Approval and Promulgation of Implementation Plans; Mississippi: New Source Review-Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5, 59095-59100 [2012-23570]
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Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations
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).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by November 26, 2012. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action, which
approves revisions to regulation
COMAR 26.11.19.23, may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
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Authority: 42 U.S.C. 7401 et seq.
Subpart V—Maryland
List of Subjects in 40 CFR Part 52
2. In § 52.1070, the table in paragraph
(c) is amended by revising the entry for
COMAR 26.11.19.23 to read as follows:
■
Environmental protection, Air
pollution control, Incorporation by
reference, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
§ 52.1070
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Dated: August 30, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
Identification of plan.
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(c) * * *
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40 CFR part 52 is amended as follows:
EPA-APPROVED REGULATIONS, TECHNICAL MEMORANDA, AND STATUTES IN THE MARYLAND SIP
Code of Maryland administrative
regulations (COMAR) citation
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26.11.19.23 ..................................
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[FR Doc. 2012–23572 Filed 9–25–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0081; FRL–9728–2]
Approval and Promulgation of
Implementation Plans; Mississippi:
New Source Review-Prevention of
Significant Deterioration; Fine
Particulate Matter (PM2.5)
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
approve changes to the Mississippi State
Implementation Plan (SIP), submitted
by the Mississippi Department of
Environmental Quality (MDEQ)
Division of Air Pollution Control to EPA
on May 12, 2011. The May 12, 2011, SIP
revision modifies Mississippi’s New
Source Review (NSR) Prevention of
Significant Deterioration (PSD)
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SUMMARY:
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Volatile Organic Compounds From Specific Processes
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Control of VOC Emissions from
Vehicle Refinishing.
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Additional explanation/
citation at 40 CFR
52.1100
EPA approval date
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26.11.19
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State effective
date
Title/subject
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4/16/12
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9/26/12 [Insert page number where the document
begins].
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permitting regulations to incorporate by
reference, into the Mississippi SIP,
federal NSR PSD requirements for the
fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS)
as promulgated in EPA’s 2008 NSR
PM2.5 Implementation Rule and the
2010 PM2.5 PSD Increment, Significant
Impact Levels (SILs) and Significant
Monitoring Concentration (SMC) Rule.
EPA is approving portions of
Mississippi’s May 12, 2011, SIP revision
because they are consistent with the
Clean Air Act (CAA or Act) and EPA
regulations regarding NSR permitting.
DATES: Effective Date: This rule will be
effective October 26, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2012–0081. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
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Entire regulation revised.
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available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding Federal holidays.
For
information regarding the Mississippi
SIP, contact Ms. Twunjala Bradley,
Regulatory Development Section, Air
Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. Ms.
Bradley’s telephone number is (404)
562–9352; email address:
bradley.twunjala@epa.gov. For
information regarding NSR, contact Ms.
FOR FURTHER INFORMATION CONTACT:
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Yolanda Adams, Air Permits Section, at
the same address above. Ms. Adams’
telephone number is (404) 562–9214;
email address: adams.yolanda@epa.gov.
For information regarding the PM2.5
NAAQS, contact Mr. Joel Huey,
Regulatory Development Section, at the
same address above. Mr. Huey’s
telephone number is (404) 562–9104;
email address: huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews
On July 23, 2012, EPA published a
proposed rulemaking to approve the
aforementioned changes to Mississippi’s
NSR PSD program at APC–S–5. See 77
FR 43032. Comments on the proposed
rulemaking were due on or before
August 22, 2012. No comments, adverse
or otherwise, were received on EPA’s
July 23, 2012, proposed rulemaking.
Pursuant to section 110 of the CAA,
EPA is now taking final action to
approve the changes to Mississippi’s
NSR PSD program as provided in EPA’s
July 23, 2012, proposed rulemaking. A
summary of the background for today’s
final action is provided below. EPA’s
July 23, 2012, proposed rulemaking
contains more detailed information
regarding the Mississippi SIP revision
being approved today, and the rationale
for today’s final action. Detailed
information regarding the PM2.5 NAAQS
and NSR Program can also be found in
EPA’s July 23, 2012, proposed
rulemaking as well as the
abovementioned final rulemakings.
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I. Background
EPA is taking final action on portions
of Mississippi’s May 12, 2011, SIP
revision to incorporate by reference
(IBR) 1 federal requirements for NSR
permitting. Mississippi’s May 12, 2011,
SIP revision includes changes to its air
quality regulations in Air Pollution
Control, Section 5 (APC–S–5)—
Regulations for the Prevention of
Significant Deterioration of Air Quality.
The May 12, 2011, changes IBR federal
PSD permitting regulations promulgated
in the final rulemakings entitled
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5),’’ 73 FR 28321 (May 16, 2008),
hereafter referred to as the ‘‘NSR PM2.5
Rule,’’ and ‘‘Prevention of Significant
Deterioration (PSD) for Particulate
Matter Less Than 2.5 Micrometers
(PM2.5)—Increments, Significant Impact
Levels SILs and Significant Monitoring
Concentration (SMC),’’ 75 FR 64864
(October 20, 2010) hereafter referred to
as the ‘‘PM2.5 PSD Increment-SILs-SMC
Rule’’). Additionally, Mississippi’s SIP
revision requests that EPA remove from
the SIP the exclusion language at APC–
S–5 (2.7) regarding the NSR PM2.5 Rule
provisions. EPA is not approving in this
action: (1) incorporation of the SIL
thresholds and provisions promulgated
in EPA’s PM2.5 PSD Increment-SILsSMC Rule, 75 FR 64864 (October 20,
2010); and (2) incorporation of the
provision regarding the applicability of
the term ‘‘particulate matter emissions’’
when accounting for condensable
particles in applicability determinations
and in establishing emissions
limitations in PSD permits.2
A. NSR PM2.5 Rule
EPA finalized the NSR PM2.5 Rule on
May 16, 2008, which revised the NSR
program requirements to establish the
framework for implementing
preconstruction permit review for the
PM2.5 NAAQS in both attainment areas
and nonattainment areas (NAAs) that:
(1) Require NSR permits to address
directly emitted PM2.5 and precursor
pollutants; (2) establish significant
emission rates for direct PM2.5 and
precursor pollutants (including sulfur
dioxide (SO2) and nitrogen oxides
(NOx)); (3) establish PM2.5 emission
offsets; (4) provide exceptions to the
grandfathering policy for permits being
reviewed under the PM10 surrogate
program; and (5) require states to
account for gases that condense to form
particles (condensables) in PM2.5 and
PM10 emission limits in PSD or
nonattainment NSR (NNSR) permits.
Additionally, the NSR PM2.5 Rule
authorized states to adopt provisions in
their NNSR rules that would allow
interpollutant offset trading. See 73 FR
28321. States were required to provide
SIP submissions to address the
requirements for the NSR PM2.5 Rule by
May 16, 2011. Mississippi’s May 12,
2011, SIP revision addresses only the
PSD requirements related to EPA’s May
16, 2008, NSR PM2.5 Rule.3
1 Throughout this document IBR means
incorporate or incorporates by reference.
2 Today’s final action approves the incorporation
by reference of 40 CFR 52.21 into the Mississippi
SIP as of March 22, 2011 apart from the exclusions
stated in this final rulemaking and at 40 CFR
52.1270(c). Any previous EPA exclusions to APS–
S–5 at 40 CFR 52.1270(c) remain in effect.
3 Mississippi’s May 12, 2011, SIP revision only
addresses the State’s PSD permitting program and
does not adopt the NNSR permitting requirements
for PM2.5 emission offsets, condensable provision or
the discretionary interpollutant trading policy and
ratios promulgated in the 2008 NSR PM2.5 Rule.
Moreover, Mississippi is attainment for the 1997
annual and 2006 24-hour PM2.5 NAAQS.
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1. PM10 Surrogate and Grandfathering
Policy
In the NSR PM2.5 Rule, EPA required
that major stationary sources seeking
permits must begin directly satisfying
the PM2.5 requirements, as of the
effective date of the rule, rather than
relying on PM10 as a surrogate, with two
exceptions.4 The first exception is a
‘‘grandfathering’’ provision in the
federal PSD program at 40 CFR
52.21(i)(1)(xi). This grandfathering
provision applied to sources that had
applied for, but had not yet received, a
final and effective PSD permit before the
July 15, 2008, effective date of the May
2008 final rule. The second exception
was that states with SIP-approved PSD
programs could continue to implement
the Seitz Memo’s PM10 Surrogate Policy
for up to three years (until May 2011)
or until the individual revised state PSD
programs for PM2.5 are approved by
EPA, whichever comes first. On May 18,
2011 (76 FR 28646), EPA took final
action to repeal the grandfathering
provision at 40 CFR 52.21(i)(1)(xi). This
final action ended the use of the 1997
PM10 Surrogate Policy for PSD permits
under the federal PSD program at 40
CFR 52.21. In effect, any PSD permit
applicant previously covered by the
grandfathering provision (for sources
that completed and submitted a permit
application before July 15, 2008) 5 that
did not have a final and effective PSD
permit before the effective date of the
repeal will not be able to rely on the
1997 p.m.10 Surrogate Policy to satisfy
the PSD requirements for PM2.5 unless
the application includes a valid
surrogacy demonstration.6 See 76 FR
4 After EPA promulgated the NAAQS for PM
2.5 in
1997, the Agency issued guidance documents
related to using PM10 as a surrogate for PM2.5
entitled: ‘‘Interim Implementation of New Source
Review Requirements for PM2.5.’’ John S. Seitz,
EPA, October 23, 1997 (the ‘‘Seitz Memo’’) and
‘‘Implementation of New Source Review
Requirements in PM2.5 Nonattainment Areas’’ (the
‘‘2005 PM2.5 NNSR Guidance’’). The Seitz Memo
was designed to help states implement NSR
requirements pertaining to the new PM2.5 NAAQS
in light of technical difficulties posed by PM2.5 at
that time. The 2005 PM2.5 NNSR Guidance provided
direction regarding implementation of the NNSR
provisions in PM2.5 NAA in the interim period
between the effective date of the PM2.5 NAA
designations (April 5, 2005) and EPA’s
promulgation of final PM2.5 NNSR regulations (this
included recommending that until EPA
promulgated the PM2.5 major NSR regulations,
‘‘States should use a PM10 nonattainment major
NSR program as a surrogate to address the
requirements of nonattainment major NSR for the
PM2.5 NAAQS.’’).
5 Sources that applied for a PSD permit under the
federal PSD program on or after July 15, 2008, are
already excluded from using the 1997 PM10
Surrogate Policy as a means of satisfying the PSD
requirements for PM2.5. See 76 FR 28321.
6 Additional information on this issue can also be
found in an August 12, 2009, final order on a title
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28646. In its May 12, 2011, SIP revision,
Mississippi did not adopt the
grandfathering provision at 40 CFR
52.21(i)(1)(xi) into its PSD regulations.
Therefore, Mississippi’s SIP is
consistent with current federal
regulations regarding the repeal of the
grandfathering provision.
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2. ‘‘Condensable’’ Provision
In the NSR PM2.5 Rule, EPA revised
the definition of ‘‘regulated NSR
pollutant’’ for PSD to add a paragraph
providing that ‘‘particulate matter (PM)
emissions, PM2.5 emissions and PM10
emissions’’ shall include gaseous
emissions from a source or activity
which condense to form particulate
matter at ambient temperatures and that
on or after January 1, 2011, such
condensable particulate matter shall be
accounted for in applicability
determinations and in establishing
emissions limitations for PM, PM2.5 and
PM10 in permits issued. See 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(vi) and
‘‘Emissions Offset Interpretative Ruling’’
(40 CFR Part 51, Appendix S). On
March 16, 2012, EPA proposed a
rulemaking to amend the definition of
‘‘regulated NSR pollutant’’ promulgated
in the NSR PM2.5 Rule regarding the PM
condensable provision at 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(i) and
EPA’s Emissions Offset Interpretative
Ruling. See 77 FR 15656. The
rulemaking proposes to remove the
inadvertent requirement in the NSR
PM2.5 Rule that the measurement of
condensable ‘‘particulate matter
emissions’’ be included as part of the
measurement and regulation of
‘‘particulate matter emissions.’’ 7
Mississippi’s May 12, 2011, SIP revision
adopts EPA’s definition for ‘‘regulated
NSR pollutant’’ for condensables (at 40
CFR 51.166(b)(49)(vi)), including the
term ‘‘particulate matter emissions,’’ as
promulgated in the NSR PM2.5 Rule. On
June 26, 2012, the State of Mississippi
provided a letter to EPA clarifying the
State’s intent in light of EPA’s March 12,
2012, proposed rulemaking and
requesting that EPA not approve into
the Mississippi SIP the term
‘‘particulate matter emissions’’ (as part
V petition describing the use of PM10 as a surrogate
for PM2.5. In the Matter of Louisville Gas & Electric
Company, Petition No. IV–2008–3, Order on
Petition (August 12, 2009).
7 The term ‘‘particulate matter emissions’’
includes particles that are larger than PM2.5 and
PM10 and is an indicator measured under various
New Source Performance Standards (NSPS) at 40
CFR part 60. In addition to the NSPS for PM, it is
noted that states have regulated ‘‘particulate matter
emissions’’ for many years in their SIPs for PM, and
the same indicator has been used as a surrogate for
determining compliance with certain standards
contained in 40 CFR part 63, regarding National
Emission Standards for Hazardous Air Pollutants.
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of the definition for ‘‘regulated NSR
pollutant’’) regarding the inclusion of
condensable emissions in applicability
determinations and in establishing
emissions limitations for PM.
3. NOX Insignificance Demonstration
In addition to direct PM2.5 emissions,
pollutants that can contribute to
ambient PM2.5 concentrations (known as
‘‘precursors’’) include SO2, NOx, volatile
organic compounds (VOC) and
ammonia (all of which undergo
chemical reactions to form secondary
PM). In the NSR PM2.5 Rule, EPA
established a ‘‘presumed-in’’ approach
for NOx as a PM2.5 precursor. This
approach is warranted based on the
well-known transformation of NOx into
nitrates, coupled with the fact that
nitrate concentrations vary significantly
around the country. The final NSR PM2.5
Rule requires that states treat NOx as a
PM2.5 precursor in all areas unless the
state demonstrates to the
Administrator’s satisfaction or EPA
demonstrates that emissions of NOx
from sources in a specific area are not
a significant contributor to that area’s
ambient PM2.5 concentrations.8 See 40
CFR 51.166(b)(49)(i),
51.165(a)(1)(xxxvii) and 52.21(b)(50)(i).
If EPA makes such a demonstration, or
a state makes such a demonstration and
it is approved by EPA, NOx would not
be considered a PM2.5 precursor under
the NSR program in that area. If a State
or EPA does not make such a
demonstration, NOx must be regulated
as a precursor under the PSD, NNSR,
and minor source programs for PM2.5.
Mississippi’s May 12, 2011, SIP revision
IBR the provision that NOx is presumed
to be a precursor for PM2.5. However,
MDEQ also submitted to EPA a NOx
insignificance demonstration to show
that NOx emissions in the State of
Mississippi are not contributing
significantly to ambient PM2.5
concentrations in the State. At this time,
EPA is still considering Mississippi’s
NOx insignificance demonstration and
will take action on this portion of
MDEQ’s May 12, 2011, SIP revision in
a separate rulemaking.
B. PM2.5 PSD Increment SILs-SMC Rule
The PM2.5 PSD Increment-SILs-SMC
Rule provided additional regulatory
requirements under the PSD program
regarding the implementation of the
PM2.5 NAAQS for NSR, including (1)
8 The NSR PM
2.5 Rule presumes that VOC and
ammonia are not precursors to PM2.5 unless a state
or EPA demonstrates that these pollutants are
significantly contributing to the ambient PM2.5
concentrations in a specific area. The rule requires
that SO2 be treated as a precursor to PM2.5 in all
areas.
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59097
PM2.5 increments pursuant to section
166(a) of the CAA to prevent significant
deterioration of air quality in areas
meeting the NAAQS; (2) SILs used as a
screening tool (by a major source subject
to PSD) to evaluate the impact a
proposed major source or modification
may have on the NAAQS or PSD
increment; and (3) a SMC, (also a
screening tool) used by a major source
subject to PSD to determine the
subsequent level of data gathering
required for a PSD permit application
for emissions of PM2.5. The SILs and
SMC are numerical values that represent
thresholds of insignificant, i.e., de
minimis,9 modeled source impacts or
monitored (ambient) concentrations,
respectively. EPA established such
values to be used as screening tools by
a major source subject to PSD to
determine the subsequent level of PM2.5
analysis and data gathering required for
a PSD permit application. EPA’s
authority to implement the SILs and
SMC for PSD purposes has been
challenged by the Sierra Club. Sierra
Club v. EPA, Case No 10–1413 (DC
Circuit Court).10
1. PSD Increments
PSD increments prevent air quality in
clean areas from deteriorating to the
level set by the NAAQS. Therefore, an
increment is the mechanism used to
estimate ‘‘significant deterioration’’ 11 of
air quality for a pollutant in an area.
Under section 165(a)(3) of the CAA, a
PSD permit applicant must demonstrate
that emissions from the proposed
construction and operation of a facility
‘‘will not cause, or contribute to, air
pollution in excess of any maximum
allowable increase or allowable
concentration for any pollutant.’’ When
a source applies for a permit to emit a
regulated pollutant in an area that meets
the NAAQS, the state and EPA must
determine if emissions of the regulated
pollutant from the source will cause
9 The de minimis principle is grounded in a
decision described by the court case Alabama
Power Co. v. Costle, 636 F.2d 323, 360 (DC Cir.
1980). In this case, reviewing EPA’s 1978 PSD
regulations, the court recognized that ‘‘there is
likely a basis for an implication of de minimis
authority to provide exemption when the burdens
of regulation yield a gain of trivial or no value.’’ 636
F.2d at 360. See 75 FR 64864.
10 On April 6, 2012, EPA filed a brief with the DC
Circuit court defending the Agency’s authority to
implement SILs and SMC for PSD purposes.
11 Significant deterioration occurs when the
amount of the new pollution exceeds the applicable
PSD increment, which is the ‘‘maximum allowable
increase’’ of an air pollutant allowed to occur above
the applicable baseline concentration 11 for that
pollutant. Section 169(4) of the CAA provides that
the baseline concentration of a pollutant for a
particular baseline area is generally the air quality
at the time of the first application for a PSD permit
in the area.
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significant deterioration in air quality.
As described in the PM2.5 PSD
Increment-SILs-SMC Rule, pursuant to
the authority under section 166(a) of the
CAA, EPA promulgated numerical PSD
increments for PM2.5 as a new
pollutant 12 for which NAAQS were
established after August 7, 1977,13 and
derived 24-hour and annual PM2.5
increments for the three area
classifications (Class I, II and III) using
the ‘‘contingent safe harbor’’ approach.
See 75 FR 64869 and ambient air
increment tables at 40 CFR 51.166(c)(1)
and 52.21(c). In addition to PSD
increments for the PM2.5 NAAQS, the
PM2.5 PSD Increment-SILs-SMC Rule
amended the definition at 40 CFR
51.166 and 52.21 for ‘‘major source
baseline date’’ and ’’minor source
baseline date’’ (including trigger date) to
establish the PM2.5 NAAQS specific
dates associated with the
implementation of PM2.5 PSD
increments. See 75 FR 64864.
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2. Significant Monitoring
Concentrations
As mentioned above, the SMC
numerical value represents a threshold
of insignificant (i.e., de minimis)
monitored ambient impacts on pollutant
concentrations. In the PM2.5 PSD
Increment-SILs-SMC Rule, EPA
established a PM2.5 SMC of 4 mg/m3 to
be used as a screening tool by a major
source subject to PSD to determine the
subsequent level of PM2.5 data gathering
required for a PSD permit application.
Using the SMC as a screening tool,
sources may be able to demonstrate that
the modeled air quality impact of
emissions from the new source or
modification, or the existing air quality
level in the area where the source would
construct, is less than the SMC (i.e., de
minimis), and as such, may be allowed
to forego the preconstruction monitoring
requirement for a particular pollutant at
the discretion of the reviewing
authority.
Recently, the Sierra Club filed suit
challenging EPA’s authority to
implement the PM2.5 SILs 14 as well as
12 EPA generally characterized the PM
2.5 NAAQS
as a NAAQS for a new indicator of PM. EPA did
not replace the PM10 NAAQS with the NAAQS for
PM2.5 when the PM2.5 NAAQS were promulgated in
1997. EPA rather retained the annual and 24-hour
NAAQS for PM2.5 as if PM2.5 was a new pollutant
even though EPA had already developed air quality
criteria for PM generally. See 75 FR 64864 (October
20, 2012).
13 EPA interprets 166(a) to authorize EPA to
promulgate pollutant-specific PSD regulations
meeting the requirements of section 166(c) and
166(d) for any pollutant for which EPA promulgates
a NAAQS after 1977.
14 As mentioned earlier, due to litigation by the
Sierra Club, EPA is not taking final action on the
SILs portion of the Mississippi May 12, 2011, SIP
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the SMC for PSD purposes as
promulgated in the October 20, 2012,
rule. Sierra Club v. EPA, Case No. 10–
1413, DC Circuit Court. Specifically,
regarding the SMC, Sierra Club claims
that the use of SMCs to exempt a source
from submitting a year’s worth of
monitoring data is inconsistent with the
CAA. EPA responded to Sierra Club’s
claims in a Brief dated April 6, 2012,
which describes the Agency’s authority
to develop and promulgate SMC.15 A
copy of EPA’s April 6, 2010, Brief can
be found in the docket for today’s final
rulemaking at www.regulations.gov
using docket ID: EPA–R04–OAR–2012–
0081.
II. This Action
EPA is taking final action to approve
into the Mississippi SIP portions of the
State’s May 12, 2011, SIP revision,
which IBR the PSD permitting
regulations to implement the PM2.5
NAAQS. Mississippi’s regulation APC–
S–5 IBR the federal NSR PSD
regulations at 40 CFR 51.166 and 52.21
into the Mississippi SIP. In effect,
MDEQ’s May 12, 2011, SIP revision
updates the State’s IBR date for APC–S–
5 to March 22, 2011, to include PSD
permitting regulations promulgated in
the NSR PM2.5 Rule and the PM2.5 PSD
Increment-SILs-SMC Rule in the
Mississippi SIP. These changes to
Mississippi’s regulation APC–S–5
became state effective on June 2, 2011.
MDEQ’s SIP revision IBR the NSR PM2.5
Rule PSD provisions at regulation APC–
S–5, including: (1) The requirement for
NSR permits to address directly emitted
PM2.5 and precursor pollutants; (2)
significant emission rates for direct
PM2.5 and precursor pollutants (SO2 and
NOX) and establishing PM2.5 precursors
(as amended at 40 CFR 51.166(b)(23)(i))
for the definition of ‘‘significant’’ and
‘‘regulated NSR pollutant,’’ respectively;
and (3) PSD requirement for states to
address condensable PM in establishing
enforceable emission limits for PM10
and PM2.5 (as amended at definition of
‘‘regulated NSR pollutant ‘‘at 40 CFR
51.166(b)(49)).
Regarding the condensable provision,
in light of Mississippi’s request in its
June 26, 2012, letter and EPA’s intention
to amend the definition of ‘‘regulated
NSR pollutant’’ as discussed in the
revision at this time but will take action once the
court case regarding SILs implementation is
resolved.
15 Additional information on this issue can also
be found in an April 25, 2010, comment letter from
EPA Region 6 to the Louisiana Department of
Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the
docket for today’s rulemaking at
www.regulations.gov using docket ID: EPA–R04–
OAR–2012–0081.
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March 12, 2012, correction rulemaking,
EPA is not taking final action to approve
the terminology ‘‘particulate matter
emissions’’ into the Mississippi SIP (at
APC–S–5) for the condensable provision
in the definition of ‘‘regulated NSR
pollutant.’’ See 77 FR 15656. EPA is,
however, taking final action to approve
into the Mississippi SIP the remaining
condensable requirement at 40 CFR
51.166(b)(49)(vi), which requires that
condensable emissions be accounted for
in applicability determinations and in
establishing emissions limitations for
PM2.5 and PM10. Mississippi’s May 12,
2011, SIP revision did not IBR the
grandfathering provision at 40 CFR
52.21(i)(1)(xi) in accordance with the
repeal of the PM2.5 grandfathering
provision. Rather, the SIP revision
includes new language at APC–S–5(2.7)
that excludes the provision for PM2.5 (at
40 CFR 52.21(i)(1)(xi)) from the PSD
program regulations.
As stated in Mississippi’s May 12,
2011, SIP revision, NOX will be
considered a precursor to PM2.5 in
Mississippi until such time as EPA takes
action on the State’s NOX insignificance
demonstration or upon plan
disapproval. As part of MDEQ’s May 12,
2011, revision to IBR the federal
regulations at 40 CFR 51.166 and 52.21,
EPA is taking final action, at this time,
to approve into the Mississippi SIP that
NOX is a presumed PM2.5 precursor.
EPA is considering Mississippi’s NOX
insignificance demonstration and will
take action on this portion of the May
12, 2011, SIP submission in a separate
rulemaking. Mississippi’s May 12, 2011,
SIP revision also removes from APC–S–
5(2.7) language that excludes NSR PM2.5
Rule permitting requirements from
inclusion into the Mississippi SIP.16
Because MDEQ’s May 12, 2011, SIP
revision adopts the aforementioned
provisions promulgated in the May 16,
2008, NSR PM2.5 Rule, the exclusion
language is no longer necessary.
With respect to the PM2.5 PSD
Increment-SILs SMC Rule, EPA is taking
final action to also approve into the
Mississippi SIP the PSD increments for
PM2.5 annual and 24-hour NAAQS
pursuant to section 166(a) of the CAA
and SMC of 4 mg/m3 for PM2.5 NAAQS.
The May 12, 2011, SIP revision IBR the
PM2.5 increments established in the
ambient air increment tables at 40 CFR
51.166(c)(1) and (p)(4) and 52.21(c); the
amendments to the ‘‘major source
16 In Mississippi’s December 9, 2010, Greenhouse
Gas Tailoring Rule final SIP revision, MDEQ added
specific language at APC–S–5(2.7) excluding from
the IBR of 40 CFR 52.21 the PSD NSR PM2.5 Rule
provisions promulgated in the May 16, 2008, rule
and stated they would submit a separate rulemaking
to address those PSD requirements.
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baseline date’’ (at 40 CFR
51.166(b)(14)(i)(c)) and
52.21(b)(14)(i)(c)); the ‘‘minor source
baseline date’’ and establishment of the
‘‘trigger date’’ (40 CFR
51.166(b)(14)(ii)(c) and
52.21(b)(14)(ii)(c)); and the definition of
‘‘baseline area’’ (at 40 CFR
51.166(b)(15)(i) and (ii) and
52.21(b)(15)(i) and (ii)).
Regarding the SILs and SMC, EPA’s
authority to implement the PM2.5 SILs
and SMC is currently the subject of
litigation by the Sierra Club. In a brief
filed in the DC Circuit on April 6, 2012,
EPA described the Agency’s authority
under the CAA to promulgate and
implement the SMCs and SILs de
minimis thresholds. Sierra Club v. EPA,
Case No 10–1413 DC Circuit. However,
EPA is finalizing approval of the
promulgated SMC thresholds into the
Mississippi SIP because the Agency
believes the SMC is a valid exercise of
the Agency’s de minimis authority as
well as the fact they are consistent with
EPA’s promulgated levels in the PM2.5
PSD Increment-SILs-SMC Rule. The
ongoing litigation may result in the
court decision that may require
subsequent rule revisions and SIP
revisions from Mississippi.
In response to the litigation, EPA
requested that the court remand and
vacate the new regulatory text at 40 CFR
51.166(k)(2) and 52.21(k)(2) concerning
the implementation of SILs for PM2.5 so
that EPA can make necessary
rulemaking revisions to that text.17 In
light of EPA’s request for remand and
vacatur and our acknowledgement of
the need to revise the regulatory text
presently contained at paragraph (k)(2)
of sections 51.166 and 52.21, the
Agency has determined at this time not
to approve the SILs portion of the
MDEQ’s May 12, 2011, SIP revision that
contains the affected regulatory text in
Mississippi’s PSD regulations at APC–
S–5. EPA will take action on the SILs
portion of Mississippi’s May 12, 2011,
SIP revision in a separate rulemaking
once the issue regarding the court case
has been resolved.18
17 In the preamble to the October 20, 2010, final
rule EPA indicates that the Agency does not
consider the SILs to be a mandatory SIP element,
but regard them as discretionary on the part of
regulating authority for use in the PSD permitting
process. See 75 FR 64864 at 64899.
18 EPA is currently developing guidance to
provide provisional course of action to implement
the PM2.5 SILs pending revision to the (k)(2)
provisions and the litigation. The guidance will
ensure that the PM2.5 SILs are properly applied as
part of a PSD compliance demonstration to show
that a source’s impact will not cause or contribute
to a violation of the PM2.5 NAAQS or increment.
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III. Final Action
EPA is taking final action to approve
portions of Mississippi’s May 12, 2011,
SIP revisions (with the exception of the
term ‘‘particulate matter emissions’’ and
the SILs threshold and provisions) that
IBR federal regulations amended in the
NSR PM2.5 and the PM2.5 PSD
Increment-SILs-SMC Rules to
implement the PM2.5 NAAQS for the
NSR program because they are
consistent with section 110 of the CAA
and its regulations regarding NSR
permitting.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
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59099
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by November 26, 2012. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements and
Volatile organic compounds.
Dated: September 6, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42.U.S.C. 7401 et seq.
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Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations
§ 52.1270
Subpart Z—Mississippi
*
2. Section 52.1270(c) is amended by
revising entry ‘‘APC–S–5’’ to read as
follows:
■
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED MISSISSIPPI REGULATIONS
State citation
Title/subject
*
State effective
date
*
EPA approval date
*
Explanation
*
*
*
*
APC–S–5–Regulations for Prevention of Significant Deterioration for Air Quality
All ......................
...........................
*
*
*
*
06/2/2011
*
[FR Doc. 2012–23570 Filed 9–25–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0079; FRL–9731–5]
Approval and Promulgation of
Implementation Plans; Alabama:
General and Transportation
Conformity & New Source Review
Prevention of Significant Deterioration
for Fine Particulate Matter (PM2.5)
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
approve changes to the Alabama State
Implementation Plan (SIP), submitted
by the Alabama Department of
Environmental Management (ADEM) to
EPA on May 2, 2011. The May 2, 2011,
SIP revision modifies Alabama’s New
Source Review (NSR), Prevention of
Significant Deterioration (PSD), and
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SUMMARY:
VerDate Mar<15>2010
16:42 Sep 25, 2012
Jkt 226001
9–26–12 [Insert citation of publication].
As of 9–26–2012 EPA is approving a revision to APC–S–5 incorporating by reference the regulations found at 40 CFR
52.21 as of March 22, 2011. See [Insert citation of publication]. This approval does not include Mississippi’s revision to
IBR (at Rule APC–S–5) the term ‘‘particulate matter emissions’’ (as promulgated in the May 16, 2008 NSR PM2.5 Rule
(at 40 CFR 51.166(b)(49)(vi)) and the PM2.5 SILs threshold
and provisions (as promulgated in the October 20, 2010
PM2.5 PSD Increment-SILs-SMC Rule at 40 CFR
52.21(k)(2)).
On December 29, 2010, EPA approved a revision to APC–S–5
which incorporated by reference the regulations found at 40
CFR 52.21 as of September 13, 2010. See 75 FR 81858.
That action approved the incorporation by reference with the
exception of the phrase ‘‘except ethanol production facilities
producing ethanol by natural fermentation under the North
American Industry Classification System (NAICS) codes
325193 or 312140,’’ APC–S–5 incorporated by reference
from 40 CFR 52.21(b)(1)(i)(a) and (b)(1(iii)(t). Additionally,
that final EPA action did not incorporate by reference, into
the Mississippi SIP, the administrative regulations that were
amended in the Fugitive Emissions Rule (73 FR 77882) and
are stayed through October 3, 2011.
Nonattainment New Source Review
(NNSR) programs to adopt into the
Alabama SIP federal NSR PSD
requirements for the fine particulate
matter (PM2.5) national ambient air
quality standards (NAAQS) as
promulgated in EPA’s 2008 NSR PM2.5
Implementation Rule and the 2010
PM2.5 PSD Increment, Significant Impact
Levels (SILs) and Significant Monitoring
Concentration (SMC) Rule. The SIP
revision also changes the State’s general
and transportation conformity
regulations. EPA is approving portions
of Alabama’s May 2, 2011, SIP revision
because they are consistent with the
Clean Air Act (CAA or Act) and EPA
regulations regarding NSR permitting.
EPA received one off-topic comment on
the August 6, 2012, proposed
rulemaking, and a brief response is
provided below.
DATES: Effective Date: This rule will be
effective October 26, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2012–0079. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
PO 00000
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some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30,
excluding federal holidays.
For
information regarding the Florida SIP,
contact Ms. Twunjala Bradley,
Regulatory Development Section, Air
Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
FOR FURTHER INFORMATION CONTACT:
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]]>Agencies
[Federal Register Volume 77, Number 187 (Wednesday, September 26, 2012)]
[Rules and Regulations]
[Pages 59095-59100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23570]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0081; FRL-9728-2]
Approval and Promulgation of Implementation Plans; Mississippi:
New Source Review-Prevention of Significant Deterioration; Fine
Particulate Matter (PM2.5)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve changes to the
Mississippi State Implementation Plan (SIP), submitted by the
Mississippi Department of Environmental Quality (MDEQ) Division of Air
Pollution Control to EPA on May 12, 2011. The May 12, 2011, SIP
revision modifies Mississippi's New Source Review (NSR) Prevention of
Significant Deterioration (PSD) permitting regulations to incorporate
by reference, into the Mississippi SIP, federal NSR PSD requirements
for the fine particulate matter (PM2.5) national ambient air
quality standards (NAAQS) as promulgated in EPA's 2008 NSR
PM2.5 Implementation Rule and the 2010 PM2.5 PSD
Increment, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC) Rule. EPA is approving portions of Mississippi's
May 12, 2011, SIP revision because they are consistent with the Clean
Air Act (CAA or Act) and EPA regulations regarding NSR permitting.
DATES: Effective Date: This rule will be effective October 26, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0081. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the
Mississippi SIP, contact Ms. Twunjala Bradley, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. Ms. Bradley's telephone
number is (404) 562-9352; email address: bradley.twunjala@epa.gov. For
information regarding NSR, contact Ms.
[[Page 59096]]
Yolanda Adams, Air Permits Section, at the same address above. Ms.
Adams' telephone number is (404) 562-9214; email address:
adams.yolanda@epa.gov. For information regarding the PM2.5
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the
same address above. Mr. Huey's telephone number is (404) 562-9104;
email address: huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
EPA is taking final action on portions of Mississippi's May 12,
2011, SIP revision to incorporate by reference (IBR) \1\ federal
requirements for NSR permitting. Mississippi's May 12, 2011, SIP
revision includes changes to its air quality regulations in Air
Pollution Control, Section 5 (APC-S-5)--Regulations for the Prevention
of Significant Deterioration of Air Quality. The May 12, 2011, changes
IBR federal PSD permitting regulations promulgated in the final
rulemakings entitled ``Implementation of the New Source Review (NSR)
Program for Particulate Matter Less than 2.5 Micrometers
(PM2.5),'' 73 FR 28321 (May 16, 2008), hereafter referred to
as the ``NSR PM2.5 Rule,'' and ``Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels SILs and
Significant Monitoring Concentration (SMC),'' 75 FR 64864 (October 20,
2010) hereafter referred to as the ``PM2.5 PSD Increment-
SILs-SMC Rule''). Additionally, Mississippi's SIP revision requests
that EPA remove from the SIP the exclusion language at APC-S-5 (2.7)
regarding the NSR PM2.5 Rule provisions. EPA is not
approving in this action: (1) incorporation of the SIL thresholds and
provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC
Rule, 75 FR 64864 (October 20, 2010); and (2) incorporation of the
provision regarding the applicability of the term ``particulate matter
emissions'' when accounting for condensable particles in applicability
determinations and in establishing emissions limitations in PSD
permits.\2\
---------------------------------------------------------------------------
\1\ Throughout this document IBR means incorporate or
incorporates by reference.
\2\ Today's final action approves the incorporation by reference
of 40 CFR 52.21 into the Mississippi SIP as of March 22, 2011 apart
from the exclusions stated in this final rulemaking and at 40 CFR
52.1270(c). Any previous EPA exclusions to APS-S-5 at 40 CFR
52.1270(c) remain in effect.
---------------------------------------------------------------------------
On July 23, 2012, EPA published a proposed rulemaking to approve
the aforementioned changes to Mississippi's NSR PSD program at APC-S-5.
See 77 FR 43032. Comments on the proposed rulemaking were due on or
before August 22, 2012. No comments, adverse or otherwise, were
received on EPA's July 23, 2012, proposed rulemaking. Pursuant to
section 110 of the CAA, EPA is now taking final action to approve the
changes to Mississippi's NSR PSD program as provided in EPA's July 23,
2012, proposed rulemaking. A summary of the background for today's
final action is provided below. EPA's July 23, 2012, proposed
rulemaking contains more detailed information regarding the Mississippi
SIP revision being approved today, and the rationale for today's final
action. Detailed information regarding the PM2.5 NAAQS and
NSR Program can also be found in EPA's July 23, 2012, proposed
rulemaking as well as the abovementioned final rulemakings.
A. NSR PM2.5 Rule
EPA finalized the NSR PM2.5 Rule on May 16, 2008, which
revised the NSR program requirements to establish the framework for
implementing preconstruction permit review for the PM2.5
NAAQS in both attainment areas and nonattainment areas (NAAs) that: (1)
Require NSR permits to address directly emitted PM2.5 and
precursor pollutants; (2) establish significant emission rates for
direct PM2.5 and precursor pollutants (including sulfur
dioxide (SO2) and nitrogen oxides (NOx)); (3) establish
PM2.5 emission offsets; (4) provide exceptions to the
grandfathering policy for permits being reviewed under the
PM10 surrogate program; and (5) require states to account
for gases that condense to form particles (condensables) in
PM2.5 and PM10 emission limits in PSD or
nonattainment NSR (NNSR) permits. Additionally, the NSR
PM2.5 Rule authorized states to adopt provisions in their
NNSR rules that would allow interpollutant offset trading. See 73 FR
28321. States were required to provide SIP submissions to address the
requirements for the NSR PM2.5 Rule by May 16, 2011.
Mississippi's May 12, 2011, SIP revision addresses only the PSD
requirements related to EPA's May 16, 2008, NSR PM2.5
Rule.\3\
---------------------------------------------------------------------------
\3\ Mississippi's May 12, 2011, SIP revision only addresses the
State's PSD permitting program and does not adopt the NNSR
permitting requirements for PM2.5 emission offsets,
condensable provision or the discretionary interpollutant trading
policy and ratios promulgated in the 2008 NSR PM2.5 Rule.
Moreover, Mississippi is attainment for the 1997 annual and 2006 24-
hour PM2.5 NAAQS.
---------------------------------------------------------------------------
1. PM10 Surrogate and Grandfathering Policy
In the NSR PM2.5 Rule, EPA required that major
stationary sources seeking permits must begin directly satisfying the
PM2.5 requirements, as of the effective date of the rule,
rather than relying on PM10 as a surrogate, with two
exceptions.\4\ The first exception is a ``grandfathering'' provision in
the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering
provision applied to sources that had applied for, but had not yet
received, a final and effective PSD permit before the July 15, 2008,
effective date of the May 2008 final rule. The second exception was
that states with SIP-approved PSD programs could continue to implement
the Seitz Memo's PM10 Surrogate Policy for up to three years
(until May 2011) or until the individual revised state PSD programs for
PM2.5 are approved by EPA, whichever comes first. On May 18,
2011 (76 FR 28646), EPA took final action to repeal the grandfathering
provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of
the 1997 PM10 Surrogate Policy for PSD permits under the
federal PSD program at 40 CFR 52.21. In effect, any PSD permit
applicant previously covered by the grandfathering provision (for
sources that completed and submitted a permit application before July
15, 2008) \5\ that did not have a final and effective PSD permit before
the effective date of the repeal will not be able to rely on the 1997
p.m.10 Surrogate Policy to satisfy the PSD requirements for
PM2.5 unless the application includes a valid surrogacy
demonstration.\6\ See 76 FR
[[Page 59097]]
28646. In its May 12, 2011, SIP revision, Mississippi did not adopt the
grandfathering provision at 40 CFR 52.21(i)(1)(xi) into its PSD
regulations. Therefore, Mississippi's SIP is consistent with current
federal regulations regarding the repeal of the grandfathering
provision.
---------------------------------------------------------------------------
\4\ After EPA promulgated the NAAQS for PM2.5 in
1997, the Agency issued guidance documents related to using
PM10 as a surrogate for PM2.5 entitled:
``Interim Implementation of New Source Review Requirements for
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the
``Seitz Memo'') and ``Implementation of New Source Review
Requirements in PM2.5 Nonattainment Areas'' (the ``2005
PM2.5 NNSR Guidance''). The Seitz Memo was designed to
help states implement NSR requirements pertaining to the new
PM2.5 NAAQS in light of technical difficulties posed by
PM2.5 at that time. The 2005 PM2.5 NNSR
Guidance provided direction regarding implementation of the NNSR
provisions in PM2.5 NAA in the interim period between the
effective date of the PM2.5 NAA designations (April 5,
2005) and EPA's promulgation of final PM2.5 NNSR
regulations (this included recommending that until EPA promulgated
the PM2.5 major NSR regulations, ``States should use a
PM10 nonattainment major NSR program as a surrogate to
address the requirements of nonattainment major NSR for the
PM2.5 NAAQS.'').
\5\ Sources that applied for a PSD permit under the federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 PM10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 76 FR 28321.
\6\ Additional information on this issue can also be found in an
August 12, 2009, final order on a title V petition describing the
use of PM10 as a surrogate for PM2.5. In the
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3,
Order on Petition (August 12, 2009).
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2. ``Condensable'' Provision
In the NSR PM2.5 Rule, EPA revised the definition of
``regulated NSR pollutant'' for PSD to add a paragraph providing that
``particulate matter (PM) emissions, PM2.5 emissions and
PM10 emissions'' shall include gaseous emissions from a
source or activity which condense to form particulate matter at ambient
temperatures and that on or after January 1, 2011, such condensable
particulate matter shall be accounted for in applicability
determinations and in establishing emissions limitations for PM,
PM2.5 and PM10 in permits issued. See 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset
Interpretative Ruling'' (40 CFR Part 51, Appendix S). On March 16,
2012, EPA proposed a rulemaking to amend the definition of ``regulated
NSR pollutant'' promulgated in the NSR PM2.5 Rule regarding
the PM condensable provision at 40 CFR 51.166(b)(49)(vi),
52.21(b)(50)(i) and EPA's Emissions Offset Interpretative Ruling. See
77 FR 15656. The rulemaking proposes to remove the inadvertent
requirement in the NSR PM2.5 Rule that the measurement of
condensable ``particulate matter emissions'' be included as part of the
measurement and regulation of ``particulate matter emissions.'' \7\
Mississippi's May 12, 2011, SIP revision adopts EPA's definition for
``regulated NSR pollutant'' for condensables (at 40 CFR
51.166(b)(49)(vi)), including the term ``particulate matter
emissions,'' as promulgated in the NSR PM2.5 Rule. On June
26, 2012, the State of Mississippi provided a letter to EPA clarifying
the State's intent in light of EPA's March 12, 2012, proposed
rulemaking and requesting that EPA not approve into the Mississippi SIP
the term ``particulate matter emissions'' (as part of the definition
for ``regulated NSR pollutant'') regarding the inclusion of condensable
emissions in applicability determinations and in establishing emissions
limitations for PM.
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\7\ The term ``particulate matter emissions'' includes particles
that are larger than PM2.5 and PM10 and is an
indicator measured under various New Source Performance Standards
(NSPS) at 40 CFR part 60. In addition to the NSPS for PM, it is
noted that states have regulated ``particulate matter emissions''
for many years in their SIPs for PM, and the same indicator has been
used as a surrogate for determining compliance with certain
standards contained in 40 CFR part 63, regarding National Emission
Standards for Hazardous Air Pollutants.
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3. NOX Insignificance Demonstration
In addition to direct PM2.5 emissions, pollutants that
can contribute to ambient PM2.5 concentrations (known as
``precursors'') include SO2, NOx, volatile
organic compounds (VOC) and ammonia (all of which undergo chemical
reactions to form secondary PM). In the NSR PM2.5 Rule, EPA
established a ``presumed-in'' approach for NOx as a
PM2.5 precursor. This approach is warranted based on the
well-known transformation of NOx into nitrates, coupled with
the fact that nitrate concentrations vary significantly around the
country. The final NSR PM2.5 Rule requires that states treat
NOx as a PM2.5 precursor in all areas unless the
state demonstrates to the Administrator's satisfaction or EPA
demonstrates that emissions of NOx from sources in a
specific area are not a significant contributor to that area's ambient
PM2.5 concentrations.\8\ See 40 CFR 51.166(b)(49)(i),
51.165(a)(1)(xxxvii) and 52.21(b)(50)(i). If EPA makes such a
demonstration, or a state makes such a demonstration and it is approved
by EPA, NOx would not be considered a PM2.5
precursor under the NSR program in that area. If a State or EPA does
not make such a demonstration, NOx must be regulated as a
precursor under the PSD, NNSR, and minor source programs for
PM2.5. Mississippi's May 12, 2011, SIP revision IBR the
provision that NOx is presumed to be a precursor for
PM2.5. However, MDEQ also submitted to EPA a NOx
insignificance demonstration to show that NOx emissions in
the State of Mississippi are not contributing significantly to ambient
PM2.5 concentrations in the State. At this time, EPA is
still considering Mississippi's NOx insignificance
demonstration and will take action on this portion of MDEQ's May 12,
2011, SIP revision in a separate rulemaking.
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\8\ The NSR PM2.5 Rule presumes that VOC and ammonia
are not precursors to PM2.5 unless a state or EPA
demonstrates that these pollutants are significantly contributing to
the ambient PM2.5 concentrations in a specific area. The
rule requires that SO2 be treated as a precursor to
PM2.5 in all areas.
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B. PM2.5 PSD Increment SILs-SMC Rule
The PM2.5 PSD Increment-SILs-SMC Rule provided
additional regulatory requirements under the PSD program regarding the
implementation of the PM2.5 NAAQS for NSR, including (1)
PM2.5 increments pursuant to section 166(a) of the CAA to
prevent significant deterioration of air quality in areas meeting the
NAAQS; (2) SILs used as a screening tool (by a major source subject to
PSD) to evaluate the impact a proposed major source or modification may
have on the NAAQS or PSD increment; and (3) a SMC, (also a screening
tool) used by a major source subject to PSD to determine the subsequent
level of data gathering required for a PSD permit application for
emissions of PM2.5. The SILs and SMC are numerical values
that represent thresholds of insignificant, i.e., de minimis,\9\
modeled source impacts or monitored (ambient) concentrations,
respectively. EPA established such values to be used as screening tools
by a major source subject to PSD to determine the subsequent level of
PM2.5 analysis and data gathering required for a PSD permit
application. EPA's authority to implement the SILs and SMC for PSD
purposes has been challenged by the Sierra Club. Sierra Club v. EPA,
Case No 10-1413 (DC Circuit Court).\10\
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\9\ The de minimis principle is grounded in a decision described
by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 (DC
Cir. 1980). In this case, reviewing EPA's 1978 PSD regulations, the
court recognized that ``there is likely a basis for an implication
of de minimis authority to provide exemption when the burdens of
regulation yield a gain of trivial or no value.'' 636 F.2d at 360.
See 75 FR 64864.
\10\ On April 6, 2012, EPA filed a brief with the DC Circuit
court defending the Agency's authority to implement SILs and SMC for
PSD purposes.
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1. PSD Increments
PSD increments prevent air quality in clean areas from
deteriorating to the level set by the NAAQS. Therefore, an increment is
the mechanism used to estimate ``significant deterioration'' \11\ of
air quality for a pollutant in an area. Under section 165(a)(3) of the
CAA, a PSD permit applicant must demonstrate that emissions from the
proposed construction and operation of a facility ``will not cause, or
contribute to, air pollution in excess of any maximum allowable
increase or allowable concentration for any pollutant.'' When a source
applies for a permit to emit a regulated pollutant in an area that
meets the NAAQS, the state and EPA must determine if emissions of the
regulated pollutant from the source will cause
[[Page 59098]]
significant deterioration in air quality. As described in the
PM2.5 PSD Increment-SILs-SMC Rule, pursuant to the authority
under section 166(a) of the CAA, EPA promulgated numerical PSD
increments for PM2.5 as a new pollutant \12\ for which NAAQS
were established after August 7, 1977,\13\ and derived 24-hour and
annual PM2.5 increments for the three area classifications
(Class I, II and III) using the ``contingent safe harbor'' approach.
See 75 FR 64869 and ambient air increment tables at 40 CFR 51.166(c)(1)
and 52.21(c). In addition to PSD increments for the PM2.5
NAAQS, the PM2.5 PSD Increment-SILs-SMC Rule amended the
definition at 40 CFR 51.166 and 52.21 for ``major source baseline
date'' and ''minor source baseline date'' (including trigger date) to
establish the PM2.5 NAAQS specific dates associated with the
implementation of PM2.5 PSD increments. See 75 FR 64864.
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\11\ Significant deterioration occurs when the amount of the new
pollution exceeds the applicable PSD increment, which is the
``maximum allowable increase'' of an air pollutant allowed to occur
above the applicable baseline concentration \11\ for that pollutant.
Section 169(4) of the CAA provides that the baseline concentration
of a pollutant for a particular baseline area is generally the air
quality at the time of the first application for a PSD permit in the
area.
\12\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQS with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM2.5 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2012).
\13\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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2. Significant Monitoring Concentrations
As mentioned above, the SMC numerical value represents a threshold
of insignificant (i.e., de minimis) monitored ambient impacts on
pollutant concentrations. In the PM2.5 PSD Increment-SILs-
SMC Rule, EPA established a PM2.5 SMC of 4 [micro]g/m\3\ to
be used as a screening tool by a major source subject to PSD to
determine the subsequent level of PM2.5 data gathering
required for a PSD permit application. Using the SMC as a screening
tool, sources may be able to demonstrate that the modeled air quality
impact of emissions from the new source or modification, or the
existing air quality level in the area where the source would
construct, is less than the SMC (i.e., de minimis), and as such, may be
allowed to forego the preconstruction monitoring requirement for a
particular pollutant at the discretion of the reviewing authority.
Recently, the Sierra Club filed suit challenging EPA's authority to
implement the PM2.5 SILs \14\ as well as the SMC for PSD
purposes as promulgated in the October 20, 2012, rule. Sierra Club v.
EPA, Case No. 10-1413, DC Circuit Court. Specifically, regarding the
SMC, Sierra Club claims that the use of SMCs to exempt a source from
submitting a year's worth of monitoring data is inconsistent with the
CAA. EPA responded to Sierra Club's claims in a Brief dated April 6,
2012, which describes the Agency's authority to develop and promulgate
SMC.\15\ A copy of EPA's April 6, 2010, Brief can be found in the
docket for today's final rulemaking at www.regulations.gov using docket
ID: EPA-R04-OAR-2012-0081.
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\14\ As mentioned earlier, due to litigation by the Sierra Club,
EPA is not taking final action on the SILs portion of the
Mississippi May 12, 2011, SIP revision at this time but will take
action once the court case regarding SILs implementation is
resolved.
\15\ Additional information on this issue can also be found in
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0081.
---------------------------------------------------------------------------
II. This Action
EPA is taking final action to approve into the Mississippi SIP
portions of the State's May 12, 2011, SIP revision, which IBR the PSD
permitting regulations to implement the PM2.5 NAAQS.
Mississippi's regulation APC-S-5 IBR the federal NSR PSD regulations at
40 CFR 51.166 and 52.21 into the Mississippi SIP. In effect, MDEQ's May
12, 2011, SIP revision updates the State's IBR date for APC-S-5 to
March 22, 2011, to include PSD permitting regulations promulgated in
the NSR PM2.5 Rule and the PM2.5 PSD Increment-
SILs-SMC Rule in the Mississippi SIP. These changes to Mississippi's
regulation APC-S-5 became state effective on June 2, 2011. MDEQ's SIP
revision IBR the NSR PM2.5 Rule PSD provisions at regulation
APC-S-5, including: (1) The requirement for NSR permits to address
directly emitted PM2.5 and precursor pollutants; (2)
significant emission rates for direct PM2.5 and precursor
pollutants (SO2 and NOX) and establishing
PM2.5 precursors (as amended at 40 CFR 51.166(b)(23)(i)) for
the definition of ``significant'' and ``regulated NSR pollutant,''
respectively; and (3) PSD requirement for states to address condensable
PM in establishing enforceable emission limits for PM10 and
PM2.5 (as amended at definition of ``regulated NSR pollutant
``at 40 CFR 51.166(b)(49)).
Regarding the condensable provision, in light of Mississippi's
request in its June 26, 2012, letter and EPA's intention to amend the
definition of ``regulated NSR pollutant'' as discussed in the March 12,
2012, correction rulemaking, EPA is not taking final action to approve
the terminology ``particulate matter emissions'' into the Mississippi
SIP (at APC-S-5) for the condensable provision in the definition of
``regulated NSR pollutant.'' See 77 FR 15656. EPA is, however, taking
final action to approve into the Mississippi SIP the remaining
condensable requirement at 40 CFR 51.166(b)(49)(vi), which requires
that condensable emissions be accounted for in applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10. Mississippi's May 12, 2011, SIP
revision did not IBR the grandfathering provision at 40 CFR
52.21(i)(1)(xi) in accordance with the repeal of the PM2.5
grandfathering provision. Rather, the SIP revision includes new
language at APC-S-5(2.7) that excludes the provision for
PM2.5 (at 40 CFR 52.21(i)(1)(xi)) from the PSD program
regulations.
As stated in Mississippi's May 12, 2011, SIP revision,
NOX will be considered a precursor to PM2.5 in
Mississippi until such time as EPA takes action on the State's
NOX insignificance demonstration or upon plan disapproval.
As part of MDEQ's May 12, 2011, revision to IBR the federal regulations
at 40 CFR 51.166 and 52.21, EPA is taking final action, at this time,
to approve into the Mississippi SIP that NOX is a presumed
PM2.5 precursor. EPA is considering Mississippi's
NOX insignificance demonstration and will take action on
this portion of the May 12, 2011, SIP submission in a separate
rulemaking. Mississippi's May 12, 2011, SIP revision also removes from
APC-S-5(2.7) language that excludes NSR PM2.5 Rule
permitting requirements from inclusion into the Mississippi SIP.\16\
Because MDEQ's May 12, 2011, SIP revision adopts the aforementioned
provisions promulgated in the May 16, 2008, NSR PM2.5 Rule,
the exclusion language is no longer necessary.
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\16\ In Mississippi's December 9, 2010, Greenhouse Gas Tailoring
Rule final SIP revision, MDEQ added specific language at APC-S-
5(2.7) excluding from the IBR of 40 CFR 52.21 the PSD NSR
PM2.5 Rule provisions promulgated in the May 16, 2008,
rule and stated they would submit a separate rulemaking to address
those PSD requirements.
---------------------------------------------------------------------------
With respect to the PM2.5 PSD Increment-SILs SMC Rule,
EPA is taking final action to also approve into the Mississippi SIP the
PSD increments for PM2.5 annual and 24-hour NAAQS pursuant
to section 166(a) of the CAA and SMC of 4 [micro]g/m\3\ for
PM2.5 NAAQS. The May 12, 2011, SIP revision IBR the
PM2.5 increments established in the ambient air increment
tables at 40 CFR 51.166(c)(1) and (p)(4) and 52.21(c); the amendments
to the ``major source
[[Page 59099]]
baseline date'' (at 40 CFR 51.166(b)(14)(i)(c)) and
52.21(b)(14)(i)(c)); the ``minor source baseline date'' and
establishment of the ``trigger date'' (40 CFR 51.166(b)(14)(ii)(c) and
52.21(b)(14)(ii)(c)); and the definition of ``baseline area'' (at 40
CFR 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i) and (ii)).
Regarding the SILs and SMC, EPA's authority to implement the
PM2.5 SILs and SMC is currently the subject of litigation by
the Sierra Club. In a brief filed in the DC Circuit on April 6, 2012,
EPA described the Agency's authority under the CAA to promulgate and
implement the SMCs and SILs de minimis thresholds. Sierra Club v. EPA,
Case No 10-1413 DC Circuit. However, EPA is finalizing approval of the
promulgated SMC thresholds into the Mississippi SIP because the Agency
believes the SMC is a valid exercise of the Agency's de minimis
authority as well as the fact they are consistent with EPA's
promulgated levels in the PM2.5 PSD Increment-SILs-SMC Rule.
The ongoing litigation may result in the court decision that may
require subsequent rule revisions and SIP revisions from Mississippi.
In response to the litigation, EPA requested that the court remand
and vacate the new regulatory text at 40 CFR 51.166(k)(2) and
52.21(k)(2) concerning the implementation of SILs for PM2.5
so that EPA can make necessary rulemaking revisions to that text.\17\
In light of EPA's request for remand and vacatur and our
acknowledgement of the need to revise the regulatory text presently
contained at paragraph (k)(2) of sections 51.166 and 52.21, the Agency
has determined at this time not to approve the SILs portion of the
MDEQ's May 12, 2011, SIP revision that contains the affected regulatory
text in Mississippi's PSD regulations at APC-S-5. EPA will take action
on the SILs portion of Mississippi's May 12, 2011, SIP revision in a
separate rulemaking once the issue regarding the court case has been
resolved.\18\
---------------------------------------------------------------------------
\17\ In the preamble to the October 20, 2010, final rule EPA
indicates that the Agency does not consider the SILs to be a
mandatory SIP element, but regard them as discretionary on the part
of regulating authority for use in the PSD permitting process. See
75 FR 64864 at 64899.
\18\ EPA is currently developing guidance to provide provisional
course of action to implement the PM2.5 SILs pending
revision to the (k)(2) provisions and the litigation. The guidance
will ensure that the PM2.5 SILs are properly applied as
part of a PSD compliance demonstration to show that a source's
impact will not cause or contribute to a violation of the
PM2.5 NAAQS or increment.
---------------------------------------------------------------------------
III. Final Action
EPA is taking final action to approve portions of Mississippi's May
12, 2011, SIP revisions (with the exception of the term ``particulate
matter emissions'' and the SILs threshold and provisions) that IBR
federal regulations amended in the NSR PM2.5 and the
PM2.5 PSD Increment-SILs-SMC Rules to implement the
PM2.5 NAAQS for the NSR program because they are consistent
with section 110 of the CAA and its regulations regarding NSR
permitting.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 26, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements and Volatile organic compounds.
Dated: September 6, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
[[Page 59100]]
Subpart Z--Mississippi
0
2. Section 52.1270(c) is amended by revising entry ``APC-S-5'' to read
as follows:
Sec. 52.1270 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Mississippi Regulations
----------------------------------------------------------------------------------------------------------------
State effective EPA approval
State citation Title/subject date date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
APC-S-5-Regulations for Prevention of Significant Deterioration for Air Quality
----------------------------------------------------------------------------------------------------------------
All.................. ..................... 06/2/2011 9-26-12 [Insert As of 9-26-2012 EPA is
citation of approving a revision to APC-S-
publication]. 5 incorporating by reference
the regulations found at 40
CFR 52.21 as of March 22,
2011. See [Insert citation of
publication]. This approval
does not include
Mississippi's revision to IBR
(at Rule APC-S-5) the term
``particulate matter
emissions'' (as promulgated
in the May 16, 2008 NSR PM2.5
Rule (at 40 CFR
51.166(b)(49)(vi)) and the
PM2.5 SILs threshold and
provisions (as promulgated in
the October 20, 2010 PM2.5
PSD Increment-SILs-SMC Rule
at 40 CFR 52.21(k)(2)).
On December 29, 2010, EPA
approved a revision to APC-S-
5 which incorporated by
reference the regulations
found at 40 CFR 52.21 as of
September 13, 2010. See 75 FR
81858. That action approved
the incorporation by
reference with the exception
of the phrase ``except
ethanol production facilities
producing ethanol by natural
fermentation under the North
American Industry
Classification System (NAICS)
codes 325193 or 312140,'' APC-
S-5 incorporated by reference
from 40 CFR 52.21(b)(1)(i)(a)
and (b)(1(iii)(t).
Additionally, that final EPA
action did not incorporate by
reference, into the
Mississippi SIP, the
administrative regulations
that were amended in the
Fugitive Emissions Rule (73
FR 77882) and are stayed
through October 3, 2011.
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2012-23570 Filed 9-25-12; 8:45 am]
BILLING CODE 6560-50-P
