's rationale for the proposed approval
are provided in EPA's November 5, 2010, Federal Register notice.
EPA's November 5, 2010, proposed approval was contingent upon
Mississippi providing a final SIP revision that was substantively the
same as the revision proposed for approval by EPA in the November 5,
2010, proposed rulemaking. 75 FR 68259. Mississippi provided its final
SIP revision on December 9, 2010. There was a minor change to correct
an error for a citation noted in Mississippi's September 14, 2010,
draft SIP revision. Specifically, in providing the citation for the NSR
PM2.5 Implementation Rule, Mississippi provided 73 FR 38349
in its September 14, 2010, draft SIP revision under APC-S-5, Section 2-
7. In Mississippi's December 9, 2010, SIP revision, the State corrects
this citation to read 73 FR 28321 instead of 73 FR 38349. Besides the
correction of the citation, there were no differences between
Mississippi's September 14, 2010, draft SIP revision, and the final SIP
revision which was provided on December 9, 2010.
Mississippi's December 9, 2010, SIP revision also incorporates two
administrative changes to their PSD regulations (Air Pollution Control,
Section 5 (APC-S-5)--Regulations for the Prevention of Significant
Deterioration). These changes relate to Mississippi's pre-existing
exclusion of certain provisions of the federal PSD regulations from its
SIP, specifically, provisions pertaining to the ``reasonable
possibility'' standard,\6\ ``clean units,'' and

[[Page 81860]]

``pollution control projects'' (PCPs).\7\ In today's action, EPA is
finalizing approval of these administrative changes into the
Mississippi SIP. EPA's November 5, 2010, proposal addressed these
revisions.
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\6\ On July 10, 2006 (71 FR 38773), EPA approved Mississippi's
incorporation by reference of the 2002 NSR Reform Rules into the
Mississippi SIP. The SIP-approved rule excludes certain provisions
of the federal rules that were not incorporated by reference. Among
the excluded provisions are those set forth at 40 CFR 52.21(r)(6)
pertaining to the ``reasonable possibility'' standard, which
establishes criteria for when recordkeeping and reporting are
required for a modification that does not trigger major NSR. In
defining that exclusion, Mississippi's rule quoted the relevant
language from the federal PSD regulations. Subsequently, on December
21, 2007 (73 FR 72607), EPA amended the reasonable possibility
standard in response to a decision by the U.S. Court of Appeals for
the DC Circuit. See New York v. EPA, 413 F.3d 3 (DC Cir. 2005).
While Mississippi will continue to exclude the reasonable
possibility provision from its PSD regulations, it is revising the
exclusion to reflect the revised reasonable possibility language at
40 CFR 52.21(r)(6) as promulgated on December 21, 2007.
\7\ The Mississippi PSD regulations approved by EPA on July 10,
2006 (71 FR 38773), specifically excluded from incorporation by
reference the federal regulatory provisions pertaining to ``clean
units'' and PCPs. Subsequently, the DC Circuit vacated the federal
clean unit and PCP provisions. See New York v. EPA, 413 F.3d at 3.
Mississippi's September 14, 2010, proposed SIP revision removes the
reference to these vacated federal regulations from its list of
excluded Federal provisions.
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In addition to changes to address the Tailoring Rule and the
aforementioned administrative changes mentioned above, Mississippi's
December 9, 2010, SIP revision also includes: (1) Provisions to exclude
facilities that produce ethanol through a natural fermentation process
(hereafter referred to as the ``Ethanol Rule'') from the definition of
``chemical process plants'' in the major NSR source permitting program;
and (2) revision to incorporate by reference changes pursuant to EPA's
Fugitive Emissions Rule (73 FR 77882, December 19, 2008).\8\ In today's
final rulemaking, EPA is not taking final action on Mississippi's
changes to its PSD regulations to exclude facilities from the
definition of ``chemical process plants'' in the major NSR permitting
program, nor is EPA taking final action on Mississippi's changes to
incorporate the provisions of the Fugitive Emission Rule.
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\8\ On March 31, 2010, EPA stayed the Fugitive Emissions Rule
(73 FR 77882) for 18 months to October 3, 2011, to allow the Agency
time to propose, take comment and issue a final action regarding the
inclusion of fugitive emissions in NSR applicability determinations.
Therefore, the 40 CFR part 51 and part 52 administrative regulations
that were amended by the Fugitive Emissions Rule are stayed through
October 3, 2011.
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II. What is EPA's response to comments received on this action?

EPA received two sets of comments on the November 5, 2010, proposed
rulemaking to approve revisions to Mississippi's SIP. One set of
comments, provided by the Sierra Club, was in favor of EPA's November
5, 2010, proposed action. The other set of comments, provided by the
Air Permitting Forum, raised concerns with final action on EPA's
November 5, 2010, proposed action. A full set of the comments provided
by both the Sierra Club and Air Permitting Forum (hereinafter referred
to as ``the Commenter'') is provided in the docket for today's final
action. A summary of the adverse comments and EPA's responses are
provided below.
Generally, the adverse comments fall into four categories. First,
the Commenter asserts that PSD requirements cannot be triggered by
GHGs. Second, the Commenter expresses concerns regarding a footnote in
the November 5, 2010, proposal describing EPA's previously announced
intention to narrow its prior approval of some SIPs to ensure that
sources with GHG emissions that are less than the Tailoring Rule's
thresholds will not be obligated under federal law to obtain PSD
permits prior to a SIP revision incorporating those thresholds. The
Commenter explains that the planned SIP approval narrowing action ``is
illegal.'' Third, the Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements. Lastly,
the Commenter states: ``EPA should explicitly state in any final rule
that the continued enforceability of these provisions in the
Mississippi SIP is limited to the extent to which the Federal
requirements remain enforceable.'' EPA's response to these four
categories of comments is provided below.
Comment 1: The Commenter asserts that PSD requirements cannot be
triggered by GHGs. In its letter, the Commenter reiterates EPA's
statement that without the Tailoring Rule thresholds, PSD will apply as
of January 2, 2011, to all stationary sources that emit or have the
potential to emit, depending on the source category, either 100 or 250
tons of GHG per year. The Commenter also reiterates EPA's statement
that beginning January 2, 2011, a source owner proposing to construct
any new major source that emits at or higher than the GHG applicability
levels, or modify any existing major source in a way that would
increase GHG emissions, would need to obtain a PSD permit that
addresses these emissions before construction could begin. In raising
concerns with the two aforementioned statements, the Commenter states:
``No area in the State of Mississippi has been designated attainment or
unclassifiable for greenhouse gases (GHGs), as there is no national
ambient air quality standard (NAAQS) for GHGs. Therefore, GHGs cannot
trigger PSD permitting.'' The Commenter notes that it made this
argument in detail in comments submitted to EPA on the Tailoring Rule
and other related GHG rulemakings. The Commenter attached those
previously submitted comments to its comments on the proposed
rulemaking related to this action. Finally, the Commenter states that
``EPA should immediately provide notice that it is now interpreting the
Act not to require that GHGs trigger PSD and allow Mississippi to
rescind that portion of its rules that would allow GHGs to trigger
PSD.''
Response 1: EPA established the requirement that PSD applies to all
pollutants newly subject to regulation, including non-NAAQS pollutants,
in earlier national rulemakings concerning the PSD program, and EPA has
not re-opened that issue in this rulemaking. In an August 7, 1980,
rulemaking at 45 FR 52676, 45 FR 52710-52712, and 45 FR 52735, EPA
stated that a ``major stationary source'' was one which emitted ``any
air pollutant subject to regulation under the Act'' at or above the
specified numerical thresholds; and defined a ``major modification,''
in general, as a physical or operational change that increased
emissions of ``any pollutant subject to regulation under the Act'' by
more than an amount that EPA variously termed as de minimis or
significant. In addition, in EPA's NSR Reform rule at 67 FR 80186 and
67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the
new definition of ``regulated NSR pollutant'' (currently codified at 40
CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)); noted that EPA added this
term based on a request from a commenter to ``clarify which pollutants
are covered under the PSD program;'' and explained that in addition to
criteria pollutants for which a NAAQS has been established, ``[t]he PSD
program applies automatically to newly regulated NSR pollutants, which
would include final promulgation of an NSPS [new source performance
standard] applicable to a previously unregulated pollutant.'' Id. at 67
FR 80240 and 67 FR 80264. Among other things, the definition of
``regulated NSR pollutant'' includes ``[a]ny pollutant that otherwise
is subject to regulation under the Act.'' See 40 CFR
52.21(b)(50)(d)(iv); see also id. 40 CFR 51.166(a)(49)(iv).
In any event, EPA disagrees with the Commenter's underlying premise
that PSD requirements are not triggered for GHGs when GHGs become
subject to regulation as of January 2, 2011. As just noted, this has
been well established and discussed in connection with prior EPA
actions, including, most recently, the Johnson Reconsideration and the
Tailoring Rule. In addition, EPA's November 5, 2010, proposed
rulemaking notice provides the general basis for the Agency's rationale
that GHGs (while not a NAAQS pollutant) can trigger PSD permitting
requirements. The November 5, 2010, notice also refers the reader to

[[Page 81861]]

the preamble to the Tailoring Rule for further information on this
rationale. In that rulemaking, EPA addressed at length the comment that
PSD can be triggered only by pollutants subject to the NAAQS, and
concluded such an interpretation of the Act would contravene Congress'
unambiguous intent. See 75 FR 31560-31562. Further discussion of EPA's
rationale for concluding that PSD requirements are triggered by non-
NAAQS pollutants such as GHGs appears in the Tailoring Rule Response-
to-Comments document (``Prevention of Significant Deterioration and
Title V GHG Tailoring Rule: EPA's Response to Public Comments''), pp.
34-41; and in EPA's response to motions for a stay filed in the
litigation concerning those rules (``EPA's Response to Motions for
Stay,'' Coalition for Responsible Regulation v. EPA, DC Cir. No. 09-
1322 (and consolidated cases)), at pp. 47-59, and are incorporated by
reference here. These documents have been placed in the docket for
today's action.
Comment 2: The Commenter expresses concerns regarding a footnote in
which EPA describes its previously announced intention to narrow its
prior approval of some SIPs to ensure that sources with GHG emissions
that are less than the Tailoring Rule's thresholds will not be
obligated under federal law to obtain PSD permits during any gap
between when GHG permitting requirements go into effect and when the
SIP is revised to incorporate the Tailoring Rule thresholds. The
Commenter explains that narrowing ``is illegal.'' Further, the
Commenter states that ``EPA has not proposed to narrow Mississippi's
SIP approval here and any such proposal must be explicit and address
the action specifically made with respect to Mississippi. EPA cannot
sidestep these important procedural requirements.''
Response 2: While EPA does not agree with the Commenter's assertion
that the narrowing approach discussed in EPA's Tailoring Rule is
illegal, the narrowing approach was not the subject of EPA's November
5, 2010, proposed rulemaking to approve Mississippi's September 14,
2010, SIP revision. Rather the narrowing approach was the subject of a
separate rulemaking, and any action to use this approach for
Mississippi's SIP will be considered and finalized in an action
separate from today's rulemaking. In today's final action, EPA is
acting to approve a SIP revision submitted by Mississippi, and is not
otherwise narrowing its approval of prior submitted and approved
provisions in the Mississippi SIP. Accordingly, the legality of the
narrowing approach is not at issue in this rulemaking.
Comment 3: The Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements.
Specifically, the Commenter refers to the statutory and executive
orders for the Paperwork Reduction Act, the Regulatory Flexibility Act
(RFA), Unfunded Mandates Reform Act, and Executive Order 13132
(Federalism). Additionally, the Commenter mentions that EPA has never
analyzed the costs and benefits associated with triggering PSD for
stationary sources in Mississippi, much less nationwide.
Response 3: EPA disagrees with the Commenter's statement that EPA
has failed to meet applicable statutory and executive order review
requirements. As stated in EPA's proposed approval of Mississippi's
December 9, 2010, SIP revision, this action merely approves state law
as meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. Accordingly, EPA
approval, in and of itself, does not impose any new information
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would
require additional review under the Paperwork Reduction Act. In
addition, this SIP approval will not have a significant economic impact
on a substantial number of small entities, beyond that which would be
required by the state law requirements, so a regulatory flexibility
analysis is not required under the RFA. Accordingly, this rule is
appropriately certified under section 605(b) of the RFA. Moreover, as
this action approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandates or significantly
or uniquely affect small governments, such that it would be subject to
the Unfunded Mandates Reform Act. Finally, this action does not have
federalism implications that would make Executive Order 13132
applicable because it merely approves a state rule implementing a
Federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
In sum, today's rule is a routine approval of a SIP revision,
approving state law, and does not impose any requirements beyond those
imposed by state law. To the extent these comments are directed more
generally to the application of the statutory and executive order
reviews to the required regulation of GHGs under PSD programs, these
comments are irrelevant to the approval of state law in today's action.
However, EPA provided an extensive response to similar comments in
promulgating the Tailoring Rule. EPA refers the Commenter to the
sections in the Tailoring Rule entitled ``VII. Comments on Statutory
and Executive Order Reviews,'' 75 FR 31601-31603, and ``VI. What are
the economic impacts of the final rule?,'' 75 FR 31595-31601. EPA also
notes that today's action does not in-and-of itself trigger the
regulation of GHGs. To the contrary, by putting in place higher PSD
applicability thresholds for GHGs than would otherwise be in effect
under the Act, this rulemaking, as well as EPA's Tailoring Rule,
provides relief to smaller GHG-emitting sources that would otherwise be
subject to PSD permitting requirements for their GHG emissions.
Comment 4: The Commenter states that ``[i]f EPA proceeds with this
action, it must condition approval on the continued validity of its
determination that PSD can be triggered by or is applicable to GHGs.''
Further, the Commenter remarks on the ongoing litigation in the U.S.
Court of Appeals for the DC Circuit. Specifically, regarding EPA's
determination that PSD can be triggered by GHGs or is applicable to
GHGs, the Commenter mentions that ``EPA should explicitly state in any
final rule that continued enforceability of these provisions in the
Mississippi SIP is limited to the extent to which the federal
requirements remain enforceable.'' The Commenter notes that if a stay
is issued, these requirements should also be stayed.
Response 4: EPA believes that it is most appropriate to take
actions that are consistent with the federal regulations that are in
place at the time the action is being taken. To the extent that any
changes to federal regulations related to today's action result from
pending legal challenges or other actions, EPA will process appropriate
SIP revisions in accordance with the procedures provided in the Act and
EPA's regulations. EPA notes that in an order dated December 9, 2010,
the United States Court of Appeals for the DC Circuit denied motions to
stay EPA's regulatory actions related to GHGs. Coalition for
Responsible Regulation, Inc. v. EPA, Nos. 09-1322, 10-1073, 10-1092
(and consolidated cases), Slip Op. at 3 (DC Cir. December 10, 2010)
(order denying stay motions).

III. What is the effect of today's final action?

Final approval of Mississippi's December 9, 2010, SIP revision will
put in place the GHG emission thresholds for PSD applicability set
forth in EPA's Tailoring Rule (75 FR 31514, June 3, 2010), ensuring
that smaller GHG

[[Page 81862]]

sources emitting less than these thresholds will not be subject to
permitting requirements when these requirements begin applying to GHGs
on January 2, 2011. Pursuant to section 110 of the CAA, EPA is
approving a portion of the changes made in Mississippi's December 9,
2010, SIP revision into Mississippi's SIP.
Mississippi's December 9, 2010, revision updates its existing
incorporation by reference of the federal NSR program to include the
relevant federal Tailoring Rule provisions set forth at 40 CFR 52.21
into the Mississippi SIP at APC-S-5--Regulations for the Prevention of
Significant Deterioration.\9\ EPA has determined that Mississippi's
December 9, 2010, SIP revision is consistent with the Tailoring Rule.
Furthermore, EPA has determined that the December 9, 2010, revision to
Mississippi's SIP is consistent with section 110 of the CAA. See, e.g.,
Tailoring Rule, at 75 FR 31561.
---------------------------------------------------------------------------

\9\ Mississippi's December 9, 2010, submittal also revises
definitions for APC-S-6--Air Emissions Operating Permit Regulations
for the Purposes of Title V of the Federal Clean Air Act; however,
these relate to title V and are not included in the SIP. As such,
EPA is not taking action to approve Mississippi's update to this
regulation in this rulemaking.
---------------------------------------------------------------------------

IV. When is today's action effective?

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for this action to become effective on January 2, 2011. This is because
a delayed effective date is unnecessary due to the nature of
Mississippi's changes to its PSD regulations to establish appropriate
emissions thresholds for determining PSD applicability with respect to
new or modified GHG-emitting sources in accordance with EPA's Tailoring
Rule, thereby relieving the State from certain CAA requirements that
would otherwise apply to it. The January 2, 2011, effective date for
this action is authorized under both 5 U.S.C. 553(d)(1), which provides
that rulemaking actions may become effective less than 30 days after
publication if the rule ``grants or recognizes an exemption or relieves
a restriction,'' and section 553(d)(3), which allows an effective date
less than 30 days after publication ``as otherwise provided by the
agency for good cause found and published with the rule.'' The purpose
of the 30-day waiting period prescribed in section 553(d) is to give
affected parties a reasonable time to adjust their behavior and prepare
before the final rule takes effect. Today's rule, however, does not
create any new regulatory requirements such that affected parties would
need time to prepare before the rule takes effect. Rather, today's rule
relieves the sources within Mississippi from considering the lower
emissions thresholds for GHG permitting purposes. For these reasons,
EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become
effective January 2, 2011.

V. Final Action

EPA is taking final action to approve Mississippi's December 9,
2010, SIP revision which includes updates to Mississippi's air quality
regulations, APC-S-5--Regulations for the Prevention of Significant
Deterioration. Specifically, Mississippi's December 9, 2010, SIP
revision establishes appropriate emissions thresholds for determining
PSD applicability with respect to new or modified GHG-emitting sources
in accordance with EPA's Tailoring Rule. EPA has made the determination
that the December 9, 2010, SIP revision is approvable because it is in
accordance with the CAA and EPA regulations, including regulations
pertaining to PSD permitting for GHGs.

VI. 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 February 28, 2011. 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, Greenhouse gases,

[[Page 81863]]

Incorporation by reference, Intergovernmental relations, and Reporting
and recordkeeping requirements.

Dated: December 20, 2010.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart Z--Mississippi

0
2. In Sec. 52.1270(c) the table is amended by revising the following
entry for ``APC-S-5'' to read as follows:

Sec. 52.1270 Identification of plan.

* * * * *
(c) * * *

EPA-Approved Mississippi Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/ effective EPA approval date Explanation
subject date
----------------------------------------------------------------------------------------------------------------

* * * * * * *
APC-S-5 Regulations for the Prevention of Significant Deterioration of Air Quality
All................................ ........... 12/1/2010 12/29/2010........... APC-S-5 incorporates by
[Insert citation of reference the regulations
publication]. found at 40 CFR 52.21 as
of September 13, 2010.
This EPA action is
approving 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) APC-S-5.
In addition, this EPA
action is not
incorporating 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. 2010-32667 Filed 12-28-10; 8:45 am]
BILLING CODE 6560-50-P

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