81858 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

Taking of Private Property 

This rule will not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have Tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does 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. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. 

An environmental analysis checklist 

and a categorical exclusion 

determination will be uploaded to the 

docket as indicated under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for Part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.06–1, 6.05–6 AND 160.5; Pub. L. 

107–295, 116 STAT. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. A new temporary § 165.T08–1087 is 

added to read as follows: 

§ 165.T08–1087 Security Zone, Michoud 

Slip. 

(a) Location. The following area is a 

security zone: Michoud Slip, 

encompassing the entire slip from 

position 30°0′34.2′′ N, 89°55′40.7′′ W to 

position 30°0′29.5′′ N, 89°55′52.6′′ W 

across the mouth of the slip. 

(b) Effective period. This section is 

effective from January 1, 2011, through 

December 31, 2011. 

(c) Regulations. (1) In accordance with 

the general regulation in 33 CFR part 

165, subpart D, vessels are prohibited 

from entering or transiting the security 

zone created by this section. 

(2) Persons or vessels requiring 

deviations from this rule must request 

permission from the Captain of the Port 

New Orleans. The Captain of the Port 

New Orleans may be contacted at 

telephone (504) 365–2543. 

(3) All persons and vessels shall 

comply with the instructions of the 

Captain of the Port New Orleans and 

designated personnel. Designated 

personnel include commissioned, 

warrant and petty officers of the U.S. 

Coast Guard assigned to units under the 

operational control of USCG Sector New 

Orleans. 

Dated: December 8, 2010. 

E.M. Stanton, 

Captain, U.S. Coast Guard, Captain of the 

Port New Orleans. 

[FR Doc. 2010–32720 Filed 12–28–10; 8:45 am] 

BILLING CODE 9110–04–P 

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 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81859 

1On 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). 

5Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

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 

Continued 

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: 

bradley.twunjala@epa.gov. 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: 

abrams.heather@epa.gov. 

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. 

On September 14, 2010, in response 

to the Tailoring Rule and earlier GHGrelated 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 PM2.5

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 


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81860 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

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. 

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. 

‘‘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. 

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. 

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 reopened 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 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 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 


srobinson on DSKHWCL6B1PROD with RULES
81862 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

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. 

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. 

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 GHGemitting 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: 

• 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. 3501 et 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. 601 et 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. 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, 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81863 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: December 20, 2010. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart Z—Mississippi 

■ 2. In § 52.1270(c) the table is amended 

by revising the following entry for 

‘‘APC–S–5’’ to read as follows: 

§ 52.1270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MISSISSIPPI REGULATIONS

State citation Title/subject 

State 

effective 

date 

EPA approval date Explanation 

*******

APC–S–5 Regulations for the Prevention of Significant Deterioration of Air Quality 

All ........................................ .................... 12/1/2010 12/29/2010 .........................

[Insert citation of publication].

APC–S–5 incorporates 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. 

* * * * * 

[FR Doc. 2010–32667 Filed 12–28–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0697–201072; FRL– 

9244–5] 

Approval and Promulgation of 

Implementation Plans; Alabama: 

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 Alabama, through the 

Alabama Department of Environmental 

Management (ADEM), to EPA on August 

17, 2010, for parallel processing. ADEM 

submitted the final version of this SIP 

revision on December 14, 2010. The SIP 

revision incorporates updates to 

ADEM’s air quality regulations 

impacting the regulation of greenhouse 

gas (GHG) under Alabama’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 Alabama’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 provided under the Clean Air 

Act (CAA or Act), which would 

overwhelm Alabama’s permitting 

resources. EPA is approving Alabama’s 

December 14, 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 

Alabama’s August 17, 2010, draft SIP 

revision. 

DATES: Effective Date: This rule will be 

effective January 18, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0697. 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 Alabama 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: 

bradley.twunjala@epa.gov. For 


srobinson on DSKHWCL6B1PROD with RULES