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[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Rules and Regulations]
[Pages 2589-2591]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-377]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0041-201058(c); FRL-9250-4]

Approval and Promulgation of Implementation Plans; Mississippi: 
Prevention of Significant Deterioration; Nitrogen Oxides as a Precursor 
to Ozone; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction and clarification.

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SUMMARY: EPA is publishing today's notice to correct the regulatory 
table in the Code of Federal Regulations for Mississippi's state 
implementation plan (SIP) to clarify that the version of Mississippi's 
Prevention of Significant Deterioration (PSD) regulations incorporated 
into Mississippi's SIP on and after the January 19, 2011, effective 
date of the SIP revision approved by EPA on December 20, 2010, will be 
the version promulgated by the State on October 28, 2010 (state-
effective date December 1, 2010), and approved by EPA on December 29, 
2010. This version of Mississippi's PSD regulations includes both a SIP 
revision approved by EPA on December 20, 2010, and a SIP revision 
approved by EPA on December 29, 2010. No new SIP revisions are approved 
by today's notice. Today's notice clarifies that the revision 
identified in EPA's December 20, 2010, final action (adding nitrogen 
oxides (NOX) as a precursor to ozone for PSD purposes) was 
included in the PSD rules that were incorporated into the SIP by EPA's 
December 29, 2010, final action regarding greenhouse gases (GHGs).

DATES: This action is effective January 19, 2011.

ADDRESSES: Copies of the documentation used in the action being 
corrected are available for inspection during normal business hours at 
the following location: U.S. Environmental Protection Agency, Region 4, 
61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Lynorae Benjamin, Chief, 
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. 
Benjamin can be reached at 404-562-9040, or via electronic mail at 
benjamin.lynorae@epa.gov.

SUPPLEMENTARY INFORMATION: On November 28, 2007, Mississippi submitted 
a SIP revision to EPA to revise its SIP-approved PSD permitting 
regulations to address the requirements of the Ozone Implementation New 
Source Review Update to include the consideration of NOX as 
an ozone precursor. Specifically, Mississippi's November 28, 2007, SIP 
revision made changes to Mississippi's air quality regulations, APC-S-
5--Regulations for Prevention of Significant Deterioration, to 
incorporate by reference the provisions at 40 CFR 52.21 as amended and 
promulgated as of June 15, 2007. On December 20, 2010, EPA published a 
final rule approving Mississippi's November 28, 2007, SIP revision 
(following a proposal and receiving no comments). See 75 FR 78300. 
According to the December 20, 2010, action, the effective date of EPA's 
December 20, 2010, final rule approving Mississippi's November 28, 
2007, SIP revision is January 19, 2011. The January 19, 2011, effective 
date is now being corrected and clarified in today's action. This is 
necessary due to EPA taking final action on two SIP revisions so 
closely in time and to avoid any confusion regarding which SIP rules 
are in effect in Mississippi.
    On December 9, 2010, Mississippi submitted another SIP revision to 
EPA to revise its SIP-approved PSD permitting regulations to establish 
appropriate thresholds for determining which new stationary sources and 
modification projects become subject to Mississippi's PSD permitting 
requirements for their GHG emissions. Specifically, Mississippi's 
December 9, 2010, SIP revision made further changes to Mississippi's 
air quality regulations, APC-S-5--Regulations for Prevention of 
Significant Deterioration, to incorporate by reference the provisions 
at 40 CFR 52.21 as amended and promulgated as of September 13, 2010. 
EPA published a final rule approving Mississippi's December 9, 2010, 
SIP revision on December 29, 2010, and used the ``good cause'' clause 
to make the effective date of that final EPA action January 2, 2011. 
See 75 FR 81858. The Mississippi rules at issue in EPA's December 29, 
2010, final action and EPA's December 20, 2010, final action were 
different versions of the same rules--thus resulting in potentially 
conflicting effective dates. In today's action, EPA is clarifying that 
both actions are final and that the rules in effect per the December 
29, 2010, action are the rules that are approved into Mississippi's SIP 
and that are in effect in Mississippi.
    To clarify the rules in the SIP, as part of today's action, EPA is 
correcting the regulatory table that identifies Mississippi's SIP to 
clarify which version of Mississippi's air quality regulations related 
to PSD permitting requirements will be in the SIP on and after January 
19, 2011. Specifically, EPA is clarifying that it is not EPA's intent 
to supersede EPA's approval of Mississippi's December 9, 2010, SIP 
revision, with EPA's approval of Mississippi's November 28, 2007, SIP 
revision. Rather, the version of Mississippi's PSD regulations 
incorporated into Mississippi's SIP on and after the January 19, 2011, 
effective date of the SIP revisions approved by EPA on December 20, 
2010, will be the version promulgated by the State on October 28, 2010 
(state-effective date December 1, 2010), with the exception of certain 
language identified in EPA's December 29, 2010, notice. This version of 
Mississippi's PSD regulations includes both the SIP revision approved 
by EPA on December 20, 2010, and the SIP revision approved by EPA on 
December 29, 2010. No new SIP revisions are approved by today's 
action--this is simply a correction and clarification due to 
potentially

[[Page 2590]]

conflicting effective dates of EPA's previous final actions. This 
clarification is necessary solely as a result of the inadvertent timing 
of EPA's approval of Mississippi's two SIP revisions relating to 
different versions of the same rule, APC-S-5--Regulations for 
Prevention of Significant Deterioration, and the effective dates of 
those SIP revisions. The version of APC-S-5 that was approved into the 
SIP on December 29, 2010, with an effective date of January 2, 2011, is 
the version that is approved into the Mississippi SIP and in effect in 
Mississippi.
    EPA has determined that today's action falls under the ``good 
cause'' exemption in section 553(b)(3)(B) of the Administrative 
Procedure Act (APA) which, upon finding ``good cause,'' authorizes 
agencies to dispense with public participation where public notice and 
comment procedures are impracticable, unnecessary, or contrary to the 
public interest. Public notice and comment for this action are 
unnecessary because today's action clarifying the version of APC-S-5--
Regulations for Prevention of Significant Deterioration that is 
approved in Mississippi's SIP as of January 19, 2011, has no 
substantive impact on EPA's December 20, 2010, approval, as the 
provisions related to NOX as a precursor for ozone 
incorporated by reference into Mississippi's November 28, 2007, SIP 
revision are the same as those provisions incorporated by reference 
into Mississippi's December 9, 2010, SIP revision. EPA can identify no 
reason why the public would benefit from having an opportunity to 
comment on this correction prior to this action being finalized, since 
this correction action does not approve any new revisions to 
Mississippi's SIP or alter EPA's rationale for its prior action 
approving Mississippi's adoption of NOX as a precursor for 
ozone for PSD permitting purposes.
    EPA also finds that there is good cause under APA section 553(d)(3) 
for this correction to become effective on January 19, 2011. Section 
553(d)(3) of the APA allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d)(3). The purpose of the 
30-day waiting period prescribed in APA section 553(d)(3) is to give 
affected parties a reasonable time to adjust their behavior and prepare 
before the final rule takes effect. Today's rule, however, does not 
create any new regulatory requirements such that affected parties would 
need time to prepare before the rule takes effect. Rather, today's 
action merely clarifies which version of Mississippi's air quality 
regulations at APC-S-5--Regulations for Prevention of Significant 
Deterioration are in effect on and after January 19, 2011. For these 
reasons, EPA finds good cause under APA section 553(d)(3) for this 
correction to become effective on the date of publication of this 
action.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 action 
merely makes a correction to the regulatory table in Mississippi's SIP 
to clarify which version of APC-S-5--Regulations for Prevention of 
Significant Deterioration will be in effect on and after January 19, 
2011, relating to a SIP revision EPA approved on December 20, 2010, and 
imposes no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this 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 merely makes a correction to the regulatory table in 
Mississippi's SIP to clarify which version of APC-S-5--Regulations for 
Prevention of Significant Deterioration will be effect on and after 
January 19, 2011, 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 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 rule 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 rule merely makes a correction to the 
regulatory table to clarify which version of APC-S-5--Regulations for 
Prevention of Significant Deterioration will be in effect on and after 
January 19, 2011, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act (CAA). This 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 addition, this rule does not involve technical 
standards, 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 rule also 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. section 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 15, 2011. 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Nitrogen dioxide, Volatile organic

[[Page 2591]]

compounds, and Reporting and recordkeeping requirements.

    Dated: January 3, 2011.
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.

Subpart Z--Mississippi

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

Sec.  52.1270  Identification of plan.

* * * * *
    (c) * * *

                                      EPA-Approved Mississippi Regulations
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                                                      State effective    EPA approval
         State citation             Title/subject          date              date              Explanation
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                                                  * * * * * * *
                 APC-S-5-Regulations for Prevention of Significant Deterioration for Air Quality
----------------------------------------------------------------------------------------------------------------
All............................  ..................         12/1/2010        12/29/2010   APC-S-5 incorporates
                                                                            75 FR 81858   by reference the
                                                                                          regulations found at
                                                                                          40 CFR 52.21 as of
                                                                                          September 13, 2010.
                                                                                          This EPA action is
                                                                                          approving the
                                                                                          incorporation by
                                                                                          reference with the
                                                                                          exception of the
                                                                                          phrase ``except
                                                                                          ethanol production
                                                                                          facilities producing
                                                                                          ethanol by natural
                                                                                          fermentation under the
                                                                                          North American
                                                                                          Industry
                                                                                          Classification System
                                                                                          (NAICS) codes 325193
                                                                                          or 312140,'' APC-S-5
                                                                                          incorporated by
                                                                                          reference from 40 CFR
                                                                                          52.21(b)(1)(i)(a) and
                                                                                          (b)(1(iii)(t) APC-S-5.
                                                                                          In addition, this EPA
                                                                                          action is not
                                                                                          incorporating by
                                                                                          reference, into the
                                                                                          Mississippi SIP, the
                                                                                          administrative
                                                                                          regulations that were
                                                                                          amended in the
                                                                                          Fugitive Emissions
                                                                                          Rule (73 FR 77882) and
                                                                                          are stayed through
                                                                                          October 3, 2011.
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[FR Doc. 2011-377 Filed 1-13-11; 8:45 am]
BILLING CODE 6560-50-P
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