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[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38191-38199]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15470]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0784; FRL-9691-9]

Approval and Promulgation of Implementation Plans; State of 
Mississippi; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval of revisions to the 
Mississippi State Implementation Plan (SIP) submitted by the State of 
Mississippi through the Mississippi Department of Environmental 
Management (MDEQ) on September 22, 2008, and May 9, 2011. Mississippi's 
SIP revisions address regional haze for the first implementation 
period. Specifically, these SIP revisions address the requirements of 
the Clean Air Act (CAA

[[Page 38192]]

or Act) and EPA's rules that require states to prevent any future and 
remedy any existing anthropogenic impairment of visibility in mandatory 
Class I areas (national parks and wilderness areas) caused by emissions 
of air pollutants from numerous sources located over a wide geographic 
area (also referred to as the ``regional haze program''). States are 
required to assure reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas. EPA is 
finalizing a limited approval of Mississippi's SIP revisions to 
implement the regional haze requirements for Mississippi on the basis 
that these SIP revisions, as a whole, strengthen the Mississippi SIP. 
In a separate action published on June 7, 2012, EPA finalized a limited 
disapproval of this same SIP revision because of the deficiencies in 
the State's regional haze SIP revision arising from the remand by the 
U.S. Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) to EPA of the Clean Air Interstate Rule (CAIR).

DATES: Effective Date: This rule will be effective July 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0784. All documents in the docket 
are listed on the 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 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: Michele Notarianni, 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. Michele Notarianni can 
be reached at telephone number (404) 562-9031 and by electronic mail at 
notarianni.michele@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides 
(NOX), and in some cases, ammonia and volatile organic 
compounds. Fine particle precursors react in the atmosphere to form 
fine particulate matter (PM2.5) which impairs visibility by 
scattering and absorbing light. Visibility impairment reduces the 
clarity, color, and visible distance that one can see. PM2.5 
can also cause serious health effects and mortality in humans and 
contributes to environmental effects such as acid deposition and 
eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I areas which impairment 
results from manmade air pollution.'' On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling, and scientific knowledge about the relationships between 
pollutants and visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300-
309. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On September 22, 2008, and May 9, 2011, MDEQ submitted revisions to 
Mississippi's SIP to address regional haze in the State's and other 
states' Class I areas. On February 28, 2012, EPA published an action 
proposing a limited approval of Mississippi's SIP revisions to address 
the first implementation period for regional haze.\1\ See 77 FR 11879. 
EPA proposed a limited approval of Mississippi's SIP revisions to 
implement the regional haze requirements for Mississippi on the basis 
that this revision, as a whole, strengthens the Mississippi SIP. See 
section II of this rulemaking for a summary of the comments received on 
the proposed actions and EPA's responses to these comments. Detailed 
background information and EPA's rationale for the proposed action is 
provided in EPA's February 28, 2012, proposed rulemaking. See 77 FR 
11879.
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    \1\ In a separate action, published June 7, 2012 (77 FR 33642), 
EPA finalized a limited disapproval of the Mississippi regional haze 
SIP because of deficiencies in the State's regional haze SIP 
submittal arising from the State's reliance on CAIR to meet certain 
regional haze requirements. This final limited disapproval triggers 
a 24-month clock by which a Federal Implementation Plan (FIP) or 
EPA-approved SIP must be in place to address the deficiencies.
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    Following the remand of CAIR, EPA issued a new rule in 2011 to 
address the interstate transport of NOX and SO2 
in the eastern United States. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule,'' also known as the Cross-State Air Pollution Rule 
(CSAPR)). On December 30, 2011, EPA proposed to find that the trading 
programs in the Transport Rule would achieve greater reasonable 
progress towards the national goal of achieving natural visibility 
conditions than would Best Available Retrofit Technology (BART) in the 
states in which the Transport Rule applies. See 76 FR 82219. Based on 
this proposed finding, EPA also proposed to revise the RHR to allow 
states to substitute participation in the trading programs under the 
Transport Rule for source-

[[Page 38193]]

specific BART. EPA finalized this finding and RHR revision on June 7, 
2012 (77 FR 33642).
    Also on December 30, 2011, the D.C. Circuit stayed the Transport 
Rule (including the provisions that would have sunset CAIR and the CAIR 
FIPs) and instructed the EPA to continue to administer CAIR pending the 
outcome of the court's decision on the petitions for review challenging 
the Transport Rule. EME Homer City v. EPA, No. 11-1302.

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

    EPA received three sets of comments on the February 28, 2012, 
rulemaking proposing a limited approval of Mississippi's regional haze 
SIP revisions. Specifically, the comments were received from the 
National Park Service, Sierra Club, and the Chevron Products Company. 
Full sets of the comments provided by all of the aforementioned 
entities (hereinafter referred to as ``the Commenter'') are provided in 
the docket for today's final action. A summary of the comments and 
EPA's responses are provided below.
    Comment 1: The Commenter believes that Mississippi's regional haze 
SIP is inadequate because it does not properly identify sources that 
should be subject to a reasonable progress analysis and disagrees with 
MDEQ's decision to not subject Mississippi Power Company--Plant Watson 
(Plant Watson) and the DuPont Delisle facility to a reasonable progress 
control evaluation on the basis that Louisiana did not identify these 
plants as potentially impacting the Breton Wilderness Area (Breton). 
The Commenter recognizes that it should be the responsibility of the 
state in which a federal Class I area is located to determine which 
sources should be evaluated for reasonable progress but also states its 
belief that, when a state fails to adequately address the federal Class 
I areas within its borders, the responsibility for protecting 
visibility at that federal Class I area shifts to those states who have 
identified sources within their boundaries that impact that federal 
Class I area. Therefore, the Commenter contends that MDEQ should 
consider applying some level of control to the two aforementioned 
facilities even though the Louisiana regional haze SIP submittal did 
not specifically identify them in its control strategy for Breton. The 
Commenter also states that there is no evidence that Mississippi 
consulted or corresponded with Louisiana regarding the potential 
visibility impacts from these two facilities.
    Response 1: EPA disagrees with the Commenter's conclusion that the 
responsibility for developing an adequate long-term strategy (LTS) 
shifts from states with federal Class I areas within their boundaries 
to neighboring states. EPA's regulations are clear that ``[w]here the 
State has emissions that are reasonably anticipated to contribute to 
visibility impairment in any mandatory Class I Federal area located in 
another State or States, the State must consult with the other State(s) 
in order to develop coordinated emission management strategies.'' 40 
CFR 52.308(d)(3)(i).
    MDEQ has met its obligation to consult with Louisiana. In December 
2006 and in May 2007, the State Air Directors from the Visibility 
Improvement State and Tribal Association of the Southeast (VISTAS) 
states held formal interstate consultation meetings to discuss the 
methodology proposed by VISTAS for identifying sources to evaluate for 
reasonable progress. The states invited Federal Land Managers (FLMs) 
and EPA representatives to participate and to provide additional 
feedback, and the State Air Directors discussed the results of analyses 
showing contributions to visibility impairment from states to each of 
the federal Class I areas in the VISTAS region. Mississippi received 
letters from Louisiana and Alabama transmitting prehearing drafts of 
their regional haze SIPs and provided documentation of this 
correspondence and summaries of formal consultation meetings in 
Appendix J of the September 2008 Mississippi SIP submittal. MDEQ 
concurred on the reasonable progress goals (RPGs) for Breton and the 
Sipsey Wilderness Area and committed to continue collaboration with 
these states in the preparation of future VISTAS studies and analyses 
and in addressing regional haze issues in future implementation 
periods.
    In addition, 40 CFR 51.308(d)(3)(ii) requires each state that 
causes or contributes to impairment in a mandatory federal Class I area 
to demonstrate that it has included in its implementation plan all 
measures necessary to obtain its share of the emissions reductions 
needed to meet the progress goals for the area. MDEQ has met its 
obligations with regard to obtaining emissions reductions since no 
additional control measures specific to Mississippi were identified by 
the Louisiana reasonable progress analysis. As noted in the proposal, 
after the time of Mississippi's original 2008 SIP submittal, Louisiana 
completed and submitted a regional haze SIP to address visibility at 
Breton. Neither Plant Watson nor the DuPont DeLisle facility were 
identified by Louisiana, either through consultations with Mississippi 
or in the Louisiana regional haze SIP, as sources potentially impacting 
Breton for which a reasonable progress control evaluation would be 
needed. Thus, EPA believes it is appropriate for Mississippi to 
determine that no further control analysis was necessary at these 
facilities at this time. Since Breton is in Louisiana, EPA believes 
that Mississippi appropriately relied on Louisiana's determination of 
which sources to prioritize for reasonable progress control evaluation 
during this implementation period. Mississippi has committed to 
continue to consult with Louisiana to assess the potential impact of 
facilities in Mississippi to help meet the visibility goals for Breton 
for future implementation periods.
    Comment 2: The Commenter states that MDEQ improperly estimated 
emissions reductions for 2018 and that Mississippi's projection of 
future visibility conditions for 2018 is based on ``uncertain federal 
and state pollution control projects, including, in large part, on the 
emissions reductions anticipated from CAIR.'' The Commenter also 
believes that anticipated emissions reductions resulting from the other 
control programs considered by Mississippi (e.g., Industrial Boiler 
Maximum Achievable Control Technology, the Atlanta/Birmingham/Northern 
Kentucky 1997 8-hour ozone nonattainment area SIP) are just as 
uncertain as those resulting under CAIR and the Transport Rule, and 
that Mississippi ``need[s] to base its LTS on concrete, definite 
emissions reductions.'' The Commenter requests that, at a minimum, EPA 
should ensure that MDEQ follows through on its commitment to re-
evaluate its ability to meet its RPGs in the five-year progress review.
    Response 2: The technical information provided in the record 
demonstrates that the emissions inventory in the SIP adequately 
reflects projected 2018 conditions and that the LTS meets the 
requirements of the RHR and is approvable. Mississippi's 2018 
projections are based on the State's technical analysis of the 
anticipated emissions rates and level of activity for electric 
generating units (EGUs), other point sources, nonpoint sources, on-road 
sources, and off-road sources based on their emissions in the 2002 base 
year, considering growth and additional emissions controls to be in 
place and federally enforceable by 2018. The emissions inventory used 
in the regional

[[Page 38194]]

haze technical analyses that was developed by VISTAS with assistance 
from Mississippi projected 2002 emissions (the latest region-wide 
inventory available at the time the submittal was being developed) and 
applied reductions expected from federal and state regulations 
affecting the emissions of volatile organic compounds and the 
visibility impairing pollutants NOX, PM, and SO2.
    To minimize the differences between the 2018 projected emissions 
used in the Mississippi regional haze submittal and what actually 
occurs in 2018, the RHR requires that the five-year review address any 
expected significant differences due to changed circumstances from the 
initial 2018 projected emissions, provide updated expectations 
regarding emissions for the implementation period, and evaluate the 
impact of these differences on RPGs. It is expected that individual 
projections within a statewide inventory will vary from actual 
emissions over a 16-year period. For example, some facilities may shut 
down whereas others may expand operations. Furthermore, economic 
projections and population changes used to estimate growth often differ 
from actual events; new rules are modified, changing their expected 
effectiveness; and methodologies to estimate emissions improve, 
modifying emissions estimates. The five-year review is a mechanism to 
assure that these expected differences from projected emissions are 
considered and their impact on the 2018 RPGs is evaluated. In the 
regional haze program, uncertainties associated with modeled emissions 
projections into the future are addressed through the requirement under 
the RHR to submit periodic progress reports in the form of a SIP 
revision. Specifically, 40 CFR 51.308(g) requires each state to submit 
a report every five years evaluating progress toward the RPGs for each 
mandatory federal Class I area located in the state and for each 
federal Class I area outside the state that may be affected by 
emissions from the state. Since this five-year progress re-evaluation 
is a mandatory requirement, it is unnecessary for EPA to take 
additional measures to ``ensure'' that the State meets its reporting 
obligation. In the specific instances of uncertainty of future 
reductions cited by the Commenter, the State's analysis of projected 
emissions and its reliance on these projections to address its share of 
the emissions reductions needed to meet the RPGs for Breton in 
accordance with 40 CFR 51.308(d)(3)(ii) satisfy EPA guidance and the 
requirements of the regional haze regulations.
    Comment 3: The Commenter does not believe that MDEQ can rely on 
CAIR or the Transport Rule to exempt the seven power plants with BART-
eligible EGUs from an SO2 and NOX BART analysis. 
The Commenter enclosed letters that it submitted to EPA on February 28, 
2012, with its comments on the Agency's proposed December 30, 2011, 
rulemaking to find that the Transport Rule is ``Better than BART'' and 
to use the Transport Rule as an alternative to BART for Mississippi and 
other states subject to the Transport Rule. See 76 FR 82219. The 
Commenter incorporates the comments in these letters by reference and 
repeats a subset of those comments, including the following: The 
Transport Rule cannot serve as the BART-alternative for the regional 
haze SIP process in Mississippi; EPA has not demonstrated that the 
Transport Rule assures greater reasonable progress than source-specific 
BART; EPA failed to account for the geographical and temporal 
uncertainties in emissions reductions inherent in a cap-and-trade 
program such as the Transport Rule; EPA underestimated the visibility 
improvements from BART using ``presumptive BART rather than actual 
BART;'' EPA did not consider subsequent revisions to the Transport Rule 
budget that increase emission allocations for EGUs in Mississippi; and 
EPA has not accounted for the differences in averaging time under BART, 
the Transport Rule, and in measuring visibility impacts.
    Response 3: These comments are beyond the scope of this rulemaking. 
In today's action, EPA is finalizing a limited approval of 
Mississippi's regional haze SIP. EPA did not propose to find that 
participation in the Transport Rule is an alternative to BART in this 
action nor did EPA reopen discussions on the CAIR provisions as they 
relate to BART.\2\ As noted above, EPA proposed to find that the 
Transport Rule is ``Better than BART'' and to use the Transport Rule as 
an alternative to BART for certain states in a separate action on 
December 30, 2011, and the Commenter is merely reiterating and 
incorporating comments submitted on that separate action. EPA addressed 
the Commenter's February 28, 2012, comments concerning the Transport 
Rule as a BART alternative in a final action that was published on June 
7, 2012, and has determined that they do not affect the Agency's 
ability to finalize a limited approval of Mississippi's regional haze 
SIP. EPA's response to these comments can be found in Docket ID No. 
EPA-HQ-OAR-2011-0729 at www.regulations.gov.
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    \2\ In a final action published on July 6, 2005, EPA addressed 
similar comments related to CAIR and determined that CAIR makes 
greater reasonable progress than BART for certain EGUs and 
pollutants (70 FR 39138). EPA did not reopen comment on that issue 
through this rulemaking.
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    Comment 4: The Commenter asserts that because ``the BART component 
of Mississippi's RH SIP is an essential element to the state's LTS for 
achieving its RPGs, Mississippi's treatment of CAIR (and now EPA's 
proposed substitution of CSAPR for CAIR) as an acceptable BART-
alternative must be addressed in this present comment process. 
Separating the BART analysis from the remaining portion of the RH SIP 
would result in an inadequate SIP.'' The Commenter supports its 
position by repeating statements made in its February 28, 2012, 
comments on the Agency's proposed December 30, 2011, rulemaking to find 
that the Transport Rule is ``Better than BART'' and to use the 
Transport Rule as an alternative to BART for Mississippi and other 
states subject to the Transport Rule. For example, the Commenter states 
that ``EPA cannot exempt sources from the RHR's BART requirements 
without full consideration of how that exemption would affect the 
overarching reasonable progress mandate.''
    Response 4: As discussed in the response to Comment 3, today's 
action does not address reliance on CAIR or CSAPR to satisfy BART 
requirements. Comments related to the approvability of CAIR or CSAPR 
for the Mississippi regional haze SIP are therefore beyond the scope of 
this rulemaking and were addressed by EPA in a separate action 
published on June 7, 2012 (77 FR 33642). EPA addressed the Commenter's 
repeated statements regarding the interrelatedness of BART, the LTS, 
and RPGs in that final rulemaking action and those responses support 
this limited approval action.\3\
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    \3\ See EPA, Response to Comments Document, Regional Haze: 
Revisions to Provisions Governing Alternatives to Source-Specific 
Best Available Retrofit Technology (BART) Determinations, Limited 
SIP Disapprovals, and Federal Implementation Plans (76 FR 82219; 
December 30, 2011), Docket Number EPA-HQ-OAR-2011-0729 (May 30, 
2012), pages 49-51 (noting that EPA ``disagree[s] with comments that 
we cannot evaluate the BART requirements in isolation from the 
reasonable progress requirements. We have on several occasions 
undertaken evaluations of a state's BART determination or 
promulgated a FIP separately from our evaluation of whether the SIP 
as a whole will ensure reasonable progress.'').
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    EPA believes the Commenter overstates the overarching nature of the 
changes due to CAIR or CSAPR. The reliance on CAIR in the Mississippi 
submittal was consistent with EPA policy at the time the submittal was

[[Page 38195]]

prepared. CSAPR is a replacement for CAIR, addressing the same regional 
EGU emissions, with many similar regulatory attributes. The need to 
address changes to the LTS resulting from the replacement of CAIR with 
CSAPR was acknowledged in the proposal, and as stated in the proposal, 
EPA believes that the five-year progress report is the appropriate time 
to address any changes to the RPG demonstration and, if necessary, the 
LTS. EPA expects that this demonstration will address the impacts on 
the RPG due to the replacement of CAIR with CSAPR as well as other 
adjustments to the projected 2018 emissions due to updated information 
on the emissions for other sources and source categories. If this 
assessment determines an adjustment to the regional haze plan is 
necessary, EPA regulations require a SIP revision within a year of the 
five-year progress report.
    Comment 5: The Commenter believes that EPA's December 30, 2011, 
proposed substitution of CSAPR for source-specific BART is uniquely 
problematic in Mississippi since CSAPR only covers ozone season 
NOX emissions in the State. According to the Commenter, EPA 
should require year-round NOX controls since any controls 
that might be installed to meet CSAPR will not protect Breton, the 
Sipsey Wilderness Area, or other nearby federal Class I areas during 
the seven months outside of the ozone season. The Commenter reiterates 
that Mississippi must address BART for SO2 and PM since the 
State is no longer included in a trading program for SO2. 
One of the Commenters also expressed concern with EPA's statement that 
the disapproval of the BART provisions for SO2 will trigger 
a 24-month clock for EPA to either implement a FIP to address those 
requirements or approve a revised SIP from the State that addresses 
SO2 BART. The Commenter believes that this approach allows 
the State to further delay conducting SO2 BART analyses for 
its BART-eligible EGUs and that these analyses must be conducted 
immediately.
    Response 5: As discussed in the response to Comment 3, today's rule 
takes final action on the limited approval of Mississippi's regional 
haze SIP revisions. EPA did not propose to find that participation in 
the Transport Rule is an alternative to BART in this rulemaking. As 
noted above, EPA made this proposed finding in a separate action on 
December 30, 2011. These comments are therefore beyond the scope of 
this rulemaking and were addressed, as appropriate, by EPA in its final 
action (published on June 7, 2012) on the December 30, 2011, proposed 
rule. EPA has determined that the comments do not affect the Agency's 
ability to finalize a limited approval of Mississippi's regional haze 
SIP. Regarding the timing of a FIP, the EPA statement identified by the 
Commenter is a summary of the statutory requirements in section 110(c) 
of the CAA.
    Comment 6: According to the Commenter, Mississippi should have 
considered the cumulative impacts of the PM emissions from the Moselle 
and D Morrow facilities when performing BART determinations and should 
not have modeled these sources in isolation of one another or without 
regard to PM emissions from sources in other states impacting any 
federal Class I area. The Commenter also believes that MDEQ should have 
considered both filterable and condensable PM when conducting its 
modeling.
    Response 6: As discussed in the proposal, (see section IV.C.6.B.2, 
February 28, 2012, 77 FR 11889), Mississippi adequately justified its 
contribution threshold of 0.5 deciview. While states have the 
discretion to set an appropriate contribution threshold considering the 
number of emissions sources affecting the federal Class I area at issue 
and the magnitude of the individual sources' impacts, the states' 
analysis must be consistent with the CAA, the Regional Haze regulations 
and EPA's Guidelines for BART Determinations Under the Regional Haze 
Rule at Appendix Y to 40 CFR Part 51 (BART Guidelines). Consistent with 
the regulations and EPA's guidance, ``the contribution threshold should 
be used to determine whether an individual source is reasonably 
anticipated to contribute to visibility impairment. You should not 
aggregate the visibility effects of multiple sources and compare their 
collective effects against your contribution threshold because this 
would inappropriately create a `contribution to contribution' test.'' 
See also 70 FR 39121. Mississippi's analyses in its regional haze SIP 
revisions were consistent with EPA's regulations and guidance on the 
issue of cumulative analyses.
    It is unclear what condensable PM emissions the Commenter believes 
that the State should have included in its visibility modeling. Each of 
the units evaluated for BART in Mississippi's regional haze SIP 
submittal followed the VISTAS modeling protocol and considered the 
contribution of total PM10 and PM2.5 (as a subset 
of the total PM10) as well as condensable PM (primarily 
sulfuric acid mist) (see Appendix L of Mississippi's regional haze SIP 
submittal). Regarding modeling in Mississippi's submittal that uses PM 
only for its BART-eligible EGUs, EPA previously determined that this 
approach is appropriate for EGUs where the State proposed to rely on 
CAIR to satisfy the BART requirements for SO2 and 
NOX.\4\
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    \4\ Regional Haze Regulations and Guidelines for Best Available 
Retrofit Technology (BART) Determinations, EPA Memorandum from 
Joseph Paisie, Group Leader, Geographic Strategies Group, OAQPS, to 
Kay Prince, Branch Chief, EPA Region 4, July 19, 2006, located at 
http://www.epa.gov/visibility/pdfs/memo_2006_07_19.pdf.
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    Comment 7: The Commenter states that Mississippi's BART analyses 
for Chevron Products' Pascagoula refinery (Chevron) and Mississippi 
Phosphates Corporation (MPC) are insufficient, and therefore, EPA 
cannot approve the State's regional haze SIP. Regarding Chevron, the 
Commenter disagrees with MDEQ's determination that significant 
visibility improvement could not be gained at reasonable cost over the 
improvements already attained through the facility's air permits and a 
June 7, 2005, consent decree. The Commenter contends that a more robust 
cost analysis is necessary to assure that the costs outweigh the 
visibility benefits from the evaluated pollution controls and that 
Mississippi should have considered additional pollution control 
technologies in its analysis such as selective catalytic reduction and 
selective non-catalytic reduction for NOX. Regarding MPC, 
the Commenter believes that the best available control technology 
(BACT) emissions limits for SO2 (determined to be BART) are 
not sufficiently stringent because it believes that emissions limits 
determined to be BACT for sulfuric acid plants at other facilities have 
been set at lower levels. The Commenter does not believe that 
Mississippi provided an adequate explanation as to why it did not set 
its BACT level as low as those set for similar facilities. The 
Commenter is also concerned that Mississippi's regional haze SIP does 
not discuss enforceable limits for NOX, particulates, or 
sulfuric acid mist at the facility and states that MDEQ should have 
analyzed emissions limits at other facilities when evaluating BART.
    Response 7: As stated in Appendix Y of 40 CFR part 51, available 
retrofit control options are those air pollution control technologies 
with a practical potential for application to the emissions unit and 
the regulated pollutant under evaluation. In identifying ``all'' 
options, a state must identify the most stringent option and a 
reasonable set of options for analysis that reflects a comprehensive 
list of available technologies. It is not

[[Page 38196]]

necessary to list all permutations of available control levels that 
exist for a given technology; the list is complete if it includes the 
maximum level of control that each technology is capable of 
achieving.\5\
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    \5\ EPA's BART Guidelines at 70 FR 39164.
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    For Chevron, MDEQ concluded that all the planned controls in the 
aforementioned consent decree for the Chevron facility were BART. The 
State then evaluated additional control options for BART for the most 
significant units that remain uncontrolled after the planned emissions 
controls were installed. The costs and visibility impacts were assessed 
in accordance with EPA guidance. Emissions reductions from the 
evaluated control options are projected to provide limited visibility 
improvements ranging from 0.043 deciview to 0.16 deciview, which are 
beyond those expected from the already planned emissions reductions. 
For each option, the total cost effectiveness and incremental cost 
effectiveness exceed $29 million per deciview; therefore, Mississippi 
determined that these options are not BART. A detailed analysis is 
provided in Appendix L10 of Mississippi's regional haze SIP submittal.
    Regarding MPC, BACT and BART are both case-specific determinations. 
MDEQ determined BACT to be the replacement of vanadium catalyst with 
cesium catalyst in the third and fourth converter passes, yielding 
emissions of 3.0 pounds of SO2 per ton of sulfuric acid 
produced. MDEQ believes that this BACT determination is sufficient 
because sulfuric acid plants with more stringent limits had a 3/1 
converter design as compared to MPC's current 2/2 converter design. 
Even though the technology being applied is identical to that applied 
to other facilities, the 3/1 design achieves a higher conversion rate 
resulting in approximately a 50 percent reduction of SO2 in 
the exhaust compared to the exhaust from a 2/2 converter design. MPC 
identified mist eliminators as the most effective sulfuric acid mist 
control technology, and MDEQ determined BART to be vertical tube mist 
eliminators in the interpass absorption tower. The final absorption 
tower already has these mist eliminators installed. MPC also proposed 
to replace the economizer prior to the final absorption tower with a 
larger one which will have the effect of lowering the exhaust gas 
temperature and thus reducing sulfuric acid mist emissions. Since the 
vertical tube mist eliminators are the most efficient add-on control 
technology, no additional control technologies were considered. MPC has 
determined a sulfuric acid mist limit of 0.10 pound sulfuric acid mist 
per ton of sulfuric acid produced, and MDEQ considers this limit 
consistent with recent BACT determinations since it is among the most 
stringent achieved in practice. Concerning NOX and 
particulates, sulfuric acid plants are not a primary source of 
NOX or PM emissions. See Mississippi's May 9, 2011, regional 
haze SIP submittal for a detailed discussion of the determination and 
the permit to construct.
    EPA has reviewed MDEQ's analyses and concluded they were conducted 
in a manner that is consistent with EPA's BART Guidelines and reflect a 
reasonable application of EPA's guidance to these sources.
    Comment 8: The Commenter contends that Mississippi's regional haze 
SIP must be revised to address Reasonably Attributable Visibility 
Impairment (RAVI) within three years of a FLM certifying visibility 
impairment and that the State's commitment to address RAVI, should a 
FLM certify visibility impairment, is not enough.
    Response 8: The State's regional haze SIP revisions do not address 
RAVI requirements since RAVI is addressed by a different regulation 
than the RHR. EPA's visibility regulations direct states to coordinate 
their RAVI LTS provisions with those for regional haze and require the 
RAVI portion of a SIP to address any integral vistas identified by the 
FLMs. However, as stated in the March 28, 2012, proposed rulemaking, 
there are no federal Class I areas in Mississippi. There are no 
integral vistas in Mississippi or nearby federal Class I areas, no 
federal Class I areas near Mississippi are experiencing RAVI, nor are 
any Mississippi sources affected by the RAVI provisions. Thus, the 
Mississippi regional haze SIP revisions did not explicitly address the 
coordination of the regional haze with the RAVI LTS, although 
Mississippi did commit to ongoing consultation with the FLMs throughout 
the implementation process. EPA finds that Mississippi's regional haze 
SIP appropriately addresses the RAVI visibility provisions in its LTS. 
The commitments in Mississippi's SIP are consistent with the regulatory 
requirements for this provision.
    Comment 9a: The Commenter claims that EPA must disapprove 
Mississippi's regional haze SIP because the SIP does not explain how 
monitoring data and other information will be used to determine the 
contribution of emissions from within the State to regional haze 
visibility impairment at Class I areas (see combined response below for 
comments 9a and 9b).
    Comment 9b: The Commenter states that the SIP must clearly identify 
the method by which the State intends to report visibility monitoring 
to the EPA. If Mississippi plans to rely on the referenced Visibility 
Information Exchange Web System (VIEWS) Web site for reporting, the 
Commenter believes that the SIP must clearly state that Mississippi 
intends to use the Web site as its way of reporting visibility 
monitoring data and that ``it is not sufficient for Mississippi to 
`encourage' VISTAS to maintain the web site.'' The Commenter also 
believes that Mississippi's SIP needs to have an enforceable mechanism 
to transmit the Interagency Monitoring of Protected Visual Environments 
(IMPROVE) data to EPA as well as an enforceable mechanism to ensure 
that the IMPROVE data is continually gathered by Mississippi ``unless 
it is gathered by other entities such as VISTAS and the National Park 
Service'' or EPA ``must disapprove the SIP submittal in this regard.''
    Responses 9a, b: As noted by the Commenter, the primary monitoring 
network for federal Class I areas potentially affected by sources in 
Mississippi is the IMPROVE network. The responsibility for assuring 
that there is adequate monitoring and reporting of this data is with 
the state where the federal Class I area is located, and there are no 
IMPROVE sites in Mississippi since it has no federal Class I areas. In 
the SIP submittal, Mississippi states its intention to continue to 
consult with the FLMs annually on monitoring data from the IMPROVE 
network for federal Class I areas in adjacent states that might be 
affected by Mississippi sources. Monitoring data is different from 
emissions data or analyses conducted to attribute contribution, and 
these analyses are therefore part of the ten-year implementation period 
updates conducted by the states.
    In its SIP revisions, Mississippi states its intention to rely on 
the IMPROVE network for complying with the regional haze monitoring 
requirement in EPA's RHR for the current and future regional haze 
implementation periods. Data produced by the IMPROVE monitoring network 
will be used nearly continuously for preparing the five-year progress 
reports and the 10-year SIP revisions, each of which relies on analysis 
of the preceding five years of data. The VIEWS Web site has been 
maintained by VISTAS and the other regional planning organizations 
(RPOs) to provide ready access to the IMPROVE

[[Page 38197]]

data and data analysis tools. Mississippi is encouraging VISTAS and the 
other RPOs to maintain the VIEWS or a similar data management system to 
facilitate analysis of the IMPROVE data. Mississippi cannot legally 
bind federal and state legislatures to continue to fund the monitoring 
program for regional haze. Mississippi's SIP adequately addresses this 
provision and explains how monitoring data and other information has 
been and will be used to determine the contribution of emissions from 
within the State to regional haze visibility impairment at federal 
Class I areas.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing 
guidance, a limited approval results in approval of the entire SIP 
revision, even of those parts that are deficient and prevent EPA from 
granting a full approval of the SIP revision.\6\ Today, EPA is 
finalizing a limited approval of Mississippi's regional haze SIP 
revisions. This limited approval results in approval of Mississippi's 
entire regional haze SIP and all its elements. EPA is taking this 
approach because Mississippi's SIP will be stronger and more protective 
of the environment with the implementation of those measures by the 
State and having federal approval and enforceability than it would 
without those measures being included in its SIP.
---------------------------------------------------------------------------

    \6\ Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (``1992 Calcagni Memorandum'') located at 
http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
---------------------------------------------------------------------------

IV. Final Action

    EPA is finalizing a limited approval of revisions to the 
Mississippi SIP submitted by the State of Mississippi on September 22, 
2008, and May 9, 2011, as meeting some of the applicable regional haze 
requirements as set forth in sections 169A and 169B of the CAA and in 
40 CFR 51.300-308.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for answers to ``* * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *''. 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act 
does not apply to this action.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the federal-state relationship under 
the CAA, preparation of flexibility analysis would constitute federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA of 1995 (``Unfunded Mandates Act''), 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
federal mandate that may result in estimated costs to state, local, or 
tribal governments in the aggregate; or to the private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that today's action does not include a federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This federal action approves pre-existing requirements 
under state or local law, and imposes no new requirements. Accordingly, 
no additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have Federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has Federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has Federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, 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. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

[[Page 38198]]

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children From Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12 of the NTTAA of 1995 requires federal agencies to 
evaluate existing technical standards when developing a new regulation. 
To comply with NTTAA, EPA must consider and use ``voluntary consensus 
standards'' (VCS) if available and applicable when developing programs 
and policies unless doing so would be inconsistent with applicable law 
or otherwise impractical.
    EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    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 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).

K. Petitions for Judicial Review

    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 August 27, 2012. 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 section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: June 13, 2012.
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. Section 52.1270 is amended by adding two entries for Regional Haze 
Plan and Regional Haze Plan Update--E. I. Dupont Reasonable Progress 
and Mississippi Phosphates BART Determinations at the end of the table 
in paragraph (e) to read as follows:

Sec.  52.1270  Identification of plan.

* * * * *
    (e) * * *

                               EPA-Approved Mississippi Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                       Applicable            State
   Name of non-regulatory SIP         geographic or     submittal date/  EPA approval date       Explanation
            provision              nonattainment area   effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan..............  Statewide...........       9/22/2008  6/27/2012 [Insert
                                                                         citation of
                                                                         publication].
Regional Haze Plan Update--E. I.  Statewide...........        5/9/2011  6/27/2012 [Insert
 Dupont Reasonable Progress and                                          citation of
 Mississippi Phosphates BART                                             publication].
 Determinations.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-15470 Filed 6-26-12; 8:45 am]
BILLING CODE 6560-50-P
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