43032 Federal Register / Vol. 77, No. 141 / Monday, July 23, 2012 / Proposed Rules 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: July 16, 2012. 

Ira W. Leighton, 

Acting Regional Administrator, EPA New 

England. 

[FR Doc. 2012–17902 Filed 7–20–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0081; FRL–9702–8] 

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: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the Mississippi State 

Implementation Plan (SIP), submitted 

by the Mississippi Department of 

Environmental Quality (MDEQ) through 

the Division of Air Pollution Control to 

EPA on May 12, 2011. The SIP revision 

modifies Mississippi’s New Source 

Review (NSR) Prevention of Significant 

Deterioration (PSD) program. The May 

12, 2011, SIP revision incorporates by 

reference the federal NSR PSD 

requirements for the fine particulate 

matter (PM2.5) national ambient air 

quality standards (NAAQS) as amended 

in EPA’s 2008 NSR PM2.5

Implementation Rule (hereafter referred 

to as the ‘‘NSR PM2.5 Rule’’) and the 

2010 PM2.5 PSD Increment, Significant 

Impact Levels (SILs) and Significant 

Monitoring Concentration (SMC) Rule 

(hereafter referred to the ‘‘PM2.5 PSD 

Increment-SILs-SMC Rule’’) into the 

Mississippi SIP. EPA is proposing to 

approve portions of Mississippi’s SIP 

revision because the Agency has 

preliminarily determined that the 

provisions proposed for approval are 

consistent with section 110 of the Clean 

Air Act (CAA or Act) and EPA 

regulations regarding NSR permitting. 

DATES: Comments must be received on 

or before August 22, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0081 by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: EPA–R04–OAR–2012–0081, 

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. 

5. Hand Delivery or Courier: Ms. 

Lynorae Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. ‘‘EPA–R04–OAR–2012– 

0081.’’ EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI 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 in 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 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. 

Yolanda Adams, Air Permits Section, at 

the same address above. Ms. Adams’ 

telephone number is (404) 562–9241; 

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. What action is EPA proposing? 

II. What is the background for EPA’s 

proposed action? 

III. What are the NSR implementation 

requirements for the PM2.5 NAAQS? 

IV. What is EPA’s analysis of Mississippi’s 

SIP revision? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. What action is EPA proposing? 

On May 12, 2011, MDEQ submitted a 

SIP revision to EPA for approval into 

the Mississippi SIP to incorporate by 


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1Throughout this document IBR means 

incorporate or incorporates by reference. 

reference (IBR) 1 federal NSR PSD 

permitting requirements. Mississippi’s 

SIP revision makes 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 

These rule changes were provided to 

comply with federal NSR permitting 

provisions related to the 

implementation of the PM2.5 NAAQS for 

the PSD program as promulgated in the 

NSR PM2.5 Rule entitled 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

(PM2.5), ’’ Final Rule, 73 FR 28321 (May 

16, 2008) and the PM2.5 PSD IncrementSILs-SMC Rule entitled ‘‘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),’’ Final Rule,’’ 75 FR 64864, 

(October 20, 2010). 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. Pursuant to 

section 110 of the CAA, EPA is 

proposing to approve these changes, 

with the exception of the two elements 

discussed below, into the Mississippi 

SIP. 

The two elements of MDEQ’s May 12, 

2011, SIP revision which EPA is not 

proposing to approve in this action are: 

(1) incorporation of the SIL thresholds 

promulgated in EPA’s PM2.5 PSD 

Increment-SILs-SMC 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. 

More details are provided in Sections 

II–IV below. 

II. What is the background for EPA’s 

proposed action? 

Today’s proposed action to revise the 

Mississippi SIP relates to relates to 

EPA’s NSR PM2.5 Rule and the PM2.5

PSD Increment-SILs-SMC Rule. In the 

NSR PM2.5 Rule, EPA finalized 

regulations to implement the NSR 

program for the PM2.5 NAAQS. As a 

result of EPA’s final NSR PM2.5 Rule, 

states were required to submit SIP 

revisions to EPA no later than May 16, 

2011, to address these requirements for 

both the PSD and Nonattainment NSR 

(NNSR) programs. EPA’s PM2.5 PSD 

Increment-SILs-SMC Rule established 

PSD increments, SILs and SMC which 

address additional components for 

making PSD permitting determinations 

for PM2.5 NAAQS. These requirements 

address air quality modeling and 

monitoring provisions for fine particle 

pollution in areas protected by the PSD 

program (that is attainment or 

unclassifiable/attainment areas for the 

NAAQS). EPA’s October 20, 2010, final 

rulemaking that approved the PM2.5 PSD 

Increment-SILs-SMC Rule required 

states to submit SIP revisions to adopt 

the required PSD increments by July 20, 

2012. Together these two rules address 

the NSR permitting requirements 

needed to implement the PM2.5 NAAQS. 

Mississippi’s May 12, 2011, SIP revision 

IBR into the Mississippi SIP (at APC–S– 

5), the PSD requirements promulgated 

in these two rules to be consistent with 

federal regulations for the PM2.5

NAAQS. More detail on the NSR PM2.5

Rule and the PM2.5 PSD Increment-SILsSMC Rule can be found in EPA’s May 

16, 2008, and October 20, 2010, final 

rules respectively and are summarized 

below. 

A. Fine Particulate Matter and the 

NAAQS 

Fine particles in the atmosphere are 

made up of a complex mixture of 

components. Common constituents 

include sulfate; nitrate; ammonium; 

elemental carbon; a great variety of 

organic compounds; and inorganic 

material (including metals, dust, sea 

salt, and other trace elements) generally 

referred to as ‘‘crustal’’ material, 

although it may contain material from 

other sources. Airborne particulate 

matter (PM) with a nominal 

aerodynamic diameter of 2.5 

micrometers or less (a micrometer is 

one-millionth of a meter, and 2.5 

micrometers is less than one-seventh the 

average width of a human hair) are 

considered to be ‘‘fine particles’’ and are 

also known as PM2.5. ‘‘Primary’’ 

particles are emitted directly into the air 

as a solid or liquid particle (e.g., 

elemental carbon from diesel engines or 

fire activities, or condensable organic 

particles from gasoline engines). 

‘‘Secondary’’ particles (e.g., sulfate and 

nitrate) form in the atmosphere as a 

result of various chemical reactions. 

The health effects associated with 

exposure to PM2.5 include potential 

aggravation of respiratory and 

cardiovascular disease (i.e., lung 

disease, decreased lung function asthma 

attacks and certain cardiovascular 

issues). Epidemiological studies have 

indicated a correlation between elevated 

PM2.5 levels and premature mortality. 

Groups considered especially sensitive 

to PM2.5 exposure include older adults, 

children, and individuals with heart 

and lung diseases. For more details 

regarding health effects and PM2.5 see 

EPA’s Web site at http://www.epa.gov/ 

oar/particlepollution/ (See heading 

‘‘Health and Welfare’’). 

On July 18, 1997, EPA revised the 

NAAQS for PM to add new standards 

for fine particles, using PM2.5 as the 

indicator. Previously, EPA used PM10

(inhalable particles smaller than or 

equal to 10 micrometers in diameter) as 

the indicator for the PM NAAQS. EPA 

established health-based (primary) 

annual and 24-hour standards for PM2.5, 

setting an annual standard at a level of 

15 micrograms per cubic meter (mg/m3) 

and a 24-hour standard at a level of 65 

mg/m3. See 62 FR 38652. At the time the 

1997 primary standards were 

established, EPA also established 

welfare-based (secondary) standards 

identical to the primary standards. The 

secondary standards are designed to 

protect against major environmental 

effects of PM2.5, such as visibility 

impairment, soiling, and materials 

damage. On October 17, 2006, EPA 

revised the primary and secondary 24- 

hour NAAQS for PM2.5 to 35 mg/m3 and 

retained the existing annual PM2.5

NAAQS of 15.0 mg/m3. See 71 FR 61236. 

B. What is the NSR program? 

The CAA NSR program is a 

preconstruction review and permitting 

program applicable to certain new and 

modified stationary sources of air 

pollutants regulated under the CAA. 

The program includes a combination of 

air quality planning and air pollution 

control technology requirements. The 

CAA NSR program is composed of three 

separate programs: PSD, NNSR, and 

Minor NSR. PSD is established in part 

C of title I of the CAA and applies in 

areas that meet the NAAQS 

(‘‘attainment areas’’) as well as areas 

where there is insufficient information 

to determine if the area meets the 

NAAQS (‘‘unclassifiable areas’’). The 

NNSR program is established in part D 

of title I of the CAA and applies in areas 

that are not in attainment of the NAAQS 

(‘‘nonattainment areas’’). The Minor 

NSR program addresses construction or 

modification activities that do not 

qualify as ‘‘major’’ and applies 

regardless of the designation of the area 

in which a source is located. Together, 

these programs are referred to as the 

NSR program. EPA regulations 

governing the implementation of these 

programs are contained in 40 CFR 

sections 51.160–.166; 52.21, .24; and, 

part 51, appendix S. Section 109 of the 

CAA requires EPA to promulgate a 

primary NAAQS to protect public 


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2On November 1, 2005, EPA proposed a rule to 

implement the 1997 PM2.5 NAAQS, including 

proposed revisions to the NSR program. See 70 FR 

65984. 

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. 

4Additional information on this issue can also be 

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

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). 

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. 

health and a secondary NAAQS to 

protect public welfare. Once EPA sets 

those standards, states must develop, 

adopt, and submit a SIP to EPA for 

approval that includes emission 

limitations and other control measures 

to attain and maintain the NAAQS. See 

CAA section 110. Each SIP is also 

required to include a preconstruction 

review program for the construction and 

modification of any stationary source of 

air pollution to assure the maintenance 

of the NAAQS. The applicability of the 

PSD program to a major stationary 

source must be determined in advance 

of construction and is a pollutantspecific determination. Once a major 

source is determined to be subject to the 

PSD program (and thus is a ‘‘PSD 

source’’), among other requirements, it 

must undertake a series of analyses to 

demonstrate that it will use the best 

available control technology and will 

not cause or contribute to a violation of 

any NAAQS or increment. Mississippi’s 

May 12, 2011, SIP submittal revises 

Mississippi’s PSD program. 

III. What are the NSR implementation 

requirements for the PM2.5 NAAQS? 

A. NSR PM2.5 Rule 

On May 16, 2008, EPA finalized the 

NSR PM2.5 Rule to implement the PM2.5

NAAQS, including changes to the NSR 

program.2 See 73 FR 28321. The NSR 

PM2.5 Rule revised the federal NSR 

program requirements to establish the 

framework for implementing 

preconstruction permit review for the 

PM2.5 NAAQS in both attainment and 

nonattainment areas. Specifically, the 

NSR PM2.5 Rule established NSR 

requirements to implement the PM2.5

NAAQS 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 PM10 grandfathering 

policy; and, (5) require states to account 

for gases that condense to form particles 

(condensables) in PM2.5 and PM10

emission limits in PSD or NNSR 

permits. Additionally, the NSR PM2.5

Rule authorized states to adopt 

provisions in their nonattainment NSR 

rules that would allow interpollutant 

offset trading. Mississippi’s May 12, 

2011, SIP revision addresses the PSD 

permitting requirements promulgated in 

EPA’s May 16, 2008, NSR PM2.5 Rule.3

A few key issues described in greater 

detail below include: the PM10 surrogate 

and grandfathering policy, the 

condensable provision and the NOX

precursor insignificance demonstration. 

1. PM10 Surrogate and Grandfathering 

Policy 

After EPA promulgated the NAAQS 

for PM2.5 in 1997 (62 FR 38652, July 18, 

1997), the Agency issued a guidance 

document entitled ‘‘Interim 

Implementation of New Source Review 

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

EPA, October 23, 1997 (the ‘‘Seitz 

memo’’). 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. 

Specifically, the Seitz memo stated: 

‘‘PM–10 may properly be used as a 

surrogate for PM–2.5 in meeting NSR 

requirements until these difficulties are 

resolved.’’ EPA also issued a guidance 

document entitled ‘‘Implementation of 

New Source Review Requirements in 

PM–2.5 Nonattainment Areas’’ (the 

‘‘2005 PM2.5 NNSR Guidance’’), on 

April 5, 2005, the date that EPA’s PM2.5

nonattainment area designations became 

effective for the 1997 NAAQS. The 2005 

PM2.5 NNSR Guidance provided 

direction regarding implementation of 

the nonattainment major NSR 

provisions in PM2.5 nonattainment areas 

in the interim period between the 

effective date of the PM2.5

nonattainment area designations (April 

5, 2005) and EPA’s promulgation of 

final PM2.5 NNSR regulations. Besides 

re-affirming the continuation of the 

PM10 Surrogate Policy for PM2.5

attainment areas set forth in the Seitz 

memo, the 2005 PM2.5 NNSR Guidance 

recommended 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.’’ 

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. The first exception is the 

‘‘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 

16, 2008, final rule. The second 

exception was that states with SIPapproved PSD programs could continue 

to implement the Seitz Memo’s PM10

Surrogate Policy for up to three years 

(until May 2011) or until EPA approved 

the individual revised state PSD 

programs for PM2.5, whichever came 

first. See 73 FR 28321.4

On February 11, 2010, EPA proposed 

to repeal the grandfathering provision 

for PM2.5 contained in the federal PSD 

program at 40 CFR 52.21(i)(1)(xi) and to 

end early the PM10 Surrogate Policy 

applicable in states that have a SIPapproved PSD program. See 75 FR 6827. 

In support of this proposal, EPA 

explained that the PM2.5

implementation issues that led to the 

adoption of the PM10 Surrogate Policy in 

1997 have been largely resolved to a 

degree sufficient for sources and 

permitting authorities to conduct 

meaningful permit-related PM2.5

analyses. 

On May 18, 2011 (76 FR 28646), EPA 

took final action to repeal the PM2.5

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 would no 

longer be able to rely on the 1997 PM10

Surrogate Policy to satisfy the PSD 

requirements for PM2.5 unless the 

application included a valid surrogacy 

demonstration. See 76 FR 28646. 

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. 

2. ‘‘Condensable’’ Provision 

In the NSR PM2.5 Rule, EPA revised 

the definition of ‘‘regulated NSR 


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6 In addition to the NSPS for PM, 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. 

7The 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. 

8EPA proposed approval of the PSD IncrementsSILs-SMC Rule on September 21, 2007. See 72 FR 

54112. 

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. See 40 CFR 

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

‘‘Emissions Offset Interpretative Ruling’’ 

(40 CFR part 51, appendix S). A similar 

paragraph added to the NNSR rule does 

not include ‘‘particulate matter (PM) 

emissions.’’ See 40 CFR 

51.165(a)(1)(xxxvii)(D). 

On March 16, 2012, EPA proposed a 

rulemaking to amend the definition of 

‘‘regulated NSR pollutant’’ promulgated 

in the 2008 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.’’ The 

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) (40 CFR 

part 60).6 Mississippi’s May 12, 2011, 

SIP revision IBR EPA’s definition for 

regulated NSR pollutant for 

condensables (at APC–S–5) including 

the term ‘‘particulate matter emissions,’’ 

as promulgated in the NSR PM2.5 Rule. 

EPA’s review of Mississippi’s May 12, 

2011, SIP revision with regard to the 

NSR PM2.5 Rule condensable provision 

is provided below in Section IV. 

3. NOX Insignificance Determination 

Fine particles can be emitted directly 

from a facility or formed secondarily in 

the atmosphere from emissions of other 

compounds referred to as precursors. 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 (of which all undergo 

chemical reactions to form secondary 

PM). In most areas of the country, PM2.5

precursor emissions are major 

contributors to ambient PM2.5

concentrations. The relative 

contribution to ambient PM2.5

concentrations from each of these 

pollutants varies by area. The relative 

effect of reducing emissions of these 

pollutants is also highly variable. In the 

NSR PM2.5 Rule, EPA established 

various approaches for addressing the 

individual precursors to PM2.5 under the 

CAA’s NSR provisions. See 73 FR 

28321. 

Based on scientific factors suggesting 

that nitrate concentrations vary 

significantly across the country, 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.7 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 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 the May 

12, 2011, SIP revision in a separate 

rulemaking. However, until EPA takes 

action on Mississippi’s insignificance 

demonstration, EPA is proposing to 

approve Mississippi’s incorporation into 

its SIP the federal regulatory provision 

providing that NOX is a presumed PM2.5

precursor. 

B. PM2.5 PSD Increment-SILs-SMC Rule 

As mentioned above, EPA finalized 

the PM2.5 PSD Increment-SILs-SMC Rule 

to provide additional regulatory 

requirements under the PSD program 

regarding the implementation of the 

PM2.5 NAAQS for NSR.8 Specifically, 

the rule establishes the following to 

implement the PM2.5 NAAQS for the 

PSD program: (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. As part of the 

response to comments on October 20, 

2010 final rulemaking, EPA explained 

that, the agency agrees that the SILs and 

SMCs used as de minimis thresholds for 

the various pollutants are useful tools 

that enable permitting authorities and 

PSD applicants to screen out 

‘‘insignificant’’ activities; however, the 

fact remains that these values are not 

required by the Act as part of an 

approvable SIP program. EPA believes 

that most states are likely to adopt the 

SILs and SMCs because of the useful 

purpose they serve regardless of our 

position that the values are not 

mandatory. Alternatively, states may 

develop more stringent values if they 

desire to do so. In any case, states are 

not under any SIP-related deadline for 

revising their PSD programs to add 

these screening tools. See 75 FR 64864, 

64900. 

Mississippi’s May 12, 2011, SIP 

revision IBR the NSR changes 

promulgated in the PM2.5 PSD 

Increment-SILs-SMC Rule to be 

consistent with the federal NSR 

regulations and to appropriately 

implement the State’s NSR program for 

the PM2.5 NAAQS. More detail on the 

PM2.5 PSD Increment-SILs-SMC Rule 

can be found in EPA’s October 20, 2010, 

final rule and is summarized below. See 

75 FR 64864. EPA is not proposing to 

take action to approve the SILs 

(promulgated in the PM2.5 PSD 

Increment-SILs-SMC Rule) into the 

Mississippi SIP in this rulemaking. 

EPA’s authority to implement the SILs 


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9On April 6, 2012, EPA filed a brief with the D.C. 

Circuit court defending the Agency’s authority to 

implement SILs and SMC for PSD purposes. 

10Section 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. 

11Baseline dates are pollutant specific. That is, a 

complete PSD application establishes the baseline 

date only for those regulated NSR pollutants that 

are projected to be emitted in significant amounts 

(as defined in the regulations) by the applicant’s 

new source or modification. Thus, an area may have 

different baseline dates for different pollutants. 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. 

14The de minimis principle is grounded in the 

decision described by the court case Alabama 

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

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

and SMC for PSD purposes has been 

challenged by the Sierra Club. Sierra 

Club v. EPA, Case No 10–1413 (D.C. 

Circuit Court).9 More details regarding 

Mississippi’s changes to its NSR 

regulations are also summarized below 

in Section IV. 

1. What are PSD increments? 

As established in part C of title I of 

the CAA, EPA’s PSD program protects 

public health from adverse effects of air 

pollution by ensuring that construction 

of new or modified sources in 

attainment or unclassifiable areas does 

not lead to significant deterioration of 

air quality while simultaneously 

ensuring that economic growth will 

occur in a manner consistent with 

preservation of clean air resources. 

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.’’ In 

other words, 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 significant deterioration in 

air quality. Significant 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 10 for that 

pollutant. 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’’ of air quality for a 

pollutant in an area. 

For PSD baseline purposes, a baseline 

area for a particular pollutant emitted 

from a source includes the attainment or 

unclassifiable area in which the source 

is located as well as any other 

attainment or unclassifiable area in 

which the source’s emissions of that 

pollutant are projected (by air quality 

modeling) to result in an ambient 

pollutant increase of at least 1 mg/m3

(annual average). See 40 CFR 

52.21(b)(15)(i). Under EPA’s existing 

regulations, the establishment of a 

baseline area for any PSD increment 

results from the submission of the first 

complete PSD permit application and is 

based on the location of the proposed 

source and its emissions impact on the 

area. Once the baseline area is 

established, subsequent PSD sources 

locating in that area need to consider 

that a portion of the available increment 

may have already been consumed by 

previous emissions increases. In 

general, the submittal date of the first 

complete PSD permit application in a 

particular area is the operative ‘‘baseline 

date.’’ 11 On or before the date of the 

first complete PSD application, 

emissions generally are considered to be 

part of the baseline concentration, 

except for certain emissions from major 

stationary sources. Most emissions 

increases that occur after the baseline 

date will be counted toward the amount 

of increment consumed. Similarly, 

emissions decreases after the baseline 

date restore or expand the amount of 

increment that is available. See 75 FR 

64864. 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 

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 64864 at 64869 and table at 

40 CFR 51.166(c)(1). 

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 dates) to establish the PM2.5

NAAQS specific dates associated with 

the implementation of PM2.5 PSD 

increments. See 75 FR 64864. In 

accordance with section 166(b) of the 

CAA, EPA required the states to submit 

revised implementation plans to EPA 

for approval (to adopt the PM2.5 PSD 

increments) within 21 months from 

promulgation of the final rule (by July 

20, 2012). Each state was responsible for 

determining how increment 

consumption and the setting of the 

minor source baseline date for PM2.5

would occur under its own PSD 

program. Regardless of when a State 

begins to require PM2.5 increment 

analysis and how it chooses to set the 

PM2.5 minor source baseline date, the 

emissions from sources subject to PSD 

for PM2.5 for which construction 

commenced after October 20, 2010 

(major source baseline date) consume 

PM2.5 increment and should be included 

in the increment analyses occurring 

after the minor source baseline date is 

established for an area under the state’s 

revised PSD program. As discussed in 

detail in Section IV, Mississippi’s May 

12, 2011, SIP revision IBR the PM2.5

increment permitting requirements 

promulgated in the PM2.5 PSD 

Increment-SILs-SMC Rule. 

2. What are significant monitoring 

concentrations? 

Under the CAA and EPA regulations, 

an applicant for a PSD permit is 

required to gather preconstruction 

monitoring data in certain 

circumstances. Section 165(a)(7) calls 

for ‘‘such monitoring as may be 

necessary to determine the effect which 

emissions from any such facility may 

have, or is having, on air quality in any 

areas which may be affected by 

emissions from such source.’’ In 

addition, section 165(e) requires an 

analysis of the air quality in areas 

affected by a proposed major facility or 

major modification and calls for 

gathering one year of monitoring data 

unless the reviewing authority 

determines that a complete and 

adequate analysis may be accomplished 

in a shorter period. These requirements 

are codified in EPA’s PSD regulations at 

40 CFR 51.166(m) and 40 CFR 52.21(m). 

In accordance with EPA’s Guideline for 

Air Quality Modeling (40 CFR part 51, 

appendix W), the preconstruction 

monitoring data is primarily used to 

determine background concentrations in 

modeling conducted to demonstrate that 

the proposed source or modification 

will not cause or contribute to a 

violation of the NAAQS. See 40 CFR 

part 51, appendix W, section 9.2. SMC 

are numerical values that represent 

thresholds of insignificant (i.e., de 

minimis 14), monitored (ambient) 


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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. 

15As mentioned earlier, due to litigation by the 

Sierra Club, EPA is not proposing to take 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. 

16Additional 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. 

impacts on pollutant concentrations. In 

EPA’s PM2.5 PSD Increment-SILs-SMC 

Rule, EPA established a SMC of 4 mg/m3

for PM2.5 to be used as a screening tool 

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. See 

75 FR 64864. 

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. See 40 CFR 51.166(i)(5) and 

52.21(i)(5). SMCs are not minimum 

required elements of an approvable SIP 

under the CAA. This de minimis value 

is widely considered to be a useful 

component for implementing the PSD 

program, but is not absolutely necessary 

for the states to implement PSD 

programs. States can satisfy the 

statutory requirements for a PSD 

program by requiring each PSD 

applicant to submit air quality 

monitoring data for PM2.5 without using 

de minimis thresholds to exempt certain 

sources from such requirements. See 75 

FR 64864. The SMC became effective 

under the federal PSD program on 

December 20, 2010. States with EPAapproved PSD programs that adopt the 

SMC for PM2.5, however, may use the 

SMC, once it is part of an approved SIP, 

to determine when it may be 

appropriate to exempt a particular major 

stationary source or major modification 

from the monitoring requirements under 

its state PSD program. Mississippi’s May 

12, 2011, revision IBR the SMC 

provision into the Mississippi SIP. 

Recently, the Sierra Club filed suit 

challenging EPA’s authority to 

implement the PM2.5 SILs 15 as well as 

the SMC for PSD purposes as 

promulgated in the October 20, 2012, 

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

1413, D.C. 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.16 A 

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

found in the docket for today’s 

rulemaking at www.regulations.gov 

using docket ID: EPA–R04–OAR–2012– 

0081. 

IV. What is EPA’s analysis of 

Mississippi’s SIP revision? 

Mississippi currently has a SIPapproved NSR program for new and 

modified stationary sources. MDEQ’s 

PSD preconstruction rules are found at 

rule APC–S–5—Regulation for the 

Prevention of Significant Deterioration 

of Air Quality and apply to major 

stationary sources or modifications 

constructed in areas designated 

attainment or unclassifiable/attainment 

as required under part C of title I the 

CAA with respect to the 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 into the 

Mississippi SIP. These changes to 

Mississippi’s regulation APC–S–5 

became state effective on June 2, 2011. 

EPA is proposing to approve changes to 

Mississippi’s rules at APC–S–5 to 

update the State’s existing SIP-approved 

PSD program to be consistent with 

federal NSR regulations, (at 40 CFR 

51.166 and 52.21) and the CAA. 

A. NSR PM2.5 Implementation Rule 

Mississippi’s May 12, 2011, SIP 

revision establishes that the State’s 

existing NSR permitting program 

requirements for PSD apply to the PM2.5

NAAQS and its precursors. Specifically, 

the SIP revision IBR the following NSR 

PM2.5 Rule provisions into the 

Mississippi SIP at regulation APC–S–5: 

(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 (3) the requirement that 

condensable PM be addressed in 

enforceable PM10 and PM2.5 emission 

limits included in PSD permits. 

As mentioned above, Mississippi’s 

May 12, 2011, SIP revision IBR into the 

State’s PSD program at APC–S–5 the 

requirement to address condensable PM 

in applicability determinations and in 

establishing enforceable emission limits 

in PSD and NNSR permits, as 

established in the NSR PM2.5 Rule. As 

discussed in Section III.A.2, under a 

separate action, EPA has proposed to 

correct the inadvertent inclusion of 

‘‘particulate matter emissions’’ in the 

definition of ‘‘regulated NSR pollutant’’ 

as an indicator for which condensable 

emissions must be addressed. See 77 FR 

75656 (March 16, 2012). Further, on 

June 26, 2012, the State of Mississippi 

provided a letter to EPA with 

clarification of the State’s intent in light 

of EPA’s March 12, 2012, proposed 

rulemaking. 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. Specifically, Mississippi 

requested that EPA not approve the term 

‘‘particulate matter emissions’’ (at APC– 

S–5) 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. Therefore, given the State’s request 

and EPA’s intention to amend the 

definition of ‘‘regulated NSR pollutant,’’ 

EPA is not proposing action to approve 

the terminology ‘‘particulate matter 

emissions’’ into the Mississippi SIP for 

the condensable provision in the 

definition of ‘‘regulated NSR pollutant.’’ 

EPA is, however, proposing to approve 

into the Mississippi SIP at APC–S–5 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. Regarding the grandfathering 

provision, MDEQ’s May 12, 2012 SIP 

revision included new language at APC– 

S–5(2.7) that excluded the provision for 

PM2.5 (at 40 CFR 52.21(i)(1)(xi)) from the 

PSD program regulations in accordance 

with the repeal of the PM2.5

grandfathering provision. 

EPA’s NSR PM2.5 Rule identifies NOX

as a presumed PM2.5 precursor in all 

attainment and unclassifiable 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. 

Mississippi’s May 12, 2011, SIP 

submittal included a technical 


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demonstration proposing that NOX

sources in Mississippi do not 

significantly contribute to PM2.5

ambient air concentrations in the state. 

As stated in Mississippi’s May 12, 2011, 

SIP revision, NOX will be considered as 

a precursor to PM2.5 in Mississippi until 

such time as EPA takes action on the 

state’s technical NOX insignificance 

demonstration or upon plan 

disapproval. Currently, 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. Therefore, as part of 

MDEQ’s May 12, 2011, revision to IBR 

the federal regulations at 40 CFR 51.166 

and 52.21, EPA is proposing at this time 

to approve into the Mississippi SIP that 

NOX is a presumed PM2.5 precursor. 

Lastly, Mississippi’s May 12, 2011, SIP 

revision also requests that EPA remove 

from the SIP the exclusion language at 

APC–S–5(2.7) regarding the NSR PM2.5

Rule provisions. 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. Mississippi’s May 

12, 2011, SIP submittal, the subject of 

today’s proposed rulemaking, addresses 

the PSD NSR PM2.5 Rule provisions that 

were excluded at APC–S–5(2.7). 

Therefore the exclusion language for the 

NSR PM2.5 Rule provisions at APC–S– 

5(2.7) is no longer necessary and EPA is 

today proposing to remove it from the 

Mississippi SIP. EPA is proposing to 

approve the NSR PM2.5 requirements 

mentioned above into the Mississippi 

SIP because EPA has made the 

preliminary determination that this 

change is consistent with federal 

regulations promulgated in the NSR 

PM2.5 Rule and section 110 of the CAA. 

B. PM2.5 PSD Increment-SILs-SMC Rule 

MDEQ’s May 12, 2011, SIP revision 

IBR the following provisions into the 

Mississippi SIP at regulation APC–S–5 

as promulgated in the October 20, 2010, 

PM2.5 PSD Increment-SILs-SMC Rule: 

(1) PSD increments for PM2.5 annual and 

24-hour NAAQS pursuant to section 

166(a) of the CAA; (2) SILs used as a 

screening tool (used 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) SMC also used as a 

screening tool to determine the level of 

data gathering required of a major 

source in support of its PSD permit 

application for PM2.5 emissions. 

Specifically, Mississippi’s May 12, 

2011, SIP revision IBR into the 

Mississippi SIP (at APC–S–5) the PM2.5

PSD increments (established in the 

tables at 40 CFR 51.166(c)(1) and (p)(4); 

the amendments to the ‘‘major source 

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)). These changes, 

which are associated with the 

implementation or consumption of the 

PSD increments for the PM2.5 NAAQS, 

are needed to implement the state’s NSR 

program for the PM2.5 NAAQS 

consistent with the federal NSR 

regulations. Also, Mississippi’s SIP 

revision adds the SMC of 4 mg/m3 for 

PM2.5 NAAQS to the existing monitoring 

exemption at 40 CFR 51.166(i)(5)(i)(c) 

and 52.21(i)(5)(i)(c). In today’s action, 

EPA is proposing to approve 

Mississippi’s May 12, 2011, SIP revision 

to address PM2.5 PSD increments. 

Regarding the SILs and SMC 

established in the October 20, 2010, 

PM2.5 PSD Increment-SILs-SMC Rule, 

the Sierra Club has challenged EPA’s 

authority to implement SILs and SMC. 

In a brief filed in the D.C. 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. With 

respect to the SMCs submitted by 

Mississippi in the May 12, 2011, SIP 

revision, EPA is proposing to approve 

these promulgated thresholds into the 

Mississippi SIP as EPA believes the 

SMC are a valid exercise of the Agency’s 

de minimis authority. Furthermore 

Mississippi’s May 12, 2011, SIP revision 

is consistent with EPA’s current 

promulgated provisions in the October 

20, 2011, rule. However, EPA notes that 

future Court action may require 

subsequent rule revisions and SIP 

revisions from Mississippi. 

The May 12, 2012, SIP revision 

submitted by Mississippi to IBR the new 

PSD requirements for PM2.5 pursuant to 

the PM2.5 PSD Increment-SILs-SMC Rule 

also includes the new regulatory text at 

40 CFR 51.166(k)(2) and 52.21(k)(2), 

concerning the implementation of SILs 

for PM2.5. EPA stated in the preamble to 

the October 20, 2010 final rule that we 

do 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. Nevertheless, the PM2.5 SILs are 

currently the subject of litigation before 

the U.S. Court of Appeals. (Sierra Club 

v. EPA, Case No 10–1413 D.C. Circuit). 

In response to that litigation, EPA has 

requested that the Court remand and 

vacate the regulatory text in EPA’s PSD 

regulations at paragraph (k)(2) so that 

EPA can make necessary rulemaking 

revisions to that text. 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, we do not believe that it is 

appropriate at this time to approve that 

portion of the State’s SIP revision that 

contains the affected regulatory text in 

the State’s PSD regulations, at APC–S– 

5. Instead, we are taking no action at 

this time with regard to that specific 

provision contained in the SIP revision. 

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. 

The aforementioned amendments to 

Mississippi’s SIP provide the framework 

for implementation of PM2.5 NAAQS in 

the states NSR permitting. Based on 

review and consideration of 

Mississippi’s May 12, 2011, SIP 

revision, EPA has made the preliminary 

determination to approve the 

aforementioned PSD permitting 

provisions promulgated in the NSR 

PM2.5 Rule and PM2.5 PSD IncrementSILs-SMC Rule into the Mississippi SIP 

to implement the NSR program for the 

PM2.5 NAAQS. 

V. Proposed Action 

EPA is proposing to approve portions 

of Mississippi’s May 12, 2011, SIP 

revision adopting federal regulations 

amended in the May 16, 2008, NSR 

PM2.5 Rule and the October 20, 2010, 

PM2.5 PSD Increment-SILs-SMC rule 

into the Mississippi SIP with the 

exception of the SIL thresholds and the 

provision regarding the applicability of 

the term ‘‘particulate matter emissions.’’ 

EPA has made the preliminary 

determination that this SIP revision, 

with regard to the aforementioned 

proposed actions, is approvable because 

it is consistent with section 110 of the 

CAA and EPA regulations regarding 

NSR permitting. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 


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EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

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 proposed 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 F43255, 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 proposed 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen oxides, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements. 

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

Dated: July 12, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–17893 Filed 7–20–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 25, and 52 

[FAR Case 2011–029; Docket No. 2011– 

0029; Sequence 1] 

RIN 9000–AM20 

Federal Acquisition Regulation; 

Contractors Performing Private 

Security Functions Outside the United 

States 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to 

implement Governmentwide 

requirements in National Defense 

Authorization Acts that establish 

minimum processes and requirements 

for the selection, accountability, 

training, equipping, and conduct of 

personnel performing private security 

functions outside the United States. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before September 21, 

2012 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2011–029 by any 

of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by searching for 

‘‘FAR Case 2011–029’’ under the 

heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2011–029. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2011– 

029’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), Attn: Hada Flowers, 1275 First 

Street NE., 7th Floor, Washington, DC 

20417. 

Instructions: Please submit comments 

only and cite FAR case 2011–029 in all 

correspondence related to this case. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael O. Jackson, Procurement 

Analyst, at 202–208–4949 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at 202–501–4755. Please cite 

FAR case 2011–029. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The National Defense Authorization 

Act (NDAA) for Fiscal Year (FY) 2008 

(Pub. L. 110–181, enacted January 28, 

2008), section 862, entitled ‘‘Contractors 

Performing Private Security Functions 

in Areas of Combat Operations,’’ was 

amended by section 853 of the NDAA 

for FY 2009 (Pub. L. 110–417, enacted 

October 14, 2008) and sections 831 and 

832 of the NDAA for FY 2011 (Pub. L. 

111–383, enacted January 7, 2011). See 

10 U.S.C. 2302 Note. The statute 

requires (1) the establishment of 

Governmentwide policies and (2) FAR 

coverage implementing the 

Governmentwide policies specified in 

the statutes and the resulting 

Governmentwide policy document. 

This proposed rule is focused solely 

on providing implementing contractual 

language and a contract clause, as 

mandated by statute. Agencies are 

reminded that they may further 

supplement the applicability of these 

requirements beyond those included in 

this rule in accordance with FAR 

subpart 1.3, Agency Acquisition 

Regulations. While section 862 of the 

2008 NDAA required standardization of 

rules for private security contractors 

that are performing in designated areas 

of combat operations or other significant 

military operations, the underlying 

Governmentwide instruction was the 

responsibility of the Secretary of 

Defense, in coordination with the 

Secretary of State. The resultant 

regulation was published as a final rule 

at 32 CFR part 159, entitled ‘‘Private 

Security Contractors Operating in 

Contingency Operations, Combat 

Operations or Other Significant Military 

Operations,’’ on August 11, 2011 (see 76 

FR 49650) (or, see the corresponding 

Department of Defense Instruction 

(DoDI) 3020.50 at http://www.dtic.mil/ 

whs/directives/corres/pdf/302050p.pdf). 


tkelley on DSK3SPTVN1PROD with PROPOSALS