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 pollutant12
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
75 FR 64864.
11Significant 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 concentration11for 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.
12EPA generally characterized the PM2.5NAAQS as a NAAQS for a new indicator of PM. EPA did not replace the PM10NAAQS with the NAAQS for PM2.5when the PM2.5NAAQS were promulgated in 1997. EPA rather retained the annual and 24-hour NAAQS for PM2.5as if PM2.5was a new pollutant even though EPA had already developed air quality criteria for PM generally.See75 FR 64864 (October 20, 2012).
13EPA 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.
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 PM2.5PSD Increment-SILs-SMC Rule, EPA established a PM2.5SMC of 4 µg/m3to be used as a screening tool by a major source subject to PSD to determine the subsequent level of PM2.5data 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 PM2.5SILs14
as well as the SMC for PSD purposes as promulgated in the October 20, 2012, rule.Sierra Clubv.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 atwww.regulations.govusing docket ID: EPA-R04-OAR-2012-0081.
14As 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.
15Additional 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 atwww.regulations.govusing 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 PM2.5NAAQS. 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 PM2.5Rule and the PM2.5PSD 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 PM2.5Rule PSD provisions at regulation APC-S-5, including: (1) The requirement for NSR permits to address directly emitted PM2.5and precursor pollutants; (2) significant emission rates for direct PM2.5and precursor pollutants (SO2and NOX) and establishing PM2.5precursors (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 PM10and 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.”See77 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 PM2.5and 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 PM2.5grandfathering 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, NOXwill be considered a precursor to PM2.5in Mississippi until such time as EPA takes action on the State's NOXinsignificance 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 NOXis a presumed PM2.5precursor. EPA is considering Mississippi's NOXinsignificance 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 PM2.5Rule 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 PM2.5Rule, the exclusion language is no longer necessary.
16In 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 PM2.5Rule 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 PM2.5PSD Increment-SILs SMC Rule, EPA is taking final action to also approve into the Mississippi SIP the PSD increments for PM2.5annual and 24-hour NAAQS pursuant to section 166(a) of the CAA and SMC of 4 µg/m3for PM2.5NAAQS. The May 12, 2011, SIP revision IBR the PM2.5increments 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 sourcebaseline 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 PM2.5SILs 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 SILsde minimisthresholds.Sierra Clubv.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'sde minimisauthority as well as the fact they are consistent with EPA's promulgated levels in the PM2.5PSD 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 PM2.5so 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
17In 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.See75 FR 64864 at 64899.
18EPA is currently developing guidance to provide provisional course of action to implement the PM2.5SILs pending revision to the (k)(2) provisions and the litigation. The guidance will ensure that the PM2.5SILs 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 PM2.5NAAQS 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 PM2.5and the PM2.5PSD Increment-SILs-SMC Rules to implement the PM2.5NAAQS 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. 3501et 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. 601et 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. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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.Seesection 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:
1. The authority citation for part 52 continues to read as follows:
42.U.S.C. 7401et seq.
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 effective date
EPA approval date
APC-S-5-Regulations for Prevention of Significant Deterioration for Air Quality
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 PM2.5Rule (at 40 CFR 51.166(b)(49)(vi)) and the PM2.5SILs threshold and provisions (as promulgated in the October 20, 2010 PM2.5PSD 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.See75 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.