81_FR_15260 81 FR 15205 - Air Plan Disapprovals; MS; Prong 4-2008 Ozone, 2010 NO2,

81 FR 15205 - Air Plan Disapprovals; MS; Prong 4-2008 Ozone, 2010 NO2,

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 55 (March 22, 2016)

Page Range15205-15210
FR Document2016-06062

The Environmental Protection Agency (EPA) is proposing to disapprove the visibility transport (prong 4) portions of revisions to the Mississippi State Implementation Plan (SIP), submitted by the Mississippi Department of Environmental Quality (MDEQ), addressing the Clean Air Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour Ozone, 2010 1-hour Nitrogen Dioxide (NO<INF>2</INF>), 2010 1- hour Sulfur Dioxide (SO<INF>2</INF>), and 2012 annual Fine Particulate Matter (PM<INF>2.5</INF>) National Ambient Air Quality Standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an ``infrastructure SIP.'' Specifically, EPA is proposing to disapprove the prong 4 portions of Mississippi's May 29, 2012, 2008 8-hour Ozone infrastructure SIP submission; July 26, 2012, 2008 8-hour Ozone infrastructure SIP resubmission; February 28, 2013, 2010 1-hour NO<INF>2</INF> infrastructure SIP submission; June 20, 2013, 2010 1-hour SO<INF>2</INF> infrastructure SIP submission; and December 8, 2015, 2012 annual PM<INF>2.5</INF> infrastructure SIP submission. All other applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

Federal Register, Volume 81 Issue 55 (Tuesday, March 22, 2016)
[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)]
[Proposed Rules]
[Pages 15205-15210]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-06062]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R04-OAR-2015-0798; FRL-9943-88-Region 4]


Air Plan Disapprovals; MS; Prong 4-2008 Ozone, 2010 
NO2, SO2, and 2012 PM2.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove the visibility transport (prong 4) portions of revisions to 
the Mississippi State Implementation Plan (SIP), submitted by the 
Mississippi Department of Environmental Quality (MDEQ), addressing the 
Clean Air Act (CAA or Act) infrastructure SIP requirements for the 2008 
8-hour Ozone, 2010 1-hour Nitrogen Dioxide (NO2), 2010 1-
hour Sulfur Dioxide (SO2), and 2012 annual Fine Particulate 
Matter (PM2.5) National Ambient Air Quality Standards 
(NAAQS). The CAA requires that each state adopt and submit a SIP for 
the implementation, maintenance, and enforcement of each NAAQS 
promulgated by EPA, commonly referred to as an ``infrastructure SIP.'' 
Specifically, EPA is proposing to disapprove the prong 4 portions of 
Mississippi's May 29, 2012, 2008 8-hour Ozone infrastructure SIP 
submission; July 26, 2012, 2008 8-hour Ozone infrastructure SIP 
resubmission; February 28, 2013, 2010 1-hour NO2 
infrastructure SIP submission; June 20, 2013, 2010 1-hour 
SO2 infrastructure SIP submission; and December 8, 2015, 
2012 annual PM2.5 infrastructure SIP submission. All other 
applicable infrastructure requirements for these SIP submissions have 
been or will be addressed in separate rulemakings.

DATES: Comments must be received on or before April 21, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0798 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 
or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA are to be submitted by states within three years after 
promulgation of a new or revised NAAQS to provide for the 
implementation, maintenance, and enforcement of the new or revised 
NAAQS. EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and 
(2) require states to address basic SIP elements such as for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the newly established 
or revised NAAQS. More specifically, section 110(a)(1) provides the 
procedural and timing requirements for infrastructure SIPs. Section 
110(a)(2) lists specific elements that states must meet for the 
infrastructure SIP requirements related to a newly established or 
revised NAAQS. The contents of an infrastructure SIP submission may 
vary depending upon the data and analytical tools available to the 
state, as well as the provisions already contained in the state's 
implementation plan at the time in which the state develops and submits 
the submission for a new or revised NAAQS.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIP submissions. The first two prongs, which are 
codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit 
any source or other type of emissions activity in one state from 
contributing significantly to nonattainment of the NAAQS in another 
state (prong 1) and from interfering with maintenance of the NAAQS in 
another state (prong 2). The third and fourth prongs, which are 
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit 
emissions activity in one state from interfering with measures required 
to prevent significant deterioration of air quality in another state 
(prong 3) or from interfering with measures to protect visibility in 
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement.
    Through this action, EPA is proposing to disapprove the prong 4 
portions of Mississippi's infrastructure SIP submissions for the 2008 
8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, 
and 2012 annual PM2.5 NAAQS. All other applicable 
infrastructure SIP requirements for these SIP submissions have been or 
will be addressed in separate rulemakings. A brief background regarding 
the NAAQS relevant to today's proposal is provided below. For 
comprehensive information on these NAAQS, please refer to the Federal 
Register notices cited in the following subsections.

a. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA revised the 8-hour Ozone NAAQS to 0.075 
parts per million. See 73 FR 16436 (March 27, 2008). States were 
required to submit infrastructure SIP submissions for the

[[Page 15206]]

2008 8-hour Ozone NAAQS to EPA no later than March 12, 2011. For the 
2008 8-hour Ozone NAAQS, today's proposed action only addresses the 
prong 4 element of Mississippi's infrastructure SIP submissions 
received on May 29, 2012, and July 26, 2012. EPA took action on the 
remainder of Mississippi's May 29, 2012, SIP submission, and July 26, 
2012, SIP resubmission in separate rulemakings. See 80 FR 11131 (March 
2, 2015); 80 FR 14019 (March 18, 2015); 80 FR 48355 (August 12, 2015).

b. 2010 1-Hour NO2 NAAQS

    On January 22, 2010, EPA established a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion, based on a 3-year 
average of the 98th percentile of the yearly distribution of 1-hour 
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). States 
were required to submit infrastructure SIP submissions for the 2010 1-
hour NO2 NAAQS to EPA no later than January 22, 2013. For 
the 2010 1-hour NO2 NAAQS, today's proposed action only 
addresses the prong 4 element of Mississippi's infrastructure SIP 
submission received on February 28, 2013. EPA will take action on the 
remainder of Mississippi's February 28, 2013, SIP submission through a 
separate rulemaking.

c. 2010 1-Hour SO2 NAAQS

    On June 2, 2010, EPA revised the primary SO2 NAAQS to an 
hourly standard of 75 parts per billion based on a 3-year average of 
the annual 99th percentile of 1-hour daily maximum concentrations. See 
75 FR 35520 (June 22, 2010). States were required to submit 
infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS 
to EPA no later than June 2, 2013. For the 2010 1-hour SO2 
NAAQS, today's proposed action only addresses the prong 4 element of 
Mississippi's infrastructure SIP submission received on June 20, 2013. 
EPA will take action on the remainder of Mississippi's June 20, 2013, 
SIP submission through a separate rulemaking.

d. 2012 Annual PM2.5 NAAQS

    On December 14, 2012, EPA revised the primary annual 
PM2.5 NAAQS to 12 micrograms per cubic meter ([mu]g/m\3\). 
See 78 FR 3086 (January 15, 2013). An area will meet the standard if 
the three-year average of its annual average PM2.5 
concentration (at each monitoring site in the area) is less than or 
equal to 12.0 [mu]g/m\3\. States were required to submit infrastructure 
SIP submissions for the 2012 PM2.5 NAAQS to EPA no later 
than December 14, 2015. For the 2012 PM2.5 NAAQS, today's 
proposed action only addresses the prong 4 element of Mississippi's 
infrastructure SIP submission received on December 8, 2015. EPA will 
take action on the remainder of Mississippi's December 8, 2015 SIP 
submission through a separate rulemaking.

II. What is EPA's approach to the review of infrastructure SIP 
submissions?

    The requirement for states to make a SIP submission of this type 
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``within 3 years (or such shorter period as 
the Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``each such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of section 110(a)(1) and (2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the 
nonattainment planning requirements of part D of Title I of the CAA, 
``regional haze SIP'' submissions required by EPA rule to address the 
visibility protection requirements of section 169A of the CAA, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, Title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; Section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of Title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of Title I of the 
CAA, which specifically address nonattainment SIP requirements.\2\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years or in some cases three years, for such designations to be 
promulgated.\3\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine

[[Page 15207]]

which provisions of section 110(a)(2) are applicable for a particular 
infrastructure SIP submission.
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    \2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \3\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within section 110(a)(1) and (2) with 
respect to infrastructure SIPs pertains to whether states must meet all 
of the infrastructure SIP requirements in a single SIP submission, and 
whether EPA must act upon such SIP submission in a single action. 
Although section 110(a)(1) directs states to submit ``a plan'' to meet 
these requirements, EPA interprets the CAA to allow states to make 
multiple SIP submissions separately addressing infrastructure SIP 
elements for the same NAAQS. If states elect to make such multiple SIP 
submissions to meet the infrastructure SIP requirements, EPA can elect 
to act on such submissions either individually or in a larger combined 
action.\4\ Similarly, EPA interprets the CAA to allow it to take action 
on the individual parts of one larger, comprehensive infrastructure SIP 
submission for a given NAAQS without concurrent action on the entire 
submission. For example, EPA has sometimes elected to act at different 
times on various elements and sub-elements of the same infrastructure 
SIP submission.\5\
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    \4\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submission.
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    Ambiguities within section 110(a)(1) and (2) may also arise with 
respect to infrastructure SIP submission requirements for different 
NAAQS. Thus, EPA notes that not every element of section 110(a)(2) 
would be relevant, or as relevant, or relevant in the same way, for 
each new or revised NAAQS. The states' attendant infrastructure SIP 
submissions for each NAAQS therefore could be different. For example, 
the monitoring requirements that a state might need to meet in its 
infrastructure SIP submission for purposes of section 110(a)(2)(B) 
could be very different for different pollutants, because the content 
and scope of a state's infrastructure SIP submission to meet this 
element might be very different for an entirely new NAAQS than for a 
minor revision to an existing NAAQS.\6\
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    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires attainment plan SIP submissions 
required by part D to meet the ``applicable requirements'' of section 
110(a)(2); thus, attainment plan SIP submissions must meet the 
requirements of section 110(a)(2)(A) regarding enforceable emission 
limits and control measures and section 110(a)(2)(E)(i) regarding air 
agency resources and authority. By contrast, it is clear that 
attainment plan SIP submissions required by part D would not need to 
meet the portion of section 110(a)(2)(C) that pertains to the PSD 
program required in part C of Title I of the CAA, because PSD does not 
apply to a pollutant for which an area is designated nonattainment and 
thus subject to part D planning requirements. As this example 
illustrates, each type of SIP submission may implicate some elements of 
section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\7\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\8\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\9\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). EPA interprets section 110(a)(1) and (2) such that 
infrastructure SIP submissions need to address certain issues and need 
not address others. Accordingly, EPA reviews each infrastructure SIP 
submission for compliance with the applicable statutory provisions of 
section 110(a)(2), as appropriate.
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    \7\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \8\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
    \9\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address Section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the DC Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or

[[Page 15208]]

enforcement orders and heads of executive agencies with similar powers. 
Thus, EPA reviews infrastructure SIP submissions to ensure that the 
state's SIP appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of Section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in section 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
Greenhouse Gases (GHGs). By contrast, structural PSD program 
requirements do not include provisions that are not required under 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions EPA considers irrelevant in the context of an infrastructure 
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor new source review program and whether 
the program addresses the pollutants relevant to that NAAQS. In the 
context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; \10\ (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR 
Reform). Thus, EPA believes that it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\11\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \10\ Subsequent to issuing the 2013 Guidance, EPA's 
interpretation of the CAA with respect to the approvability of 
affirmative defense provisions in SIPs has changed. See ``State 
Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls To Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a 
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the 
EPA's view concerning the validity of affirmative defense 
provisions, in light of the requirements of section 113 and section 
304.
    \11\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption or affirmative defense for 
excess emissions during SSM events, then EPA would need to evaluate 
that provision for compliance against the rubric of applicable CAA 
requirements in the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in section 110(a)(2) as requiring 
review of each and every provision of a state's existing SIP against 
all requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
section 110(a)(1) and (2) because the CAA provides other avenues and 
mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\12\ Section

[[Page 15209]]

110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\13\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\14\
---------------------------------------------------------------------------

    \12\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \13\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under section 110(k)(6) of the CAA to 
remove numerous other SIP provisions that the Agency determined it 
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \14\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

III. What are the prong 4 requirements?

    Section 110(a)(2)(D)(i)(II) requires a state's SIP to contain 
provisions prohibiting sources in that state from emitting pollutants 
in amounts that interfere with any other state's efforts to protect 
visibility under part C of the CAA (which includes sections 169A and 
169B). The 2013 Guidance states that these prong 4 requirements can be 
satisfied by approved SIP provisions that EPA has found to adequately 
address any contribution of that state's sources to impacts on 
visibility program requirements in other states. The 2013 Guidance also 
states that EPA interprets this prong to be pollutant-specific, such 
that the infrastructure SIP submission need only address the potential 
for interference with protection of visibility caused by the pollutant 
(including precursors) to which the new or revised NAAQS applies.
    The 2013 Guidance lays out two ways in which a state's 
infrastructure SIP may satisfy prong 4. The first way is through an air 
agency's confirmation in its infrastructure SIP submission that it has 
an EPA-approved regional haze SIP that fully meets the requirements of 
40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require 
that a state participating in a regional planning process include all 
measures needed to achieve its apportionment of emission reduction 
obligations agreed upon through that process. A fully approved regional 
haze SIP will ensure that emissions from sources under an air agency's 
jurisdiction are not interfering with measures required to be included 
in other air agencies' plans to protect visibility.
    Alternatively, in the absence of a fully approved regional haze 
SIP, a state may meet the requirements of prong 4 through a 
demonstration in its infrastructure SIP submission that emissions 
within its jurisdiction do not interfere with other air agencies' plans 
to protect visibility. Such an infrastructure SIP submission would need 
to include measures to limit visibility-impairing pollutants and ensure 
that the reductions conform with any mutually agreed regional haze 
reasonable progress goals for mandatory Class I areas in other states.

IV. What is EPA's analysis of how Mississippi addressed prong 4?

    Mississippi's May 29, 2012, 2008 8-hour Ozone submission; July 26, 
2012, 2008 8-hour Ozone resubmission; February 28, 2013, 2010, 
NO2 submission; and December 8, 2015, 2012 PM2.5 
submission each cite to the State's regional haze SIP as satisfying 
prong 4 requirements. The June 20, 2013, 2010 SO2 submission 
cites to the State's regional haze SIP and to EPA's February 20, 2013 
(78 FR 11805) notice of proposed rulemaking (NPRM) on the prong 4 
element of the State's infrastructure SIP submissions for the 1997 and 
2006 PM2.5 NAAQS. In that notice, EPA proposed to approve 
the prong 4 element on the basis that Mississippi's regional haze SIP, 
in combination with its SIP provisions to implement the Clean Air 
Interstate Rule (CAIR), prevented sources from interfering with 
measures adopted by other states to protect visibility.
    In its regional haze SIP, Mississippi relied on CAIR to satisfy the 
best available retrofit technology (BART) requirements for its CAIR-
subject electricity generating units (EGUs).\15\ Although this reliance 
on CAIR was consistent with the CAA at the time that the State 
submitted its regional haze SIP, CAIR has since been replaced by the 
Cross-State Air Pollution Rule (CSAPR) and can no longer be relied upon 
as a substitute for BART or as part of a long-term control strategy 
(LTS) for regional haze. Therefore, EPA finalized a limited disapproval 
of the Mississippi regional haze SIP to the extent that it relies on 
CAIR to satisfy BART and LTS requirements.\16\ See 77 FR 33642 (June 7, 
2012). Because Mississippi's regional haze SIP is not fully approved, 
the State cannot rely on this plan alone to meet the prong 4 
requirements for the 2008 Ozone, 2010 1-hour NO2, 2010 1-
hour SO2, and 2012 PM2.5 NAAQS. Furthermore, 
unlike CAIR, CSAPR does not cover SO2 emissions from EGUs in 
Mississippi and therefore cannot be relied upon to fully satisfy 
outstanding regional haze requirements for EGUs in the State.
---------------------------------------------------------------------------

    \15\ Section 169A of the CAA and EPA's implementing regulations 
require states to establish long-term strategies for making 
reasonable progress towards the national goal of achieving natural 
visibility conditions in Class I areas. Implementation plans must 
also give specific attention to certain stationary sources. 
Specifically, section 169A(b)(2)(A) of the CAA requires states to 
revise their SIPs to contain such measures as may be necessary to 
make reasonable progress towards the natural visibility goal, 
including a requirement that certain categories of existing major 
stationary sources 8 built between 1962 and 1977 procure, install, 
and operate BART as determined by the state. Under the RHR, states 
are directed to conduct BART determinations for such ``BART-
eligible'' sources that may be anticipated to cause or contribute to 
any visibility impairment in a Class I area.
    \16\ EPA finalized a limited approval of Mississippi's regional 
haze SIP on June 27, 2012. See 77 FR 38191.
---------------------------------------------------------------------------

    Mississippi's reference to EPA's February 20, 2013, NPRM to approve 
the prong 4 element of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS is not relevant because the 
legal status of CAIR and CSAPR has changed since publication of that 
notice. In June 2012, EPA finalized the limited disapproval of the 
State's regional haze SIP, which relied on CAIR to satisfy affected 
EGUs' BART requirements. At that time, questions regarding the legality 
of CSAPR were pending before the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit). The D.C. Circuit 
subsequently vacated and remanded CSAPR in August 2012, leaving CAIR in 
place temporarily.\17\ As of February 20, 2013, when EPA proposed 
approving the prong 4 element of the State's 1997 and 2006 
PM2.5 infrastructure SIP submissions, EPA had not yet asked 
the United States Supreme Court to review the D.C. Circuit's decision 
on CSAPR. Based upon the

[[Page 15210]]

D.C. Circuit's direction to EPA to continue administering CAIR, the 
Agency believed that it was appropriate for states to rely on CAIR 
emission reductions for prong 4 purposes. EPA intended to allow this 
practice until a valid replacement for CAIR was developed and EPA acted 
on SIPs submitted in compliance with any new rule, or until the CSAPR 
litigation was resolved in a way that provided different direction 
regarding CAIR and CSAPR. After publication of the February 20, 2013, 
prong 4 proposal, EPA asked the Supreme Court to review the DC 
Circuit's decision and the Supreme Court reversed that ruling and 
upheld CSAPR.\18\ EPA began implementation of CSAPR, which replaced 
CAIR, on January 1, 2015. Therefore, because of this intervening change 
in the law, EPA cannot finalize its February 20, 2013, proposal to 
approve the prong 4 element that relies on CAIR, and Mississippi cannot 
rely on the outdated rationale contained in the NPRM regarding CAIR to 
satisfy prong 4.
---------------------------------------------------------------------------

    \17\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012).
    \18\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014).
---------------------------------------------------------------------------

    As mentioned above, a state may meet the requirements of prong 4 
without a fully approved regional haze SIP by showing that its SIP 
contains adequate provisions to prevent emissions from within the state 
from interfering with other states' measures to protect visibility. 
Mississippi did not, however, provide a demonstration in any of the 
infrastructure SIP submissions subject to today's proposed action that 
emissions within its jurisdiction do not interfere with other states' 
plans to protect visibility.
    As discussed above, Mississippi does not have a fully approved 
regional haze SIP that meets the requirements of 40 CFR 51.308 and has 
not otherwise shown that its SIP contains adequate provisions to 
prevent emissions from within the state from interfering with other 
states' measures to protect visibility. Therefore, EPA is proposing to 
disapprove the prong 4 portions of Mississippi's May 29, 2012, 2008 8-
hour Ozone infrastructure SIP submission; July 26, 2012, 2008 8-hour 
Ozone infrastructure SIP resubmission; February 28, 2013, 2010 1-hour 
NO2 infrastructure SIP submission; June 20, 2013, 2010 1-
hour SO2 infrastructure SIP submission; and December 8, 
2015, 2012 annual PM2.5 infrastructure SIP submission. 
Mississippi did not submit these infrastructure SIPs to meet 
requirements for Part D or a SIP call; therefore, if EPA takes final 
action to disapprove the prong 4 portions of these submissions, no 
sanctions will be triggered. However, if EPA finalizes this proposed 
disapproval action, that final action will trigger the requirement 
under section 110(c) that EPA promulgate a FIP no later than two years 
from the date of the disapproval unless the State corrects the 
deficiency through a SIP revision and EPA approves the SIP revision 
before EPA promulgates such a FIP.

V. Proposed Action

    As described above, EPA is proposing to disapprove the prong 4 
portions of Mississippi's May 29, 2012, 2008 Ozone infrastructure SIP 
submission; July 26, 2012, 2008 Ozone infrastructure SIP resubmission; 
February 28, 2013, 2010 NO2 infrastructure SIP submission; 
June 20, 2013, 2010 SO2 infrastructure SIP submission; and 
December 8, 2015, 2012 PM2.5 infrastructure SIP submission. 
All other outstanding applicable infrastructure requirements for these 
SIP submissions will be addressed in separate rulemakings.

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. 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. EPA is proposing to 
determine that the prong 4 portions of the aforementioned SIP 
submissions do not meet Federal requirements. Therefore, this proposed 
action does not impose additional requirements on the state 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    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.

List of Subjects in 40 CFR Part 52

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

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

    Dated: March 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-06062 Filed 3-21-16; 8:45 am]
BILLING CODE 6560-50-P



                                                                               Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules                                           15205

                                                      J. Executive Order 12898: Federal                       infrastructure requirements for these SIP             revised NAAQS. More specifically,
                                                      Actions To Address Environmental                        submissions have been or will be                      section 110(a)(1) provides the
                                                      Justice in Minority Populations and                     addressed in separate rulemakings.                    procedural and timing requirements for
                                                      Low-Income Population                                   DATES: Comments must be received on                   infrastructure SIPs. Section 110(a)(2)
                                                        The EPA lacks the discretionary                       or before April 21, 2016.                             lists specific elements that states must
                                                      authority to address environmental                      ADDRESSES: Submit your comments,                      meet for the infrastructure SIP
                                                      justice in this rulemaking.                             identified by Docket ID No. EPA–R04–                  requirements related to a newly
                                                                                                              OAR–2015–0798 at http://                              established or revised NAAQS. The
                                                      List of Subjects in 40 CFR Part 52                      www.regulations.gov. Follow the online                contents of an infrastructure SIP
                                                        Air pollution control, Approval and                   instructions for submitting comments.                 submission may vary depending upon
                                                      promulgation of implementation plans,                   Once submitted, comments cannot be                    the data and analytical tools available to
                                                      Environmental protection, Incorporation                 edited or removed from Regulations.gov.               the state, as well as the provisions
                                                      by reference, Oxides of nitrogen, Ozone,                EPA may publish any comment received                  already contained in the state’s
                                                      and Volatile organic compounds.                         to its public docket. Do not submit                   implementation plan at the time in
                                                                                                              electronically any information you                    which the state develops and submits
                                                        Dated: March 15, 2016.                                                                                      the submission for a new or revised
                                                                                                              consider to be Confidential Business
                                                      Jared Blumenfeld,                                                                                             NAAQS.
                                                                                                              Information (CBI) or other information
                                                      Regional Administrator, Region IX.                      whose disclosure is restricted by statute.               Section 110(a)(2)(D) has two
                                                      [FR Doc. 2016–06438 Filed 3–21–16; 8:45 am]             Multimedia submissions (audio, video,                 components: 110(a)(2)(D)(i) and
                                                      BILLING CODE 6560–50–P                                  etc.) must be accompanied by a written                110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
                                                                                                              comment. The written comment is                       includes four distinct components,
                                                                                                              considered the official comment and                   commonly referred to as ‘‘prongs,’’ that
                                                      ENVIRONMENTAL PROTECTION                                                                                      must be addressed in infrastructure SIP
                                                                                                              should include discussion of all points
                                                      AGENCY                                                                                                        submissions. The first two prongs,
                                                                                                              you wish to make. EPA will generally
                                                                                                                                                                    which are codified in section
                                                      40 CFR Parts 52                                         not consider comments or comment
                                                                                                                                                                    110(a)(2)(D)(i)(I), are provisions that
                                                                                                              contents located outside of the primary
                                                      [EPA–R04–OAR–2015–0798; FRL–9943–88–                                                                          prohibit any source or other type of
                                                                                                              submission (i.e., on the web, cloud, or
                                                      Region 4]                                                                                                     emissions activity in one state from
                                                                                                              other file sharing system). For
                                                                                                                                                                    contributing significantly to
                                                                                                              additional submission methods, the full
                                                      Air Plan Disapprovals; MS; Prong 4–                                                                           nonattainment of the NAAQS in another
                                                                                                              EPA public comment policy,
                                                      2008 Ozone, 2010 NO2, SO2, and 2012                                                                           state (prong 1) and from interfering with
                                                                                                              information about CBI or multimedia
                                                      PM2.5                                                                                                         maintenance of the NAAQS in another
                                                                                                              submissions, and general guidance on                  state (prong 2). The third and fourth
                                                      AGENCY:  Environmental Protection                       making effective comments, please visit               prongs, which are codified in section
                                                      Agency (EPA).                                           http://www2.epa.gov/dockets/                          110(a)(2)(D)(i)(II), are provisions that
                                                      ACTION: Proposed rule.                                  commenting-epa-dockets.                               prohibit emissions activity in one state
                                                                                                              FOR FURTHER INFORMATION CONTACT:                      from interfering with measures required
                                                      SUMMARY:   The Environmental Protection                 Sean Lakeman of the Air Regulatory                    to prevent significant deterioration of air
                                                      Agency (EPA) is proposing to                            Management Section, Air Planning and                  quality in another state (prong 3) or
                                                      disapprove the visibility transport                     Implementation Branch, Air, Pesticides                from interfering with measures to
                                                      (prong 4) portions of revisions to the                  and Toxics Management Division, U.S.                  protect visibility in another state (prong
                                                      Mississippi State Implementation Plan                   Environmental Protection Agency,                      4). Section 110(a)(2)(D)(ii) requires SIPs
                                                      (SIP), submitted by the Mississippi                     Region 4, 61 Forsyth Street SW.,                      to include provisions insuring
                                                      Department of Environmental Quality                     Atlanta, Georgia 30303–8960. Mr.                      compliance with sections 115 and 126
                                                      (MDEQ), addressing the Clean Air Act                    Lakeman can be reached by telephone at                of the Act, relating to interstate and
                                                      (CAA or Act) infrastructure SIP                         (404) 562–9043 or via electronic mail at              international pollution abatement.
                                                      requirements for the 2008 8-hour Ozone,                 lakeman.sean@epa.gov.                                    Through this action, EPA is proposing
                                                      2010 1-hour Nitrogen Dioxide (NO2),                     SUPPLEMENTARY INFORMATION:                            to disapprove the prong 4 portions of
                                                      2010 1-hour Sulfur Dioxide (SO2), and                                                                         Mississippi’s infrastructure SIP
                                                      2012 annual Fine Particulate Matter                     I. Background
                                                                                                                                                                    submissions for the 2008 8-hour Ozone,
                                                      (PM2.5) National Ambient Air Quality                       By statute, SIPs meeting the                       2010 1-hour NO2, 2010 1-hour SO2, and
                                                      Standards (NAAQS). The CAA requires                     requirements of sections 110(a)(1) and                2012 annual PM2.5 NAAQS. All other
                                                      that each state adopt and submit a SIP                  (2) of the CAA are to be submitted by                 applicable infrastructure SIP
                                                      for the implementation, maintenance,                    states within three years after                       requirements for these SIP submissions
                                                      and enforcement of each NAAQS                           promulgation of a new or revised                      have been or will be addressed in
                                                      promulgated by EPA, commonly                            NAAQS to provide for the                              separate rulemakings. A brief
                                                      referred to as an ‘‘infrastructure SIP.’’               implementation, maintenance, and                      background regarding the NAAQS
                                                      Specifically, EPA is proposing to                       enforcement of the new or revised                     relevant to today’s proposal is provided
                                                      disapprove the prong 4 portions of                      NAAQS. EPA has historically referred to               below. For comprehensive information
                                                      Mississippi’s May 29, 2012, 2008 8-hour                 these SIP submissions made for the                    on these NAAQS, please refer to the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      Ozone infrastructure SIP submission;                    purpose of satisfying the requirements                Federal Register notices cited in the
                                                      July 26, 2012, 2008 8-hour Ozone                        of sections 110(a)(1) and 110(a)(2) as                following subsections.
                                                      infrastructure SIP resubmission;                        ‘‘infrastructure SIP’’ submissions.
                                                      February 28, 2013, 2010 1-hour NO2                      Sections 110(a)(1) and (2) require states             a. 2008 8-Hour Ozone NAAQS
                                                      infrastructure SIP submission; June 20,                 to address basic SIP elements such as                    On March 12, 2008, EPA revised the
                                                      2013, 2010 1-hour SO2 infrastructure                    for monitoring, basic program                         8-hour Ozone NAAQS to 0.075 parts per
                                                      SIP submission; and December 8, 2015,                   requirements, and legal authority that                million. See 73 FR 16436 (March 27,
                                                      2012 annual PM2.5 infrastructure SIP                    are designed to assure attainment and                 2008). States were required to submit
                                                      submission. All other applicable                        maintenance of the newly established or               infrastructure SIP submissions for the


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                                                      15206                   Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules

                                                      2008 8-hour Ozone NAAQS to EPA no                       addresses the prong 4 element of                      substantive program provisions.1 EPA
                                                      later than March 12, 2011. For the 2008                 Mississippi’s infrastructure SIP                      therefore believes that while the timing
                                                      8-hour Ozone NAAQS, today’s proposed                    submission received on December 8,                    requirement in section 110(a)(1) is
                                                      action only addresses the prong 4                       2015. EPA will take action on the                     unambiguous, some of the other
                                                      element of Mississippi’s infrastructure                 remainder of Mississippi’s December 8,                statutory provisions are ambiguous. In
                                                      SIP submissions received on May 29,                     2015 SIP submission through a separate                particular, EPA believes that the list of
                                                      2012, and July 26, 2012. EPA took                       rulemaking.                                           required elements for infrastructure SIP
                                                      action on the remainder of Mississippi’s                                                                      submissions provided in section
                                                      May 29, 2012, SIP submission, and July                  II. What is EPA’s approach to the                     110(a)(2) contains ambiguities
                                                      26, 2012, SIP resubmission in separate                  review of infrastructure SIP                          concerning what is required for
                                                      rulemakings. See 80 FR 11131 (March 2,                  submissions?                                          inclusion in an infrastructure SIP
                                                      2015); 80 FR 14019 (March 18, 2015); 80                                                                       submission.
                                                                                                                 The requirement for states to make a
                                                      FR 48355 (August 12, 2015).                                                                                      The following examples of
                                                                                                              SIP submission of this type arises out of             ambiguities illustrate the need for EPA
                                                      b. 2010 1-Hour NO2 NAAQS                                section 110(a)(1). Pursuant to section                to interpret some section 110(a)(1) and
                                                         On January 22, 2010, EPA established                 110(a)(1), states must make SIP                       section 110(a)(2) requirements with
                                                      a new 1-hour primary NAAQS for NO2                      submissions ‘‘within 3 years (or such                 respect to infrastructure SIP
                                                      at a level of 100 parts per billion, based              shorter period as the Administrator may               submissions for a given new or revised
                                                      on a 3-year average of the 98th                         prescribe) after the promulgation of a                NAAQS. One example of ambiguity is
                                                      percentile of the yearly distribution of 1-             national primary ambient air quality                  that section 110(a)(2) requires that
                                                      hour daily maximum concentrations.                      standard (or any revision thereof),’’ and             ‘‘each’’ SIP submission must meet the
                                                      See 75 FR 6474 (February 9, 2010).                      these SIP submissions are to provide for              list of requirements therein, while EPA
                                                      States were required to submit                          the ‘‘implementation, maintenance, and                has long noted that this literal reading
                                                      infrastructure SIP submissions for the                  enforcement’’ of such NAAQS. The                      of the statute is internally inconsistent
                                                      2010 1-hour NO2 NAAQS to EPA no                         statute directly imposes on states the                and would create a conflict with the
                                                      later than January 22, 2013. For the 2010               duty to make these SIP submissions,                   nonattainment provisions in part D of
                                                      1-hour NO2 NAAQS, today’s proposed                      and the requirement to make the                       Title I of the CAA, which specifically
                                                      action only addresses the prong 4                       submissions is not conditioned upon                   address nonattainment SIP
                                                      element of Mississippi’s infrastructure                 EPA’s taking any action other than                    requirements.2 Section 110(a)(2)(I)
                                                      SIP submission received on February                     promulgating a new or revised NAAQS.                  pertains to nonattainment SIP
                                                      28, 2013. EPA will take action on the                   Section 110(a)(2) includes a list of                  requirements and part D addresses
                                                      remainder of Mississippi’s February 28,                 specific elements that ‘‘each such plan’’             when attainment plan SIP submissions
                                                      2013, SIP submission through a separate                 submission must address.                              to address nonattainment area
                                                      rulemaking.                                                EPA has historically referred to these             requirements are due. For example,
                                                                                                              SIP submissions made for the purpose                  section 172(b) requires EPA to establish
                                                      c. 2010 1-Hour SO2 NAAQS
                                                                                                              of satisfying the requirements of section             a schedule for submission of such plans
                                                         On June 2, 2010, EPA revised the                     110(a)(1) and (2) as ‘‘infrastructure SIP’’           for certain pollutants when the
                                                      primary SO2 NAAQS to an hourly                          submissions. Although the term                        Administrator promulgates the
                                                      standard of 75 parts per billion based on               ‘‘infrastructure SIP’’ does not appear in             designation of an area as nonattainment,
                                                      a 3-year average of the annual 99th                     the CAA, EPA uses the term to                         and section 107(d)(1)(B) allows up to
                                                      percentile of 1-hour daily maximum                      distinguish this particular type of SIP               two years or in some cases three years,
                                                      concentrations. See 75 FR 35520 (June                   submission from submissions that are                  for such designations to be
                                                      22, 2010). States were required to                      intended to satisfy other SIP                         promulgated.3 This ambiguity illustrates
                                                      submit infrastructure SIP submissions                   requirements under the CAA, such as                   that rather than apply all the stated
                                                      for the 2010 1-hour SO2 NAAQS to EPA                    ‘‘nonattainment SIP’’ or ‘‘attainment                 requirements of section 110(a)(2) in a
                                                      no later than June 2, 2013. For the 2010                plan SIP’’ submissions to address the                 strict literal sense, EPA must determine
                                                      1-hour SO2 NAAQS, today’s proposed                      nonattainment planning requirements of
                                                      action only addresses the prong 4                       part D of Title I of the CAA, ‘‘regional                 1 For example: Section 110(a)(2)(E)(i) provides

                                                      element of Mississippi’s infrastructure                                                                       that states must provide assurances that they have
                                                                                                              haze SIP’’ submissions required by EPA                adequate legal authority under state and local law
                                                      SIP submission received on June 20,                     rule to address the visibility protection             to carry out the SIP; Section 110(a)(2)(C) provides
                                                      2013. EPA will take action on the                       requirements of section 169A of the                   that states must have a SIP-approved program to
                                                      remainder of Mississippi’s June 20,                     CAA, and nonattainment new source                     address certain sources as required by part C of
                                                      2013, SIP submission through a separate                                                                       Title I of the CAA; and section 110(a)(2)(G) provides
                                                                                                              review permit program submissions to                  that states must have legal authority to address
                                                      rulemaking.                                             address the permit requirements of                    emergencies as well as contingency plans that are
                                                      d. 2012 Annual PM2.5 NAAQS                              CAA, Title I, part D.                                 triggered in the event of such emergencies.
                                                                                                                                                                       2 See, e.g., ‘‘Rule To Reduce Interstate Transport

                                                        On December 14, 2012, EPA revised                        Section 110(a)(1) addresses the timing             of Fine Particulate Matter and Ozone (Clean Air
                                                      the primary annual PM2.5 NAAQS to 12                    and general requirements for                          Interstate Rule); Revisions to Acid Rain Program;
                                                                                                              infrastructure SIP submissions and                    Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
                                                      micrograms per cubic meter (mg/m3).                                                                           25162, at 25163–65 (May 12, 2005) (explaining
                                                      See 78 FR 3086 (January 15, 2013). An                   section 110(a)(2) provides more details
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                                                                                                                                                                    relationship between timing requirement of section
                                                      area will meet the standard if the three-               concerning the required contents of                   110(a)(2)(D) versus section 110(a)(2)(I)).
                                                      year average of its annual average PM2.5                these submissions. The list of required                  3 EPA notes that this ambiguity within section

                                                                                                              elements provided in section 110(a)(2)                110(a)(2) is heightened by the fact that various
                                                      concentration (at each monitoring site in                                                                     subparts of part D set specific dates for submission
                                                      the area) is less than or equal to 12.0 mg/             contains a wide variety of disparate                  of certain types of SIP submissions in designated
                                                      m3. States were required to submit                      provisions, some of which pertain to                  nonattainment areas for various pollutants. Note,
                                                      infrastructure SIP submissions for the                  required legal authority, some of which               e.g., that section 182(a)(1) provides specific dates
                                                                                                              pertain to required substantive program               for submission of emissions inventories for the
                                                      2012 PM2.5 NAAQS to EPA no later than                                                                         ozone NAAQS. Some of these specific dates are
                                                      December 14, 2015. For the 2012 PM2.5                   provisions, and some of which pertain                 necessarily later than three years after promulgation
                                                      NAAQS, today’s proposed action only                     to requirements for both authority and                of the new or revised NAAQS.



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                                                                               Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules                                                     15207

                                                      which provisions of section 110(a)(2)                   might need to meet in its infrastructure                 Historically, EPA has elected to use
                                                      are applicable for a particular                         SIP submission for purposes of section                guidance documents to make
                                                      infrastructure SIP submission.                          110(a)(2)(B) could be very different for              recommendations to states for
                                                         Another example of ambiguity within                  different pollutants, because the content             infrastructure SIPs, in some cases
                                                      section 110(a)(1) and (2) with respect to               and scope of a state’s infrastructure SIP             conveying needed interpretations on
                                                      infrastructure SIPs pertains to whether                 submission to meet this element might                 newly arising issues and in some cases
                                                      states must meet all of the infrastructure              be very different for an entirely new                 conveying interpretations that have
                                                      SIP requirements in a single SIP                        NAAQS than for a minor revision to an                 already been developed and applied to
                                                      submission, and whether EPA must act                    existing NAAQS.6                                      individual SIP submissions for
                                                      upon such SIP submission in a single                                                                          particular elements.7 EPA most recently
                                                      action. Although section 110(a)(1)                         EPA notes that interpretation of
                                                                                                                                                                    issued guidance for infrastructure SIPs
                                                      directs states to submit ‘‘a plan’’ to meet             section 110(a)(2) is also necessary when
                                                                                                                                                                    on September 13, 2013 (2013
                                                      these requirements, EPA interprets the                  EPA reviews other types of SIP
                                                                                                                                                                    Guidance).8 EPA developed this
                                                      CAA to allow states to make multiple                    submissions required under the CAA.
                                                                                                                                                                    document to provide states with up-to-
                                                      SIP submissions separately addressing                   Therefore, as with infrastructure SIP
                                                                                                                                                                    date guidance for infrastructure SIPs for
                                                      infrastructure SIP elements for the same                submissions, EPA also has to identify
                                                                                                                                                                    any new or revised NAAQS. Within this
                                                      NAAQS. If states elect to make such                     and interpret the relevant elements of
                                                                                                                                                                    guidance, EPA describes the duty of
                                                      multiple SIP submissions to meet the                    section 110(a)(2) that logically apply to
                                                                                                                                                                    states to make infrastructure SIP
                                                      infrastructure SIP requirements, EPA                    these other types of SIP submissions.                 submissions to meet basic structural SIP
                                                      can elect to act on such submissions                    For example, section 172(c)(7) requires               requirements within three years of
                                                      either individually or in a larger                      attainment plan SIP submissions                       promulgation of a new or revised
                                                      combined action.4 Similarly, EPA                        required by part D to meet the                        NAAQS. EPA also made
                                                                                                              ‘‘applicable requirements’’ of section                recommendations about many specific
                                                      interprets the CAA to allow it to take
                                                                                                              110(a)(2); thus, attainment plan SIP                  subsections of section 110(a)(2) that are
                                                      action on the individual parts of one
                                                                                                              submissions must meet the                             relevant in the context of infrastructure
                                                      larger, comprehensive infrastructure SIP
                                                                                                              requirements of section 110(a)(2)(A)                  SIP submissions.9 The guidance also
                                                      submission for a given NAAQS without
                                                                                                              regarding enforceable emission limits                 discusses the substantively important
                                                      concurrent action on the entire
                                                                                                              and control measures and section                      issues that are germane to certain
                                                      submission. For example, EPA has
                                                                                                              110(a)(2)(E)(i) regarding air agency                  subsections of section 110(a)(2). EPA
                                                      sometimes elected to act at different
                                                                                                              resources and authority. By contrast, it              interprets section 110(a)(1) and (2) such
                                                      times on various elements and sub-
                                                                                                              is clear that attainment plan SIP                     that infrastructure SIP submissions need
                                                      elements of the same infrastructure SIP
                                                                                                              submissions required by part D would                  to address certain issues and need not
                                                      submission.5
                                                         Ambiguities within section 110(a)(1)                 not need to meet the portion of section               address others. Accordingly, EPA
                                                      and (2) may also arise with respect to                  110(a)(2)(C) that pertains to the PSD                 reviews each infrastructure SIP
                                                      infrastructure SIP submission                           program required in part C of Title I of              submission for compliance with the
                                                      requirements for different NAAQS.                       the CAA, because PSD does not apply                   applicable statutory provisions of
                                                      Thus, EPA notes that not every element                  to a pollutant for which an area is                   section 110(a)(2), as appropriate.
                                                      of section 110(a)(2) would be relevant,                 designated nonattainment and thus                        As an example, section 110(a)(2)(E)(ii)
                                                      or as relevant, or relevant in the same                 subject to part D planning requirements.              is a required element of section
                                                      way, for each new or revised NAAQS.                     As this example illustrates, each type of             110(a)(2) for infrastructure SIP
                                                      The states’ attendant infrastructure SIP                SIP submission may implicate some                     submissions. Under this element, a state
                                                      submissions for each NAAQS therefore                    elements of section 110(a)(2) but not                 must meet the substantive requirements
                                                      could be different. For example, the                    others.                                               of section 128, which pertain to state
                                                      monitoring requirements that a state                       Given the potential for ambiguity in               boards that approve permits or
                                                                                                              some of the statutory language of section
                                                        4 See, e.g., ‘‘Approval and Promulgation of           110(a)(1) and section 110(a)(2), EPA                     7 EPA notes, however, that nothing in the CAA

                                                      Implementation Plans; New Mexico; Revisions to          believes that it is appropriate to                    requires EPA to provide guidance or to promulgate
                                                      the New Source Review (NSR) State                                                                             regulations for infrastructure SIP submissions. The
                                                      Implementation Plan (SIP); Prevention of
                                                                                                              interpret the ambiguous portions of                   CAA directly applies to states and requires the
                                                      Significant Deterioration (PSD) and Nonattainment       section 110(a)(1) and section 110(a)(2)               submission of infrastructure SIP submissions,
                                                      New Source Review (NNSR) Permitting,’’ 78 FR            in the context of acting on a particular              regardless of whether or not EPA provides guidance
                                                      4339 (January 22, 2013) (EPA’s final action             SIP submission. In other words, EPA                   or regulations pertaining to such submissions. EPA
                                                      approving the structural PSD elements of the New                                                              elects to issue such guidance in order to assist
                                                      Mexico SIP submitted by the State separately to
                                                                                                              assumes that Congress could not have                  states, as appropriate.
                                                      meet the requirements of EPA’s 2008 PM2.5 NSR           intended that each and every SIP                         8 ‘‘Guidance on Infrastructure State

                                                      rule), and ‘‘Approval and Promulgation of Air           submission, regardless of the NAAQS in                Implementation Plan (SIP) Elements under Clean
                                                      Quality Implementation Plans; New Mexico;               question or the history of SIP                        Air Act Sections 110(a)(1) and 110(a)(2),’’
                                                      Infrastructure and Interstate Transport                                                                       Memorandum from Stephen D. Page, September 13,
                                                      Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
                                                                                                              development for the relevant pollutant,               2013.
                                                      4337 (January 22, 2013) (EPA’s final action on the      would meet each of the requirements, or                  9 EPA’s September 13, 2013, guidance did not
                                                      infrastructure SIP for the 2006 PM2.5 NAAQS).           meet each of them in the same way.                    make recommendations with respect to
                                                        5 On December 14, 2007, the State of Tennessee,
                                                                                                              Therefore, EPA has adopted an                         infrastructure SIP submissions to address Section
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                                                      through the Tennessee Department of Environment         approach under which it reviews                       110(a)(2)(D)(i)(I). EPA issued the guidance shortly
                                                      and Conservation, made a SIP revision to EPA                                                                  after the U.S. Supreme Court agreed to review the
                                                      demonstrating that the State meets the requirements     infrastructure SIP submissions against                DC Circuit decision in EME Homer City, 696 F.3d
                                                      of sections 110(a)(1) and (2). EPA proposed action      the list of elements in section 110(a)(2),            7 (D.C. Cir. 2012) which had interpreted the
                                                      for infrastructure SIP elements (C) and (J) on          but only to the extent each element                   requirements of section 110(a)(2)(D)(i)(I). In light of
                                                      January 23, 2012 (77 FR 3213) and took final action     applies for that particular NAAQS.                    the uncertainty created by ongoing litigation, EPA
                                                      on March 14, 2012 (77 FR 14976). On April 16,                                                                 elected not to provide additional guidance on the
                                                      2012 (77 FR 22533) and July 23, 2012 (77 FR                                                                   requirements of section 110(a)(2)(D)(i)(I) at that
                                                      42997), EPA took separate proposed and final              6 For example, implementation of the 1997 PM
                                                                                                                                                              2.5   time. As the guidance is neither binding nor
                                                      actions on all other section 110(a)(2) infrastructure   NAAQS required the deployment of a system of          required by statute, whether EPA elects to provide
                                                      SIP elements of Tennessee’s December 14, 2007           new monitors to measure ambient levels of that new    guidance on a particular section has no impact on
                                                      submission.                                             indicator species for the new NAAQS.                  a state’s CAA obligations.



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                                                      15208                   Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules

                                                      enforcement orders and heads of                         existing SIP) for compliance with the                  review of a particular infrastructure SIP
                                                      executive agencies with similar powers.                 requirements of the CAA and EPA’s                      submission is appropriate, because it
                                                      Thus, EPA reviews infrastructure SIP                    regulations that pertain to such                       would not be reasonable to read the
                                                      submissions to ensure that the state’s                  programs.                                              general requirements of section
                                                      SIP appropriately addresses the                            With respect to certain other issues,               110(a)(1) and the list of elements in
                                                      requirements of section 110(a)(2)(E)(ii)                EPA does not believe that an action on                 section 110(a)(2) as requiring review of
                                                      and section 128. The 2013 Guidance                      a state’s infrastructure SIP submission is             each and every provision of a state’s
                                                      explains EPA’s interpretation that there                necessarily the appropriate type of                    existing SIP against all requirements in
                                                      may be a variety of ways by which states                action in which to address possible                    the CAA and EPA regulations merely for
                                                      can appropriately address these                         deficiencies in a state’s existing SIP.                purposes of assuring that the state in
                                                      substantive statutory requirements,                     These issues include: (i) Existing                     question has the basic structural
                                                      depending on the structure of an                        provisions related to excess emissions                 elements for a functioning SIP for a new
                                                      individual state’s permitting or                        from sources during periods of startup,                or revised NAAQS. Because SIPs have
                                                      enforcement program (e.g., whether                      shutdown, or malfunction (SSM) that                    grown by accretion over the decades as
                                                      permits and enforcement orders are                      may be contrary to the CAA and EPA’s                   statutory and regulatory requirements
                                                      approved by a multi-member board or                     policies addressing such excess                        under the CAA have evolved, they may
                                                      by a head of an executive agency).                      emissions; 10 (ii) existing provisions                 include some outmoded provisions and
                                                      However they are addressed by the                       related to ‘‘director’s variance’’ or                  historical artifacts. These provisions,
                                                      state, the substantive requirements of                  ‘‘director’s discretion’’ that may be                  while not fully up to date, nevertheless
                                                      Section 128 are necessarily included in                 contrary to the CAA because they                       may not pose a significant problem for
                                                      EPA’s evaluation of infrastructure SIP                  purport to allow revisions to SIP-                     the purposes of ‘‘implementation,
                                                      submissions because section                             approved emissions limits while                        maintenance, and enforcement’’ of a
                                                      110(a)(2)(E)(ii) explicitly requires that               limiting public process or not requiring               new or revised NAAQS when EPA
                                                      the state satisfy the provisions of section             further approval by EPA; and (iii)                     evaluates adequacy of the infrastructure
                                                      128.                                                    existing provisions for PSD programs                   SIP submission. EPA believes that a
                                                         As another example, EPA’s review of                  that may be inconsistent with current                  better approach is for states and EPA to
                                                      infrastructure SIP submissions with                     requirements of EPA’s ‘‘Final NSR                      focus attention on those elements of
                                                      respect to the PSD program                              Improvement Rule,’’ 67 FR 80186                        section 110(a)(2) of the CAA most likely
                                                      requirements in section 110(a)(2)(C),                   (December 31, 2002), as amended by 72                  to warrant a specific SIP revision due to
                                                      (D)(i)(II), and (J) focuses upon the                    FR 32526 (June 13, 2007) (NSR Reform).                 the promulgation of a new or revised
                                                      structural PSD program requirements                     Thus, EPA believes that it may approve                 NAAQS or other factors.
                                                      contained in part C and EPA’s PSD                       an infrastructure SIP submission                          For example, EPA’s 2013 Guidance
                                                      regulations. Structural PSD program                     without scrutinizing the totality of the               gives simpler recommendations with
                                                      requirements include provisions                         existing SIP for such potentially                      respect to carbon monoxide than other
                                                      necessary for the PSD program to                        deficient provisions and may approve                   NAAQS pollutants to meet the visibility
                                                      address all regulated sources and NSR                   the submission even if it is aware of                  requirements of section
                                                      pollutants, including Greenhouse Gases                  such existing provisions.11 It is                      110(a)(2)(D)(i)(II), because carbon
                                                      (GHGs). By contrast, structural PSD                     important to note that EPA’s approval of               monoxide does not affect visibility. As
                                                      program requirements do not include                     a state’s infrastructure SIP submission                a result, an infrastructure SIP
                                                      provisions that are not required under                  should not be construed as explicit or                 submission for any future new or
                                                      EPA’s regulations at 40 CFR 51.166 but                  implicit re-approval of any existing                   revised NAAQS for carbon monoxide
                                                      are merely available as an option for the               potentially deficient provisions that                  need only state this fact in order to
                                                      state, such as the option to provide                    relate to the three specific issues just               address the visibility prong of section
                                                      grandfathering of complete permit                       described.                                             110(a)(2)(D)(i)(II).
                                                      applications with respect to the PM2.5                     EPA’s approach to review of                            Finally, EPA believes that its
                                                      NAAQS. Accordingly, the latter                          infrastructure SIP submissions is to                   approach with respect to infrastructure
                                                      optional provisions are types of                        identify the CAA requirements that are                 SIP requirements is based on a
                                                      provisions EPA considers irrelevant in                  logically applicable to that submission.               reasonable reading of section 110(a)(1)
                                                      the context of an infrastructure SIP                    EPA believes that this approach to the                 and (2) because the CAA provides other
                                                      action.                                                                                                        avenues and mechanisms to address
                                                         For other section 110(a)(2) elements,                  10 Subsequent to issuing the 2013 Guidance,          specific substantive deficiencies in
                                                      however, EPA’s review of a state’s                      EPA’s interpretation of the CAA with respect to the    existing SIPs. These other statutory tools
                                                      infrastructure SIP submission focuses                   approvability of affirmative defense provisions in
                                                                                                              SIPs has changed. See ‘‘State Implementation Plans:
                                                                                                                                                                     allow EPA to take appropriately tailored
                                                      on assuring that the state’s SIP meets                  Response to Petition for Rulemaking; Restatement       action, depending upon the nature and
                                                      basic structural requirements. For                      and Update of EPA’s SSM Policy Applicable to           severity of the alleged SIP deficiency.
                                                      example, section 110(a)(2)(C) includes,                 SIPs; Findings of Substantial Inadequacy; and SIP      Section 110(k)(5) authorizes EPA to
                                                      inter alia, the requirement that states                 Calls To Amend Provisions Applying to Excess
                                                                                                              Emissions During Periods of Startup, Shutdown and
                                                                                                                                                                     issue a ‘‘SIP call’’ whenever the Agency
                                                      have a program to regulate minor new                    Malfunction,’’ 80 FR 33839 (June 12, 2015). As a       determines that a state’s SIP is
                                                      sources. Thus, EPA evaluates whether                    result, EPA’s 2013 Guidance (p. 21 & n.30) no          substantially inadequate to attain or
                                                      the state has an EPA-approved minor
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                                                                                                              longer represents the EPA’s view concerning the        maintain the NAAQS, to mitigate
                                                      new source review program and                           validity of affirmative defense provisions, in light
                                                                                                              of the requirements of section 113 and section 304.
                                                                                                                                                                     interstate transport, or to otherwise
                                                      whether the program addresses the                         11 By contrast, EPA notes that if a state were to    comply with the CAA.12 Section
                                                      pollutants relevant to that NAAQS. In                   include a new provision in an infrastructure SIP
                                                      the context of acting on an                             submission that contained a legal deficiency, such       12 For example, EPA issued a SIP call to Utah to

                                                      infrastructure SIP submission, however,                 as a new exemption or affirmative defense for          address specific existing SIP deficiencies related to
                                                      EPA does not think it is necessary to                   excess emissions during SSM events, then EPA           the treatment of excess emissions during SSM
                                                                                                              would need to evaluate that provision for              events. See ‘‘Finding of Substantial Inadequacy of
                                                      conduct a review of each and every                      compliance against the rubric of applicable CAA        Implementation Plan; Call for Utah State
                                                      provision of a state’s existing minor                   requirements in the context of the action on the       Implementation Plan Revisions,’’ 74 FR 21639
                                                      source program (i.e., already in the                    infrastructure SIP.                                    (April 18, 2011).



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                                                                               Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules                                                      15209

                                                      110(k)(6) authorizes EPA to correct                      satisfy prong 4. The first way is through              Although this reliance on CAIR was
                                                      errors in past actions, such as past                     an air agency’s confirmation in its                    consistent with the CAA at the time that
                                                      approvals of SIP submissions.13                          infrastructure SIP submission that it has              the State submitted its regional haze
                                                      Significantly, EPA’s determination that                  an EPA-approved regional haze SIP that                 SIP, CAIR has since been replaced by
                                                      an action on a state’s infrastructure SIP                fully meets the requirements of 40 CFR                 the Cross-State Air Pollution Rule
                                                      submission is not the appropriate time                   51.308 or 51.309. 40 CFR 51.308 and                    (CSAPR) and can no longer be relied
                                                      and place to address all potential                       51.309 specifically require that a state               upon as a substitute for BART or as part
                                                      existing SIP deficiencies does not                       participating in a regional planning                   of a long-term control strategy (LTS) for
                                                      preclude EPA’s subsequent reliance on                    process include all measures needed to                 regional haze. Therefore, EPA finalized
                                                      provisions in section 110(a)(2) as part of               achieve its apportionment of emission                  a limited disapproval of the Mississippi
                                                      the basis for action to correct those                    reduction obligations agreed upon                      regional haze SIP to the extent that it
                                                      deficiencies at a later time. For example,               through that process. A fully approved                 relies on CAIR to satisfy BART and LTS
                                                      although it may not be appropriate to                    regional haze SIP will ensure that                     requirements.16 See 77 FR 33642 (June 7,
                                                      require a state to eliminate all existing                emissions from sources under an air                    2012). Because Mississippi’s regional
                                                      inappropriate director’s discretion                      agency’s jurisdiction are not interfering              haze SIP is not fully approved, the State
                                                      provisions in the course of acting on an                 with measures required to be included                  cannot rely on this plan alone to meet
                                                      infrastructure SIP submission, EPA                       in other air agencies’ plans to protect                the prong 4 requirements for the 2008
                                                      believes that section 110(a)(2)(A) may be                visibility.                                            Ozone, 2010 1-hour NO2, 2010 1-hour
                                                      among the statutory bases that EPA                         Alternatively, in the absence of a fully             SO2, and 2012 PM2.5 NAAQS.
                                                      relies upon in the course of addressing                  approved regional haze SIP, a state may                Furthermore, unlike CAIR, CSAPR does
                                                      such deficiency in a subsequent                          meet the requirements of prong 4                       not cover SO2 emissions from EGUs in
                                                      action.14                                                through a demonstration in its                         Mississippi and therefore cannot be
                                                                                                               infrastructure SIP submission that                     relied upon to fully satisfy outstanding
                                                      III. What are the prong 4 requirements?                                                                         regional haze requirements for EGUs in
                                                                                                               emissions within its jurisdiction do not
                                                         Section 110(a)(2)(D)(i)(II) requires a                interfere with other air agencies’ plans               the State.
                                                      state’s SIP to contain provisions                        to protect visibility. Such an                            Mississippi’s reference to EPA’s
                                                      prohibiting sources in that state from                   infrastructure SIP submission would                    February 20, 2013, NPRM to approve
                                                      emitting pollutants in amounts that                      need to include measures to limit                      the prong 4 element of the State’s
                                                      interfere with any other state’s efforts to              visibility-impairing pollutants and                    infrastructure SIP submissions for the
                                                      protect visibility under part C of the                   ensure that the reductions conform with                1997 and 2006 PM2.5 NAAQS is not
                                                      CAA (which includes sections 169A and                    any mutually agreed regional haze                      relevant because the legal status of CAIR
                                                      169B). The 2013 Guidance states that                     reasonable progress goals for mandatory                and CSAPR has changed since
                                                      these prong 4 requirements can be                        Class I areas in other states.                         publication of that notice. In June 2012,
                                                      satisfied by approved SIP provisions                                                                            EPA finalized the limited disapproval of
                                                      that EPA has found to adequately                         IV. What is EPA’s analysis of how                      the State’s regional haze SIP, which
                                                      address any contribution of that state’s                 Mississippi addressed prong 4?                         relied on CAIR to satisfy affected EGUs’
                                                      sources to impacts on visibility program                   Mississippi’s May 29, 2012, 2008 8-                  BART requirements. At that time,
                                                      requirements in other states. The 2013                   hour Ozone submission; July 26, 2012,                  questions regarding the legality of
                                                      Guidance also states that EPA interprets                 2008 8-hour Ozone resubmission;                        CSAPR were pending before the United
                                                      this prong to be pollutant-specific, such                February 28, 2013, 2010, NO2                           States Court of Appeals for the District
                                                      that the infrastructure SIP submission                   submission; and December 8, 2015,                      of Columbia Circuit (D.C. Circuit). The
                                                      need only address the potential for                      2012 PM2.5 submission each cite to the                 D.C. Circuit subsequently vacated and
                                                      interference with protection of visibility               State’s regional haze SIP as satisfying                remanded CSAPR in August 2012,
                                                      caused by the pollutant (including                       prong 4 requirements. The June 20,                     leaving CAIR in place temporarily.17 As
                                                      precursors) to which the new or revised                  2013, 2010 SO2 submission cites to the                 of February 20, 2013, when EPA
                                                      NAAQS applies.                                           State’s regional haze SIP and to EPA’s                 proposed approving the prong 4 element
                                                         The 2013 Guidance lays out two ways                   February 20, 2013 (78 FR 11805) notice                 of the State’s 1997 and 2006 PM2.5
                                                      in which a state’s infrastructure SIP may                of proposed rulemaking (NPRM) on the                   infrastructure SIP submissions, EPA had
                                                                                                               prong 4 element of the State’s                         not yet asked the United States Supreme
                                                         13 EPA has used this authority to correct errors in
                                                                                                               infrastructure SIP submissions for the                 Court to review the D.C. Circuit’s
                                                      past actions on SIP submissions related to PSD
                                                      programs. See ‘‘Limitation of Approval of
                                                                                                               1997 and 2006 PM2.5 NAAQS. In that                     decision on CSAPR. Based upon the
                                                      Prevention of Significant Deterioration Provisions       notice, EPA proposed to approve the
                                                      Concerning Greenhouse Gas Emitting-Sources in            prong 4 element on the basis that                      visibility conditions in Class I areas.
                                                      State Implementation Plans; Final Rule,’’ 75 FR          Mississippi’s regional haze SIP, in                    Implementation plans must also give specific
                                                      82536 (December 30, 2010). EPA has previously                                                                   attention to certain stationary sources. Specifically,
                                                      used its authority under section 110(k)(6) of the
                                                                                                               combination with its SIP provisions to                 section 169A(b)(2)(A) of the CAA requires states to
                                                      CAA to remove numerous other SIP provisions that         implement the Clean Air Interstate Rule                revise their SIPs to contain such measures as may
                                                      the Agency determined it had approved in error.          (CAIR), prevented sources from                         be necessary to make reasonable progress towards
                                                      See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR         interfering with measures adopted by                   the natural visibility goal, including a requirement
                                                      34641 (June 27, 1997) (corrections to American                                                                  that certain categories of existing major stationary
                                                                                                               other states to protect visibility.                    sources 8 built between 1962 and 1977 procure,
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                                                      Samoa, Arizona, California, Hawaii, and Nevada
                                                      SIPs); 69 FR 67062, November 16, 2004 (corrections         In its regional haze SIP, Mississippi                install, and operate BART as determined by the
                                                      to California SIP); and 74 FR 57051 (November 3,         relied on CAIR to satisfy the best                     state. Under the RHR, states are directed to conduct
                                                      2009) (corrections to Arizona and Nevada SIPs).          available retrofit technology (BART)                   BART determinations for such ‘‘BART-eligible’’
                                                         14 See, e.g., EPA’s disapproval of a SIP submission                                                          sources that may be anticipated to cause or
                                                                                                               requirements for its CAIR-subject                      contribute to any visibility impairment in a Class
                                                      from Colorado on the grounds that it would have
                                                      included a director’s discretion provision               electricity generating units (EGUs).15                 I area.
                                                                                                                                                                         16 EPA finalized a limited approval of
                                                      inconsistent with CAA requirements, including
                                                      section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344      15 Section 169A of the CAA and EPA’s                 Mississippi’s regional haze SIP on June 27, 2012.
                                                      (July 21, 2010) (proposed disapproval of director’s      implementing regulations require states to establish   See 77 FR 38191.
                                                      discretion provisions); 76 FR 4540 (January 26,          long-term strategies for making reasonable progress       17 EME Homer City Generation, L.P. v. EPA, 696

                                                      2011) (final disapproval of such provisions).            towards the national goal of achieving natural         F.3d 7 (D.C. Cir. 2012).



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                                                      15210                   Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules

                                                      D.C. Circuit’s direction to EPA to                      submissions, no sanctions will be                     Order 13132 (64 FR 43255, August 10,
                                                      continue administering CAIR, the                        triggered. However, if EPA finalizes this             1999);
                                                      Agency believed that it was appropriate                 proposed disapproval action, that final                 • is not an economically significant
                                                      for states to rely on CAIR emission                     action will trigger the requirement                   regulatory action based on health or
                                                      reductions for prong 4 purposes. EPA                    under section 110(c) that EPA                         safety risks subject to Executive Order
                                                      intended to allow this practice until a                 promulgate a FIP no later than two years              13045 (62 FR 19885, April 23, 1997);
                                                      valid replacement for CAIR was                          from the date of the disapproval unless                 • is not a significant regulatory action
                                                      developed and EPA acted on SIPs                         the State corrects the deficiency through             subject to Executive Order 13211 (66 FR
                                                      submitted in compliance with any new                    a SIP revision and EPA approves the SIP               28355, May 22, 2001);
                                                      rule, or until the CSAPR litigation was                 revision before EPA promulgates such a                  • is not subject to requirements of
                                                      resolved in a way that provided                         FIP.                                                  Section 12(d) of the National
                                                      different direction regarding CAIR and                                                                        Technology Transfer and Advancement
                                                      CSAPR. After publication of the                         V. Proposed Action                                    Act of 1995 (15 U.S.C. 272 note) because
                                                      February 20, 2013, prong 4 proposal,                      As described above, EPA is proposing                application of those requirements would
                                                      EPA asked the Supreme Court to review                   to disapprove the prong 4 portions of                 be inconsistent with the CAA; and
                                                      the DC Circuit’s decision and the                       Mississippi’s May 29, 2012, 2008 Ozone                  • does not provide EPA with the
                                                      Supreme Court reversed that ruling and                  infrastructure SIP submission; July 26,               discretionary authority to address, as
                                                      upheld CSAPR.18 EPA began                               2012, 2008 Ozone infrastructure SIP                   appropriate, disproportionate human
                                                      implementation of CSAPR, which                          resubmission; February 28, 2013, 2010                 health or environmental effects, using
                                                      replaced CAIR, on January 1, 2015.                      NO2 infrastructure SIP submission; June               practicable and legally permissible
                                                      Therefore, because of this intervening                  20, 2013, 2010 SO2 infrastructure SIP                 methods, under Executive Order 12898
                                                      change in the law, EPA cannot finalize                  submission; and December 8, 2015,                     (59 FR 7629, February 16, 1994).
                                                      its February 20, 2013, proposal to                      2012 PM2.5 infrastructure SIP                           The SIP is not approved to apply on
                                                      approve the prong 4 element that relies                 submission. All other outstanding                     any Indian reservation land or in any
                                                      on CAIR, and Mississippi cannot rely on                 applicable infrastructure requirements                other area where EPA or an Indian tribe
                                                      the outdated rationale contained in the                 for these SIP submissions will be                     has demonstrated that a tribe has
                                                      NPRM regarding CAIR to satisfy prong                    addressed in separate rulemakings.                    jurisdiction. In those areas of Indian
                                                      4.                                                                                                            country, the rule does not have tribal
                                                         As mentioned above, a state may meet                 VI. Statutory and Executive Order                     implications as specified by Executive
                                                      the requirements of prong 4 without a                   Reviews                                               Order 13175 (65 FR 67249, November 9,
                                                      fully approved regional haze SIP by                        Under the CAA, the Administrator is                2000), nor will it impose substantial
                                                      showing that its SIP contains adequate                  required to approve a SIP submission                  direct costs on tribal governments or
                                                      provisions to prevent emissions from                    that complies with the provisions of the              preempt tribal law.
                                                      within the state from interfering with                  Act and applicable federal regulations.
                                                      other states’ measures to protect                                                                             List of Subjects in 40 CFR Part 52
                                                                                                              See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
                                                      visibility. Mississippi did not, however,               Thus, in reviewing SIP submissions,                     Environmental protection, Air
                                                      provide a demonstration in any of the                   EPA’s role is to approve state choices,               pollution control, Incorporation by
                                                      infrastructure SIP submissions subject                  provided that they meet the criteria of               reference, Intergovernmental relations,
                                                      to today’s proposed action that                         the CAA. EPA is proposing to determine                Nitrogen dioxide, Ozone, Particulate
                                                      emissions within its jurisdiction do not                that the prong 4 portions of the                      matter, Reporting and recordkeeping
                                                      interfere with other states’ plans to                   aforementioned SIP submissions do not                 requirements, Volatile organic
                                                      protect visibility.                                     meet Federal requirements. Therefore,                 compounds.
                                                         As discussed above, Mississippi does
                                                                                                              this proposed action does not impose                    Authority: 42 U.S.C. 7401 et seq.
                                                      not have a fully approved regional haze
                                                                                                              additional requirements on the state                    Dated: March 8, 2016.
                                                      SIP that meets the requirements of 40
                                                                                                              beyond those imposed by state law. For                Heather McTeer Toney,
                                                      CFR 51.308 and has not otherwise
                                                                                                              that reason, this proposed action:
                                                      shown that its SIP contains adequate                                                                          Regional Administrator, Region 4.
                                                                                                                 • Is not a ‘‘significant regulatory
                                                      provisions to prevent emissions from                                                                          [FR Doc. 2016–06062 Filed 3–21–16; 8:45 am]
                                                                                                              action’’ subject to review by the Office
                                                      within the state from interfering with                                                                        BILLING CODE 6560–50–P
                                                                                                              of Management and Budget under
                                                      other states’ measures to protect
                                                                                                              Executive Orders 12866 (58 FR 51735,
                                                      visibility. Therefore, EPA is proposing
                                                                                                              October 4, 1993) and 13563 (76 FR 3821,
                                                      to disapprove the prong 4 portions of                                                                         FEDERAL COMMUNICATIONS
                                                                                                              January 21, 2011);
                                                      Mississippi’s May 29, 2012, 2008 8-hour                                                                       COMMISSION
                                                      Ozone infrastructure SIP submission;                       • does not impose an information
                                                      July 26, 2012, 2008 8-hour Ozone                        collection burden under the provisions
                                                                                                                                                                    47 CFR Part 15
                                                      infrastructure SIP resubmission;                        of the Paperwork Reduction Act (44
                                                      February 28, 2013, 2010 1-hour NO2                      U.S.C. 3501 et seq.);                                 [ET Docket No. 16–56; FCC 16–23]
                                                      infrastructure SIP submission; June 20,                    • is certified as not having a
                                                                                                              significant economic impact on a                      Unlicensed White Space Devices
                                                      2013, 2010 1-hour SO2 infrastructure
                                                                                                              substantial number of small entities                  AGENCY:  Federal Communications
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      SIP submission; and December 8, 2015,
                                                      2012 annual PM2.5 infrastructure SIP                    under the Regulatory Flexibility Act (5               Commission.
                                                      submission. Mississippi did not submit                  U.S.C. 601 et seq.);                                  ACTION: Proposed rule.
                                                      these infrastructure SIPs to meet                          • does not contain any unfunded
                                                      requirements for Part D or a SIP call;                  mandate or significantly or uniquely                  SUMMARY:   In this document, the Federal
                                                      therefore, if EPA takes final action to                 affect small governments, as described                Communications Commission
                                                      disapprove the prong 4 portions of these                in the Unfunded Mandates Reform Act                   (Commission) proposes to amend its
                                                                                                              of 1995 (Pub. L. 104–4);                              rules to improve the quality of the
                                                        18 EPA v. EME Homer City Generation, L.P., 134           • does not have Federalism                         geographic location and other data
                                                      S. Ct. 1584 (2014).                                     implications as specified in Executive                submitted for fixed white space devices


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Document Created: 2018-02-02 15:15:54
Document Modified: 2018-02-02 15:15:54
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before April 21, 2016.
ContactSean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]
FR Citation81 FR 15205 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Volatile Organic Compounds

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