Rule2021-21562
Air Plan Approval; MS; BART SIP and Regional Haze Progress Report
Primary source
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Published
October 6, 2021
Effective
November 5, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving two Mississippi State Implementation Plan (SIP) revisions from the Mississippi Department of Environmental Quality (MDEQ) dated October 4, 2018, and August 13, 2020. The October 4, 2018, SIP revision contains the State's first periodic report describing progress towards reasonable progress goals (RPGs) established for regional haze and contains the associated determination that the State's regional haze SIP is adequate to meet these RPGs for the first implementation period (Progress Report). The August 13, 2020, SIP revision addresses best available retrofit technology (BART) determinations for 14 electric generating units (EGUs) (BART SIP). These EGUs were initially addressed in EPA's prior limited approval and limited disapproval actions on Mississippi's regional haze SIP because of deficiencies arising from the State's reliance on the Clean Air Interstate Rule (CAIR) to satisfy certain regional haze requirements. EPA is approving the BART SIP and finds that it corrects the deficiencies that led to the limited approval and limited disapproval of the State's regional haze SIP. EPA is therefore withdrawing the limited disapproval of Mississippi's regional haze SIP and replacing the prior limited approval with a full approval of the regional haze SIP as meeting all regional haze requirements of the Clean Air Act (CAA or Act) for the first implementation period. EPA is also approving the Progress Report and associated adequacy determination.
Full Text
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<title>Federal Register, Volume 86 Issue 191 (Wednesday, October 6, 2021)</title>
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[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Rules and Regulations]
[Pages 55501-55509]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21562]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0447; FRL-9006-02-R4]
Air Plan Approval; MS; BART SIP and Regional Haze Progress Report
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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[[Page 55502]]
SUMMARY: The Environmental Protection Agency (EPA) is approving two
Mississippi State Implementation Plan (SIP) revisions from the
Mississippi Department of Environmental Quality (MDEQ) dated October 4,
2018, and August 13, 2020. The October 4, 2018, SIP revision contains
the State's first periodic report describing progress towards
reasonable progress goals (RPGs) established for regional haze and
contains the associated determination that the State's regional haze
SIP is adequate to meet these RPGs for the first implementation period
(Progress Report). The August 13, 2020, SIP revision addresses best
available retrofit technology (BART) determinations for 14 electric
generating units (EGUs) (BART SIP). These EGUs were initially addressed
in EPA's prior limited approval and limited disapproval actions on
Mississippi's regional haze SIP because of deficiencies arising from
the State's reliance on the Clean Air Interstate Rule (CAIR) to satisfy
certain regional haze requirements. EPA is approving the BART SIP and
finds that it corrects the deficiencies that led to the limited
approval and limited disapproval of the State's regional haze SIP. EPA
is therefore withdrawing the limited disapproval of Mississippi's
regional haze SIP and replacing the prior limited approval with a full
approval of the regional haze SIP as meeting all regional haze
requirements of the Clean Air Act (CAA or Act) for the first
implementation period. EPA is also approving the Progress Report and
associated adequacy determination.
DATES: This rule is effective November 5, 2021.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2019-0447. All documents in the docket
are listed on the <a href="http://www.regulations.gov">www.regulations.gov</a> website. Although listed in the
index, some information may not be 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 can either
be retrieved electronically through <a href="http://www.regulations.gov">www.regulations.gov</a> or in hard copy
at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air and Radiation 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: Michele Notarianni, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Notarianni can be
reached via telephone at (404) 562-9031 or electronic mail at
<a href="/cdn-cgi/l/email-protection#523c3d2633203b333c3c3b7c3f3b313a373e37123722337c353d24"><span class="__cf_email__" data-cfemail="ddb3b2a9bcafb4bcb3b3b4f3b0b4beb5b8b1b89db8adbcf3bab2ab">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
A. Regional Haze
Regional haze is visibility impairment that is produced by a
multitude of sources and activities which are located across a broad
geographic area and emit fine particulate matter (PM<INF>2.5</INF>)
(e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil
dust) and their precursors (e.g., sulfur dioxide (SO<INF>2</INF>),
nitrogen oxides (NO<INF>X</INF>), and in some cases, ammonia
(NH<INF>3</INF>) and volatile organic compounds (VOC)). Fine particle
precursors react in the atmosphere to form PM<INF>2.5</INF> which
impairs visibility by scattering and absorbing light. Visibility
impairment (i.e., light scattering) reduces the clarity, color, and
visible distance that one can see. PM<INF>2.5</INF> can also cause
serious health effects (including premature death, heart attacks,
irregular heartbeat, aggravated asthma, decreased lung function, and
increased respiratory symptoms) and mortality in humans and contributes
to environmental effects such as acid deposition and eutrophication.
In section 169A of the 1977 Amendments to the CAA, Congress created
a program for protecting visibility in the nation's national parks and
wilderness areas. This section of the CAA establishes as a national
goal the prevention of any future, and the remedying of any existing,
anthropogenic impairment of visibility in 156 national parks and
wilderness areas designated as mandatory Class I federal areas.
Congress added section 169B to the CAA in 1990 to further address
regional haze issues, and EPA subsequently promulgated the Regional
Haze Rule (RHR).\1\ The RHR established a requirement to submit a
regional haze SIP which applies to all 50 states, the District of
Columbia, and the Virgin Islands.\2\ Each jurisdiction was required to
submit a SIP addressing regional haze requirements for the first
implementation period no later than December 17, 2007.\3\
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\1\ See 64 FR 35713 (July 1, 1990).
\2\ See 40 CFR 51.300(b).
\3\ See 40 CFR 51.308(b).
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B. BART
Section 169A of the CAA directs states to evaluate the use of
retrofit controls at certain larger, often uncontrolled, older
stationary sources in order to address visibility impacts from these
sources. Specifically, section 169A(b)(2) of the CAA requires states to
revise their SIPs to contain such measures as may be necessary to make
reasonable progress towards natural visibility conditions, including a
requirement that certain categories of existing major stationary
sources built between 1962 and 1977 procure, install, and operate
``Best Available Retrofit Technology'' as determined by the state. On
July 6, 2005, EPA published the Guidelines for BART Determinations
Under the Regional Haze Rule at Appendix Y to 40 CFR part 51 (BART
Guidelines) to assist states in the BART evaluation process. Under the
RHR and the BART Guidelines, the BART evaluation process consists of
three steps: (1) An identification of all BART-eligible sources, (2) an
assessment of whether the BART-eligible sources are subject to BART,
and (3) a determination of the BART controls.\4\ States must conduct
BART determinations for all BART-eligible sources that may reasonably
be anticipated to cause or contribute to any visibility impairment in a
Class I area, or in the alternative, adopt an emissions trading program
or other alternative program as long as the alternative provides
greater reasonable progress towards improving visibility than BART. In
making a BART determination for a fossil fuel-fired electric generating
plant with a total generating capacity in excess of 750 megawatts, a
state must use the approach set forth in the BART Guidelines. A state
is generally encouraged, but not required, to follow the BART
Guidelines in other aspects.
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\4\ See 40 CFR 51.308(e); BART Guidelines, section I.F.
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On September 22, 2008, Mississippi submitted a SIP revision to
address regional haze in Class I areas impacted by emissions from the
State and subsequently amended that submittal on May 9, 2011. EPA
finalized a limited approval and a limited disapproval of Mississippi's
regional haze SIP in June 2012 because of deficiencies in the regional
haze SIP arising from the
[[Page 55503]]
State's reliance on CAIR as an alternative to BART for the State's
BART-eligible EGUs.\5\ See 77 FR 38191 (June 27, 2012) (limited
approval); 77 FR 33642 (June 7, 2012) (limited disapproval). In the
limited disapproval action, EPA did not subject Mississippi to a
Federal Implementation Plan (FIP). Mississippi had requested that EPA
not issue a FIP and instead provide the State with additional time to
correct the deficiencies in its regional haze SIP through a SIP
revision.\6\
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\5\ The State's analysis of reasonable progress controls was not
dependent on CAIR, and thus, was not affected by CAIR's
invalidation. See 77 FR 11879, 11888 (February 28, 2012) (finding
that no controls were necessary for reasonable progress given the
areas of influence and consultation with neighboring states).
\6\ See 77 FR 33654.
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Through a letter dated April 23, 2020,\7\ Mississippi submitted a
draft SIP revision addressing BART for 14 EGUs formerly subject to CAIR
(draft BART SIP) to EPA for parallel processing and provided public
notice for comment on the same date. The State's public comment period
closed on May 23, 2020. Mississippi submitted its final BART SIP to EPA
on August 13, 2020.
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\7\ EPA received MDEQ's April 23, 2020, draft BART SIP on April
24, 2020.
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C. Regional Haze Progress Report
The RHR requires each state to submit progress reports that
evaluate progress towards the RPGs \8\ for each mandatory Class I area
within the state and for each Class I area outside the state which may
be affected by emissions from within the state. See 40 CFR 51.308(g).
In addition, the provisions of 40 CFR 51.308(h) require each state to
submit, at the same time as each progress report, a determination of
the adequacy of the state's existing regional haze plan. The first
progress report is due five years after submittal of the initial
regional haze plan and must be submitted as a SIP revision. Mississippi
submitted its progress report for the first implementation period and a
determination of the adequacy of the State's existing regional haze
plan to EPA on October 4, 2018.\9\
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\8\ An RPG is a visibility goal for a Class I area, in deciviews
(dv), as of the end of an implementation period, that provides for
reasonable progress towards achieving natural visibility conditions.
There are two RPGs for each Class I area for an implementation
period: one for the most impaired days and one for the clearest
days.
\9\ EPA received Mississippi's Progress Report on October 15,
2018.
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D. EPA's Notice of Proposed Rulemaking (NPRM)
In a NPRM published on August 4, 2020 (85 FR 47134), EPA proposed
to approve Mississippi's draft BART SIP via parallel processing.
Contingent on the Agency finalizing its proposal to approve the BART
SIP, EPA also proposed to approve the Progress Report under 40 CFR
51.308(g) and the State's determination of adequacy under 40 CFR
51.308(h). The details of these submissions and the rationale for EPA's
proposed approval of the two submissions are further explained in the
NPRM. Subsequently, Mississippi submitted its final BART SIP on August
13, 2020, and EPA has concluded that there are no significant changes
between the draft and final BART SIPs that warrant a different approach
at the final rule stage.\10\
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\10\ The changes between the draft and final BART SIP
submissions include: Different transmittal letters, proof of
adoption in the final BART SIP dated August 13, 2020, and the
addition of Appendix M: Comments and Responses to provide a summary
of responses to public comments and EPA's comments. In response to
EPA comments, MDEQ made changes which expanded on Appendix R in the
Table of Contents, clarified the emissions units in Table 2, updated
the values in Table L.2.3, and added the source of the data used in
Tables L.2.2, L.5.2, L.6.2, and L.7.2. The final BART SIP satisfies
the completeness criteria in 40 CFR part 51, Appendix V.
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The comment period for the NPRM originally closed on September 3,
2020. EPA reopened the comment period until October 5, 2020, based on a
request from Sierra Club for visibility modeling files related to the
NPRM and for a 30-day extension.\11\
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\11\ See 85 FR 58319 (September 18, 2020).
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II. Response to Comments
EPA received one set of adverse comments from Sierra Club and the
National Parks Conservation Association (hereinafter collectively
referred to as the ``Commenter'') regarding the proposed approval of
Mississippi's BART SIP. These comments are included in the docket for
this rulemaking. EPA has summarized the comments and provided responses
below.\12\
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\12\ EPA did not receive any adverse comments on the Agency's
proposed approval of the Progress Report.
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Comment 1: The Commenter asserts that EPA cannot approve
Mississippi's BART SIP because neither the Agency nor the State
reviewed the visibility modeling used to exempt every EGU in
Mississippi from BART. The Commenter then focuses on Mississippi Power
Company--Plant Daniel (Plant Daniel), claiming that EPA admits it has
not verified the visibility modeling analyses for this facility and
that EPA could not have verified the analyses because the Agency does
not possess any of the underlying modeling files. The Commenter also
argues that EPA violated CAA section 307(d) by failing to include the
modeling files in the rulemaking docket.
Response 1: EPA disagrees with the Commenter. In formulating the
NPRM, EPA had received from MDEQ all of the modeling files needed to
thoroughly review the visibility modeling analyses for all six
operational BART-eligible facilities,\13\ including Plant Daniel, to
assess whether these sources are subject to BART. For each facility,
EPA reviewed these modeling files as well as the BART exemption
modeling report included in the BART SIP, MDEQ's exemption analysis,
the modeling protocol for each facility,\14\ and the Visibility
Improvement State and Tribal Association of the Southeast (VISTAS)
Modeling Protocol.\15\ Based upon EPA's thorough review of these
documents and modeling files, the Agency proposed to approve the SIP
submission.
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\13\ The BART-eligible emissions units at Cooperative Energy
(formerly South Mississippi Electric Power Association)--Plant
Morrow (Plant Morrow) were permanently retired on November 17, 2018;
therefore, MDEQ did not perform visibility modeling analyses for the
facility. See Appendix L.4 of the BART SIP.
\14\ The modeling protocols for each of the six operational
facilities are included in Appendix L of the BART SIP.
\15\ The VISTAS states, including Mississippi, developed a
``Protocol for the Application of CALPUFF for BART Analyses''
(VISTAS BART Modeling Protocol). Mississippi, in coordination with
VISTAS, used this modeling protocol to apply CALPUFF to determine
whether individual sources in Mississippi were subject to BART. The
VISTAS BART Modeling Protocol, December 22, 2005, Revision 3.2
(August 31, 2006), is included in Appendix L.8 of the BART SIP. EPA
approved Mississippi's use of this modeling protocol in 2012. See 77
FR 11879, 11888-89 (February 28, 2012) (proposal) and 77 FR 38191
(June 27, 2012) (final).
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The Commenter is correct that EPA does not possess the
meteorological data input files (meteorological files) used in the
modeling. However, this did not affect EPA's ability to meaningfully
review the SIP for several reasons. First, MDEQ provided EPA with all
of the other input and output files used in the visibility modeling.
The Agency, by analyzing the model input and output files that MDEQ did
provide, was able to confirm that the modeling used the correct
meteorological data and VISTAS meteorological domain.\16\ Thus, EPA did
not need to review the meteorological files.
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\16\ One of the CALPUFF model output files identifies, among
other things, the names of the meteorological data files, format of
the files (binary), data years, coordinate system, meteorological
grid cell spacing (four kilometers as specified by the VISTAS
modeling protocol), and the number of vertical layers used in the
meteorological input files.
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Second, the meteorological files used here were standard files
originally developed for VISTAS. They were used
[[Page 55504]]
by the states in Region 4 to support their regional haze SIPs during
the first implementation period and continue to be used by many
facilities in the southeastern United States for major source
preconstruction permit modeling. To date, EPA has already approved
numerous SIPs relying on the same files. Thus, these were not new data
files specifically developed by these BART-eligible sources that would
merit additional scrutiny.
Third, to the extent the Commenter thinks that EPA should
scrutinize the meteorological files every time it reviews visibility
modeling conducted for a haze SIP, EPA disagrees. The Act vests the
Agency with discretion in reaching its technical determinations as well
as in how to best marshal its limited resources to meet statutory
mandates. Based on EPA's long experience with visibility and
preconstruction permit modeling, the Agency generally does not believe
that re-assessing standard meteorological files every time they are
used by a state or source is the best use of scarce Agency resources.
Furthermore, the Commenter has not alleged, much less demonstrated, any
deficiency with the meteorological files.
EPA also disagrees with Commenter's claim that EPA violated CAA
section 307(d) by not placing the modeling files in the docket. To
begin with, CAA section 307(d) does not apply to this SIP action at
all. See CAA section 307(d)(1) (expressly listing actions to which CAA
section 307(d) applies and not including SIPs). Thus, the Commenter's
claim lacks merit.
In any event, the Commenter does not and cannot claim any prejudice
as a result of the alleged deficiency. EPA did not post the modeling
files to the electronic docket for the proposed rulemaking because the
majority of these files are a file type that is not on the list of
acceptable file types for upload into the Federal Docket Management
System (FDMS).\17\ However, the NPRM provided EPA contacts that the
public could reach out to for further information, and the Commenter
requested the input files for Plant Daniel from the listed EPA contacts
during the initial 30-day public comment period. EPA promptly provided
the Commenter with all the files in its possession and worked with MDEQ
to obtain the meteorological files. Due to the limited amount of time
remaining in the comment period after the Commenter received the
meteorological files, the Commenter requested an extension of the
comment period for an additional 30 days. EPA granted the request,
affording the Commenter ample time to review the files and perform its
own modeling.\18\
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\17\ There are two files related to the BART SIP modeling that
are technically compatible with FDMS (which is the interface for
federal employees to upload files to display at <a href="http://www.regulations.gov">www.regulations.gov</a>)
but were not posted to the electronic docket. EPA did not upload
these two files to FDMS because they are integral to the entire set
of modeling files and therefore are maintained with the remaining
modeling files. The Agency's management of the BART SIP modeling
files is consistent with Region 4's standard practice.
\18\ See 85 FR 58319 (September 18, 2020). The Commenter did not
allege any errors in the modeling input files other than the
NO<INF>X</INF> and SO<INF>2</INF> emission rates and used all of the
input files (with revisions to the NO<INF>X</INF> and SO<INF>2</INF>
emissions rates as noted in Exhibit A to its comments) in its
modeling. The NO<INF>X</INF> and SO<INF>2</INF> emissions rates,
moreover, were included in Appendix L.3 of the BART SIP which was
part of the docket at the time of the proposal. See also Comments
and Responses 2 and 3 for additional information and analysis
regarding the NO<INF>X</INF> and SO<INF>2</INF> emissions rates.
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Comment 2: The Commenter states that EPA cannot approve MDEQ's
determination that Plant Daniel is not subject to BART because that
determination is based on unenforceable emissions reductions and an
unjustified 2015-2018 emissions baseline in lieu of the 2001-2003
baseline the Commenter prefers. The Commenter advances several
supporting arguments. First, the Commenter contends that the BART SIP
must contain enforceable BART emission limitations for the facility
pursuant to CAA sections 110(a)(2) and 110(k)(3), section 51.308(d)(3)
of the RHR, and sections IV and V of the BART Guidelines.
Second, citing to section IV.D.4.d of the BART Guidelines, the
Commenter asserts that the emissions baseline should represent a
realistic depiction of anticipated annual emissions and, if a utility
projects that future operating parameters will differ from past
practice and the projection has a deciding effect in the BART
determination, those operating parameters or assumptions must be
enforceable limitations in the SIP. The Commenter then argues that the
baseline used in the Plant Daniel BART modeling analysis is improper
because it accounts for flue gas desulfurization (FGD) systems on Units
1 and 2 that are not associated with federally enforceable emission
limitations commensurate with BART. The Commenter states that MDEQ's
email regarding the enforceability of the FGD emissions limitations
identified in Plant Daniel's title V permit application is focused
solely on SO<INF>2</INF> and is conclusory, vague, unenforceable, and
insufficient to create an enforceable emissions limit for determining
whether Plant Daniel is subject to BART.
Third, the Commenter further asserts that the baseline used in
Plant Daniel's modeling is improper because it is inconsistent with the
RHR's provision regarding baseline visibility conditions and the
facility's potential emissions. According to the Commenter, the RHR
requires states to determine baseline visibility conditions using a
2000-2004 emissions baseline and it is nonsensical to use a baseline
from nearly two decades later.
Finally, the Commenter also claims that the 2015-2018 baseline is
arbitrary and capricious as it does not realistically depict potential
impacts from Plant Daniel because the facility's capacity factor has
steadily dropped since 2015. The Commenter argues that the emissions
reductions due to this reduced capacity are not enforceable, and
therefore, should not serve as the emissions baseline for the purposes
of determining whether the facility is subject to BART.
Response 2: EPA disagrees with the Commenter. The CAA, RHR, and
BART Guidelines do not require the result the Commenter seeks. Under
the CAA's cooperative federalism framework, states have the primary
responsibility for implementing federal standards by promulgating SIPs,
and EPA must approve SIP revisions that meet CAA requirements. The CAA
and RHR require states to classify a BART-eligible source as a BART-
subject source if it may reasonably be anticipated to cause or
contribute to any impairment of visibility in any mandatory Class I
federal area, but they do not set forth any specific, additional
criteria for determining whether a source is subject to BART.\19\ For
states that do not choose to treat all BART-eligible sources as BART-
subject sources, section III of the BART Guidelines provides
recommendations on how to determine which BART-eligible sources are
subject to BART. The recommendations address, among other things, how
to establish a contribution threshold, what kind of modeling to use,
how to develop a modeling protocol, and the selection of an emissions
baseline for states such as Mississippi that opt to use an individual
source attribution approach. They do not, however, recommend or require
that the emissions baseline correspond to enforceable limitations.
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\19\ See CAA section 169A; 40 CFR 51.308(e).
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Here, Mississippi used the 24-hour average actual emission rate
from the highest emitting day over a three-year period from 2015 to
2018, after the source installed new control equipment for
SO<INF>2</INF>. As explained further below, EPA believes this was a
reasonable
[[Page 55505]]
choice. More generally, EPA has reviewed Mississippi's BART exemption
determination for Plant Daniel and concluded that Mississippi
reasonably exercised the discretion provided by the CAA and RHR.
Therefore, EPA must approve Mississippi's BART SIP revision as it
relates to Plant Daniel.\20\
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\20\ EPA generally treats all of the Commenter's comments
regarding the subject-to-BART determinations as going to the
application of the CAA, RHR, and BART Guidelines in this SIP action.
To the extent the Commenter is trying to collaterally attack the RHR
or BART Guidelines themselves, those challenges are all beyond the
scope of this rulemaking. See Sierra Club v. EPA, 939 F.3d 649, 678-
79 (5th Cir. 2019), reh'g denied (Dec. 9, 2019).
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EPA now addresses and rejects the Commenter's supporting arguments.
First, contrary to the Commenter's assertions, the CAA, RHR, and the
BART Guidelines do not require a subject-to-BART determination to be
based on enforceable emissions limits or reductions. The CAA sections
cited by the Commenter are general SIP provisions that do not
specifically address subject-to-BART determinations. Section
110(a)(2)(A) generally requires a SIP to contain enforceable
limitations and other control measures to meet the applicable
requirements of the Act. As the Commenter notes, this obligation only
applies with respect to measures that are ``necessary or appropriate to
meet the applicable requirements'' of the Act, but the provision does
not otherwise define the scope of the applicable requirements to which
it applies.
The portion of sections 110(a)(2)(C) that the Commenter refers to
requires states to demonstrate, in developing infrastructure SIPs, that
the state has statutes, regulations, or other provisions that provide
for the enforcement of emission limitations included in the SIP
pursuant to other applicable requirements of the Act.\21\ Similarly,
section 110(a)(2)(E) requires that states have adequate personnel,
funding, and authority to adequately implement the provisions of the
SIP that are included pursuant to other applicable requirements of the
Act.\22\ The Commenter has not alleged that the State provides
inadequate enforcement or implementation of its existing SIP
provisions.
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\21\ Memorandum from Stephen D. Page, Director of Office of Air
Quality Planning and Standards, to Regional Air Directors, Regions
1-10, ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' pp.
23-24 (Sept. 13, 2013).
\22\ Id. at pp. 39-44. The Commenter's citation to the language
from section 110(a)(2)(E) requiring the State to bear
``responsibility for ensuring adequate implementation'' of the SIP
is particularly inapt as that language refers to specific
circumstances where the state relies on a local or regional
government, agency, or instrumentality for the implementation of a
particular SIP provision. The Commenter has not alleged that the
State has abdicated this responsibility in any way.
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Section 110(k)(3) requires EPA to approve SIP revisions that meet
all applicable requirements of the Act, but it also does not define the
parameters of the applicable requirements of the Act. In fact, none of
these sections address whether SIPs must contain enforceable limits to
support subject-to-BART determinations. To the contrary, CAA section
169A(b)(2) directly addresses this issue and requires SIP limits only
for BART-eligible sources that ``may reasonably be anticipated to cause
or contribute to any impairment of visibility'' in a Class I area.
These sources are ``subject to BART.'' See 40 CFR 51.308(e)(1)(ii); see
also BART Guidelines at section III (providing guidelines for
determining which sources are subject to BART). For these sources, the
State must conduct a BART determination and impose SIP limits
representing BART. See CAA section 169A(b)(2); 40 CFR 51.308(e),
(e)(1)(ii). Conversely, a source that is not reasonably anticipated to
cause or contribute to visibility impairment is not subject to BART,
and there is thus no need for either a BART determination or
corresponding enforceable emission limits. As the NPRM and this final
rulemaking notice explain, Plant Daniel is not subject to BART, and
therefore, does not need enforceable limits that represent BART.
The provisions of the RHR and BART Guidelines cited by the
Commenter are also inapplicable because they only address sources that
are subject to BART. The Commenter cites generally to 40 CFR
51.308(d)(3), which requires each regional haze SIP to contain a long-
term strategy (LTS). The LTS is the compilation of all control measures
a state will use during the implementation period of the SIP submittal
to meet any applicable RPGs. Although the LTS must include BART
emissions limits, Plant Daniel is not subject to BART. Thus, Plant
Daniel does not have any BART emissions limits that must be included in
the LTS. See 40 CFR 51.308(e), (e)(1)(ii) (requiring limits
representing BART only for sources that are subject to BART).
Similarly, the Commenter's reliance on sections IV and V of the
BART Guidelines is misplaced. Section IV of the BART Guidelines
addresses BART determinations (i.e., the analysis of BART options for
subject-to-BART sources). Section V addresses how enforceable limits
reflecting BART are to be established. Both sections, however, deal
specifically with sources that are subject to BART. Plant Daniel, as
already noted, is not subject to BART, and thus, these sections of the
BART Guidelines are inapposite. By contrast, section III, which the
Commenter conspicuously neglects to cite, specifically addresses how to
determine whether a source is subject to BART and recommends the use of
actual, not enforceable, emissions levels.
The Commenter's allegations regarding section IV.D.4.d of the BART
Guidelines is misplaced for the same reason. As just explained, that
portion of the Guidelines only applies to sources that are subject to
BART, and Plant Daniel is not subject to BART. In addition, even if
section IV.D.4.d of the BART Guidelines was applicable to subject-to-
BART determinations, it would not preclude the baseline approach used
for Plant Daniel because that baseline relies on past actual emissions
from 2015-2018, not on future operating parameters. See 82 FR 60520,
60533-34 (December 21, 2017) (explaining that use of recent actual
emissions data is consistent with BART Guidelines section IV.D.4.d);
Nat'l Parks Conservation Ass'n v. EPA, 788 F.3d 1134, 1143 (9th Cir.
2015) (upholding EPA's use of 2008-2010 emissions notwithstanding the
lack of corresponding enforceable limitations because they reflected
``a realistic depiction of anticipated annual emissions for the
source'').
The Commenter's assertion that the Plant Daniel subject-to-BART
evaluation must use a 2000-2004 emissions baseline is also based on
inapplicable provisions of the RHR. The 2000-2004 period established in
40 CFR 51.308(d)(2)(i) is the baseline for purposes of measuring
reasonable progress at Class I areas. Neither the RHR nor the BART
Guidelines requires the use of this particular timeframe as the
baseline for a subject-to-BART determination.
Finally, EPA disagrees that Mississippi's use of the 2015-2018
baseline for Plant Daniel was arbitrary and capricious. The three-year
period relied on by the State, from October 1, 2015, through September
30, 2018, was a reasonable exercise of discretion for three reasons.
First, while the Commenter takes issue with the potential for an
increased annual capacity factor in the future, the visibility modeling
is not based on the annual capacity factor, but rather based on the
maximum daily emissions over a three-year time period. The model is run
for every day over a three-year period using the same maximum day
emissions. Based on these daily model
[[Page 55506]]
results, the model estimates the 98th percentile highest visibility
impacts for each year. Then, the highest of the three yearly 98th
percentile impacts, or the 22nd highest visibility impact over the
three years, whichever is more conservative, is compared to the state's
BART contribution threshold, which is 0.5 dv for Mississippi. Since the
highest daily emissions are used for each day in the modeling, the
Commenter fails to allege how an increase in capacity factor here would
affect the maximum daily emissions or the visibility modeling results.
In any event, the Commenter's suggestion that emissions might increase
in the future is beside the point; as already noted, the BART
Guidelines specifically recommend the use of past actual emissions
data.
Second, the emissions data used was from the most recent three
years when the modeling was conducted. That is, the source did not
cherry pick data from three years of low emissions, but simply used the
most recent data from after the FGD was installed and operating.
Third, prior to the start of the modeled period, the facility had
installed control equipment for the purposes of complying with legal
requirements outside of the regional haze program. Specifically, Plant
Daniel installed low NO<INF>X</INF> burners on Units 1 and 2 in 2008
and 2010, respectively, to ensure compliance with CAIR,\23\ and later
installed FGD on these units in 2015 to comply with EPA's Mercury and
Air Toxics Standards (MATS). Plant Daniel's federally-enforceable title
V permit \24\ requires compliance with MATS \25\ and applicable New
Source Performance Standard (NSPS) \26\ emissions limits for
SO<INF>2</INF>, and Acid Rain Program \27\ and applicable NSPS \28\
emissions limits for NO<INF>X</INF>.\29\ The operation of the above
equipment has resulted in significant emissions reductions that reduced
visibility impacts at the Breton Wilderness Area (Breton). The State
chose to use an emissions baseline with data beginning shortly after
the most recent emission control equipment, FGD, was installed. EPA is,
moreover, not aware of evidence that any of these controls will be
removed in the future.
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\23\ See the Prevention of Significant Determination permit
applications dated May 4, 2009, and January 22, 2008, for Plant
Daniel Units 1 and 2, respectively, at page 1 of the ``APPLICATION
OVERVIEW'' section (page 3 of the pdf file) for each application.
These applications are included in the docket for this rulemaking.
\24\ MDEQ issued a title V permit to Plant Daniel containing
MATS limits on December 31, 2020, after publication of the NPRM. See
State of Mississippi Air Pollution Control Title V Permit No. 1280-
00090 (Plant Daniel Title V Permit) which is included in the docket
for this rulemaking. The Commenter's arguments regarding the
enforceability of the title V permit application are therefore moot.
\25\ The permit requires compliance with a SO<INF>2</INF>
alternative emissions limit under MATS for hydrochloric acid of 0.20
pounds of SO<INF>2</INF> per million British thermal units (lbs/
MMBtu) (input based) or 1.5 lbs/megawatt-hour (output based)
(rolling 30-boiler operating day average) for Units 1 and 2. See
Plant Daniel Title V Permit Section 3.B.11 (citing 40 CFR
63.9991(a)(1), 63.10000(a) and (b), and Table 2, subpart UUUUU).
\26\ The permit requires compliance with a SO<INF>2</INF> limit
of 1.2 lbs/MMBtu heat input when firing coal alone or with wood
residue or a <=ng/J value obtained from the equation in Condition
3.B.8 when firing a combination of fuels (rolling 3-hour average)
for Units 1 and 2. See id. at Section 3.B.8 (citing 40 CFR
60.43(a)(2) and (b), subpart D). The permit also requires compliance
with the applicable requirements of 40 CFR part 60, subparts A and D
regarding SO<INF>2</INF> (Section 3.B.5) and SO<INF>2</INF>
allowances for Units 1 and 2 under the Acid Rain Program (Sections
3.B.35, 8, and Appendix C (citing 40 CFR parts 72-78)).
\27\ Under the permit's Acid Rain Program conditions,
NO<INF>X</INF> emissions from Units 1 and 2 shall not exceed the
annual average alternative contemporaneous emission limitation of
0.45 lbs/MMBtu, Unit 1 has an annual heat input limit of 20,000,000
MMBtu, and Unit 2 has an annual heat input limit of 15,000,000
MMBtu. See id. at Sections 3.B.35, 8, and Appendix C (citing 40 CFR
parts 72-78).
\28\ The permit requires compliance with a NO<INF>X</INF>
(expressed as nitrogen dioxide) limit of 0.70 lbs/MMBtu heat input
when firing coal alone or with wood residue or <=ng/J value obtained
from the equation in Condition 3.B.9 when firing a combination of
fuels (rolling 3-hour average) for Units 1 and 2. See id. at Section
3.B.9 (citing 40 CFR 60.44(a)(3) and (b), subpart D). The permit
also requires compliance with the applicable requirements of 40 CFR
part 60, subparts A and D regarding NO<INF>X</INF>. See id. at
Section 3.B.5.
\29\ The permit also requires compliance with the Cross-State
Air Pollution Rule (CSAPR) NO<INF>X</INF> Ozone Group 2 Trading
Program. See id. at Sections 3.B.36 and 9.
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Given the above facts, EPA believes the State's decision to use the
more recent baseline was reasonable. Cf. Nat'l Parks Conservation Ass'n
v. EPA, 788 F.3d 1134, 1143 (9th Cir. 2015) (approving EPA's decision
to rely on a more recent, albeit unenforceable, emissions baseline in
determining BART where there was ``no reason to believe that [the
source] would change course and remove the additional combustion
controls it had already installed'').
Comment 3: The Commenter contends that the modeling underlying the
Plant Daniel BART exemption analysis demonstrates that the source
should be subject to BART using a corrected emissions baseline. The
Commenter asserts that Plant Daniel excluded several days in May and
November 2017 with high SO<INF>2</INF> emissions from the emissions
baseline on the grounds that they were attributable to startup,
shutdown, and malfunction (SSM) events. The Commenter claims that these
days should have been included in the modeling baseline because they
are not associated with SSM events and are not identified in the
facility's MATS compliance reports.
The Commenter conducted its own BART exemption modeling for Units 1
and 2 at Plant Daniel using emissions input data from 2015-2018 that
includes the excluded days. Using the revised emissions input data, the
existing modeling protocol, and the 2001-2003 meteorological modeling
inputs, the Commenter's revised CALPUFF modeling predicts that the
visibility impact at Breton from Units 1 and 2 at Plant Daniel using
the 8th highest (98th percentile) day is 0.55 dv, exceeding
Mississippi's 0.5 dv subject-to-BART contribution threshold. According
to the Commenter, the modeling results also show that visibility
impairment due to Plant Daniel during most of the high impact days is
dominated by nitrates which underscores the need to evaluate
NO<INF>X</INF> BART for the facility. The Commenter also ran the model
using emissions from 2001-2003 and concluded that the modeled
visibility impact using the 8th highest day from Units 1 and 2 exceeds
2.5 dv at Breton.
Response 3: EPA does not agree that the emissions baseline used in
the BART modeling needs to be corrected as suggested by the Commenter.
Although the Commenter is correct that certain excluded high-emission
days were not associated with SSM, the State nonetheless reasonably
excluded these days because they did not ``reflect steady-state
operating conditions during periods of high capacity utilization.''
\30\ Rather, the source was temporarily testing new coal blends on
these days, and thus, experienced atypical and higher than normal
emissions during this time.\31\
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\30\ See BART Guidelines, section III.
\31\ See the file named ``Plant Daniel Regional Haze BART Info
Request-Response'' (Plant Daniel Information Response) attached to
MDEQ's December 9, 2020, email to EPA. The email and attachment are
included in the docket for this rulemaking.
---------------------------------------------------------------------------
Regarding the excluded days in May and November 2017 referenced by
the Commenter, the BART SIP does not identify these dates as SSM. The
BART modeling protocol for Plant Daniel, located in Appendix L.3.2 of
the BART SIP, states that the modeled emissions excluded ``startup,
shutdown, or other nonrepresentative operations, etc.'' as identified
in Appendix E of the protocol. Table E-1 of the protocol, titled
``Summary of Days with Nonrepresentative Emissions,'' lists the days
between October 1, 2015, to September 30, 2018, with periods of
nonrepresentative operations and
[[Page 55507]]
describes the nature of the operations. Dates associated with startups,
malfunctions, and shakedowns are marked accordingly whereas the
operations on the excluded days in May and November 2017 are described
as ``test burn/additional FGD pumps not in operation'' or ``test burn/
OFA damper not tuned'' (test burn days).\32\
---------------------------------------------------------------------------
\32\ See Appendix L.3.2.3 at p. E-2. Table E-1 on p. E-2 does
not include August 22, 2018, where data was substituted for two
hours (8:00-9:00 p.m. and 10:00-11:00 p.m.) for Unit 1. According to
EPA's Field Audit Checklist Tool (<a href="https://www.epa.gov/airmarkets/field-audit-checklist-tool-fact">https://www.epa.gov/airmarkets/field-audit-checklist-tool-fact</a>) these hours were associated with
startup.
---------------------------------------------------------------------------
EPA obtained clarification from Mississippi Power via MDEQ that the
company excluded the test burn days in May and November 2017 from the
model because they represent atypical operations, not SSM.\33\ On the
days in Table E-1 marked with a test burn entry, Plant Daniel tested
blending Powder River Basin subbituminous coal with Illinois Basin
bituminous coal to determine the effects of the test coal blends on
boiler operations and auxiliary equipment. In order to obtain baseline
data on the impacts of these test coal blends on unit operations, Plant
Daniel did not optimize the boiler, the emission controls, and the
auxiliary equipment for extended operation with these test blends. If
Plant Daniel were to use the test coal blends as part of normal
operations, the source avers that the boiler and auxiliary equipment
would be tuned appropriately, resulting in lower SO<INF>2</INF> and
NO<INF>X</INF> emission rates than those experienced during the tests.
---------------------------------------------------------------------------
\33\ See Plant Daniel Information Response.
---------------------------------------------------------------------------
The Commenter correctly noted that the source also did not identify
these days on its MATS compliance reports as test burn days. The MATS
compliance reporting asks facilities to answer, ``Did the facility burn
new types of fuel during the reporting period?'' and the source
answered ``No.'' This was because there was no change in fuel type.
MATS defines ``fuel type'' as ``each category of fuels that share a
common name or classification'' (e.g., bituminous coal, subbituminous
coal); \34\ Plant Daniel burns a blend of bituminous (West Elk) and
subbituminous (Powder River Basin) coal during normal operations; \35\
and the facility burned a blend of the same fuel types--bituminous and
subbituminous coal--on the test burn days. In other words, although the
source changed the coal blend it burned, it did not change the ``fuel
type'' as defined by MATS.
---------------------------------------------------------------------------
\34\ See 40 CFR 63.10042 (``Fuel type means each category of
fuels that share a common name or classification. Examples include,
but are not limited to, bituminous coal, subbituminous coal,
lignite, anthracite, biomass, and residual oil. Individual fuel
types received from different suppliers are not considered new fuel
types.'').
\35\ The MATS compliance reports provided by the Commenter list
bituminous and subbituminous coal and No. 2 fuel oil as the fuels
burned in Units 1 and 2.
---------------------------------------------------------------------------
Excluding the test burn days from the BART exemption modeling is
consistent with the BART Guidelines and the VISTAS BART Modeling
Protocol because they do not represent normal operations. The BART
Guidelines state that ``emissions estimates used in the models are
intended to reflect steady-state operating conditions during periods of
high capacity utilization.'' \36\ Although the Guidelines go on to
specifically discourage the use of emissions reflecting SSM, SSM is
only one example of an event that does not represent steady-state
operating conditions where ``such emission rates could produce higher
than normal effects than would be typical of most facilities.''
Further, the VISTAS BART Modeling Protocol states that ``source
emissions should be defined using the maximum 24-hour actual emission
rate during normal operation for the most recent 3 or 5 years'' for
CALPUFF modeling.\37\ The Plant Daniel modeling protocol in Appendix
L.3.2 of the BART SIP explains that the modeling excluded the days
identified in Table E-1 pursuant to the BART Guidelines because those
days included periods of nonrepresentative operations.\38\ Based on the
information submitted by Plant Daniel and MDEQ, EPA believes that MDEQ
reasonably concluded that the test burn days do not represent steady-
state operations, and thus, appropriately excluded them from the
modeling analysis consistent with EPA's BART Guidelines and the VISTAS
BART Modeling Protocol.
---------------------------------------------------------------------------
\36\ See BART Guidelines, Section III.A.3 (emphasis added)
(discussing the kind of modeling used to determine which sources and
pollutants need not be subject to BART).
\37\ See VISTAS BART Modeling Protocol at p. S-3 (emphasis
added) and p. 43.
\38\ See Appendix L.3.2.3 at p. E-2. The protocol also states
that a total of 25 out of 834 days (2.9 percent) were excluded for
SO<INF>2</INF> and 6 out of 834 days (0.7 percent) were excluded for
NO<INF>X</INF>. Id.
---------------------------------------------------------------------------
Regarding the Commenter's assertion that modeled visibility
impairment due to Plant Daniel at Breton is dominated by nitrates which
underscores the need to evaluate NO<INF>X</INF> BART, the dominance of
one visibility impairing pollutant over another at a Class I area is
irrelevant to a subject-to-BART determination. If the total modeled
visibility impairment from a source due to NO<INF>X</INF>,
SO<INF>2</INF>, and PM combined meets or exceeds Mississippi's BART
contribution threshold, the source is subject-to-BART. In this
instance, MDEQ determined that Plant Daniel is not subject-to-BART
based on modeling the visibility impacts of all three pollutants
(including NO<INF>X</INF>), and therefore, no BART determination is
required for NO<INF>X</INF>, SO<INF>2</INF>, or PM.\39\
---------------------------------------------------------------------------
\39\ EPA notes that the 2009-2018 IMPROVE monitoring data
indicates that sulfates are the predominant pollutant at Breton on
the most impaired days. For example, for the period 2014-18, the
most recent 5-year period with available data, sulfates accounted
for approximately 64 percent of the visibility impairment at Breton
on the most impaired days whereas nitrates accounted for only
approximately 10 percent of the impairment. This data is available
at <a href="http://vista.cira.colostate.edu/Improve/">http://vista.cira.colostate.edu/Improve/</a>.
---------------------------------------------------------------------------
Regarding the Commenter's use of a 2001-2003 baseline emissions
period, EPA disagrees that the State was required to use that specific
period for modeling visibility impacts. The State reasonably determined
that the facility's use of the 2015-2018 updated baseline period
reflecting operation of new SO<INF>2</INF> and NO<INF>X</INF> controls
is appropriate, as discussed in Response 2.
Comment 4: The Commenter claims that although Plant Daniel is
regularly able to achieve SO<INF>2</INF> emission rates as low as 0.03
lbs/MMBtu, spikes up to 0.6 to 0.8 lbs/MMBtu indicate that the facility
operates its FGD systems periodically or inefficiently. According to
the Commenter, the spikes appear to be the result of occasional
scrubber bypass and an unlawful failure to impose a federally
enforceable requirement to continually achieve an emissions limit
commensurate with BART.
Response 4: As discussed in the NPRM and this notice, Plant Daniel
is not subject to BART, and therefore, no BART emissions limits are
required. Furthermore, as discussed in Responses 2 and 3, Mississippi
reasonably exercised its discretion in selecting the 2015-2018 baseline
for the subject-to-BART modeling for Plant Daniel and excluding the
spikes associated with the test burn days. EPA has nonetheless
evaluated the Commenter's assertions that Plant Daniel is experiencing
spikes in its SO<INF>2</INF> emission rates due to alleged scrubber
inefficiency or intermittent scrubber operation.
The majority of the spikes shown in Figure 2 of the Commenter's
October 5, 2020, submission occurred after the baseline period ended on
September 30, 2018.\40\ EPA requested supplemental
[[Page 55508]]
information from MDEQ regarding these post-baseline period spikes, and
in response, Mississippi Power explained that the spikes beginning in
the third quarter of 2018 do not reflect actual SO<INF>2</INF>
emissions because they are the result of data substitution in
accordance with 40 CFR 75.33 and Appendix A to 40 CFR part 75
(Specifications and Test Procedures) due to FGD bypasses during
malfunction/emergency events.\41\ The bypasses were infrequent (less
than one percent of unit operating time) and short in duration (less
than two hours). Due to the short duration of each bypass, the bypass
continuous emission monitoring system (CEMS) did not have time to
calibrate and provide valid emissions data. A combination of short
duration events beginning in September 2018 and associated CEMS data
invalidation resulted in CEMS availability dropping below 90 percent,
triggering data substitution requirements under Part 75. Part 75
requires data to be substituted at the maximum potential concentration
when CEMS availability is less than 90 percent, resulting in the spikes
shown on Figure 2 beginning in the third quarter of 2018.\42\
Mississippi Power affirmed in its response that it operates the FGD
systems efficiently and at all times, except during SSM events,\43\ and
notes that MATS requires continuous operation of the FGD system.\44\
---------------------------------------------------------------------------
\40\ The spikes in Figure 2 that occurred during the baseline
period and are associated with nonrepresentative emissions are
explained in Table E-1 of the Plant Daniel BART Modeling Protocol
with the exception of the spikes on August 22, 2018, where the
facility substituted data for two hours at 8:00-9:00 p.m. and 10:00-
11:00 p.m. for Unit 1 due to startup. As discussed in Response 3,
Table E-1 identifies days with nonrepresentative emissions
associated with SSM and test burns. The table also identifies days
with nonrepresentative emissions associated with the shakedown of
the FGD systems. Control system shakedowns occur over a limited
period of time following installation and, among other things, are
used to identify any potential installation problems and to ensure
that the new system is operating properly. Therefore, the shakedowns
identified in Table E-1 are not evidence of inefficient or routine
FGD operation.
\41\ See Plant Daniel Information Response.
\42\ See 40 CFR part 75, Appendix A, Section 2.1--Instrument
Span and Range.
\43\ Elsewhere, Mississippi Power also acknowledges that it did
not optimize its scrubber operation on test burn days in order to
determine the effects of test coal blends on facility operations.
See Response 3.
\44\ The MATS rule requires continuous operation of the FGD
system if the source chooses to comply with the SO<INF>2</INF>
surrogate standard. See 40 CFR 63.9991(c)(2). See generally 40 CFR
Subpart UUUUU.
---------------------------------------------------------------------------
Comment 5: The Commenter argues that Mississippi's BART SIP
arbitrarily fails to address BART for NO<INF>X</INF> emissions from
EGUs and that the State cannot rely on CSAPR as a BART alternative. The
Commenter claims that Mississippi has not corrected its SIP to formally
adopt CSAPR in lieu of source-specific BART for NO<INF>X</INF>
emissions so that it could rely on CSAPR as a BART alternative and
claims that CSAPR is not a valid BART alternative for the following
reasons. First, Mississippi cannot exempt Plant Daniel from
NO<INF>X</INF> BART without going through the BART exemption process,
the State has not demonstrated that Plant Daniel meets the BART
exemption requirements, and the State has not obtained the concurrence
of the Federal Land Managers (FLMs) to exempt the source from BART.
Second, the CSAPR ``Better than BART'' (CSAPR BTB) rule is flawed
because it evaluated CSAPR allocations that are more stringent than now
required, used presumptive BART limits that are less stringent than
required under the statute, and failed to account for uncertainties in
emissions reductions under CSAPR. Third, the CSAPR BTB rule is no
longer valid given the substantial changes in CSAPR allocations and
compliance deadlines, including the United States Court of Appeals for
the District of Columbia Circuit's (D.C. Circuit's) 2015 invalidation
of certain states' emission budgets and EPA's withdrawal of Texas from
the CSAPR trading program. Fourth, NO<INF>X</INF> emissions from
Mississippi's EGUs are only covered by CSAPR during the ozone season,
and therefore, CSAPR does not protect Breton and other Class I areas
during the remaining seven months of the year. The Commenter attached
comments submitted by Earthjustice, National Parks Conservation
Association, and Sierra Club on the CSAPR BTB rule.
Response 5: Mississippi did not rely on CSAPR BTB in its SIP
submission, nor does EPA rely on CSAPR BTB in the Agency's approval.
Therefore, all comments addressing the State's or EPA's application of
CSAPR BTB in this SIP action are incorrect. Moreover, EPA did not
purport to revisit CSAPR BTB in this action. All comments generally
addressing the validity of CSAPR BTB are therefore beyond the scope.
EPA notes that the Commenter's general claims regarding CSAPR BTB have
been and are being addressed in separate proceedings.\45\ Finally, to
the extent the Commenter is asserting that the sole mechanism by which
Plant Daniel can be exempted from BART is under CAA section 169A(c),
that is incorrect. See Am. Corn Growers Ass'n v. EPA, 291 F.3d 1, 8
(D.C. Cir. 2002) (rejecting this argument). The subject-to-BART
assessment provides a separate method for exempting BART-eligible
sources such as Plant Daniel.
---------------------------------------------------------------------------
\45\ See, e.g., Nat'l Parks Conservation Ass'n v. EPA, Nos. 17-
1253, 20-1341 (D.C. Cir.); 82 FR 45481 (September 29, 2017) (2017
rule affirming that CSAPR remains better-than-BART after the changes
made to CSAPR's geographic scope due to the 2015 D.C. Circuit
decision cited by the Commenter); EPA's June 29, 2020, denial of the
Commenter's petition for reconsideration of the 2017 Rule, available
at <a href="https://www.epa.gov/sites/production/files/2020-06/documents/csapr_btb_petition_denial_sierra_club_06-29-20.pdf">https://www.epa.gov/sites/production/files/2020-06/documents/csapr_btb_petition_denial_sierra_club_06-29-20.pdf</a> and <a href="https://www.epa.gov/sites/production/files/2020-06/documents/csapr_btb_petition_denial_npca_06-29-20_0.pdf">https://www.epa.gov/sites/production/files/2020-06/documents/csapr_btb_petition_denial_npca_06-29-20_0.pdf</a>.
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III. Final Action
Based on the rationale articulated in the NPRM and in this final
rule, EPA is approving the August 13, 2020, BART SIP and finds that it
corrects the deficiencies that led to the limited approval and limited
disapproval of the State's regional haze SIP. EPA is therefore
withdrawing the limited disapproval of the regional haze SIP and
replacing the prior limited approval with a full approval of the
regional haze SIP as meeting all regional haze requirements of the CAA
for the first implementation period. EPA is also approving
Mississippi's October 4, 2018, Progress Report as meeting the
applicable regional haze requirements set forth in 40 CFR 51.308(g) and
the State's determination of adequacy under 40 CFR 51.308(h).
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. See 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. These actions merely
approve state law as meeting Federal requirements and do not impose
additional requirements beyond those imposed by state law. For that
reason, these actions:
<bullet> Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<bullet> Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Are 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.);
<bullet> Do 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);
<bullet> Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
[[Page 55509]]
<bullet> Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Are 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
<bullet> Do 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).
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 rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it 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 these actions 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. These actions are 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 these actions must be filed in the United States Court of Appeals
for the appropriate circuit by December 6, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions 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. These actions may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: September 29, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart Z--Mississippi
0
2. In Sec. 52.1270 amend the table in paragraph (e) by adding entries
for ``Regional Haze Progress Report'' and ``BART SIP'' at the end of
the table to read as follows:
Sec. 52.1270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Mississippi Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of non-regulatory SIP geographic or submittal date/ EPA approval date Explanation
provision nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Regional Haze Progress Report... Mississippi........ 10/4/2018 10/6/2021, [Insert .....................
citation of
publication].
BART SIP........................ Mississippi........ 8/13/2020 10/6/2021, [Insert .....................
citation of
publication].
----------------------------------------------------------------------------------------------------------------
Sec. 52.1279 [Amended]
0
3. Section 52.1279 is amended by removing and reserving paragraph (a).
[FR Doc. 2021-21562 Filed 10-5-21; 8:45 am]
BILLING CODE 6560-50-P
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