Air Plan Approval; Mississippi; PSD and Air Quality Modeling Infrastructure Requirements for the 2015 8-Hour Ozone National Ambient Air Quality Standards

SUPPLEMENTARY INFORMATION:

I. Background

EPA is approving changes to Mississippi's SIP submitted by the State on February 28, 2024. The changes include revising the State's new source review (NSR) permitting regulations at 11 Mississippi Administrative Code (MAC), Part 2, Chapter 2, Permit Regulations for the Construction and/or Operation of Air Emissions Equipment (Chapter 2) and PSD permitting regulations at 11 MAC, Part 2, Chapter 5, Regulations for the Prevention of Significant Deterioration of Air Quality (Chapter 5) to adopt relevant federal permitting regulations into the SIP. The PSD permitting changes at Chapter 5 amend MDEQ's incorporate by reference (IBR) date of the federal PSD regulations at 40 CFR 51.166(f) and 40 CFR 52.21 to December 27, 2023. EPA's approval of the December 27, 2023, IBR date at Chapter 5, Rule 5.2 adopts into the SIP changes to 40 CFR 52.21 that EPA promulgated in several rulemakings since Mississippi's last IBR update of February 17, 2016. These rulemakings include: “Source Determination for Certain Emission Units in the Oil and Natural Gas Sector” 81 FR 35622 (June 3, 2016); “Rescission of Preconstruction Permits Issued under the Clean Air Act” 81 FR 78043 (November 7, 2016); “Revisions to the Guideline on Air Quality Models: Enhancements to the AERMOD Dispersion Modeling System and Incorporation of Approaches to Address Ozone and Fine Particulate Matter” 82 FR 5182 (January 17, 2017) at; “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Project Emissions Accounting” 85 FR 74890 (November 24, 2020); and “New Source Review Errors Correction” 86 FR 37918 (July 19, 2021). The SIP revision also amends Mississippi's SIP-approved PSD rules to adopt public participation e-notice provisions consistent with EPA's October 5, 2016, rule “Revisions to Public Notice Provisions in Clean Air Act Permitting Programs”. The modeling updates at Chapter 2 and 5 respecting references to Appendix W in 40 CFR 52.21(l) support the state's request to convert EPA's March 1, 2023, conditional approval of the PSD requirements of elements 110(a)(2)(C), (D)(i)(II) (Prong 3), and (J), and the air quality modeling element under section 110(a)(2)(K), of Mississippi's 2015 8-hour ozone NAAQS infrastructure SIP (iSIP) to a full approval. The SIP revision also includes minor changes to Mississippi's PSD regulations at Chapter 2 ⁵ and Chapter 5. The February 28, 2024, SIP submission provides additional changes to 11 MAC, Part 2, Chapter 2 to address NSR requirements, as well as minor grammatical errors which will be addressed in a separate rulemaking.

Through a notice of proposed rulemaking (NPRM) published on September 16, 2024 (89 FR 75517), EPA proposed to approve the changes to 11 MAC Part 2, Chapter 2, Rules 2.5B(1) and B(2), Application Review; 11 MAC, Part 2, Chapter 5, Rule 5.1, Purpose of this regulation; Rule 5.2, Adoption of Federal Rules by Reference; Rule 5.3, Definition of term “Administrator”; Rule 5.4, Adoption of Federal Rules for Exclusions from Increment Consumption; Rule 5.6 Applicability; and Rule 5.7, Public Participation into Mississippi's SIP and to convert the conditional approval of the portions of the 2015 8-hour ozone NAAQS iSIP that address the PSD related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), and the modeling requirements of 110(a)(2)(K) to a full approval. The contents of Mississippi's submission, EPA's rationale for approving the changes, and EPA's rationale for converting the conditional approval action to full approval, are described in more detail in the September 16, 2024, NPRM. Comments on the September 16, 2024, NPRM were due on or before October 16, 2024. EPA received one comment on the September 16, 2024, NPRM. The comment is available in the docket for this action.

II. Response to Comments

EPA received one comment on the August 16, 2024, NPRM. EPA has summarized and responded to the comment below.

Comment: The Commenter expressed support for the proposed changes to Mississippi's SIP-approved PSD permitting program to align with federal air pollution control guidelines, specifically those in Appendix W. The Commenter emphasized the importance of using the best tools available to monitor air quality and reduce pollutants like ozone. However, the Commenter expressed concerns about the potential financial strain these changes might impose on smaller business. The Commenter suggested that measures such as extending deadlines or providing financial support could help these businesses so they can comply without struggling.

Response: EPA appreciates the Commenter's support for this action. The Commenter also raised concerns about the potential burden the changes may place on smaller businesses, suggesting additional time for compliance or financial support so they can follow the rules without struggling. Due to the general nature of the Commenter's requests and suggestions, EPA is only able to provide general responses.

While EPA sets the NAAQS, states play a primary role in implementation. The CAA establishes a system of cooperative federalism that sets specific roles for EPA and the states. In this system, EPA provides national leadership and sets national standards for environmental protection, such as the NAAQS. Under CAA section 110, states have broad discretion to choose the mix of emission limitations and other control measures, means, or techniques that they will implement (or update) through a SIP to provide for attainment and maintenance of the NAAQS. EPA's role, with respect to a SIP revision, is focused on reviewing the submission to determine whether it meets the minimum criteria of the CAA, including a requirement to adopt a PSD program. Where a SIP revision meets the minimum CAA criteria, EPA must approve the submission. When approving a SIP revision, the Agency is not establishing its own requirements for the state to implement.

Regarding the Commenter's suggestion to allow small businesses additional time to meet the rules, as explained above, EPA's role is focused on reviewing the submission to determine whether it meets the minimum criteria of the CAA and must approve submissions that do. As such, EPA cannot unilaterally adopt a different deadline for compliance with the State's PSD rules if they conform to the CAA requirements. As explained above and in the NPRM, Mississippi is updating its incorporation date for the federal PSD rules at 40 CFR 52.21 from February 17, 2016, to December 27, 2023. The changes to the State's SIP are consistent with changes to the federal PSD rules that occurred between February 17, 2016, and December 27, 2023, and therefore conform to CAA PSD regulations.

The Commenter states that small businesses might have a hard time paying for the changes needed to follow these new rules, and suggests helping these businesses by offering financial support so they can follow the rules without struggling. As noted above, the CAA delegates to states the primary role in implementation through SIPs to attain and maintain each NAAQS. EPA appreciates the concerns the Commenter expressed regarding compliance by smaller businesses. EPA notes that the changes to Mississippi's PSD program do not change the universe of sources subject to preconstruction review under the program. EPA also notes that the PSD regulations have required the use of Appendix W modeling guidelines for decades, and that the Agency emphasized that air quality modeling should utilize the most advanced practical technology that is available at a reasonable cost to users when adopting the 2017 revisions to Appendix W. See82 FR 5182, 5185 (January 17, 2017).

Therefore, while EPA has considered this feedback on the proposed rule, EPA has determined that the proposed SIP revision is consistent with the requirements of the CAA and is not altering its decision to proceed with the finalization of this action. Consequently, EPA is approving this revision to the Mississippi's SIP.

III. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I of this preamble, EPA is finalizing the incorporation by reference of Mississippi Rules 11 MAC, Part 2, Chapter 2, Rules 2.5B(1) and B(2), Application Review; 11 MAC, Part 2, Chapter 5, Rule 5.1, Purpose of this regulation; Rule 5.2, Adoption of Federal Rules by Reference; Rule 5.3, Definition of term “Administrator”; Rule 5.4, Adoption of Federal Rules for Exclusions from Increment Consumption; Rule 5.6, Applicability; and Rule 5.7, Public Participation, all of which are State effective on March 24, 2024. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

IV. Final Action

EPA is approving the aforementioned changes to 11 MAC Part 2, Chapter 2, Rule 2.5B(1) and B(2), Application Review; 11 MAC, Part 2, Chapter 5, Rule 5.1, Purpose of this regulation; Rule 5.2, Adoption of Federal Rules by Reference; Rule 5.3, Definition of term “Administrator”; Rule 5.4, Adoption of Federal Rules for Exclusions from Increment Consumption; Rule 5.6, Applicability; and Rule 5.7, Public Participation. EPA is approving these changes because they are consistent with EPA's federal PSD permitting regulations and the CAA. In addition, EPA is converting the conditional approval portions of the 2015 8-hour ozone NAAQS iSIP that address the PSD related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), and the modeling requirements of 110(a)(2)(K) to a full approval.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See42 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 Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• 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.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rulemaking does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

Mississippi did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for communities with EJ concerns.

This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. 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 December 30, 2024. 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).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

1. The authority citation for part 52 continues to read as follows:

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

2. In § 52.1270(c), Table 1 to Paragraph (c) is amended:

a. Under the heading “11 MAC Part 2—Chapter 2 Permit Regulations for the Construction and/or Operation of Air Emissions Equipment” by revising the entry for “Rule 2.5”,

b. Under the heading “11 MAC Part 2—Chapter 5 Regulations for the Prevention of Significant Deterioration of Air Quality” by revising the entries for “Rule 5.1” and “Rule 5.2”, and adding entries for “Rule 5.3”, “Rule 5.4”, “Rule 5.5”, “Rule 5.6”, and “Rule 5.7”.

The revisions and additions read as follows:

(c) * * *