[Federal Register Volume 71, Number 56 (Thursday, March 23, 2006)]
[Proposed Rules]
[Pages 14658-14662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4199]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2005-MS-0001-200606; FRL-8048-9]
Approval and Promulgation of Implementation Plans; Mississippi
Prevention of Significant Deterioration and New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the Mississippi State
Implementation Plan (SIP) to include changes made to Mississippi
regulations entitled, ``Permit Regulations for the Construction and
Operation of Air Emissions Equipment'' and ``Regulations for the
Prevention of Significant Deterioration of Air Quality.'' The proposed
revisions amend the State permitting rules in order to address changes
to the federal New Source Review (NSR) regulations, which were
promulgated by EPA on December 31, 2002 (67 FR 80186) and reconsidered
with minor changes on November 7, 2003 (68 FR 63021) (collectively,
these two final actions are called the ``2002 NSR Reform Rules'').
EPA's 2002 NSR Reform Rules, proposed for inclusion in the Mississippi
SIP, contain provisions for baseline emissions calculations, an actual-
to-projected-actual methodology for calculating emissions changes,
options for plant-wide applicability limits, and recordkeeping and
reporting requirements. The proposed revisions also include changes
made to the NSR program for minor stationary sources, including a new
provision allowing construction to commence on certain minor sources
prior to the applicant receiving a final permit to construct.
DATES: Comments must be received on or before April 24, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2005-MS-0001, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: 404-562-9019.
4. Mail: (Docket ID No. EPA-R04-OAR-2005-MS-0001), Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery: Deliver your comments to: Ms. Kelly Fortin, Air
Planning Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during
the Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through Friday, 8:30 to 4:30,
excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2005-0001. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov.epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at http://
[[Page 14659]]
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 business hours are Monday through Friday, 8:30 to 4:30,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the
Mississippi SIP, contact Ms. Nacosta Ward, 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-
9140; e-mail address: [email protected]. 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: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, references to
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the U.S.
Environmental Protection Agency. The supplementary information is
arranged as follows:
I. What Action Is EPA Proposing to Take?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of Mississippi's NSR Rule Revisions?
A. Requirements for the Prevention of Significant Deterioration
of Air Quality
B. General Permitting Requirements
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing to Take?
On August 10, 2005, the State of Mississippi, through the
Mississippi Department of Environmental Quality (MDEQ), submitted
revisions to the Mississippi State Implementation Plan (SIP). The SIP
submittal consists of revisions to the Mississippi Administrative Code
(MAC) regarding Regulations for the Prevention, Abatement, and Control
of Air Contaminants. Specifically, the proposed SIP revisions include
changes to MDEQ regulations entitled, ``Permit Regulations for the
Construction and 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 revision to APC-S-5 in response to EPA's December 31,
2002, revisions to the federal NSR program. EPA is proposing to approve
the submitted SIP revisions to APC-S-2 and APC-S-5.
II. What Is the Background for This Action?
On December 31, 2002, EPA published final rule changes to 40 Code
of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air
Act's Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) programs. 67 FR 80186. On November 7, 2003,
EPA published a notice of final action on the reconsideration of the
December 31, 2002, final rule changes. 68 FR 63021. In that November
7th final action, EPA added the definition of ``replacement unit,'' and
clarified an issue regarding plant-wide applicability limitations
(PALs). The December 31, 2002, and the November 7, 2003, final actions,
are collectively referred to as the ``2002 NSR Reform Rules.'' The
purpose of today's action is to propose to approve the SIP submittal
from the State of Mississippi, which includes the provisions of EPA's
2002 NSR Reform Rules, and a change to Mississippi's minor source NSR
program.
The 2002 NSR Reform Rules are part of EPA's implementation of parts
C and D of title I of the Clean Air Act (CAA or Act), 42 U.S.C. 7470-
7515. Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the PSD
program, which applies in areas that meet the National Ambient Air
Quality Standards (NAAQS)--``attainment'' areas--as well as in areas
for which there is insufficient information to determine whether the
area meets the NAAQS--``unclassifiable'' areas. Part D of title I of
the CAA, 42 U.S.C. 7501-7515, is the NNSR program, which applies in
areas that are not in attainment of the NAAQS--``nonattainment'' areas.
Collectively, the PSD and NNSR programs are referred to as the ``New
Source Review'' or NSR programs. EPA regulations implementing these
programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part
51, appendix S.
The CAA's NSR programs are preconstruction review and permitting
programs applicable to new and modified stationary sources of air
pollutants regulated under the CAA. The NSR programs of the CAA include
a combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the CAA, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, states must develop, adopt, and submit to EPA for
approval, a SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of any stationary source of air pollution to ensure that
the NAAQS are achieved and maintained, to protect areas of clean air,
to protect air quality related values (such as visibility) in national
parks and other areas, to ensure that appropriate emissions controls
are applied, to maximize opportunities for economic development
consistent with the preservation of clean air resources, and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decision.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 NSR Reform Rules: (1) Provide a new
method for determining baseline actual emissions; (2) adopt an actual-
to-projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with PALs to avoid having a significant emissions increase that
triggers the requirements of the major NSR program; (4) provide a new
applicability provision for emissions units that are designated clean
units; and (5) exclude pollution control projects (PCPs) from the
definition of ``physical change or change in the method of operation.''
On November 7, 2003, EPA published a notice of final action on its
reconsideration of the 2002 NSR Reform Rules (68 FR 63021), which added
a definition for ``replacement unit'' and clarified an issue regarding
PALs. For additional information on the 2002 NSR Reform Rules, see 67
FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), industry, state, and environmental petitioners challenged
numerous aspects of the 2002 NSR Reform Rules, along with portions of
EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005,
the U.S. 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
[[Page 14660]]
Court vacated portions of the rules pertaining to clean units and PCPs,
remanded a portion of the rules regarding recordkeeping, e.g. 40 CFR
52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did not
comment on the other provisions included as part of the 2002 NSR Reform
Rules. EPA has not yet responded to the Court's remand regarding the
recordkeeping provisions. Today's action is consistent with the
decision of the D.C. Circuit Court because Mississippi's submittal does
not include any portions of the 2002 NSR Reform Rules that were vacated
as part of the June 2005, decision.
The 2002 NSR Reform Rules require that state agencies adopt and
submit revisions to their SIP 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 3 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. In adopting changes to federal law, a state may write the
federal requirements into the state rules or the state may incorporate
the federal rule by referencing the citation of the federal rule. As is
discussed in greater detail below, with regard to the present revision,
Mississippi primarily incorporated the federal rule by reference.
On August 10, 2005, the State of Mississippi submitted a SIP
revision for the purpose of revising the State's NSR permitting
provisions for both major and minor stationary sources. These changes
were made primarily to adopt EPA's 2002 NSR Reform Rules. The submittal
also contains revisions to the State's general regulations for the
construction and operation of sources of air pollution. These changes
are discussed below. EPA believes the revisions contained in the
Mississippi submittal are approvable for inclusion into the Mississippi
SIP.
III. What Is EPA's Analysis of Mississippi's NSR Rule Revisions?
Mississippi currently has a SIP-approved NSR program for new and
modified stationary sources. Today, EPA is proposing to approve
revisions to Mississippi's existing NSR program in the SIP. These
proposed revisions were submitted to EPA on August 10, 2005, and became
state-effective on August 27, 2005. Copies of the revised rules, as
well as the State's Technical Support Document, can be obtained from
the Docket, as discussed in the ``Docket'' section above. A discussion
of the specific changes to Mississippi's rules, proposed for inclusion
in the SIP, follows.
A. Requirements for Prevention of Significant Deterioration of Air
Quality
Incorporation by reference of 40 CFR 52.21, 51.166(f), and
51.166(q). The State of Mississippi's PSD program incorporates by
reference the federal requirements, found at 40 CFR 52.21, into the
State's major source PSD program, found at APC-S-5 (MAC 08-034-005).
The original incorporation by reference was adopted on June 28, 1990,
and amended in 1991, 1993, and 1996. The current revision to APC-S-5,
which EPA is now proposing to approve into the SIP, incorporates by
reference the provisions of 40 CFR 52.21, as amended and promulgated on
July 1, 2004. In addition, the federal provisions at 40 CFR 51.166(f),
``Exclusions from Increment Consumption,'' and 40 CFR 51.166(q),
``Public Participation,'' are also incorporated by reference into the
Mississippi rule. In summary, the revisions update Mississippi's
existing incorporation by reference of the federal NSR program to
include the 2002 NSR Reform Rules plus subsequent revisions to the
federal program made through July 1, 2004.
Mississippi did not adopt those sections of the federal rules that
do not apply to state activities or are reserved for the Administrator
of the EPA, such as the ``delegation of authority,'' and ``plan
disapproval'' sections found in 40 CFR 52.21. The Mississippi
incorporation by reference properly clarified the circumstances in
which the term ``Administrator,'' found throughout the federal rules,
was to remain Administrator, and when it was intended to refer to the
``Mississippi Environmental Quality Board,'' instead. The Mississippi
rule does not incorporate the portions of the federal rules that were
recently stayed or vacated, including the clean unit provisions, the
PCP exclusion, and the equipment replacement provision which was
promulgated shortly after the 2002 NSR Reform Rules.
The revised Mississippi rule includes the recordkeeping provisions
set forth in the federal rules at 40 CFR 52.21(r)(6). However,
Mississippi chose to exclude the phrase, ``reasonable possibility.''
This phrase in the federal rule limits the recordkeeping provisions to
modifications at facilities that use the actual-to-future-actual
methodology to calculate emissions changes and that may have a
``reasonable possibility'' of resulting in a significant emissions
increase. The Mississippi rule, therefore, requires all modifications
that use the actual-to-future-actual methodology to meet the
recordkeeping requirements. Mississippi's minor source permitting
regulations already contain recordkeeping requirements for
modifications, so there is limited practical effect of this difference
in Mississippi. As noted earlier, EPA has not yet responded to the D.C.
Circuit Court's remand of the recordkeeping provisions of EPA's 2002
NSR Reform Rules. As a result, 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 requirements included in Mississippi's PSD program are
substantively the same as the federal provisions, due to Mississippi's
incorporation of the federal rules by reference. EPA has, therefore,
determined that the proposed revisions are consistent with the program
requirements for the preparation, adoption and submittal of
implementation plans for the Prevention of Significant Deterioration of
Air Quality, as set forth at 40 CFR 51.166, and are approvable as part
of the Mississippi SIP.
B. General Permitting Requirements
Minor Source Program Rule Revisions. Mississippi's general
permitting requirements, including permit requirements for minor
sources, are contained in the State rule entitled, ``Permit Regulations
for the Construction and/or Operation of Air Emissions Equipment,''
(APC-S-2), found at MAC 08-034-002. Today's action proposes to approve
recent changes to this rule. EPA has reviewed the proposed revisions
and finds them to be consistent with the requirements of EPA's
regulations for minor NSR programs found at 40 CFR 51.160 through
51.164.
On May 2, 1995 (60 FR 21443), EPA approved APC-S-2 as meeting the
criteria necessary to allow the State of Mississippi to issue federally
enforceable state operating permits (FESOPs). The provisions in APC-S-2
that were relied upon for the approval of the FESOP program have not
changed with this latest revision of that rule.
[[Page 14661]]
Therefore, the FESOP program approval remains effective.
Mississippi's minor source permit regulations do contain a 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. EPA approved this
approach to minor source permitting for the State of Idaho's permit to
construct regulations, which were approved into the Idaho SIP in 2003.
68 FR 2217 (January 16, 2003). As discussed below, Mississippi's new
provision is 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 NAAQS.
Mississippi's Optional Pre-Permit Construction provision includes
requirements and safeguards to ensure that no major source or major
modification would be allowed to commence construction prior to
receiving a final permit to construct. For example, the provision does
not allow new major stationary sources, major modifications, medical
waste incinerators, hazardous waste incinerators, any modification
involving medical waste incineration or hazardous waste incineration,
or new stationary sources or modifications requiring a case-by-case
Maximum Achievable Control Technology determination, to commence
construction prior to receiving a final permit to construct.
Furthermore, no source, including minor sources, can begin actual
construction unless the source has received approval from the State in
the form of either a written approval described in the rule, or an
actual permit to construct.
Mississippi's Optional Pre-Permit Construction provision also
includes requirements that limit its applicability to only sources that
have sufficiently demonstrated that they will be able to comply with
all requirements, and therefore, will receive a final permit to
construct. These requirements include: submittal of a comprehensive
permit application, public notice of the application for pre-permit
construction approval, and written approval from the Permit Board
before a source can commence construction. Additionally, the permit
application must include the request for pre-permit construction,
certification that construction is at the applicant's risk,
certification that the applicant will not contest the final permit on
the basis that construction has begun, and certification that the
applicant will comply with any restrictions being sought to limit
potential to emit, including applicable monitoring and recordkeeping
requirements.
Furthermore, the Optional Pre-Permit Construction provision
precludes any actual operation of the new or modified source until the
final permit to construct is issued. Regardless of the status of the
construction, the Permit Board may deny the pre-permit construction
approval application, or revoke an existing pre-permit construction
approval, for any reason it deems valid, including objections from the
public. The Mississippi Optional Pre-Permit Construction provision also
allows a source with a valid CAA title V operating permit to
incorporate the preconstruction modification provisions into the title
V permit, rather than obtaining a separate permit to construct.
Section 110(a)(2)(C) of the CAA requires that state SIPs include a
program for regulating the construction and modification of stationary
sources as necessary to ensure that the NAAQS are achieved. Federal
regulations require that the SIP include a procedure to prevent the
construction of a source or modification that would violate a SIP
control strategy or interfere with attainment or maintenance of the
NAAQS. As discussed above, the Mississippi Optional Pre-Permit
Construction provision includes enforceable procedures to prevent the
construction of any source or modification that would violate SIP
requirements or the NAAQS. Although the Mississippi provision is
somewhat different than traditional minor NSR programs in other states,
the Mississippi program is consistent with the requirements of the CAA
and EPA's regulations, and is therefore approvable as part of the SIP.
IV. What Action Is EPA Proposing To Take?
EPA is proposing 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
Operation of Air Emissions Equipment,'' APC-S-2, and ``Regulations for
the Prevention of Significant Deterioration of Air Quality,'' APC-S-5.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed 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 proposes to approve 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 (Pub. L. 104-4).
This proposed 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 action
merely proposes to approve a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This proposed 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 the CAA. In this
context, in the absence of a prior existing requirement for the
[[Page 14662]]
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 CAA. 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 proposed 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.).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 16, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. E6-4199 Filed 3-22-06; 8:45 am]
BILLING CODE 6560-50-P