FR Doc E6-10745

[Federal Register: July 10, 2006 (Volume 71, Number 131)]
[Rules and Regulations]
[Page 38773-38776]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy06-5]

[[Page 38773]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-MS-0001-200612; FRL-8191-4]

Approval and Promulgation of Implementation Plans; Mississippi
Prevention of Significant Deterioration and New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the
Mississippi State Implementation Plan (SIP) submitted on August 10,
2005, which include changes made to Mississippi regulations entitled,
``Permit Regulations for the Construction and/or Operation of Air
Emissions Equipment'' and ``Regulations for the Prevention of
Significant Deterioration of Air Quality.'' The revisions include
changes to the State's permitting rules in order to address amendments
to the federal New Source Review (NSR) regulations, which were
promulgated by EPA on December 31, 2002 and reconsidered with minor
changes on November 7, 2003 (collectively, these two final actions are
called the ``2002 NSR reform rules''). The August 2005 submittal being
approved today also includes changes made to the State's NSR program
for minor stationary sources. Specifically, a new rule in Mississippi
now allows construction to commence on certain minor sources prior to
the applicant receiving a final permit to construct.

EFFECTIVE DATE: This rule will be effective August 9, 2006.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2005-MS-0001. All documents in the
docket are listed on the http://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 http://www.regulations.gov or in hard

copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30, excluding federal
holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the
Mississippi State Implementation Plan, contact Mr. Sean Lakeman,
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. Telephone
number: (404) 562-9043; e-mail address: lakeman.sean@epa.gov. For
information regarding New Source Review, contact Ms. Kelly Fortin, Air
Permits Section, at the same address above. Telephone number: (404)
562-9117; e-mail address: fortin.kelly@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for This Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

EPA is taking final action to approve revisions to the Mississippi
SIP regarding Mississippi's NSR programs. On August 10, 2005, the State
of Mississippi, through the Mississippi Department of Environmental
Quality (MDEQ), submitted revisions to the Mississippi SIP. The SIP
submittal consists of changes to the Mississippi Administrative Code
(MAC) provisions for the ``Regulations for the Prevention, Abatement,
and Control of Air Contaminants.'' Specifically, the SIP revisions
include changes to MDEQ regulations entitled, ``Permit Regulations for
the Construction and/or Operation of Air Emissions Equipment,'' Air
Pollution Control Section 2 (APC-S-2), found at MAC 08-034-002, and
``Regulations for the Prevention of Significant Deterioration of Air
Quality,'' Air Pollution Control Section 5 (APC-S-5), found at MAC 08-
034-005. MDEQ submitted its revisions to APC-S-2 and APC-S-5 in
response to EPA's December 31, 2002, changes to the federal NSR
regulations. The State's major NSR rule revisions are an incorporation
by reference of the federal rules, 40 CFR 52.21, as amended and
promulgated by July 1, 2004, with appropriate changes made. The SIP
revisions also include changes to Mississippi's NSR program for minor
sources. The revised minor source program now allows construction to
commence on certain minor sources prior to the applicant receiving a
final permit to construct. EPA is now taking final action to approve
Mississippi's August 2005 SIP revisions including changes to APC-S-2
and APC-S-5.
On March 23, 2006 (71 FR 14658), EPA published a notice of proposed
rulemaking (NPR) in the Federal Register, proposing to approve the
August 2005 SIP revisions. The March 23, 2006, NPR provides more
detailed information about the proposed Mississippi SIP revisions being
approved today. The public comment period for the proposed action ended
on April 24, 2006. No comments, adverse or otherwise, were received on
EPA's proposed action.

II. What Is the Background for This Action?

On December 31, 2002 (67 FR 80186), EPA published final changes to
40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the
Clean Air Act's (CAA's) Prevention of Significant Deterioration (PSD)
and Nonattainment New Source Review (NNSR) programs. On November 7,
2003 (68 FR 63021), EPA published a notice of final action on its
reconsideration of the 2002 rules. The purpose of today's action is to
approve the August 2005 SIP submittal from the State of Mississippi,
which includes EPA's 2002 NSR reform rules, and a change to
Mississippi's minor source NSR program.
After the 2002 NSR reform rules were finalized and effective (March
3, 2003), various petitioners challenged numerous aspects of the 2002
NSR reform rules, along with portions of EPA's 1980 NSR rules (45 FR
52676, August 7, 1980). On June 24, 2005, the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit Court)
issued a decision on the challenges to the 2002 NSR reform rules. New
York v. United States, 413 F.3d 3 (D.C. Cir. 2005). In summary, the
D.C. Circuit Court vacated portions of the rules pertaining to clean
units and pollution control projects, remanded a portion of the rules
regarding recordkeeping and relating to language in 40 CFR 52.21(r)(6)
and 40 CFR 51.166(r)(6), ``Source obligation,'' and either upheld or
did not comment on the other provisions included as part of the 2002
NSR reform rules.
Today's action is consistent with the decision of the D.C. Circuit
Court because EPA is not proposing to approve any portions of the 2002
NSR reform rules that were vacated as part of the June 2005 decision.
In addition,

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Mississippi's rules regarding recordkeeping do not contain the language
that was central to the Court's remand. In establishing its
recordkeeping requirements, Mississippi incorporated the federal rule
(40 CFR 52.21(r)(6)) by reference, but excluded the phrase, ``in
circumstances where there is a reasonable possibility that a project
that is not part of a major modification may result in a significant
emission increase.'' APC-S-5, found at MAC 08-034-005(2.9). As a
result, the Mississippi rule requires all sources that use the actual-
to-projected-actual methodology to meet the recordkeeping requirements.
EPA continues to move forward with its evaluation of the portion of its
NSR reform rules that were remanded by the D.C. Circuit Court and is
preparing to respond to the D.C. Circuit Court's remand. EPA's final
decision with regard to the remand may require EPA to take further
action on this portion of Mississippi's rules. At this time, however,
Mississippi's recordkeeping provisions are at least as stringent as the
federal requirements, and are therefore, approvable.
The 2002 NSR reform rules require that state agencies adopt and
submit revisions to their part 51 permitting programs implementing the
minimum program elements of the 2002 NSR reform rules no later than
January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i),
state agencies are now required to adopt and submit SIP revisions
within three years after new amendments are published in the Federal
Register.) State agencies may meet the requirements of 40 CFR part 51,
and the 2002 NSR reform rules, with different but equivalent
regulations. However, if a state decides not to implement any of the
new applicability provisions, that state is required to demonstrate
that its existing program is at least as stringent as the federal
program.
On August 10, 2005, the State of Mississippi submitted SIP
revisions for the purpose of revising the State's NSR permitting
provisions for both major and minor stationary sources. The affected
regulations are, ``Permit Regulations for the Construction and
Operation of Air Emissions Equipment,'' APC-S-2, and ``Regulations for
the Prevention of Significant Deterioration of Air Quality,'' APC-S-5.
The revisions were made to update the Mississippi NSR programs to make
them consistent with changes to the federal NSR regulations published
December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021). As
noted earlier, Mississippi incorporated the federal rules (40 CFR
52.21, as amended and promulgated by July 1, 2004) by reference, with
minor edits to reflect, for example, that MDEQ is the permitting
authority, and not EPA. As a result of Mississippi's incorporation by
reference of the federal rules, the resulting State rules are at least
as stringent as the federal rules. This is the case even with regard to
the provisions where Mississippi made changes, such as, APC-S-5 (MAC
08-034-005(2.9)), which corresponds to 40 CFR 51.21(r)(6), ``Source
obligation,'' and is discussed above.
Mississippi's minor source permit regulations, which contain a new
provision, are likewise consistent with federal rules regarding minor
source programs. Mississippi's new provision, APC-S-2, Section XV.B.,
entitled, ``Optional Pre-Permit Construction,'' allows construction to
commence on certain non-major sources and non-major modifications prior
to receiving a final permit to construct, provided certain conditions
are met. The revisions to this minor source rule are consistent with
the requirements of section 110(a)(2)(C) of the CAA and federal
regulations found at 40 CFR 51.160 through 51.164, including 40 CFR
51.160(b), which requires states to have legally enforceable procedures
to prevent construction or modification of a source if it would violate
any SIP control strategies or interfere with attainment or maintenance
of the National Ambient Air Quality Standards.
The March 23, 2006, NPR and the Docket for this final action
contain more detailed information regarding the Mississippi SIP
revisions being approved today, and the rationale for EPA's final
action. Additional background information on EPA's 2002 NSR reform
rules can be found at 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.
The public comment period for the final action being

taken today ended on April 24, 2006. No comments, adverse or otherwise,
were received on EPA's proposed action to approve Mississippi's August
2005 submittal.

III. Final Action

EPA is taking final action to approve revisions to the Mississippi
SIP submitted by MDEQ on August 10, 2005. The submittal consists of
revisions to the State ``Permit Regulations for the Construction and/or
Operation of Air Emissions Equipment,'' APC-S-2, and ``Regulations for
the Prevention of Significant Deterioration of Air Quality,'' APC-S-5.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
final action is not a ``significant regulatory action'' and therefore
is not subject to review by the Office of Management and Budget. For
this reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This final
action merely approves state law as meeting Federal requirements and
imposes no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule 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 mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
This final rule also does not have tribal implications because it
will 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, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action also does not have
Federalism implications because it does not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This final
action merely approves state law as meeting Federal requirements and
imposes no additional requirements beyond those imposed by state law.
Therefore, it does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This final
rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of

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the Clean Air Act. In this context, in the absence of a prior existing
requirement for the State to use voluntary consensus standards (VCS),
EPA has no authority to disapprove a SIP submission for failure to use
VCS. It would thus be inconsistent with applicable law for EPA, when it
reviews a SIP submission, to use VCS in place of a SIP submission that
otherwise satisfies the provisions of the Clean Air Act. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This final
rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
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 rule 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 8, 2006. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

Dated: June 29, 2006.
A. Stanley Meiburg,
Acting 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. Section 52.1270(c) is amended by revising the Chapter title for
``APC-S-2'' and ``APC-S-5'' and the entries under Chapter ``APC-S-2''
and ``APC-S-5'' to read as follows:

Sec. 52.1270 Identification of plan.

* * * * *
(c) * * *

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

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
APC-S-2 Regulations for the Construction and/or Operation of Air Emissions Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 1........................ General Requirements....... 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section II....................... General Standards 08/27/05 07/10/2006 [Insert citation of ...................................
Applicable to All Permits. publication]
Section III...................... Application for Permit to 08/27/05 07/10/2006 [Insert citation of ...................................
Construct and State Permit publication]
to Operate New Stationary
Source.
Section IV....................... Public Participation and 08/27/05 07/10/2006 [Insert citation of ...................................
Public Availability of publication]
Information.
Section V........................ Application Review......... 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section VI....................... Compliance Testing......... 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section VII...................... Emissions Evaluation Report 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section VIII..................... Procedures for Renewal of 08/27/05 07/10/2006 [Insert citation of ...................................
State Permit to Operate. publication]
Section IX....................... Reporting & Recordkeeping.. 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section X........................ Emission Reduction Schedule 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section XI....................... General Permits............ 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section XII...................... Multi-Media Permits........ 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section XIII..................... Exclusions................. 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section XIV...................... CAFOs...................... 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section XV....................... Options.................... 08/27/05 07/10/2006 [Insert citation of ...................................
publication]
Section XVI...................... Permit Transfer............ 08/27/05 07/10/2006 [Insert citation of ...................................
publication]

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Section XVII..................... Severability............... 08/27/05 07/10/2006 [Insert citation of
publication]

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[FR Doc. E6-10745 Filed 7-7-06; 8:45 am]

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