Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations 59095 

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). 

C. 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 November 26, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action, which 

approves revisions to regulation 

COMAR 26.11.19.23, 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, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: August 30, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

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 V—Maryland 

■ 2. In § 52.1070, the table in paragraph 

(c) is amended by revising the entry for 

COMAR 26.11.19.23 to read as follows: 

§ 52.1070 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS, TECHNICAL MEMORANDA, AND STATUTES IN THE MARYLAND SIP 

Code of Maryland administrative 

regulations (COMAR) citation Title/subject State effective date EPA approval date 

Additional explanation/ 

citation at 40 CFR 

52.1100 

*******

26.11.19 Volatile Organic Compounds From Specific Processes 

*******

26.11.19.23 .................................. Control of VOC Emissions from 

Vehicle Refinishing.

4/16/12 9/26/12 [Insert page number where the document 

begins].

Entire regulation revised. 

* * * * * * * 

* * * * * 

[FR Doc. 2012–23572 Filed 9–25–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0081; FRL–9728–2] 

Approval and Promulgation of 

Implementation Plans; Mississippi: 

New Source Review-Prevention of 

Significant Deterioration; Fine 

Particulate Matter (PM2.5) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve changes to the Mississippi State 

Implementation Plan (SIP), submitted 

by the Mississippi Department of 

Environmental Quality (MDEQ) 

Division of Air Pollution Control to EPA 

on May 12, 2011. The May 12, 2011, SIP 

revision modifies Mississippi’s New 

Source Review (NSR) Prevention of 

Significant Deterioration (PSD) 

permitting regulations to incorporate by 

reference, into the Mississippi SIP, 

federal NSR PSD requirements for the 

fine particulate matter (PM2.5) national 

ambient air quality standards (NAAQS) 

as promulgated in EPA’s 2008 NSR 

PM2.5 Implementation Rule and the 

2010 PM2.5 PSD Increment, Significant 

Impact Levels (SILs) and Significant 

Monitoring Concentration (SMC) Rule. 

EPA is approving portions of 

Mississippi’s May 12, 2011, SIP revision 

because they are consistent with the 

Clean Air Act (CAA or Act) and EPA 

regulations regarding NSR permitting. 

DATES: Effective Date: This rule will be 

effective October 26, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2012–0081. 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 to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., 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; email address: 

bradley.twunjala@epa.gov. For 

information regarding NSR, contact Ms. 

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59096 Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations 

1Throughout this document IBR means 

incorporate or incorporates by reference. 

2Today’s final action approves the incorporation 

by reference of 40 CFR 52.21 into the Mississippi 

SIP as of March 22, 2011 apart from the exclusions 

stated in this final rulemaking and at 40 CFR 

52.1270(c). Any previous EPA exclusions to APS– 

S–5 at 40 CFR 52.1270(c) remain in effect. 

3Mississippi’s May 12, 2011, SIP revision only 

addresses the State’s PSD permitting program and 

does not adopt the NNSR permitting requirements 

for PM2.5 emission offsets, condensable provision or 

the discretionary interpollutant trading policy and 

ratios promulgated in the 2008 NSR PM2.5 Rule. 

Moreover, Mississippi is attainment for the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

4After EPA promulgated the NAAQS for PM2.5 in 

1997, the Agency issued guidance documents 

related to using PM10 as a surrogate for PM2.5

entitled: ‘‘Interim Implementation of New Source 

Review Requirements for PM2.5.’’ John S. Seitz, 

EPA, October 23, 1997 (the ‘‘Seitz Memo’’) and 

‘‘Implementation of New Source Review 

Requirements in PM2.5 Nonattainment Areas’’ (the 

‘‘2005 PM2.5 NNSR Guidance’’). The Seitz Memo 

was designed to help states implement NSR 

requirements pertaining to the new PM2.5 NAAQS 

in light of technical difficulties posed by PM2.5 at 

that time. The 2005 PM2.5 NNSR Guidance provided 

direction regarding implementation of the NNSR 

provisions in PM2.5 NAA in the interim period 

between the effective date of the PM2.5 NAA 

designations (April 5, 2005) and EPA’s 

promulgation of final PM2.5 NNSR regulations (this 

included recommending that until EPA 

promulgated the PM2.5 major NSR regulations, 

‘‘States should use a PM10 nonattainment major 

NSR program as a surrogate to address the 

requirements of nonattainment major NSR for the 

PM2.5 NAAQS.’’). 

5Sources that applied for a PSD permit under the 

federal PSD program on or after July 15, 2008, are 

already excluded from using the 1997 PM10

Surrogate Policy as a means of satisfying the PSD 

requirements for PM2.5. See 76 FR 28321. 

6Additional information on this issue can also be 

found in an August 12, 2009, final order on a title 

Yolanda Adams, Air Permits Section, at 

the same address above. Ms. Adams’ 

telephone number is (404) 562–9214; 

email address: adams.yolanda@epa.gov. 

For information regarding the PM2.5

NAAQS, contact Mr. Joel Huey, 

Regulatory Development Section, at the 

same address above. Mr. Huey’s 

telephone number is (404) 562–9104; 

email address: huey.joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. This Action 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

EPA is taking final action on portions 

of Mississippi’s May 12, 2011, SIP 

revision to incorporate by reference 

(IBR) 1 federal requirements for NSR 

permitting. Mississippi’s May 12, 2011, 

SIP revision includes changes to its air 

quality regulations in Air Pollution 

Control, Section 5 (APC–S–5)— 

Regulations for the Prevention of 

Significant Deterioration of Air Quality. 

The May 12, 2011, changes IBR federal 

PSD permitting regulations promulgated 

in the final rulemakings entitled 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

(PM2.5),’’ 73 FR 28321 (May 16, 2008), 

hereafter referred to as the ‘‘NSR PM2.5

Rule,’’ and ‘‘Prevention of Significant 

Deterioration (PSD) for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5)—Increments, Significant Impact 

Levels SILs and Significant Monitoring 

Concentration (SMC),’’ 75 FR 64864 

(October 20, 2010) hereafter referred to 

as the ‘‘PM2.5 PSD Increment-SILs-SMC 

Rule’’). Additionally, Mississippi’s SIP 

revision requests that EPA remove from 

the SIP the exclusion language at APC– 

S–5 (2.7) regarding the NSR PM2.5 Rule 

provisions. EPA is not approving in this 

action: (1) incorporation of the SIL 

thresholds and provisions promulgated 

in EPA’s PM2.5 PSD Increment-SILsSMC Rule, 75 FR 64864 (October 20, 

2010); and (2) incorporation of the 

provision regarding the applicability of 

the term ‘‘particulate matter emissions’’ 

when accounting for condensable 

particles in applicability determinations 

and in establishing emissions 

limitations in PSD permits.2

On July 23, 2012, EPA published a 

proposed rulemaking to approve the 

aforementioned changes to Mississippi’s 

NSR PSD program at APC–S–5. See 77 

FR 43032. Comments on the proposed 

rulemaking were due on or before 

August 22, 2012. No comments, adverse 

or otherwise, were received on EPA’s 

July 23, 2012, proposed rulemaking. 

Pursuant to section 110 of the CAA, 

EPA is now taking final action to 

approve the changes to Mississippi’s 

NSR PSD program as provided in EPA’s 

July 23, 2012, proposed rulemaking. A 

summary of the background for today’s 

final action is provided below. EPA’s 

July 23, 2012, proposed rulemaking 

contains more detailed information 

regarding the Mississippi SIP revision 

being approved today, and the rationale 

for today’s final action. Detailed 

information regarding the PM2.5 NAAQS 

and NSR Program can also be found in 

EPA’s July 23, 2012, proposed 

rulemaking as well as the 

abovementioned final rulemakings. 

A. NSR PM2.5 Rule 

EPA finalized the NSR PM2.5 Rule on 

May 16, 2008, which revised the NSR 

program requirements to establish the 

framework for implementing 

preconstruction permit review for the 

PM2.5 NAAQS in both attainment areas 

and nonattainment areas (NAAs) that: 

(1) Require NSR permits to address 

directly emitted PM2.5 and precursor 

pollutants; (2) establish significant 

emission rates for direct PM2.5 and 

precursor pollutants (including sulfur 

dioxide (SO2) and nitrogen oxides 

(NOx)); (3) establish PM2.5 emission 

offsets; (4) provide exceptions to the 

grandfathering policy for permits being 

reviewed under the PM10 surrogate 

program; and (5) require states to 

account for gases that condense to form 

particles (condensables) in PM2.5 and 

PM10 emission limits in PSD or 

nonattainment NSR (NNSR) permits. 

Additionally, the NSR PM2.5 Rule 

authorized states to adopt provisions in 

their NNSR rules that would allow 

interpollutant offset trading. See 73 FR 

28321. States were required to provide 

SIP submissions to address the 

requirements for the NSR PM2.5 Rule by 

May 16, 2011. Mississippi’s May 12, 

2011, SIP revision addresses only the 

PSD requirements related to EPA’s May 

16, 2008, NSR PM2.5 Rule.3

1. PM10 Surrogate and Grandfathering 

Policy 

In the NSR PM2.5 Rule, EPA required 

that major stationary sources seeking 

permits must begin directly satisfying 

the PM2.5 requirements, as of the 

effective date of the rule, rather than 

relying on PM10 as a surrogate, with two 

exceptions.4 The first exception is a 

‘‘grandfathering’’ provision in the 

federal PSD program at 40 CFR 

52.21(i)(1)(xi). This grandfathering 

provision applied to sources that had 

applied for, but had not yet received, a 

final and effective PSD permit before the 

July 15, 2008, effective date of the May 

2008 final rule. The second exception 

was that states with SIP-approved PSD 

programs could continue to implement 

the Seitz Memo’s PM10 Surrogate Policy 

for up to three years (until May 2011) 

or until the individual revised state PSD 

programs for PM2.5 are approved by 

EPA, whichever comes first. On May 18, 

2011 (76 FR 28646), EPA took final 

action to repeal the grandfathering 

provision at 40 CFR 52.21(i)(1)(xi). This 

final action ended the use of the 1997 

PM10 Surrogate Policy for PSD permits 

under the federal PSD program at 40 

CFR 52.21. In effect, any PSD permit 

applicant previously covered by the 

grandfathering provision (for sources 

that completed and submitted a permit 

application before July 15, 2008) 5 that 

did not have a final and effective PSD 

permit before the effective date of the 

repeal will not be able to rely on the 

1997 p.m.10 Surrogate Policy to satisfy 

the PSD requirements for PM2.5 unless 

the application includes a valid 

surrogacy demonstration.6 See 76 FR 

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Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations 59097 

V petition describing the use of PM10 as a surrogate 

for PM2.5. In the Matter of Louisville Gas & Electric 

Company, Petition No. IV–2008–3, Order on 

Petition (August 12, 2009). 7The term ‘‘particulate matter emissions’’ 

includes particles that are larger than PM2.5 and 

PM10 and is an indicator measured under various 

New Source Performance Standards (NSPS) at 40 

CFR part 60. In addition to the NSPS for PM, it is 

noted that states have regulated ‘‘particulate matter 

emissions’’ for many years in their SIPs for PM, and 

the same indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

8The NSR PM2.5 Rule presumes that VOC and 

ammonia are not precursors to PM2.5 unless a state 

or EPA demonstrates that these pollutants are 

significantly contributing to the ambient PM2.5

concentrations in a specific area. The rule requires 

that SO2 be treated as a precursor to PM2.5 in all 

areas. 

9The de minimis principle is grounded in a 

decision described by the court case Alabama 

Power Co. v. Costle, 636 F.2d 323, 360 (DC Cir. 

1980). In this case, reviewing EPA’s 1978 PSD 

regulations, the court recognized that ‘‘there is 

likely a basis for an implication of de minimis 

authority to provide exemption when the burdens 

of regulation yield a gain of trivial or no value.’’ 636 

F.2d at 360. See 75 FR 64864. 

10On April 6, 2012, EPA filed a brief with the DC 

Circuit court defending the Agency’s authority to 

implement SILs and SMC for PSD purposes. 

11Significant deterioration occurs when the 

amount of the new pollution exceeds the applicable 

PSD increment, which is the ‘‘maximum allowable 

increase’’ of an air pollutant allowed to occur above 

the applicable baseline concentration 11 for that 

pollutant. Section 169(4) of the CAA provides that 

the baseline concentration of a pollutant for a 

particular baseline area is generally the air quality 

at the time of the first application for a PSD permit 

in the area. 

28646. In its May 12, 2011, SIP revision, 

Mississippi did not adopt the 

grandfathering provision at 40 CFR 

52.21(i)(1)(xi) into its PSD regulations. 

Therefore, Mississippi’s SIP is 

consistent with current federal 

regulations regarding the repeal of the 

grandfathering provision. 

2. ‘‘Condensable’’ Provision 

In the NSR PM2.5 Rule, EPA revised 

the definition of ‘‘regulated NSR 

pollutant’’ for PSD to add a paragraph 

providing that ‘‘particulate matter (PM) 

emissions, PM2.5 emissions and PM10

emissions’’ shall include gaseous 

emissions from a source or activity 

which condense to form particulate 

matter at ambient temperatures and that 

on or after January 1, 2011, such 

condensable particulate matter shall be 

accounted for in applicability 

determinations and in establishing 

emissions limitations for PM, PM2.5 and 

PM10 in permits issued. See 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(vi) and 

‘‘Emissions Offset Interpretative Ruling’’ 

(40 CFR Part 51, Appendix S). On 

March 16, 2012, EPA proposed a 

rulemaking to amend the definition of 

‘‘regulated NSR pollutant’’ promulgated 

in the NSR PM2.5 Rule regarding the PM 

condensable provision at 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(i) and 

EPA’s Emissions Offset Interpretative 

Ruling. See 77 FR 15656. The 

rulemaking proposes to remove the 

inadvertent requirement in the NSR 

PM2.5 Rule that the measurement of 

condensable ‘‘particulate matter 

emissions’’ be included as part of the 

measurement and regulation of 

‘‘particulate matter emissions.’’ 7

Mississippi’s May 12, 2011, SIP revision 

adopts EPA’s definition for ‘‘regulated 

NSR pollutant’’ for condensables (at 40 

CFR 51.166(b)(49)(vi)), including the 

term ‘‘particulate matter emissions,’’ as 

promulgated in the NSR PM2.5 Rule. On 

June 26, 2012, the State of Mississippi 

provided a letter to EPA clarifying the 

State’s intent in light of EPA’s March 12, 

2012, proposed rulemaking and 

requesting that EPA not approve into 

the Mississippi SIP the term 

‘‘particulate matter emissions’’ (as part 

of the definition for ‘‘regulated NSR 

pollutant’’) regarding the inclusion of 

condensable emissions in applicability 

determinations and in establishing 

emissions limitations for PM. 

3. NOX Insignificance Demonstration 

In addition to direct PM2.5 emissions, 

pollutants that can contribute to 

ambient PM2.5 concentrations (known as 

‘‘precursors’’) include SO2, NOx, volatile 

organic compounds (VOC) and 

ammonia (all of which undergo 

chemical reactions to form secondary 

PM). In the NSR PM2.5 Rule, EPA 

established a ‘‘presumed-in’’ approach 

for NOx as a PM2.5 precursor. This 

approach is warranted based on the 

well-known transformation of NOx into 

nitrates, coupled with the fact that 

nitrate concentrations vary significantly 

around the country. The final NSR PM2.5

Rule requires that states treat NOx as a 

PM2.5 precursor in all areas unless the 

state demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that emissions of NOx

from sources in a specific area are not 

a significant contributor to that area’s 

ambient PM2.5 concentrations.8 See 40 

CFR 51.166(b)(49)(i), 

51.165(a)(1)(xxxvii) and 52.21(b)(50)(i). 

If EPA makes such a demonstration, or 

a state makes such a demonstration and 

it is approved by EPA, NOx would not 

be considered a PM2.5 precursor under 

the NSR program in that area. If a State 

or EPA does not make such a 

demonstration, NOx must be regulated 

as a precursor under the PSD, NNSR, 

and minor source programs for PM2.5.

Mississippi’s May 12, 2011, SIP revision 

IBR the provision that NOx is presumed 

to be a precursor for PM2.5. However, 

MDEQ also submitted to EPA a NOx

insignificance demonstration to show 

that NOx emissions in the State of 

Mississippi are not contributing 

significantly to ambient PM2.5

concentrations in the State. At this time, 

EPA is still considering Mississippi’s 

NOx insignificance demonstration and 

will take action on this portion of 

MDEQ’s May 12, 2011, SIP revision in 

a separate rulemaking. 

B. PM2.5 PSD Increment SILs-SMC Rule 

The PM2.5 PSD Increment-SILs-SMC 

Rule provided additional regulatory 

requirements under the PSD program 

regarding the implementation of the 

PM2.5 NAAQS for NSR, including (1) 

PM2.5 increments pursuant to section 

166(a) of the CAA to prevent significant 

deterioration of air quality in areas 

meeting the NAAQS; (2) SILs used as a 

screening tool (by a major source subject 

to PSD) to evaluate the impact a 

proposed major source or modification 

may have on the NAAQS or PSD 

increment; and (3) a SMC, (also a 

screening tool) used by a major source 

subject to PSD to determine the 

subsequent level of data gathering 

required for a PSD permit application 

for emissions of PM2.5. The SILs and 

SMC are numerical values that represent 

thresholds of insignificant, i.e., de 

minimis,9 modeled source impacts or 

monitored (ambient) concentrations, 

respectively. EPA established such 

values to be used as screening tools by 

a major source subject to PSD to 

determine the subsequent level of PM2.5

analysis and data gathering required for 

a PSD permit application. EPA’s 

authority to implement the SILs and 

SMC for PSD purposes has been 

challenged by the Sierra Club. Sierra 

Club v. EPA, Case No 10–1413 (DC 

Circuit Court).10

1. PSD Increments 

PSD increments prevent air quality in 

clean areas from deteriorating to the 

level set by the NAAQS. Therefore, an 

increment is the mechanism used to 

estimate ‘‘significant deterioration’’ 11 of 

air quality for a pollutant in an area. 

Under section 165(a)(3) of the CAA, a 

PSD permit applicant must demonstrate 

that emissions from the proposed 

construction and operation of a facility 

‘‘will not cause, or contribute to, air 

pollution in excess of any maximum 

allowable increase or allowable 

concentration for any pollutant.’’ When 

a source applies for a permit to emit a 

regulated pollutant in an area that meets 

the NAAQS, the state and EPA must 

determine if emissions of the regulated 

pollutant from the source will cause 

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59098 Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations 

12EPA generally characterized the PM2.5 NAAQS 

as a NAAQS for a new indicator of PM. EPA did 

not replace the PM10 NAAQS with the NAAQS for 

PM2.5 when the PM2.5 NAAQS were promulgated in 

1997. EPA rather retained the annual and 24-hour 

NAAQS for PM2.5 as if PM2.5 was a new pollutant 

even though EPA had already developed air quality 

criteria for PM generally. See 75 FR 64864 (October 

20, 2012). 

13EPA interprets 166(a) to authorize EPA to 

promulgate pollutant-specific PSD regulations 

meeting the requirements of section 166(c) and 

166(d) for any pollutant for which EPA promulgates 

a NAAQS after 1977. 

14As mentioned earlier, due to litigation by the 

Sierra Club, EPA is not taking final action on the 

SILs portion of the Mississippi May 12, 2011, SIP 

revision at this time but will take action once the 

court case regarding SILs implementation is 

resolved. 

15Additional information on this issue can also 

be found in an April 25, 2010, comment letter from 

EPA Region 6 to the Louisiana Department of 

Environmental Quality regarding the SILs-SMC 

litigation. A copy of this letter can be found in the 

docket for today’s rulemaking at 

www.regulations.gov using docket ID: EPA–R04– 

OAR–2012–0081. 

16 In Mississippi’s December 9, 2010, Greenhouse 

Gas Tailoring Rule final SIP revision, MDEQ added 

specific language at APC–S–5(2.7) excluding from 

the IBR of 40 CFR 52.21 the PSD NSR PM2.5 Rule 

provisions promulgated in the May 16, 2008, rule 

and stated they would submit a separate rulemaking 

to address those PSD requirements. 

significant deterioration in air quality. 

As described in the PM2.5 PSD 

Increment-SILs-SMC Rule, pursuant to 

the authority under section 166(a) of the 

CAA, EPA promulgated numerical PSD 

increments for PM2.5 as a new 

pollutant 12 for which NAAQS were 

established after August 7, 1977,13 and 

derived 24-hour and annual PM2.5

increments for the three area 

classifications (Class I, II and III) using 

the ‘‘contingent safe harbor’’ approach. 

See 75 FR 64869 and ambient air 

increment tables at 40 CFR 51.166(c)(1) 

and 52.21(c). In addition to PSD 

increments for the PM2.5 NAAQS, the 

PM2.5 PSD Increment-SILs-SMC Rule 

amended the definition at 40 CFR 

51.166 and 52.21 for ‘‘major source 

baseline date’’ and ’’minor source 

baseline date’’ (including trigger date) to 

establish the PM2.5 NAAQS specific 

dates associated with the 

implementation of PM2.5 PSD 

increments. See 75 FR 64864. 

2. Significant Monitoring 

Concentrations 

As mentioned above, the SMC 

numerical value represents a threshold 

of insignificant (i.e., de minimis) 

monitored ambient impacts on pollutant 

concentrations. In the PM2.5 PSD 

Increment-SILs-SMC Rule, EPA 

established a PM2.5 SMC of 4 mg/m3 to 

be used as a screening tool by a major 

source subject to PSD to determine the 

subsequent level of PM2.5 data gathering 

required for a PSD permit application. 

Using the SMC as a screening tool, 

sources may be able to demonstrate that 

the modeled air quality impact of 

emissions from the new source or 

modification, or the existing air quality 

level in the area where the source would 

construct, is less than the SMC (i.e., de 

minimis), and as such, may be allowed 

to forego the preconstruction monitoring 

requirement for a particular pollutant at 

the discretion of the reviewing 

authority. 

Recently, the Sierra Club filed suit 

challenging EPA’s authority to 

implement the PM2.5 SILs 14 as well as 

the SMC for PSD purposes as 

promulgated in the October 20, 2012, 

rule. Sierra Club v. EPA, Case No. 10– 

1413, DC Circuit Court. Specifically, 

regarding the SMC, Sierra Club claims 

that the use of SMCs to exempt a source 

from submitting a year’s worth of 

monitoring data is inconsistent with the 

CAA. EPA responded to Sierra Club’s 

claims in a Brief dated April 6, 2012, 

which describes the Agency’s authority 

to develop and promulgate SMC.15 A 

copy of EPA’s April 6, 2010, Brief can 

be found in the docket for today’s final 

rulemaking at www.regulations.gov 

using docket ID: EPA–R04–OAR–2012– 

0081. 

II. This Action 

EPA is taking final action to approve 

into the Mississippi SIP portions of the 

State’s May 12, 2011, SIP revision, 

which IBR the PSD permitting 

regulations to implement the PM2.5

NAAQS. Mississippi’s regulation APC– 

S–5 IBR the federal NSR PSD 

regulations at 40 CFR 51.166 and 52.21 

into the Mississippi SIP. In effect, 

MDEQ’s May 12, 2011, SIP revision 

updates the State’s IBR date for APC–S– 

5 to March 22, 2011, to include PSD 

permitting regulations promulgated in 

the NSR PM2.5 Rule and the PM2.5 PSD 

Increment-SILs-SMC Rule in the 

Mississippi SIP. These changes to 

Mississippi’s regulation APC–S–5 

became state effective on June 2, 2011. 

MDEQ’s SIP revision IBR the NSR PM2.5

Rule PSD provisions at regulation APC– 

S–5, including: (1) The requirement for 

NSR permits to address directly emitted 

PM2.5 and precursor pollutants; (2) 

significant emission rates for direct 

PM2.5 and precursor pollutants (SO2 and 

NOX) and establishing PM2.5 precursors 

(as amended at 40 CFR 51.166(b)(23)(i)) 

for the definition of ‘‘significant’’ and 

‘‘regulated NSR pollutant,’’ respectively; 

and (3) PSD requirement for states to 

address condensable PM in establishing 

enforceable emission limits for PM10

and PM2.5 (as amended at definition of 

‘‘regulated NSR pollutant ‘‘at 40 CFR 

51.166(b)(49)). 

Regarding the condensable provision, 

in light of Mississippi’s request in its 

June 26, 2012, letter and EPA’s intention 

to amend the definition of ‘‘regulated 

NSR pollutant’’ as discussed in the 

March 12, 2012, correction rulemaking, 

EPA is not taking final action to approve 

the terminology ‘‘particulate matter 

emissions’’ into the Mississippi SIP (at 

APC–S–5) for the condensable provision 

in the definition of ‘‘regulated NSR 

pollutant.’’ See 77 FR 15656. EPA is, 

however, taking final action to approve 

into the Mississippi SIP the remaining 

condensable requirement at 40 CFR 

51.166(b)(49)(vi), which requires that 

condensable emissions be accounted for 

in applicability determinations and in 

establishing emissions limitations for 

PM2.5 and PM10. Mississippi’s May 12, 

2011, SIP revision did not IBR the 

grandfathering provision at 40 CFR 

52.21(i)(1)(xi) in accordance with the 

repeal of the PM2.5 grandfathering 

provision. Rather, the SIP revision 

includes new language at APC–S–5(2.7) 

that excludes the provision for PM2.5 (at 

40 CFR 52.21(i)(1)(xi)) from the PSD 

program regulations. 

As stated in Mississippi’s May 12, 

2011, SIP revision, NOX will be 

considered a precursor to PM2.5 in 

Mississippi until such time as EPA takes 

action on the State’s NOX insignificance 

demonstration or upon plan 

disapproval. As part of MDEQ’s May 12, 

2011, revision to IBR the federal 

regulations at 40 CFR 51.166 and 52.21, 

EPA is taking final action, at this time, 

to approve into the Mississippi SIP that 

NOX is a presumed PM2.5 precursor. 

EPA is considering Mississippi’s NOX

insignificance demonstration and will 

take action on this portion of the May 

12, 2011, SIP submission in a separate 

rulemaking. Mississippi’s May 12, 2011, 

SIP revision also removes from APC–S– 

5(2.7) language that excludes NSR PM2.5

Rule permitting requirements from 

inclusion into the Mississippi SIP.16

Because MDEQ’s May 12, 2011, SIP 

revision adopts the aforementioned 

provisions promulgated in the May 16, 

2008, NSR PM2.5 Rule, the exclusion 

language is no longer necessary. 

With respect to the PM2.5 PSD 

Increment-SILs SMC Rule, EPA is taking 

final action to also approve into the 

Mississippi SIP the PSD increments for 

PM2.5 annual and 24-hour NAAQS 

pursuant to section 166(a) of the CAA 

and SMC of 4 mg/m3 for PM2.5 NAAQS. 

The May 12, 2011, SIP revision IBR the 

PM2.5 increments established in the 

ambient air increment tables at 40 CFR 

51.166(c)(1) and (p)(4) and 52.21(c); the 

amendments to the ‘‘major source 

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Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations 59099 

17 In the preamble to the October 20, 2010, final 

rule EPA indicates that the Agency does not 

consider the SILs to be a mandatory SIP element, 

but regard them as discretionary on the part of 

regulating authority for use in the PSD permitting 

process. See 75 FR 64864 at 64899. 

18EPA is currently developing guidance to 

provide provisional course of action to implement 

the PM2.5 SILs pending revision to the (k)(2) 

provisions and the litigation. The guidance will 

ensure that the PM2.5 SILs are properly applied as 

part of a PSD compliance demonstration to show 

that a source’s impact will not cause or contribute 

to a violation of the PM2.5 NAAQS or increment. 

baseline date’’ (at 40 CFR 

51.166(b)(14)(i)(c)) and 

52.21(b)(14)(i)(c)); the ‘‘minor source 

baseline date’’ and establishment of the 

‘‘trigger date’’ (40 CFR 

51.166(b)(14)(ii)(c) and 

52.21(b)(14)(ii)(c)); and the definition of 

‘‘baseline area’’ (at 40 CFR 

51.166(b)(15)(i) and (ii) and 

52.21(b)(15)(i) and (ii)). 

Regarding the SILs and SMC, EPA’s 

authority to implement the PM2.5 SILs 

and SMC is currently the subject of 

litigation by the Sierra Club. In a brief 

filed in the DC Circuit on April 6, 2012, 

EPA described the Agency’s authority 

under the CAA to promulgate and 

implement the SMCs and SILs de 

minimis thresholds. Sierra Club v. EPA, 

Case No 10–1413 DC Circuit. However, 

EPA is finalizing approval of the 

promulgated SMC thresholds into the 

Mississippi SIP because the Agency 

believes the SMC is a valid exercise of 

the Agency’s de minimis authority as 

well as the fact they are consistent with 

EPA’s promulgated levels in the PM2.5

PSD Increment-SILs-SMC Rule. The 

ongoing litigation may result in the 

court decision that may require 

subsequent rule revisions and SIP 

revisions from Mississippi. 

In response to the litigation, EPA 

requested that the court remand and 

vacate the new regulatory text at 40 CFR 

51.166(k)(2) and 52.21(k)(2) concerning 

the implementation of SILs for PM2.5 so 

that EPA can make necessary 

rulemaking revisions to that text.17 In 

light of EPA’s request for remand and 

vacatur and our acknowledgement of 

the need to revise the regulatory text 

presently contained at paragraph (k)(2) 

of sections 51.166 and 52.21, the 

Agency has determined at this time not 

to approve the SILs portion of the 

MDEQ’s May 12, 2011, SIP revision that 

contains the affected regulatory text in 

Mississippi’s PSD regulations at APC– 

S–5. EPA will take action on the SILs 

portion of Mississippi’s May 12, 2011, 

SIP revision in a separate rulemaking 

once the issue regarding the court case 

has been resolved.18

III. Final Action 

EPA is taking final action to approve 

portions of Mississippi’s May 12, 2011, 

SIP revisions (with the exception of the 

term ‘‘particulate matter emissions’’ and 

the SILs threshold and provisions) that 

IBR federal regulations amended in the 

NSR PM2.5 and the PM2.5 PSD 

Increment-SILs-SMC Rules to 

implement the PM2.5 NAAQS for the 

NSR program because they are 

consistent with section 110 of the CAA 

and its regulations regarding NSR 

permitting. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 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 November 26, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements and 

Volatile organic compounds. 

Dated: September 6, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

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59100 Federal Register / Vol. 77, No. 187 / Wednesday, September 26, 2012 / Rules and Regulations 

Subpart Z—Mississippi 

■ 2. Section 52.1270(c) is amended by 

revising entry ‘‘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 Prevention of Significant Deterioration for Air Quality 

All ...................... ........................... 06/2/2011 9–26–12 [Insert citation of publication].As of 9–26–2012 EPA is approving a revision to APC–S–5 incorporating by reference the regulations found at 40 CFR 

52.21 as of March 22, 2011. See [Insert citation of publication]. This approval does not include Mississippi’s revision to 

IBR (at Rule APC–S–5) the term ‘‘particulate matter emissions’’ (as promulgated in the May 16, 2008 NSR PM2.5 Rule 

(at 40 CFR 51.166(b)(49)(vi)) and the PM2.5 SILs threshold 

and provisions (as promulgated in the October 20, 2010 

PM2.5 PSD Increment-SILs-SMC Rule at 40 CFR 

52.21(k)(2)). 

On December 29, 2010, EPA approved a revision to APC–S–5 

which incorporated by reference the regulations found at 40 

CFR 52.21 as of September 13, 2010. See 75 FR 81858. 

That action approved the incorporation by reference with the 

exception of the phrase ‘‘except ethanol production facilities 

producing ethanol by natural fermentation under the North 

American Industry Classification System (NAICS) codes 

325193 or 312140,’’ APC–S–5 incorporated by reference 

from 40 CFR 52.21(b)(1)(i)(a) and (b)(1(iii)(t). Additionally, 

that final EPA action did not incorporate by reference, into 

the Mississippi SIP, the administrative regulations that were 

amended in the Fugitive Emissions Rule (73 FR 77882) and 

are stayed through October 3, 2011. 

* * * * * 

[FR Doc. 2012–23570 Filed 9–25–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0079; FRL–9731–5] 

Approval and Promulgation of 

Implementation Plans; Alabama: 

General and Transportation 

Conformity & New Source Review 

Prevention of Significant Deterioration 

for Fine Particulate Matter (PM2.5) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve changes to the Alabama State 

Implementation Plan (SIP), submitted 

by the Alabama Department of 

Environmental Management (ADEM) to 

EPA on May 2, 2011. The May 2, 2011, 

SIP revision modifies Alabama’s New 

Source Review (NSR), Prevention of 

Significant Deterioration (PSD), and 

Nonattainment New Source Review 

(NNSR) programs to adopt into the 

Alabama SIP federal NSR PSD 

requirements for the fine particulate 

matter (PM2.5) national ambient air 

quality standards (NAAQS) as 

promulgated in EPA’s 2008 NSR PM2.5

Implementation Rule and the 2010 

PM2.5 PSD Increment, Significant Impact 

Levels (SILs) and Significant Monitoring 

Concentration (SMC) Rule. The SIP 

revision also changes the State’s general 

and transportation conformity 

regulations. EPA is approving portions 

of Alabama’s May 2, 2011, SIP revision 

because they are consistent with the 

Clean Air Act (CAA or Act) and EPA 

regulations regarding NSR permitting. 

EPA received one off-topic comment on 

the August 6, 2012, proposed 

rulemaking, and a brief response is 

provided below. 

DATES: Effective Date: This rule will be 

effective October 26, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2012–0079. 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 to 

schedule your inspection. 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 Florida SIP, 

contact Ms. Twunjala Bradley, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

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