[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81858-81863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32667]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0811-201070; FRL-9244-4]


Approval and Promulgation of Implementation Plans; Mississippi: 
Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule 
Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve a revision to the State 
Implementation Plan (SIP), submitted by the State of Mississippi, 
through the Mississippi Department of Environmental Quality (MDEQ), to 
EPA on September 14, 2010, for parallel processing. MDEQ submitted the 
final version of this SIP revision on December 9, 2010. The SIP 
revision incorporates updates to MDEQ's air quality regulations 
impacting the regulation of greenhouse gas (GHG) under Mississippi's 
New Source Review (NSR) Prevention of Significant Deterioration (PSD) 
program. Specifically, the SIP revision establishes appropriate 
emission thresholds for determining which new stationary sources and 
modification projects become subject to Mississippi's PSD permitting 
requirements for their GHG emissions. The change is necessary because 
without it, on January 2, 2011, PSD requirements would apply at the 100 
or 250 tons per year (tpy) levels otherwise

[[Page 81859]]

provided under the Clean Air Act (CAA or Act), which would overwhelm 
Mississippi's permitting resources. EPA is approving Mississippi's 
December 9, 2010, SIP revision because the Agency has made the 
determination that this SIP revision is in accordance with the CAA and 
EPA regulations, including regulations pertaining to PSD permitting for 
GHGs. Additionally, EPA is responding to adverse comments received on 
EPA's November 5, 2010, proposed approval of Mississippi's September 
14, 2010, draft SIP revision.

DATES: Effective Date: This rule will be effective January 2, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0811. 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 for further information. 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 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; e-mail address: <a href="/cdn-cgi/l/email-protection#95f7e7f4f1f9f0ecbbe1e2e0fbfff4f9f4d5f0e5f4bbf2fae3"><span class="__cf_email__" data-cfemail="53312132373f362a7d2724263d39323f32133623327d343c25">[email protected]</span></a>. For 
information regarding the Tailoring Rule, contact Ms. Heather Abrams, 
Air Permits Section, at the same address above. Ms. Abrams' telephone 
number is (404) 562-9185; e-mail address: <a href="/cdn-cgi/l/email-protection#02636070636f712c6a6763766a6770426772632c656d74"><span class="__cf_email__" data-cfemail="41202333202c326f29242035292433012431206f262e37">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for today's final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of today's final action?
IV. When is today's action effective?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What is the background for today's final action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the Mississippi SIP.\1\ Four of these actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson 
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and 
the ``Tailoring Rule.'' \5\ Taken together, these actions established 
regulatory requirements for GHGs emitted from new motor vehicles and 
new motor vehicle engines; determined that such regulations, when they 
take effect on January 2, 2011, will subject GHGs emitted from 
stationary sources to PSD requirements; and limited the applicability 
of PSD requirements to GHG sources on a phased-in basis.
---------------------------------------------------------------------------

    \1\ On December 13, 2010, EPA finalized a ``SIP Call'' that 
would require those states with SIPs that do not authorize PSD 
permitting for GHGs to submit a SIP revision providing such 
authority. 75 FR 77698. In a companion rulemaking, EPA proposed a 
federal implementation plan (FIP) that would apply in any state that 
is unable to submit the required SIP revision by its deadline. 75 FR 
53883 (September 2, 2010). Because Mississippi's SIP already 
authorizes Mississippi to regulate GHGs once GHGs become subject to 
PSD requirements on January 2, 2011, Mississippi is not subject to 
the proposed SIP Call or FIP.
    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \5\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
---------------------------------------------------------------------------

    On September 14, 2010, in response to the Tailoring Rule and 
earlier GHG-related EPA rules, MDEQ submitted a draft revision to EPA 
for approval into the Mississippi SIP to establish appropriate emission 
thresholds for determining which new or modified stationary sources 
become subject to Mississippi's PSD permitting requirements for GHG 
emissions. Subsequently, on November 5, 2010, EPA published a proposed 
rulemaking to approve a portion of Mississippi's September 14, 2010, 
SIP revision under parallel processing. 75 FR 68259. Specifically, 
Mississippi's September 14, 2010, draft SIP revision incorporates by 
reference the Tailoring Rule provisions at 40 CFR 52.21 (as amended 
June 3, 2010, and effective August 2, 2010), into the Mississippi SIP 
(APC-S-5--Regulations for the Prevention of Significant Deterioration) 
to address the thresholds for GHG permitting applicability. Detailed 
background information and EPA's rationale for the proposed approval 
are provided in EPA's November 5, 2010, Federal Register notice.
    EPA's November 5, 2010, proposed approval was contingent upon 
Mississippi providing a final SIP revision that was substantively the 
same as the revision proposed for approval by EPA in the November 5, 
2010, proposed rulemaking. 75 FR 68259. Mississippi provided its final 
SIP revision on December 9, 2010. There was a minor change to correct 
an error for a citation noted in Mississippi's September 14, 2010, 
draft SIP revision. Specifically, in providing the citation for the NSR 
PM<INF>2.5</INF> Implementation Rule, Mississippi provided 73 FR 38349 
in its September 14, 2010, draft SIP revision under APC-S-5, Section 2-
7. In Mississippi's December 9, 2010, SIP revision, the State corrects 
this citation to read 73 FR 28321 instead of 73 FR 38349. Besides the 
correction of the citation, there were no differences between 
Mississippi's September 14, 2010, draft SIP revision, and the final SIP 
revision which was provided on December 9, 2010.
    Mississippi's December 9, 2010, SIP revision also incorporates two 
administrative changes to their PSD regulations (Air Pollution Control, 
Section 5 (APC-S-5)--Regulations for the Prevention of Significant 
Deterioration). These changes relate to Mississippi's pre-existing 
exclusion of certain provisions of the federal PSD regulations from its 
SIP, specifically, provisions pertaining to the ``reasonable 
possibility'' standard,\6\ ``clean units,'' and

[[Page 81860]]

``pollution control projects'' (PCPs).\7\ In today's action, EPA is 
finalizing approval of these administrative changes into the 
Mississippi SIP. EPA's November 5, 2010, proposal addressed these 
revisions.
---------------------------------------------------------------------------

    \6\ On July 10, 2006 (71 FR 38773), EPA approved Mississippi's 
incorporation by reference of the 2002 NSR Reform Rules into the 
Mississippi SIP. The SIP-approved rule excludes certain provisions 
of the federal rules that were not incorporated by reference. Among 
the excluded provisions are those set forth at 40 CFR 52.21(r)(6) 
pertaining to the ``reasonable possibility'' standard, which 
establishes criteria for when recordkeeping and reporting are 
required for a modification that does not trigger major NSR. In 
defining that exclusion, Mississippi's rule quoted the relevant 
language from the federal PSD regulations. Subsequently, on December 
21, 2007 (73 FR 72607), EPA amended the reasonable possibility 
standard in response to a decision by the U.S. Court of Appeals for 
the DC Circuit. See New York v. EPA, 413 F.3d 3 (DC Cir. 2005). 
While Mississippi will continue to exclude the reasonable 
possibility provision from its PSD regulations, it is revising the 
exclusion to reflect the revised reasonable possibility language at 
40 CFR 52.21(r)(6) as promulgated on December 21, 2007.
    \7\ The Mississippi PSD regulations approved by EPA on July 10, 
2006 (71 FR 38773), specifically excluded from incorporation by 
reference the federal regulatory provisions pertaining to ``clean 
units'' and PCPs. Subsequently, the DC Circuit vacated the federal 
clean unit and PCP provisions. See New York v. EPA, 413 F.3d at 3. 
Mississippi's September 14, 2010, proposed SIP revision removes the 
reference to these vacated federal regulations from its list of 
excluded Federal provisions.
---------------------------------------------------------------------------

    In addition to changes to address the Tailoring Rule and the 
aforementioned administrative changes mentioned above, Mississippi's 
December 9, 2010, SIP revision also includes: (1) Provisions to exclude 
facilities that produce ethanol through a natural fermentation process 
(hereafter referred to as the ``Ethanol Rule'') from the definition of 
``chemical process plants'' in the major NSR source permitting program; 
and (2) revision to incorporate by reference changes pursuant to EPA's 
Fugitive Emissions Rule (73 FR 77882, December 19, 2008).\8\ In today's 
final rulemaking, EPA is not taking final action on Mississippi's 
changes to its PSD regulations to exclude facilities from the 
definition of ``chemical process plants'' in the major NSR permitting 
program, nor is EPA taking final action on Mississippi's changes to 
incorporate the provisions of the Fugitive Emission Rule.
---------------------------------------------------------------------------

    \8\ On March 31, 2010, EPA stayed the Fugitive Emissions Rule 
(73 FR 77882) for 18 months to October 3, 2011, to allow the Agency 
time to propose, take comment and issue a final action regarding the 
inclusion of fugitive emissions in NSR applicability determinations. 
Therefore, the 40 CFR part 51 and part 52 administrative regulations 
that were amended by the Fugitive Emissions Rule are stayed through 
October 3, 2011.
---------------------------------------------------------------------------

II. What is EPA's response to comments received on this action?

    EPA received two sets of comments on the November 5, 2010, proposed 
rulemaking to approve revisions to Mississippi's SIP. One set of 
comments, provided by the Sierra Club, was in favor of EPA's November 
5, 2010, proposed action. The other set of comments, provided by the 
Air Permitting Forum, raised concerns with final action on EPA's 
November 5, 2010, proposed action. A full set of the comments provided 
by both the Sierra Club and Air Permitting Forum (hereinafter referred 
to as ``the Commenter'') is provided in the docket for today's final 
action. A summary of the adverse comments and EPA's responses are 
provided below.
    Generally, the adverse comments fall into four categories. First, 
the Commenter asserts that PSD requirements cannot be triggered by 
GHGs. Second, the Commenter expresses concerns regarding a footnote in 
the November 5, 2010, proposal describing EPA's previously announced 
intention to narrow its prior approval of some SIPs to ensure that 
sources with GHG emissions that are less than the Tailoring Rule's 
thresholds will not be obligated under federal law to obtain PSD 
permits prior to a SIP revision incorporating those thresholds. The 
Commenter explains that the planned SIP approval narrowing action ``is 
illegal.'' Third, the Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. Lastly, 
the Commenter states: ``EPA should explicitly state in any final rule 
that the continued enforceability of these provisions in the 
Mississippi SIP is limited to the extent to which the Federal 
requirements remain enforceable.'' EPA's response to these four 
categories of comments is provided below.
    Comment 1: The Commenter asserts that PSD requirements cannot be 
triggered by GHGs. In its letter, the Commenter reiterates EPA's 
statement that without the Tailoring Rule thresholds, PSD will apply as 
of January 2, 2011, to all stationary sources that emit or have the 
potential to emit, depending on the source category, either 100 or 250 
tons of GHG per year. The Commenter also reiterates EPA's statement 
that beginning January 2, 2011, a source owner proposing to construct 
any new major source that emits at or higher than the GHG applicability 
levels, or modify any existing major source in a way that would 
increase GHG emissions, would need to obtain a PSD permit that 
addresses these emissions before construction could begin. In raising 
concerns with the two aforementioned statements, the Commenter states: 
``No area in the State of Mississippi has been designated attainment or 
unclassifiable for greenhouse gases (GHGs), as there is no national 
ambient air quality standard (NAAQS) for GHGs. Therefore, GHGs cannot 
trigger PSD permitting.'' The Commenter notes that it made this 
argument in detail in comments submitted to EPA on the Tailoring Rule 
and other related GHG rulemakings. The Commenter attached those 
previously submitted comments to its comments on the proposed 
rulemaking related to this action. Finally, the Commenter states that 
``EPA should immediately provide notice that it is now interpreting the 
Act not to require that GHGs trigger PSD and allow Mississippi to 
rescind that portion of its rules that would allow GHGs to trigger 
PSD.''
    Response 1: EPA established the requirement that PSD applies to all 
pollutants newly subject to regulation, including non-NAAQS pollutants, 
in earlier national rulemakings concerning the PSD program, and EPA has 
not re-opened that issue in this rulemaking. In an August 7, 1980, 
rulemaking at 45 FR 52676, 45 FR 52710-52712, and 45 FR 52735, EPA 
stated that a ``major stationary source'' was one which emitted ``any 
air pollutant subject to regulation under the Act'' at or above the 
specified numerical thresholds; and defined a ``major modification,'' 
in general, as a physical or operational change that increased 
emissions of ``any pollutant subject to regulation under the Act'' by 
more than an amount that EPA variously termed as de minimis or 
significant. In addition, in EPA's NSR Reform rule at 67 FR 80186 and 
67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the 
new definition of ``regulated NSR pollutant'' (currently codified at 40 
CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)); noted that EPA added this 
term based on a request from a commenter to ``clarify which pollutants 
are covered under the PSD program;'' and explained that in addition to 
criteria pollutants for which a NAAQS has been established, ``[t]he PSD 
program applies automatically to newly regulated NSR pollutants, which 
would include final promulgation of an NSPS [new source performance 
standard] applicable to a previously unregulated pollutant.'' Id. at 67 
FR 80240 and 67 FR 80264. Among other things, the definition of 
``regulated NSR pollutant'' includes ``[a]ny pollutant that otherwise 
is subject to regulation under the Act.'' See 40 CFR 
52.21(b)(50)(d)(iv); see also id. 40 CFR 51.166(a)(49)(iv).
    In any event, EPA disagrees with the Commenter's underlying premise 
that PSD requirements are not triggered for GHGs when GHGs become 
subject to regulation as of January 2, 2011. As just noted, this has 
been well established and discussed in connection with prior EPA 
actions, including, most recently, the Johnson Reconsideration and the 
Tailoring Rule. In addition, EPA's November 5, 2010, proposed 
rulemaking notice provides the general basis for the Agency's rationale 
that GHGs (while not a NAAQS pollutant) can trigger PSD permitting 
requirements. The November 5, 2010, notice also refers the reader to

[[Page 81861]]

the preamble to the Tailoring Rule for further information on this 
rationale. In that rulemaking, EPA addressed at length the comment that 
PSD can be triggered only by pollutants subject to the NAAQS, and 
concluded such an interpretation of the Act would contravene Congress' 
unambiguous intent. See 75 FR 31560-31562. Further discussion of EPA's 
rationale for concluding that PSD requirements are triggered by non-
NAAQS pollutants such as GHGs appears in the Tailoring Rule Response-
to-Comments document (``Prevention of Significant Deterioration and 
Title V GHG Tailoring Rule: EPA's Response to Public Comments''), pp. 
34-41; and in EPA's response to motions for a stay filed in the 
litigation concerning those rules (``EPA's Response to Motions for 
Stay,'' Coalition for Responsible Regulation v. EPA, DC Cir. No. 09-
1322 (and consolidated cases)), at pp. 47-59, and are incorporated by 
reference here. These documents have been placed in the docket for 
today's action.
    Comment 2: The Commenter expresses concerns regarding a footnote in 
which EPA describes its previously announced intention to narrow its 
prior approval of some SIPs to ensure that sources with GHG emissions 
that are less than the Tailoring Rule's thresholds will not be 
obligated under federal law to obtain PSD permits during any gap 
between when GHG permitting requirements go into effect and when the 
SIP is revised to incorporate the Tailoring Rule thresholds. The 
Commenter explains that narrowing ``is illegal.'' Further, the 
Commenter states that ``EPA has not proposed to narrow Mississippi's 
SIP approval here and any such proposal must be explicit and address 
the action specifically made with respect to Mississippi. EPA cannot 
sidestep these important procedural requirements.''
    Response 2: While EPA does not agree with the Commenter's assertion 
that the narrowing approach discussed in EPA's Tailoring Rule is 
illegal, the narrowing approach was not the subject of EPA's November 
5, 2010, proposed rulemaking to approve Mississippi's September 14, 
2010, SIP revision. Rather the narrowing approach was the subject of a 
separate rulemaking, and any action to use this approach for 
Mississippi's SIP will be considered and finalized in an action 
separate from today's rulemaking. In today's final action, EPA is 
acting to approve a SIP revision submitted by Mississippi, and is not 
otherwise narrowing its approval of prior submitted and approved 
provisions in the Mississippi SIP. Accordingly, the legality of the 
narrowing approach is not at issue in this rulemaking.
    Comment 3: The Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. 
Specifically, the Commenter refers to the statutory and executive 
orders for the Paperwork Reduction Act, the Regulatory Flexibility Act 
(RFA), Unfunded Mandates Reform Act, and Executive Order 13132 
(Federalism). Additionally, the Commenter mentions that EPA has never 
analyzed the costs and benefits associated with triggering PSD for 
stationary sources in Mississippi, much less nationwide.
    Response 3: EPA disagrees with the Commenter's statement that EPA 
has failed to meet applicable statutory and executive order review 
requirements. As stated in EPA's proposed approval of Mississippi's 
December 9, 2010, SIP revision, this action merely approves state law 
as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. Accordingly, EPA 
approval, in and of itself, does not impose any new information 
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would 
require additional review under the Paperwork Reduction Act. In 
addition, this SIP approval will not have a significant economic impact 
on a substantial number of small entities, beyond that which would be 
required by the state law requirements, so a regulatory flexibility 
analysis is not required under the RFA. Accordingly, this rule is 
appropriately certified under section 605(b) of the RFA. Moreover, as 
this action 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 mandates or significantly 
or uniquely affect small governments, such that it would be subject to 
the Unfunded Mandates Reform Act. Finally, this action does not have 
federalism implications that would make Executive Order 13132 
applicable because it merely approves a state rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA.
    In sum, today's rule is a routine approval of a SIP revision, 
approving state law, and does not impose any requirements beyond those 
imposed by state law. To the extent these comments are directed more 
generally to the application of the statutory and executive order 
reviews to the required regulation of GHGs under PSD programs, these 
comments are irrelevant to the approval of state law in today's action. 
However, EPA provided an extensive response to similar comments in 
promulgating the Tailoring Rule. EPA refers the Commenter to the 
sections in the Tailoring Rule entitled ``VII. Comments on Statutory 
and Executive Order Reviews,'' 75 FR 31601-31603, and ``VI. What are 
the economic impacts of the final rule?,'' 75 FR 31595-31601. EPA also 
notes that today's action does not in-and-of itself trigger the 
regulation of GHGs. To the contrary, by putting in place higher PSD 
applicability thresholds for GHGs than would otherwise be in effect 
under the Act, this rulemaking, as well as EPA's Tailoring Rule, 
provides relief to smaller GHG-emitting sources that would otherwise be 
subject to PSD permitting requirements for their GHG emissions.
    Comment 4: The Commenter states that ``[i]f EPA proceeds with this 
action, it must condition approval on the continued validity of its 
determination that PSD can be triggered by or is applicable to GHGs.'' 
Further, the Commenter remarks on the ongoing litigation in the U.S. 
Court of Appeals for the DC Circuit. Specifically, regarding EPA's 
determination that PSD can be triggered by GHGs or is applicable to 
GHGs, the Commenter mentions that ``EPA should explicitly state in any 
final rule that continued enforceability of these provisions in the 
Mississippi SIP is limited to the extent to which the federal 
requirements remain enforceable.'' The Commenter notes that if a stay 
is issued, these requirements should also be stayed.
    Response 4: EPA believes that it is most appropriate to take 
actions that are consistent with the federal regulations that are in 
place at the time the action is being taken. To the extent that any 
changes to federal regulations related to today's action result from 
pending legal challenges or other actions, EPA will process appropriate 
SIP revisions in accordance with the procedures provided in the Act and 
EPA's regulations. EPA notes that in an order dated December 9, 2010, 
the United States Court of Appeals for the DC Circuit denied motions to 
stay EPA's regulatory actions related to GHGs. Coalition for 
Responsible Regulation, Inc. v. EPA, Nos. 09-1322, 10-1073, 10-1092 
(and consolidated cases), Slip Op. at 3 (DC Cir. December 10, 2010) 
(order denying stay motions).

III. What is the effect of today's final action?

    Final approval of Mississippi's December 9, 2010, SIP revision will 
put in place the GHG emission thresholds for PSD applicability set 
forth in EPA's Tailoring Rule (75 FR 31514, June 3, 2010), ensuring 
that smaller GHG

[[Page 81862]]

sources emitting less than these thresholds will not be subject to 
permitting requirements when these requirements begin applying to GHGs 
on January 2, 2011. Pursuant to section 110 of the CAA, EPA is 
approving a portion of the changes made in Mississippi's December 9, 
2010, SIP revision into Mississippi's SIP.
    Mississippi's December 9, 2010, revision updates its existing 
incorporation by reference of the federal NSR program to include the 
relevant federal Tailoring Rule provisions set forth at 40 CFR 52.21 
into the Mississippi SIP at APC-S-5--Regulations for the Prevention of 
Significant Deterioration.\9\ EPA has determined that Mississippi's 
December 9, 2010, SIP revision is consistent with the Tailoring Rule. 
Furthermore, EPA has determined that the December 9, 2010, revision to 
Mississippi's SIP is consistent with section 110 of the CAA. See, e.g., 
Tailoring Rule, at 75 FR 31561.
---------------------------------------------------------------------------

    \9\ Mississippi's December 9, 2010, submittal also revises 
definitions for APC-S-6--Air Emissions Operating Permit Regulations 
for the Purposes of Title V of the Federal Clean Air Act; however, 
these relate to title V and are not included in the SIP. As such, 
EPA is not taking action to approve Mississippi's update to this 
regulation in this rulemaking.
---------------------------------------------------------------------------

IV. When is today's action effective?

    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for this action to become effective on January 2, 2011. This is because 
a delayed effective date is unnecessary due to the nature of 
Mississippi's changes to its PSD regulations to establish appropriate 
emissions thresholds for determining PSD applicability with respect to 
new or modified GHG-emitting sources in accordance with EPA's Tailoring 
Rule, thereby relieving the State from certain CAA requirements that 
would otherwise apply to it. The January 2, 2011, effective date for 
this action is authorized under both 5 U.S.C. 553(d)(1), which provides 
that rulemaking actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction,'' and section 553(d)(3), which 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.'' The purpose 
of the 30-day waiting period prescribed in section 553(d) 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 rule 
relieves the sources within Mississippi from considering the lower 
emissions thresholds for GHG permitting purposes. For these reasons, 
EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become 
effective January 2, 2011.

V. Final Action

    EPA is taking final action to approve Mississippi's December 9, 
2010, SIP revision which includes updates to Mississippi's air quality 
regulations, APC-S-5--Regulations for the Prevention of Significant 
Deterioration. Specifically, Mississippi's December 9, 2010, SIP 
revision establishes appropriate emissions thresholds for determining 
PSD applicability with respect to new or modified GHG-emitting sources 
in accordance with EPA's Tailoring Rule. EPA has made the determination 
that the December 9, 2010, SIP revision is approvable because it is in 
accordance with the CAA and EPA regulations, including regulations 
pertaining to PSD permitting for GHGs.

VI. 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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 February 28, 2011. 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, Greenhouse gases,

[[Page 81863]]

Incorporation by reference, Intergovernmental relations, and Reporting 
and recordkeeping requirements.

    Dated: December 20, 2010.
Gwendolyn Keyes Fleming,
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. 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
----------------------------------------------------------------------------------------------------------------
                                                     State
           State citation               Title/     effective     EPA approval date            Explanation
                                       subject        date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
               APC-S-5 Regulations for the Prevention of Significant Deterioration of Air Quality
All................................  ...........    12/1/2010  12/29/2010...........  APC-S-5 incorporates by
                                                               [Insert citation of     reference the regulations
                                                                publication].          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.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-32667 Filed 12-28-10; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>