81 FR 32707 - Air Plan Approval/Disapproval; Mississippi Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 100 (May 24, 2016)

Page Range		32707-32716
FR Document		2016-12102
The Environmental Protection Agency (EPA) is proposing to approve in part, and disapprove in part, portions of the State Implementation Plan (SIP) submission, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ) on February 28, 2013, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO<INF>2</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 the EPA, which is commonly referred to as an ``infrastructure'' SIP. MDEQ certified that the Mississippi SIP contains provisions that ensure the 2010 NO<INF>2</INF> NAAQS are implemented, enforced, and maintained in Mississippi. With the exception of the state board majority requirements respecting significant portion of income, for which EPA is proposing to disapprove, EPA is proposing to determine that portions of Mississippi's infrastructure submission, submitted to EPA on February 28, 2013, satisfies certain required infrastructure elements for the 2010 1-hour NO<INF>2</INF> NAAQS.
Federal Register, Volume 81 Issue 100 (Tuesday, May 24, 2016)
[Federal Register Volume 81, Number 100 (Tuesday, May 24, 2016)]
[Proposed Rules]
[Pages 32707-32716]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-12102]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0751; FRL-9946-83-Region 4]


Air Plan Approval/Disapproval; Mississippi Infrastructure 
Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part, and disapprove in part, portions of the State 
Implementation Plan (SIP) submission, submitted by the State of 
Mississippi, through the Mississippi Department of Environmental 
Quality (MDEQ) on February 28, 2013, to demonstrate that the State 
meets the infrastructure requirements of the Clean Air Act (CAA or Act) 
for the 2010 1-hour nitrogen dioxide (NO2) 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 the EPA, which is commonly referred to as an 
``infrastructure'' SIP. MDEQ certified that the Mississippi SIP 
contains provisions that ensure the 2010 NO2 NAAQS are 
implemented, enforced, and maintained in Mississippi. With the 
exception of the state board majority requirements respecting 
significant portion of income, for which EPA is proposing to 
disapprove, EPA is proposing to determine that portions of 
Mississippi's infrastructure submission, submitted to EPA on February 
28, 2013, satisfies certain required infrastructure elements for the 
2010 1-hour NO2 NAAQS.

DATES: Written comments must be received on or before June 23, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0751 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: Richard Wong, 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. The telephone number is (404) 562-8726. Mr. Wong can be 
reached via electronic mail at [email protected].

Table of Contents

I. Background
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how Mississippi addressed the elements 
of Sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On February 9, 2010, EPA promulgated a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS or within such shorter period as EPA may 
prescribe. Section 110(a)(2) requires states to address basic SIP 
elements such as requirements for monitoring, basic program 
requirements and legal authority that are designed to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
for the 2010 NO2 NAAQS to EPA no later than January 22, 
2013.\1\
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    \1\ In these infrastructure SIP submissions States generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``Air Pollution Control (APC)'' or ``Section 
APC-S-X'' indicates that the cited regulation has been approved into 
Mississippi's federally-approved SIP. The term ``Mississippi Code'' 
indicates cited Mississippi state statutes, which are not a part of 
the SIP unless otherwise indicated.

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[[Page 32708]]

    This action is proposing to approve Mississippi's infrastructure 
SIP submission for the applicable requirements of the 2010 1-hour 
NO2 NAAQS, with the exception of the preconstruction PSD 
permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of (D)(i) and (J), the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), and the state 
board majority requirements respecting significant portion of income of 
110(a)(2)(E)(ii). On March 18, 2015, EPA approved Mississippi's 
February 28, 2013, infrastructure SIP submission regarding the PSD 
permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of D(i) and (J) for the 2010 1-hour NO2 NAAQS. See 
80 FR 14019. Therefore, EPA is not proposing any action in this 
document pertaining to sections 110(a)(2)(C), prong 3 of D(i) and (J). 
Additionally, with respect to the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is not 
proposing any action in this document on these requirements. With 
respect to Mississippi's infrastructure SIP submission related to the 
majority requirements respecting significant portion of income of 
110(a)(2)(E)(ii), EPA is proposing to disapprove this portion of 
Mississippi's submission because Mississippi does not preclude at least 
a majority of the members of its boards from receiving a significant 
portion of their income from persons subject to permits or enforcement 
orders issued by such boards. For the aspects of Mississippi's 
submittal proposed for approval, EPA notes that the Agency is not 
approving any specific rule, but rather proposing that Mississippi's 
already approved SIP meets certain CAA requirements.

II. What elements are required under Sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2010 NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned previously, these 
requirements include basic SIP elements such as modeling, monitoring, 
and emissions inventories that are designed to assure attainment and 
maintenance of the NAAQS. The requirements that are the subject of this 
proposed rulemaking are summarized later in this preamble and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP Revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned, this element is not relevant to this proposed 
rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting Fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

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

    EPA is acting upon the SIP submission from Mississippi that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA 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 ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(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

[[Page 32709]]

CAA section 169A, and nonattainment new source review (NNSR) 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.\5\ 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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    \5\ 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 
Act, which specifically address nonattainment SIP requirements.\6\ 
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.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ 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)).
    \7\ 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 sections 110(a)(1) and 
110(a)(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.\8\ 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.\9\
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    \8\ 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).
    \9\ 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 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(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.\10\
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    \10\ 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 that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, 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

[[Page 32710]]

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.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ 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.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(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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    \11\ 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.
    \12\ ``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.
    \13\ 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 D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (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 enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan 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 sections 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 new source review (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 2012 
fine particulate matter (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 implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, among other things, the 
requirement that states have a program to regulate minor new sources. 
Thus, EPA evaluates whether the state has an EPA-approved minor NSR 
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 that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (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 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.\14\ 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

[[Page 32711]]

relate to the three specific issues just described.
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    \14\ 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 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 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 sections 110(a)(1) and 110(a)(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 implementation plan is substantially inadequate to attain or 
maintain the NAAQS, to mitigate interstate transport, or to otherwise 
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct 
errors in past actions, such as past approvals of SIP submissions.\16\ 
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.\17\
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    \15\ 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).
    \16\ 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 CAA section 110(k)(6) 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).
    \17\ 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).
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IV. What is EPA's analysis of how Mississippi addressed the elements of 
Sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Mississippi's February 28, 2013, infrastructure submission 
addresses the provisions of sections 110(a)(1) and (2) as described 
later on.
    1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section 
110(a)(2)(A) requires that each implementation plan include enforceable 
emission limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables for 
compliance, as may be necessary or appropriate to meet the applicable 
requirements. Mississippi's infrastructure SIP submission provides an 
overview of the provisions of the Mississippi Air Pollution Control 
(APC) regulations relevant to air quality control. Mississippi Code 
Title 49, Section 49-17-17(h) (Appendix A-9),\18\ authorizes MDEQ to 
adopt, modify, or repeal ambient air quality standards and emissions 
standards for the control of air pollution, including those necessary 
to obtain EPA approval under section 110 of the CAA. Sections APC-S-1, 
Air Emission Regulations for the Prevention, Abatement, and Control of 
Air Contaminants, and APC-S-3, Regulations for the Prevention of Air 
Pollution Emergency Episodes, establish enforceable emissions 
limitations and other control measures, means or techniques, for 
activities that contribute to NO2 concentrations in the 
ambient air and provide authority for MDEQ to establish such limits and 
measures as well as schedules for compliance through SIP-approved 
permits to meet the applicable requirements of the CAA. EPA has made 
the preliminary determination that the provisions contained in these 
regulations, and Mississippi's statute are adequate for enforceable 
emission limitations and other control measures, means, or techniques, 
as well as schedules and timetables for compliance for the 2010 1-hour 
NO2 NAAQS in the State.
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    \18\ Mississippi Code Title 49 is referenced in the State's 
infrastructure SIP submissions as ``Appendix A-9.'' As discussed, 
unless otherwise indicated herein, portions of the Mississippi Code 
referenced in this proposal are not incorporated into the SIP.
---------------------------------------------------------------------------

    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during SSM 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency is addressing such state regulations in a separate action.\19\
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    \19\ On June 12, 2015, EPA published a final action entitled, 
``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.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA

[[Page 32712]]

guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to 
(i) monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. Section 
APC-S-1, Air Emission Regulations for the Prevention, Abatement, and 
Control of Air Contaminants, and Mississippi Code Title 49, Section 49-
17-17(g), provides MDEQ with the authority to collect and disseminate 
information relating to air quality and pollution and the prevention, 
control, supervision, and abatement thereof. Annually, States develop 
and submit to EPA for approval statewide ambient monitoring network 
plans consistent with the requirements of 40 CFR parts 50, 53, and 58. 
The annual network plan involves an evaluation of any proposed changes 
to the monitoring network, includes the annual ambient monitoring 
network design plan and a certified evaluation of the agency's ambient 
monitors and auxiliary support equipment.\20\ On June 9, 2015, 
Mississippi submitted its monitoring network plan to EPA, and on 
October 6, 2015, EPA approved this plan. Mississippi's approved 
monitoring network plan can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2014-0751. EPA has made the preliminary 
determination that Mississippi's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements related to 
the 2010 1-hour NO2 NAAQS.
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    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: Section 
110(a)(2)(C) consists of three sub-elements; enforcement, state-wide 
regulation of new and modified minor sources and minor modifications of 
major sources; and preconstruction permitting of major sources and 
major modifications in areas designated attainment or unclassifiable 
for the subject NAAQS as required by CAA title I part C (i.e., the 
major source PSD program). To meet the requirements for this element, 
MDEQ cited Section APC-S-5, Mississippi Regulations for the Prevention 
of Significant Deterioration of Air Quality, Section APC-S-2, Permit 
Regulations for the Construction and/or Operation of Air Emissions 
Equipment. These regulations enable MDEQ to regulate sources 
contributing to the 2010 1-hour NO2 NAAQS through 
enforceable permits.
    Enforcement: MDEQ's APC-S-2, Permit Regulation for the Construction 
and/or Operation of Air Emissions Equipment, Section VI provides for 
the enforcement of NO2 emission limits and control measures 
through construction permitting for new or modified stationary sources. 
Also note that under Mississippi Code Title 49, Chapter 17, MDEQ has 
enforcement authority to seek penalties and injunctive relief for 
violations of emission limits and other control measures and violations 
of permits.
    PSD Permitting for Major Sources: With respect to Mississippi's 
February 28, 2013, infrastructure SIP submission related to the PSD 
permitting requirements for major sources of section 110(a)(2)(C), EPA 
took final action to approve these provisions for the 2010 1-hour 
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source preconstruction program that regulates emissions of the 2010 1-
hour NO2 NAAQS. Mississippi has a SIP-approved minor NSR 
permitting program at Section APC-S-2, Section I. D, Permitting 
Requirements that regulates the preconstruction permitting of 
modifications and construction of minor stationary sources.
    EPA has made the preliminary determination that Mississippi's SIP 
and practices are adequate for program enforcement of control measures 
and regulation of minor sources and modifications related to the 2010 
1-hour NO2 NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in 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 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 to protect visibility 
in another state (``prong 4'').
    110(a)(2)(D)(i)(I)--Prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because Mississippi's 2010 1-hour NO2 NAAQS 
infrastructure submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--Prong 3: With respect to Mississippi's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took 
final action to approve Mississippi's February 28, 2013, infrastructure 
SIP submission regarding prong 3 of D(i) for the 2010 1-hour 
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--Prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to visibility protection in other states of section 
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in 
relation to Mississippi's 2010 1-hour NO2 NAAQS 
infrastructure submission in a separate rulemaking.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
Section APC-S-5, Mississippi Regulations for the Prevention of 
Significant Deterioration of Air Quality provides how MDEQ will notify 
neighboring states of potential impacts from new or modified sources 
consistent with the requirements of 40 CFR 51.166, which is adopted by 
reference into the Mississippi SIP. Additionally, Mississippi does not 
have any pending obligation under section 115 and 126 of the CAA. EPA 
has made the preliminary determination that Mississippi's SIP and 
practices are adequate for insuring compliance with the applicable 
requirements relating to interstate and international pollution

[[Page 32713]]

abatement for the 2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide (i) 
necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the State has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
Mississippi's SIP as meeting the requirements of sections 
110(a)(2)(E)(i) and (iii). EPA is proposing to approve in part and 
disapprove in part Mississippi's SIP respecting section 
110(a)(2)(E)(ii). EPA's rationale for the proposals respecting each 
section of 110(a)(2)(E) is described later on.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), 
Mississippi provides that MDEQ is responsible for promulgating rules 
and regulations for the NAAQS, emissions standards, general policies, a 
system of permits, fee schedules for the review of plans, and other 
planning needs as found in Mississippi Code Title 49, Section 49-17-
17(d) and Section 49-17-17(h) (Appendix A-9). As evidence of the 
adequacy of MDEQ's resources with respect to sub-elements (i) and 
(iii), EPA submitted a letter to Mississippi on April 19, 2016, 
outlining 105 grant commitments and the current status of these 
commitments for fiscal year 2015. The letter EPA submitted to 
Mississippi can be accessed at www.regulations.gov using Docket ID No. 
EPA-R04-OAR-2014-0751. Annually, states update these grant commitments 
based on current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. There were no outstanding issues in 
relation to the SIP for fiscal year 2015, therefore, MDEQ's grants were 
finalized and closed out. EPA has made the preliminary determination 
that Mississippi has adequate resources for implementation of the 2010 
1-hour NO2 NAAQS.
    To meet the requirements of section 110(a)(2)(E)(ii), states must 
comply with the requirements respecting state boards pursuant to 
section 128 of the Act. Section 128 of the CAA requires that states 
include provisions in their SIP to address conflicts of interest for 
state boards or bodies that oversee CAA permits and enforcement orders 
and disclosure of conflict of interest requirements. Specifically, CAA 
section 128(a)(1) necessitates that each SIP shall require that at 
least a majority of any board or body which approves permits or 
enforcement orders shall be subject to the described public interest 
service and income restrictions therein. Subsection 128(a)(2) requires 
that the members of any board or body, or the head of an executive 
agency with similar power to approve permits or enforcement orders 
under the CAA, shall also be subject to conflict of interest disclosure 
requirements.
    To meet its section 110(a)(2)(E)(ii) obligations for the 2010 1-
hour NO2 NAAQS, Mississippi's infrastructure SIP submission 
cites Article 4, Section 109 of the Mississippi Constitution and 
portions of Mississippi Code sections 25-4-25, -27, -29, -103, -105, 
and -109. These provisions were incorporated into the Mississippi SIP 
to meet CAA section 128 requirements in EPA's final action for the 1997 
and 2006 PM2.5 NAAQS infrastructure SIP. See 78 FR 
20793.\21\ In this same final action for the 1997 and 2006 
PM2.5 NAAQS infrastructure SIP (78 FR 20793), EPA 
disapproved Mississippi's October 11, 2012, submission as not 
satisfying the significant portion of income requirement of section 
128(a)(1).
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    \21\ This final action pertained to Mississippi's October 11, 
2012, infrastructure SIP submission and only addressed compliance 
with 110(a)(2)(E)(ii) respecting CAA section 128 requirements.
---------------------------------------------------------------------------

    With respect to the public interest requirement of section 
128(a)(1) and the adequate disclosure of conflicts of interest 
requirement of section 128(a)(2), EPA has previously found these 
requirements to be satisfied by the existing provisions in 
Mississippi's SIP. See 78 FR 20793.
    With respect to the significant portion of income requirement of 
section 128(a)(1), the provisions included in the February 28, 2013 
infrastructure SIP submission do not preclude at least a majority of 
the members of the Mississippi Boards \22\ from receiving a significant 
portion of their income from persons subject to permits or enforcement 
orders issued by such Boards. While the submitted laws and provisions 
preclude members of the Mississippi Boards from certain types of income 
(e.g., contracts with State or political subdivisions thereof, or 
income obtained through the use of his or her public office or obtained 
to influence a decision of the Mississippi Boards), they do not 
preclude a majority of members of the Mississippi Boards from deriving 
any significant portion of their income from persons subject to permits 
or enforcement orders so long as that income is not derived from one of 
the proscribed methods described in the laws and provisions submitted 
by the State. To date, because a majority of board members may still 
derive a significant portion of income from persons subject to permits 
or enforcement orders issued by the Mississippi Boards, the Mississippi 
SIP does not meet the section 128(a)(1) majority requirements 
respecting significant portion of income, and as such, EPA is proposing 
to disapprove the State's 110(a)(2)(E)(ii) submission as it relates 
only to this portion of section 128(a)(1).
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    \22\ The Mississippi Commission on Environmental Quality issues 
and supervises enforcement orders, and the Mississippi Department of 
Environmental Quality Permit Board has the authority to issue, 
modify, revoke or deny permits.
---------------------------------------------------------------------------

    Accordingly, EPA is proposing to approve the section 
110(a)(2)(E)(ii) submission as it relates to the public interest 
requirements of section 128(a)(1) and the conflict of interest 
disclosure provisions of section 128(a)(2) and proposing to disapprove 
Mississippi's section 110(a)(2)(E)(ii) submission as it pertains to 
compliance with the significant portion of income requirement of 
section 128(a)(1) for the 2010 1-hour NO2 NAAQS.
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing: 
(i) The installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. Section APC-S-2, Permit 
Regulations for the Construction and/or Operation of Air Emissions 
Equipment, establishes requirements for emissions compliance testing 
utilizing emissions sampling and analysis. It further describes how the 
State ensures the quality of its data through observing emissions and 
monitoring operations. MDEQ uses these data to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with emission regulations and additional EPA requirements. Mississippi 
Code 49,

[[Page 32714]]

Section 49-17-21 (Appendix A-9) provides MDEQ with the authority to 
require the maintenance of records related to the operation of air 
contaminant sources and any authorized representative of the Commission 
may examine and copy any such records or memoranda pertaining to the 
operation of such contaminant source. Section APC-S-2 lists 
requirements for compliance testing and reporting that is required to 
be included in any MDEQ air pollution permit and requires that copies 
of records relating to the operation of air contamination sources be 
submitted to the Permit Board as required by the permit or upon 
request. Section APC-S-1, Air Emission Regulations For The Prevention, 
Abatement, and Control of Air Contaminants, authorizes source owners or 
operators to use any credible evidence or information relevant to 
whether a source would have been in compliance with applicable 
requirements if the appropriate performance or compliance test had been 
performed, for the purpose of submitting compliance certifications. EPA 
is unaware of any provision preventing the use of credible evidence in 
the Mississippi SIP.
    Additionally, Mississippi is required to submit emissions data to 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory System 
(EIS). States report emissions data for the six criteria pollutants and 
the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Mississippi made its latest update to the 
2012 NEI on January 9, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. 
EPA has made the preliminary determination that Mississippi's SIP and 
practices are adequate for the stationary source monitoring systems 
related to the 2010 1-hour NO2 NAAQS.
    8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires 
that states demonstrate authority comparable with section 303 of the 
CAA and adequate contingency plans to implement such authority. 
Mississippi Code Title 49, Section 49-17-27 (Appendix A-9) and APC-S-3, 
Regulations for the Prevention of Air Pollution Emergency Episodes, 
identify air pollution emergency episodes and preplanned abatement 
strategies. Specifically, Section APC-S-3 authorizes the MDEQ Director, 
once it has been determined that an Air Pollution Emergency Episode 
condition exists at one or more monitoring sites solely because of 
emissions from a limited number of sources, to order source(s) to put 
into effect the emission control programs which are applicable for each 
episode stage. Section APC-S-3 also lists regulations to prevent the 
excessive buildup of air pollutants during air pollution episodes. 
Also, Mississippi Code Title 49, Section 49-17-27 (Appendix A-9), 
states that in the event an emergency is found to exist by the 
Mississippi Commission on Environmental Quality, it may issue an 
emergency order as circumstances may require. Emergency situations 
include those which create an imminent and substantial endangerment 
threatening the public health and safety or the lives and property of 
the people in Mississippi. EPA has made the preliminary determination 
that Mississippi's SIP is adequate for emergency powers related to the 
2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to 
approve Mississippi's infrastructure SIP submission with respect to 
section 110(a)(2)(G).
    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan (i) as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. MDEQ is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in Mississippi. The State has the ability and authority to 
respond to calls for SIP revisions, and has provided a number of SIP 
revisions over the years for implementation of the NAAQS. Mississippi 
Code Title 49, Section 49-17-17(h) (Appendix A-9), provides MDEQ with 
the statutory authority to adopt, modify or repeal and promulgate 
ambient air and water quality standards and emissions standards for the 
State. As such, the State has the authority to revise the SIP to 
accommodate changes to NAAQS and revise the SIP if the EPA 
Administrator finds the plan to be substantially inadequate to attain 
the NAAQS. EPA has made the preliminary determination that 
Mississippi's SIP and practices adequately demonstrate a commitment to 
provide future SIP revisions related to the 2010 1-hour NO2 
NAAQS when necessary.
    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve Mississippi's infrastructure SIP submission for the 2010 1-hour 
NO2 NAAQS with respect to the general requirement in section 
110(a)(2)(J) to include a program in the SIP that provides for meeting 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127; and visibility protection 
requirements of part C of the Act. With respect to Mississippi's 
infrastructure SIP submission related to the preconstruction PSD 
permitting requirements of section 110(a)(2)(J), EPA took final action 
to approve Mississippi's February 28, 2013, 2010 1-hour NO2 
NAAQS infrastructure SIP for these requirements on March 18, 2015. See 
80 FR 14019. EPA's rationale for its proposed action regarding 
applicable consultation requirements of section 121, the public 
notification requirements of section 127, and visibility protection 
requirements is described later in this document.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers carrying out NAAQS implementation requirements 
pursuant to section 121 relative to consultation. Section APC-S-5, 
Mississippi Regulations for the Prevention of Significant Deterioration 
of Air Quality and Mississippi Code Title 49, Section 49-17-17(c) 
(Appendix A-9), along with the State's various implementations plans, 
such as the State's Regional Haze Implementation Plan, provide for 
consultation between appropriate state, local, and tribal air pollution 
control agencies as well as the corresponding Federal Land Managers 
whose jurisdictions might be affected by SIP development activities. 
Mississippi adopted state-wide consultation

[[Page 32715]]

procedures for the implementation of transportation conformity. These 
consultation procedures were developed in coordination with the 
transportation partners in the State and are consistent with the 
approaches used for development of mobile inventories for SIPs. 
Implementation of transportation conformity as outlined in the 
consultation procedures requires MDEQ to consult with federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. EPA has made the 
preliminary determination that Mississippi's SIP and practices 
adequately demonstrate that the State meets applicable requirements 
related to consultation with government officials for the 2010 1-hour 
NO2 NAAQS when necessary. Accordingly, EPA is proposing to 
approve Mississippi's infrastructure SIP submissions with respect to 
section 110(a)(2)(J) consultation with government officials.
    Public notification (127 public notification): These requirements 
are met through regulation Section APC-S-3, Mississippi Regulations for 
the Prevention of Air Pollution Emergency Episodes, which requires that 
MDEQ notify the public of any air pollution alert, warning, or 
emergency. The MDEQ Web site also provides air quality summary data, 
air quality index reports and links to more information regarding 
public awareness of measures that can prevent such exceedances and of 
ways in which the public can participate in regulatory and other 
efforts to improve air quality. EPA has made the preliminary 
determination that Mississippi's SIP and practices adequately 
demonstrate the State's ability to provide public notification related 
to the 2010 1-hour NO2 NAAQS when necessary. Accordingly, 
EPA is proposing to approve Mississippi's infrastructure SIP 
submissions with respect to section 110(a)(2)(J) public notification.
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. 
MDEQ referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under Part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so MDEQ does 
not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that Mississippi's infrastructure SIP 
submission related to the 2010 1-hour NO2 NAAQS is 
approvable for the visibility protection element of section 
110(a)(2)(J) and that Mississippi does not need to rely on its regional 
haze program to address this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. Sections APC-S-2, V. B., Permit Regulation 
for the Construction and/or Operation of Air Emissions Equipment, and 
APC-S-5, Mississippi Regulations for the Prevention of Significant 
Deterioration of Air Quality, specify that required air modeling be 
conducted in accordance with 40 CFR part 51, Appendix W ``Guideline on 
Air Quality Models,'' as incorporated into the Mississippi SIP. These 
standards demonstrate that Mississippi has the authority to perform air 
quality modeling and provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 2010 1-hour 
NO2 NAAQS. Also of note, Mississippi Code Title 49, Section 
49-17-17(e) (Appendix A-9),\23\ authorizes MDEQ to ``encourage, 
participate in, or conduct studies, investigations, research and 
demonstrations relating to air and water quality and pollution and 
causes, prevention, control and abatement as it may deem advisable and 
necessary for the discharge of its duties under [the Mississippi air 
and water pollution control law].'' Additionally, Mississippi 
participates in a regional effort to coordinate the development of 
emissions inventories and conduct regional modeling for several NAAQS, 
including the 2010 1-hour NO2 NAAQS, for the southeastern 
states. Taken as a whole, Mississippi's air quality regulations and 
practices demonstrate that MDEQ has the authority to provide relevant 
data for the purpose of predicting the effect on ambient air quality of 
the 2010 1-hour NO2 NAAQS. EPA has made the preliminary 
determination that Mississippi's SIP and practices adequately 
demonstrate the State's ability to provide for air quality modeling, 
along with analysis of the associated data, related to the 2010 1-hour 
NO2 NAAQS when necessary. Accordingly, EPA is proposing to 
approve Mississippi's infrastructure SIP submissions with respect to 
section 110(a)(2)(K).
---------------------------------------------------------------------------

    \23\ Mississippi Code Title 49 is referenced in the State's 
infrastructure SIP submissions as ``Appendix A-9.'' As discussed, 
unless otherwise indicated herein, portions of the Mississippi Code 
referenced in this proposal are not incorporated into the SIP.
---------------------------------------------------------------------------

    12. 110(a)(2)(L) Permitting Fees: Section 110(a)(2)(L) requires the 
owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under the 
CAA, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    Mississippi Code Title 49, Section 49-2-9(c) (Appendix A-9), 
authorizes MDEQ to apply for, receive, and expend Federal or state 
funds in order to operate its air programs. Mississippi Code Title 49, 
Section 49-17-30 (Appendix A-9), provides for the assessment of Title V 
permit fees to cover the reasonable cost of reviewing and acting upon 
air permitting activities in the state including title V, PSD and NNSR 
permits. Mississippi Code Title 49, Section 49-17-14 (Appendix A-9), 
allows MDEQ to expend or utilize monies in the Mississippi Air 
Operating Permit Program Fee Trust Fund to pay all reasonable direct 
and indirect costs associated with the development and administration 
of the title V program and the PSD and NNSR permitting including. The 
Mississippi Air Operating Permit Program Fee Trust Fund consists of 
state legislative appropriations, Federal grant funds and title V fees. 
Additionally, Mississippi has a federally-approved title V operating 
permit program at Section APC-S-6 \24\ that covers the implementation 
and enforcement of PSD and NNSR permits after they have been issued. 
EPA has made the preliminary determination that Mississippi adequately 
provides for permitting fees related to the 2010 1-hour NO2 
NAAQS when necessary.
---------------------------------------------------------------------------

    \24\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities:

[[Page 32716]]

Section 110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. Mississippi Code Title 49, Appendix A-9, Section 
49-17-17(c), gives the Commission the statutory authority to advise and 
consult with any political subdivisions in the State. Mississippi Code 
Title 49, Appendix A-9, Section 49-17-19(b) requires the Commission to 
conduct public hearings in accordance with EPA regulations prior to 
establishing, amending, or repealing standards of air quality. 
Additionally, MDEQ works closely with local political subdivisions 
during the development of its transportation conformity SIP and 
regional haze SIP. EPA has made the preliminary determination that 
Mississippi's SIP and practices adequately demonstrate consultation 
with affected local entities related to the 2010 1-hour NO2 
NAAQS when necessary.

V. Proposed Action

    With the exception of the preconstruction PSD permitting 
requirements for major sources of section 110(a)(2)(C), prong 3 of 
(D)(i), and (J), the interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance in other 
states and visibility protection of section 110(a)(2)(D)(i)(I) and (II) 
(prongs 1, 2, and 4), and the state board majority requirements 
respecting the significant portion of income of section 
110(a)(2)(E)(ii), EPA is proposing to approve that Mississippi's 
February 28, 2013, SIP submission for the 2010 1-hour NO2 
NAAQS has met the above-described infrastructure SIP requirements 
because these aspects of the submission are consistent with section 110 
of the CAA. EPA is proposing to disapprove in part section 
110(a)(2)(E)(ii) of Mississippi's infrastructure submission because a 
majority of board members may still derive a significant portion of 
income from persons subject to permits or enforcement orders issued by 
the Mississippi Boards. Therefore, its current SIP does not meet the 
section 128(a)(1) majority requirements respecting significant portion 
of income. This proposed action, however, does not include the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), prong 3 of (D)(i), and (J), which have been 
approved in a separate action, or the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of prongs 1, 2 and 4 of section 
110(a)(2)(D)(i), which will be addressed by EPA in a separate action.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a CAA Part D Plan or is required in 
response to a finding of substantial inadequacy as described in CAA 
section 110(k)(5) (SIP call) starts a sanctions clock. The portion of 
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for 
disapproval in this action) were not submitted to meet requirements for 
Part D or a SIP call, and therefore, if EPA takes final action to 
disapprove this submittal, no sanctions will be triggered. However, if 
this disapproval action is finalized, that final action will trigger 
the requirement under section 110(c) that EPA promulgate a federal 
implementation plan (FIP) no later than 2 years from the date of the 
disapproval unless the State corrects the deficiency, and EPA approves 
the plan or plan revision before EPA promulgates such FIP.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive 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, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 12, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-12102 Filed 5-23-16; 8:45 am]
 BILLING CODE 6560-50-P
Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 32707

• does not contain any unfunded ENVIRONMENTAL PROTECTION comment. The written comment is
mandate or significantly or uniquely AGENCY considered the official comment and
affect small governments, as described should include discussion of all points
in the Unfunded Mandates Reform Act 40 CFR Part 52 you wish to make. EPA will generally
of 1995 (Pub. L. 104–4); [EPA–R04–OAR–2014–0751; FRL–9946–83–
not consider comments or comment
contents located outside of the primary
• does not have Federalism Region 4]
submission (i.e. on the web, cloud, or
implications as specified in Executive other file sharing system). For
Air Plan Approval/Disapproval;
Order 13132 (64 FR 43255, August 10, additional submission methods, the full
Mississippi Infrastructure
1999); EPA public comment policy,
Requirements for the 2010 Nitrogen
• is not an economically significant Dioxide National Ambient Air Quality information about CBI or multimedia
regulatory action based on health or Standards submissions, and general guidance on
safety risks subject to Executive Order making effective comments, please visit
13045 (62 FR 19885, April 23, 1997); AGENCY: Environmental Protection http://www2.epa.gov/dockets/
Agency. commenting-epa-dockets.
• is not a significant regulatory action
ACTION: Proposed rule. FOR FURTHER INFORMATION CONTACT:
subject to Executive Order 13211 (66 FR
Richard Wong, Air Regulatory
28355, May 22, 2001); SUMMARY: The Environmental Protection Management Section, Air Planning and
• is not subject to requirements of Agency (EPA) is proposing to approve Implementation Branch, Air, Pesticides
Section 12(d) of the National in part, and disapprove in part, portions and Toxics Management Division, U.S.
Technology Transfer and Advancement of the State Implementation Plan (SIP) Environmental Protection Agency,
Act of 1995 (15 U.S.C. 272 note) because submission, submitted by the State of Region 4, 61 Forsyth Street SW.,
application of those requirements would Mississippi, through the Mississippi Atlanta, Georgia 30303–8960. The
be inconsistent with the CAA; and Department of Environmental Quality telephone number is (404) 562–8726.
(MDEQ) on February 28, 2013, to Mr. Wong can be reached via electronic
• does not provide EPA with the demonstrate that the State meets the
discretionary authority to address, as mail at wong.richard@epa.gov.
infrastructure requirements of the Clean
appropriate, disproportionate human Air Act (CAA or Act) for the 2010 1- Table of Contents
health or environmental effects, using hour nitrogen dioxide (NO2) national I. Background
practicable and legally permissible ambient air quality standards (NAAQS). II. What elements are required under
methods, under Executive Order 12898 The CAA requires that each state adopt Sections 110(a)(1) and (2)?
(59 FR 7629, February 16, 1994). and submit a SIP for the III. What is EPA’s approach to the review of
implementation, maintenance and infrastructure SIP submissions?
The SIP is not approved to apply on IV. What is EPA’s analysis of how
any Indian reservation land or in any enforcement of each NAAQS Mississippi addressed the elements of
other area where EPA or an Indian tribe promulgated by the EPA, which is Sections 110(a)(1) and (2)
has demonstrated that a tribe has commonly referred to as an ‘‘infrastructure’’ provisions?
jurisdiction. In those areas of Indian ‘‘infrastructure’’ SIP. MDEQ certified V. Proposed Action
that the Mississippi SIP contains VI. Statutory and Executive Order Reviews
country, the rule does not have tribal
provisions that ensure the 2010 NO2 I. Background
implications as specified by Executive
NAAQS are implemented, enforced, and
Order 13175 (65 FR 67249, November 9, On February 9, 2010, EPA
maintained in Mississippi. With the
2000), nor will it impose substantial exception of the state board majority promulgated a new 1-hour primary
direct costs on tribal governments or requirements respecting significant NAAQS for NO2 at a level of 100 parts
preempt tribal law. portion of income, for which EPA is per billion (ppb), based on a 3-year
proposing to disapprove, EPA is average of the 98th percentile of the
List of Subjects in 40 CFR Part 52
proposing to determine that portions of yearly distribution of 1-hour daily
Environmental protection, Air Mississippi’s infrastructure submission, maximum concentrations. See 75 FR
pollution control, Incorporation by submitted to EPA on February 28, 2013, 6474. Pursuant to section 110(a)(1) of
reference, Intergovernmental relations, satisfies certain required infrastructure the CAA, states are required to submit
Nitrogen oxides, Particulate matter, elements for the 2010 1-hour NO2 SIPs meeting the requirements of
Reporting and recordkeeping NAAQS. section 110(a)(2) within three years after
promulgation of a new or revised
requirements, Sulfur dioxide, Volatile DATES: Written comments must be NAAQS or within such shorter period
organic compounds. received on or before June 23, 2016. as EPA may prescribe. Section 110(a)(2)
Authority: 42 U.S.C. 7401 et seq. ADDRESSES: Submit your comments, requires states to address basic SIP
Dated: May 12, 2016. identified by Docket ID No. EPA–R04– elements such as requirements for
OAR–2014–0751 at http:// monitoring, basic program requirements
Heather McTeer Toney,
www.regulations.gov. Follow the online and legal authority that are designed to
Regional Administrator, Region 4. instructions for submitting comments. assure attainment and maintenance of
[FR Doc. 2016–12113 Filed 5–23–16; 8:45 am] Once submitted, comments cannot be the NAAQS. States were required to
BILLING CODE 6560–50–P edited or removed from Regulations.gov. submit such SIPs for the 2010 NO2
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EPA may publish any comment received NAAQS to EPA no later than January
to its public docket. Do not submit 22, 2013.1
electronically any information you
consider to be Confidential Business 1 In these infrastructure SIP submissions States

Information (CBI) or other information generally certify evidence of compliance with
sections 110(a)(1) and (2) of the CAA through a
whose disclosure is restricted by statute. combination of state regulations and statutes, some
Multimedia submissions (audio, video, of which have been incorporated into the federally-
etc.) must be accompanied by a written Continued

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This action is proposing to approve submission to EPA for a new or revised Oversight of Local Governments and
Mississippi’s infrastructure SIP NAAQS, but the contents of that Regional Agencies
submission for the applicable submission may vary depending upon • 110(a)(2)(F): Stationary Source
requirements of the 2010 1-hour NO2 the facts and circumstances. In Monitoring and Reporting
NAAQS, with the exception of the particular, the data and analytical tools • 110(a)(2)(G): Emergency Powers
preconstruction PSD permitting available at the time the state develops • 110(a)(2)(H): SIP Revisions
requirements for major sources of and submits the SIP for a new or revised • 110(a)(2)(I): Plan Revisions for
sections 110(a)(2)(C), prong 3 of (D)(i) NAAQS affects the content of the Nonattainment Areas 4
and (J), the interstate transport submission. The contents of such SIP • 110(a)(2)(J): Consultation with
requirements of section 110(a)(2)(D)(i)(I) submissions may also vary depending Government Officials, Public
and (II) (prongs 1, 2, and 4), and the upon what provisions the state’s Notification, and PSD and Visibility
state board majority requirements existing SIP already contains. In the Protection
respecting significant portion of income case of the 2010 NO2 NAAQS, states • 110(a)(2)(K): Air Quality Modeling
of 110(a)(2)(E)(ii). On March 18, 2015, typically have met the basic program and Submission of Modeling Data
EPA approved Mississippi’s February elements required in section 110(a)(2) • 110(a)(2)(L): Permitting Fees
28, 2013, infrastructure SIP submission through earlier SIP submissions in • 110(a)(2)(M): Consultation and
regarding the PSD permitting connection with previous NAAQS. Participation by Affected Local
requirements for major sources of More specifically, section 110(a)(1) Entities
sections 110(a)(2)(C), prong 3 of D(i) and provides the procedural and timing III. What is EPA’s approach to the
(J) for the 2010 1-hour NO2 NAAQS. See requirements for SIPs. Section 110(a)(2) review of infrastructure SIP
80 FR 14019. Therefore, EPA is not lists specific elements that states must submissions?
proposing any action in this document meet for ‘‘infrastructure’’ SIP
pertaining to sections 110(a)(2)(C), requirements related to a newly EPA is acting upon the SIP
prong 3 of D(i) and (J). Additionally, established or revised NAAQS. As submission from Mississippi that
with respect to the interstate transport mentioned previously, these addresses the infrastructure
requirements of section 110(a)(2)(D)(i)(I) requirements include basic SIP elements requirements of CAA sections 110(a)(1)
and (II) (prongs 1, 2, and 4), EPA is not such as modeling, monitoring, and and 110(a)(2) for the 2010 NO2 NAAQS.
proposing any action in this document emissions inventories that are designed The requirement for states to make a SIP
on these requirements. With respect to to assure attainment and maintenance of submission of this type arises out of
Mississippi’s infrastructure SIP the NAAQS. The requirements that are CAA section 110(a)(1). Pursuant to
submission related to the majority the subject of this proposed rulemaking section 110(a)(1), states must make SIP
requirements respecting significant are summarized later in this preamble submissions ‘‘within 3 years (or such
portion of income of 110(a)(2)(E)(ii), and in EPA’s September 13, 2013, shorter period as the Administrator may
EPA is proposing to disapprove this memorandum entitled ‘‘Guidance on prescribe) after the promulgation of a
portion of Mississippi’s submission Infrastructure State Implementation national primary ambient air quality
because Mississippi does not preclude Plan (SIP) Elements under Clean Air Act standard (or any revision thereof),’’ and
at least a majority of the members of its Sections 110(a)(1) and 110(a)(2).’’ 2 these SIP submissions are to provide for
boards from receiving a significant • 110(a)(2)(A): Emission Limits and the ‘‘implementation, maintenance, and
portion of their income from persons Other Control Measures enforcement’’ of such NAAQS. The
subject to permits or enforcement orders • 110(a)(2)(B): Ambient Air Quality statute directly imposes on states the
issued by such boards. For the aspects Monitoring/Data System duty to make these SIP submissions,
of Mississippi’s submittal proposed for • 110(a)(2)(C): Programs for and the requirement to make the
approval, EPA notes that the Agency is Enforcement of Control Measures and submissions is not conditioned upon
not approving any specific rule, but for Construction or Modification of EPA’s taking any action other than
rather proposing that Mississippi’s Stationary Sources 3 promulgating a new or revised NAAQS.
already approved SIP meets certain • 110(a)(2)(D)(i)(I) and (II): Interstate Section 110(a)(2) includes a list of
CAA requirements. Pollution Transport specific elements that ‘‘[e]ach such
• 110(a)(2)(D)(ii): Interstate Pollution plan’’ submission must address.
II. What elements are required under Abatement and International Air EPA has historically referred to these
Sections 110(a)(1) and (2)? Pollution SIP submissions made for the purpose
Section 110(a) of the CAA requires • 110(a)(2)(E): Adequate Resources and of satisfying the requirements of CAA
states to submit SIPs to provide for the Authority, Conflict of Interest, and sections 110(a)(1) and 110(a)(2) as
implementation, maintenance, and ‘‘infrastructure SIP’’ submissions.
2 Two elements identified in section 110(a)(2) are
enforcement of a new or revised Although the term ‘‘infrastructure SIP’’
not governed by the three year submission deadline
NAAQS within three years following of section 110(a)(1) because SIPs incorporating does not appear in the CAA, EPA uses
the promulgation of such NAAQS, or necessary local nonattainment area controls are not the term to distinguish this particular
within such shorter period as EPA may due within three years after promulgation of a new type of SIP submission from
prescribe. Section 110(a) imposes the or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
submissions that are intended to satisfy
obligation upon states to make a SIP pursuant to section 172. These requirements are: (1) other SIP requirements under the CAA,
Submissions required by section 110(a)(2)(C) to the such as ‘‘nonattainment SIP’’ or
approved SIP. In addition, certain federally- extent that subsection refers to a permit program as
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‘‘attainment plan SIP’’ submissions to
approved, non-SIP regulations may also be required in part D Title I of the CAA; and (2)
appropriate for demonstrating compliance with submissions required by section 110(a)(2)(I) which address the nonattainment planning
sections 110(a)(1) and (2). Throughout this pertain to the nonattainment planning requirements requirements of part D of title I of the
rulemaking, unless otherwise indicated, the term of part D, Title I of the CAA. This proposed CAA, ‘‘regional haze SIP’’ submissions
‘‘Air Pollution Control (APC)’’ or ‘‘Section APC–S– rulemaking does not address infrastructure required by EPA rule to address the
X’’ indicates that the cited regulation has been elements related to section 110(a)(2)(I) or the
approved into Mississippi’s federally-approved SIP. nonattainment planning requirements of visibility protection requirements of
The term ‘‘Mississippi Code’’ indicates cited 110(a)(2)(C).
Mississippi state statutes, which are not a part of 3 This rulemaking only addresses requirements 4 As mentioned, this element is not relevant to

the SIP unless otherwise indicated. for this element as they relate to attainment areas. this proposed rulemaking.

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CAA section 169A, and nonattainment for certain pollutants when the Ambiguities within sections 110(a)(1)
new source review (NNSR) permit Administrator promulgates the and 110(a)(2) may also arise with
program submissions to address the designation of an area as nonattainment, respect to infrastructure SIP submission
permit requirements of CAA, title I, part and section 107(d)(1)(B) allows up to requirements for different NAAQS.
D. two years, or in some cases three years, Thus, EPA notes that not every element
Section 110(a)(1) addresses the timing for such designations to be of section 110(a)(2) would be relevant,
and general requirements for promulgated.7 This ambiguity illustrates or as relevant, or relevant in the same
infrastructure SIP submissions, and that rather than apply all the stated way, for each new or revised NAAQS.
section 110(a)(2) provides more details requirements of section 110(a)(2) in a The states’ attendant infrastructure SIP
concerning the required contents of strict literal sense, EPA must determine submissions for each NAAQS therefore
these submissions. The list of required which provisions of section 110(a)(2) could be different. For example, the
elements provided in section 110(a)(2) are applicable for a particular monitoring requirements that a state
contains a wide variety of disparate infrastructure SIP submission. might need to meet in its infrastructure
provisions, some of which pertain to Another example of ambiguity within SIP submission for purposes of section
required legal authority, some of which sections 110(a)(1) and 110(a)(2) with 110(a)(2)(B) could be very different for
pertain to required substantive program respect to infrastructure SIPs pertains to different pollutants because the content
provisions, and some of which pertain whether states must meet all of the and scope of a state’s infrastructure SIP
to requirements for both authority and infrastructure SIP requirements in a submission to meet this element might
substantive program provisions.5 EPA single SIP submission, and whether EPA be very different for an entirely new
therefore believes that while the timing must act upon such SIP submission in NAAQS than for a minor revision to an
requirement in section 110(a)(1) is a single action. Although section existing NAAQS.10
unambiguous, some of the other 110(a)(1) directs states to submit ‘‘a EPA notes that interpretation of
statutory provisions are ambiguous. In plan’’ to meet these requirements, EPA section 110(a)(2) is also necessary when
particular, EPA believes that the list of interprets the CAA to allow states to EPA reviews other types of SIP
required elements for infrastructure SIP make multiple SIP submissions submissions required under the CAA.
submissions provided in section separately addressing infrastructure SIP Therefore, as with infrastructure SIP
110(a)(2) contains ambiguities elements for the same NAAQS. If states submissions, EPA also has to identify
concerning what is required for elect to make such multiple SIP and interpret the relevant elements of
inclusion in an infrastructure SIP submissions to meet the infrastructure section 110(a)(2) that logically apply to
submission. SIP requirements, EPA can elect to act these other types of SIP submissions.
The following examples of on such submissions either individually For example, section 172(c)(7) requires
ambiguities illustrate the need for EPA or in a larger combined action.8 that attainment plan SIP submissions
to interpret some section 110(a)(1) and Similarly, EPA interprets the CAA to required by part D have to meet the
section 110(a)(2) requirements with allow it to take action on the individual ‘‘applicable requirements’’ of section
respect to infrastructure SIP parts of one larger, comprehensive 110(a)(2). Thus, for example, attainment
submissions for a given new or revised infrastructure SIP submission for a plan SIP submissions must meet the
NAAQS. One example of ambiguity is given NAAQS without concurrent requirements of section 110(a)(2)(A)
that section 110(a)(2) requires that action on the entire submission. For regarding enforceable emission limits
‘‘each’’ SIP submission must meet the example, EPA has sometimes elected to and control measures and section
list of requirements therein, while EPA act at different times on various 110(a)(2)(E)(i) regarding air agency
has long noted that this literal reading elements and sub-elements of the same resources and authority. By contrast, it
of the statute is internally inconsistent infrastructure SIP submission.9 is clear that attainment plan SIP
and would create a conflict with the submissions required by part D would
nonattainment provisions in part D of 7 EPA notes that this ambiguity within section not need to meet the portion of section
title I of the Act, which specifically 110(a)(2) is heightened by the fact that various 110(a)(2)(C) that pertains to the PSD
subparts of part D set specific dates for submission
address nonattainment SIP of certain types of SIP submissions in designated
program required in part C of title I of
requirements.6 Section 110(a)(2)(I) nonattainment areas for various pollutants. Note, the CAA, because PSD does not apply
pertains to nonattainment SIP e.g., that section 182(a)(1) provides specific dates to a pollutant for which an area is
requirements and part D addresses for submission of emissions inventories for the designated nonattainment and thus
ozone NAAQS. Some of these specific dates are
when attainment plan SIP submissions necessarily later than three years after promulgation subject to part D planning requirements.
to address nonattainment area of the new or revised NAAQS. As this example illustrates, each type of
requirements are due. For example, 8 See, e.g., ‘‘Approval and Promulgation of SIP submission may implicate some
section 172(b) requires EPA to establish Implementation Plans; New Mexico; Revisions to elements of section 110(a)(2) but not
a schedule for submission of such plans the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
others.
Significant Deterioration (PSD) and Nonattainment Given the potential for ambiguity in
5 For example: Section 110(a)(2)(E)(i) provides
New Source Review (NNSR) Permitting,’’ 78 FR some of the statutory language of section
that states must provide assurances that they have 4339 (January 22, 2013) (EPA’s final action 110(a)(1) and section 110(a)(2), EPA
adequate legal authority under state and local law approving the structural PSD elements of the New
to carry out the SIP; section 110(a)(2)(C) provides
believes that it is appropriate to
Mexico SIP submitted by the State separately to
that states must have a SIP-approved program to meet the requirements of EPA’s 2008 PM2.5 NSR interpret the ambiguous portions of
address certain sources as required by part C of title rule), and ‘‘Approval and Promulgation of Air
I of the CAA; and section 110(a)(2)(G) provides that Quality Implementation Plans; New Mexico; January 23, 2012 (77 FR 3213) and took final action
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states must have legal authority to address Infrastructure and Interstate Transport on March 14, 2012 (77 FR 14976). On April 16,
emergencies as well as contingency plans that are Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 2012 (77 FR 22533) and July 23, 2012 (77 FR
triggered in the event of such emergencies. 4337) (January 22, 2013) (EPA’s final action on the 42997), EPA took separate proposed and final
6 See, e.g., ‘‘Rule To Reduce Interstate Transport infrastructure SIP for the 2006 PM2.5 NAAQS). actions on all other section 110(a)(2) infrastructure
of Fine Particulate Matter and Ozone (Clean Air 9 On December 14, 2007, the State of Tennessee, SIP elements of Tennessee’s December 14, 2007
Interstate Rule); Revisions to Acid Rain Program; through the Tennessee Department of Environment submittal.
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR and Conservation, made a SIP revision to EPA 10 For example, implementation of the 1997 PM
2.5
25162, at 25163–65 (May 12, 2005) (explaining demonstrating that the State meets the requirements NAAQS required the deployment of a system of
relationship between timing requirement of section of sections 110(a)(1) and (2). EPA proposed action new monitors to measure ambient levels of that new
110(a)(2)(D) versus section 110(a)(2)(I)). for infrastructure SIP elements (C) and (J) on indicator species for the new NAAQS.

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section 110(a)(1) and section 110(a)(2) subsections of section 110(a)(2). For other section 110(a)(2) elements,
in the context of acting on a particular Significantly, EPA interprets sections however, EPA’s review of a state’s
SIP submission. In other words, EPA 110(a)(1) and 110(a)(2) such that infrastructure SIP submission focuses
assumes that Congress could not have infrastructure SIP submissions need to on assuring that the state’s
intended that each and every SIP address certain issues and need not implementation plan meets basic
submission, regardless of the NAAQS in address others. Accordingly, EPA structural requirements. For example,
question or the history of SIP reviews each infrastructure SIP section 110(a)(2)(C) includes, among
development for the relevant pollutant, submission for compliance with the other things, the requirement that states
would meet each of the requirements, or applicable statutory provisions of have a program to regulate minor new
meet each of them in the same way. section 110(a)(2), as appropriate. sources. Thus, EPA evaluates whether
Therefore, EPA has adopted an As an example, section 110(a)(2)(E)(ii) the state has an EPA-approved minor
approach under which it reviews is a required element of section NSR program and whether the program
infrastructure SIP submissions against 110(a)(2) for infrastructure SIP addresses the pollutants relevant to that
the list of elements in section 110(a)(2), submissions. Under this element, a state NAAQS. In the context of acting on an
but only to the extent each element must meet the substantive requirements infrastructure SIP submission, however,
applies for that particular NAAQS. of section 128, which pertain to state EPA does not think it is necessary to
Historically, EPA has elected to use boards that approve permits or conduct a review of each and every
guidance documents to make enforcement orders and heads of provision of a state’s existing minor
recommendations to states for executive agencies with similar powers. source program (i.e., already in the
infrastructure SIPs, in some cases Thus, EPA reviews infrastructure SIP existing SIP) for compliance with the
conveying needed interpretations on submissions to ensure that the state’s requirements of the CAA and EPA’s
newly arising issues and in some cases implementation plan appropriately regulations that pertain to such
conveying interpretations that have addresses the requirements of section programs.
already been developed and applied to 110(a)(2)(E)(ii) and section 128. The
individual SIP submissions for With respect to certain other issues,
2013 Guidance explains EPA’s EPA does not believe that an action on
particular elements.11 EPA most interpretation that there may be a
recently issued guidance for a state’s infrastructure SIP submission is
variety of ways by which states can necessarily the appropriate type of
infrastructure SIPs on September 13, appropriately address these substantive
2013 (2013 Guidance).12 EPA developed action in which to address possible
statutory requirements, depending on deficiencies in a state’s existing SIP.
this document to provide states with up- the structure of an individual state’s
to-date guidance for infrastructure SIPs These issues include: (i) Existing
permitting or enforcement program (e.g., provisions related to excess emissions
for any new or revised NAAQS. Within whether permits and enforcement
this guidance, EPA describes the duty of from sources during periods of startup,
orders are approved by a multi-member shutdown, or malfunction that may be
states to make infrastructure SIP board or by a head of an executive
submissions to meet basic structural SIP contrary to the CAA and EPA’s policies
agency). However they are addressed by addressing such excess emissions
requirements within three years of the state, the substantive requirements
promulgation of a new or revised (‘‘SSM’’); (ii) existing provisions related
of section 128 are necessarily included to ‘‘director’s variance’’ or ‘‘director’s
NAAQS. EPA also made in EPA’s evaluation of infrastructure SIP
recommendations about many specific discretion’’ that may be contrary to the
submissions because section CAA because they purport to allow
subsections of section 110(a)(2) that are 110(a)(2)(E)(ii) explicitly requires that
relevant in the context of infrastructure revisions to SIP-approved emissions
the state satisfy the provisions of section limits while limiting public process or
SIP submissions.13 The guidance also 128.
discusses the substantively important not requiring further approval by EPA;
As another example, EPA’s review of and (iii) existing provisions for PSD
issues that are germane to certain
infrastructure SIP submissions with programs that may be inconsistent with
11 EPA notes, however, that nothing in the CAA respect to the PSD program current requirements of EPA’s ‘‘Final
requires EPA to provide guidance or to promulgate requirements in sections 110(a)(2)(C), NSR Improvement Rule,’’ 67 FR 80186
regulations for infrastructure SIP submissions. The (D)(i)(II), and (J) focuses upon the (December 31, 2002), as amended by 72
CAA directly applies to states and requires the structural PSD program requirements
submission of infrastructure SIP submissions, FR 32526 (June 13, 2007) (‘‘NSR
regardless of whether or not EPA provides guidance
contained in part C and EPA’s PSD Reform’’). Thus, EPA believes it may
or regulations pertaining to such submissions. EPA regulations. Structural PSD program approve an infrastructure SIP
elects to issue such guidance in order to assist requirements include provisions submission without scrutinizing the
states, as appropriate. necessary for the PSD program to
12 ‘‘Guidance on Infrastructure State totality of the existing SIP for such
address all regulated sources and new potentially deficient provisions and may
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’ source review (NSR) pollutants, approve the submission even if it is
Memorandum from Stephen D. Page, September 13, including greenhouse gases (GHGs). By aware of such existing provisions.14 It is
2013. contrast, structural PSD program important to note that EPA’s approval of
13 EPA’s September 13, 2013, guidance did not
requirements do not include provisions a state’s infrastructure SIP submission
make recommendations with respect to
infrastructure SIP submissions to address section
that are not required under EPA’s should not be construed as explicit or
110(a)(2)(D)(i)(I). EPA issued the guidance shortly regulations at 40 CFR 51.166 but are implicit re-approval of any existing
after the U.S. Supreme Court agreed to review the merely available as an option for the
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potentially deficient provisions that
D.C. Circuit decision in EME Homer City, 696 F.3d7 state, such as the option to provide
(D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
grandfathering of complete permit 14 By contrast, EPA notes that if a state were to

the uncertainty created by ongoing litigation, EPA applications with respect to the 2012 include a new provision in an infrastructure SIP
elected not to provide additional guidance on the fine particulate matter (PM2.5) NAAQS. submission that contained a legal deficiency, such
requirements of section 110(a)(2)(D)(i)(I) at that Accordingly, the latter optional as a new exemption for excess emissions during
time. As the guidance is neither binding nor SSM events, then EPA would need to evaluate that
required by statute, whether EPA elects to provide
provisions are types of provisions EPA provision for compliance against the rubric of
guidance on a particular section has no impact on considers irrelevant in the context of an applicable CAA requirements in the context of the
a state’s CAA obligations. infrastructure SIP action. action on the infrastructure SIP.

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relate to the three specific issues just comply with the CAA.15 Section necessary or appropriate to meet the
described. 110(k)(6) authorizes EPA to correct applicable requirements. Mississippi’s
EPA’s approach to review of errors in past actions, such as past infrastructure SIP submission provides
infrastructure SIP submissions is to approvals of SIP submissions.16 an overview of the provisions of the
identify the CAA requirements that are Significantly, EPA’s determination that Mississippi Air Pollution Control (APC)
logically applicable to that submission. an action on a state’s infrastructure SIP regulations relevant to air quality
EPA believes that this approach to the submission is not the appropriate time control. Mississippi Code Title 49,
review of a particular infrastructure SIP and place to address all potential Section 49–17–17(h) (Appendix A–9),18
submission is appropriate, because it existing SIP deficiencies does not authorizes MDEQ to adopt, modify, or
would not be reasonable to read the preclude EPA’s subsequent reliance on repeal ambient air quality standards and
general requirements of section provisions in section 110(a)(2) as part of emissions standards for the control of
110(a)(1) and the list of elements in the basis for action to correct those air pollution, including those necessary
110(a)(2) as requiring review of each deficiencies at a later time. For example, to obtain EPA approval under section
and every provision of a state’s existing although it may not be appropriate to 110 of the CAA. Sections APC–S–1, Air
SIP against all requirements in the CAA require a state to eliminate all existing Emission Regulations for the Prevention,
and EPA regulations merely for inappropriate director’s discretion Abatement, and Control of Air
purposes of assuring that the state in provisions in the course of acting on an Contaminants, and APC–S–3,
question has the basic structural infrastructure SIP submission, EPA Regulations for the Prevention of Air
elements for a functioning SIP for a new believes that section 110(a)(2)(A) may be Pollution Emergency Episodes, establish
or revised NAAQS. Because SIPs have among the statutory bases that EPA enforceable emissions limitations and
grown by accretion over the decades as relies upon in the course of addressing other control measures, means or
statutory and regulatory requirements such deficiency in a subsequent techniques, for activities that contribute
under the CAA have evolved, they may action.17 to NO2 concentrations in the ambient air
include some outmoded provisions and and provide authority for MDEQ to
IV. What is EPA’s analysis of how
historical artifacts. These provisions, establish such limits and measures as
Mississippi addressed the elements of
while not fully up to date, nevertheless well as schedules for compliance
Sections 110(a)(1) and (2)
may not pose a significant problem for through SIP-approved permits to meet
‘‘infrastructure’’ provisions?
the purposes of ‘‘implementation, the applicable requirements of the CAA.
maintenance, and enforcement’’ of a Mississippi’s February 28, 2013, EPA has made the preliminary
infrastructure submission addresses the determination that the provisions
new or revised NAAQS when EPA
provisions of sections 110(a)(1) and (2) contained in these regulations, and
evaluates adequacy of the infrastructure
as described later on. Mississippi’s statute are adequate for
SIP submission. EPA believes that a 1. 110(a)(2)(A) Emission Limits and
better approach is for states and EPA to enforceable emission limitations and
Other Control Measures: Section other control measures, means, or
focus attention on those elements of 110(a)(2)(A) requires that each
section 110(a)(2) of the CAA most likely techniques, as well as schedules and
implementation plan include timetables for compliance for the 2010
to warrant a specific SIP revision due to enforceable emission limitations and
the promulgation of a new or revised 1-hour NO2 NAAQS in the State.
other control measures, means, or In this action, EPA is not proposing to
NAAQS or other factors. techniques (including economic
For example, EPA’s 2013 Guidance approve or disapprove any existing state
incentives such as fees, marketable provisions with regard to excess
gives simpler recommendations with permits, and auctions of emissions
respect to carbon monoxide than other emissions during SSM operations at a
rights), as well as schedules and facility. EPA believes that a number of
NAAQS pollutants to meet the visibility timetables for compliance, as may be
requirements of section states have SSM provisions which are
110(a)(2)(D)(i)(II), because carbon contrary to the CAA and existing EPA
15 For example, EPA issued a SIP call to Utah to
monoxide does not affect visibility. As address specific existing SIP deficiencies related to
guidance, ‘‘State Implementation Plans:
a result, an infrastructure SIP the treatment of excess emissions during SSM Policy Regarding Excess Emissions
submission for any future new or events. See ‘‘Finding of Substantial Inadequacy of During Malfunctions, Startup, and
Implementation Plan; Call for Utah State Shutdown’’ (September 20, 1999), and
revised NAAQS for carbon monoxide Implementation Plan Revisions,’’ 74 FR 21639
need only state this fact in order to (April 18, 2011).
the Agency is addressing such state
address the visibility prong of section 16 EPA has used this authority to correct errors in regulations in a separate action.19
110(a)(2)(D)(i)(II). Finally, EPA believes past actions on SIP submissions related to PSD Additionally, in this action, EPA is
that its approach with respect to
programs. See ‘‘Limitation of Approval of not proposing to approve or disapprove
Prevention of Significant Deterioration Provisions any existing state rules with regard to
infrastructure SIP requirements is based Concerning Greenhouse Gas Emitting-Sources in
on a reasonable reading of sections State Implementation Plans; Final Rule,’’ 75 FR director’s discretion or variance
110(a)(1) and 110(a)(2) because the CAA 82536 (December 30, 2010). EPA has previously provisions. EPA believes that a number
provides other avenues and mechanisms
used its authority under CAA section 110(k)(6) to of states have such provisions which are
remove numerous other SIP provisions that the contrary to the CAA and existing EPA
to address specific substantive Agency determined it had approved in error. See,
deficiencies in existing SIPs. These e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
18 Mississippi Code Title 49 is referenced in the
(June 27, 1997) (corrections to American Samoa,
other statutory tools allow EPA to take Arizona, California, Hawaii, and Nevada SIPs); 69 State’s infrastructure SIP submissions as ‘‘Appendix
appropriately tailored action, depending FR 67062 (November 16, 2004) (corrections to A–9.’’ As discussed, unless otherwise indicated
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upon the nature and severity of the California SIP); and 74 FR 57051 (November 3, herein, portions of the Mississippi Code referenced
alleged SIP deficiency. Section 110(k)(5) 2009) (corrections to Arizona and Nevada SIPs). in this proposal are not incorporated into the SIP.
17 See, e.g., EPA’s disapproval of a SIP submission 19 On June 12, 2015, EPA published a final action
authorizes EPA to issue a ‘‘SIP call’’ from Colorado on the grounds that it would have entitled, ‘‘State Implementation Plans: Response to
whenever the Agency determines that a included a director’s discretion provision Petition for Rulemaking; Restatement and Update of
state’s implementation plan is inconsistent with CAA requirements, including EPA’s SSM Policy Applicable to SIPs; Findings of
substantially inadequate to attain or section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 Substantial Inadequacy; and SIP Calls to Amend
(July 21, 2010) (proposed disapproval of director’s Provisions Applying to Excess Emissions During
maintain the NAAQS, to mitigate discretion provisions); 76 FR 4540 (January 26, Periods of Startup, Shutdown, and Malfunction.’’
interstate transport, or to otherwise 2011) (final disapproval of such provisions). See 80 FR 33840.

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guidance (52 FR 45109 (November 24, required by CAA title I part C (i.e., the contributing significantly to
1987)), and the Agency plans to take major source PSD program). To meet the nonattainment of the NAAQS in another
action in the future to address such state requirements for this element, MDEQ state (‘‘prong 1’’), and interfering with
regulations. In the meantime, EPA cited Section APC–S–5, Mississippi maintenance of the NAAQS in another
encourages any state having a director’s Regulations for the Prevention of state (‘‘prong 2’’). The third and fourth
discretion or variance provision which Significant Deterioration of Air Quality, prongs, which are codified in section
is contrary to the CAA and EPA Section APC–S–2, Permit Regulations 110(a)(2)(D)(i)(II), are provisions that
guidance to take steps to correct the for the Construction and/or Operation of prohibit emissions activity in one state
deficiency as soon as possible. Air Emissions Equipment. These from interfering with measures required
2. 110(a)(2)(B) Ambient air quality regulations enable MDEQ to regulate to prevent significant deterioration of air
monitoring/data system: Section sources contributing to the 2010 1-hour quality in another state (‘‘prong 3’’), or
110(a)(2)(B) requires SIPs to provide for NO2 NAAQS through enforceable to protect visibility in another state
establishment and operation of permits. (‘‘prong 4’’).
appropriate devices, methods, systems, Enforcement: MDEQ’s APC–S–2, 110(a)(2)(D)(i)(I)—Prongs 1 and 2:
and procedures necessary to (i) monitor, Permit Regulation for the Construction EPA is not proposing any action in this
compile, and analyze data on ambient and/or Operation of Air Emissions rulemaking related to the interstate
air quality, and (ii) upon request, make Equipment, Section VI provides for the transport provisions pertaining to the
such data available to the enforcement of NO2 emission limits and contribution to nonattainment or
Administrator. Section APC–S–1, Air control measures through construction interference with maintenance in other
Emission Regulations for the Prevention, permitting for new or modified states of section 110(a)(2)(D)(i)(I)
Abatement, and Control of Air stationary sources. Also note that under (prongs 1 and 2) because Mississippi’s
Contaminants, and Mississippi Code Mississippi Code Title 49, Chapter 17, 2010 1-hour NO2 NAAQS infrastructure
Title 49, Section 49–17–17(g), provides MDEQ has enforcement authority to submission did not address prongs 1
MDEQ with the authority to collect and seek penalties and injunctive relief for and 2.
disseminate information relating to air violations of emission limits and other 110(a)(2)(D)(i)(II)—Prong 3: With
quality and pollution and the control measures and violations of respect to Mississippi’s infrastructure
prevention, control, supervision, and permits. SIP submission related to the interstate
abatement thereof. Annually, States PSD Permitting for Major Sources: transport requirements for PSD of
develop and submit to EPA for approval With respect to Mississippi’s February section 110(a)(2)(D)(i)(II) (prong 3), EPA
statewide ambient monitoring network 28, 2013, infrastructure SIP submission took final action to approve
plans consistent with the requirements related to the PSD permitting Mississippi’s February 28, 2013,
of 40 CFR parts 50, 53, and 58. The requirements for major sources of infrastructure SIP submission regarding
annual network plan involves an section 110(a)(2)(C), EPA took final prong 3 of D(i) for the 2010 1-hour NO2
evaluation of any proposed changes to action to approve these provisions for NAAQS on March 18, 2015. See 80 FR
the monitoring network, includes the the 2010 1-hour NO2 NAAQS on March 14019.
18, 2015. See 80 FR 14019. 110(a)(2)(D)(i)(II)—Prong 4: EPA is not
annual ambient monitoring network
Regulation of minor sources and proposing any action in this rulemaking
design plan and a certified evaluation of
modifications: Section 110(a)(2)(C) also related to the interstate transport
the agency’s ambient monitors and
requires the SIP to include provisions provisions pertaining to visibility
auxiliary support equipment.20 On June
that govern the minor source protection in other states of section
9, 2015, Mississippi submitted its
preconstruction program that regulates 110(a)(2)(D)(i)(II) (prong 4) and will
monitoring network plan to EPA, and on
emissions of the 2010 1-hour NO2 consider these requirements in relation
October 6, 2015, EPA approved this
NAAQS. Mississippi has a SIP-approved to Mississippi’s 2010 1-hour NO2
plan. Mississippi’s approved monitoring minor NSR permitting program at NAAQS infrastructure submission in a
network plan can be accessed at Section APC–S–2, Section I. D, separate rulemaking.
www.regulations.gov using Docket ID Permitting Requirements that regulates 5. 110(a)(2)(D)(ii) Interstate Pollution
No. EPA–R04–OAR–2014–0751. EPA the preconstruction permitting of Abatement and International Air
has made the preliminary determination modifications and construction of minor Pollution: Section 110(a)(2)(D)(ii)
that Mississippi’s SIP and practices are stationary sources. requires SIPs to include provisions
adequate for the ambient air quality EPA has made the preliminary ensuring compliance with sections 115
monitoring and data system determination that Mississippi’s SIP and and 126 of the Act, relating to interstate
requirements related to the 2010 1-hour practices are adequate for program and international pollution abatement.
NO2 NAAQS. enforcement of control measures and Section APC–S–5, Mississippi
3. 110(a)(2)(C) Programs for regulation of minor sources and Regulations for the Prevention of
Enforcement of Control Measures and modifications related to the 2010 1-hour Significant Deterioration of Air Quality
for Construction or Modification of NO2 NAAQS. provides how MDEQ will notify
Stationary Sources: Section 110(a)(2)(C) 4. 110(a)(2)(D)(i)(I) and (II) Interstate neighboring states of potential impacts
consists of three sub-elements; Pollution Transport: Section from new or modified sources
enforcement, state-wide regulation of 110(a)(2)(D)(i) has two components; consistent with the requirements of 40
new and modified minor sources and 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). CFR 51.166, which is adopted by
minor modifications of major sources; Each of these components have two reference into the Mississippi SIP.
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and preconstruction permitting of major subparts resulting in four distinct Additionally, Mississippi does not have
sources and major modifications in components, commonly referred to as any pending obligation under section
areas designated attainment or ‘‘prongs,’’ that must be addressed in 115 and 126 of the CAA. EPA has made
unclassifiable for the subject NAAQS as infrastructure SIP submissions. The first the preliminary determination that
20 On occasion, proposed changes to the
two prongs, which are codified in Mississippi’s SIP and practices are
monitoring network are evaluated outside of the
section 110(a)(2)(D)(i)(I), are provisions adequate for insuring compliance with
network plan approval process in accordance with that prohibit any source or other type of the applicable requirements relating to
40 CFR part 58. emissions activity in one state from interstate and international pollution

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abatement for the 2010 1-hour NO2 boards or bodies that oversee CAA public office or obtained to influence a
NAAQS. permits and enforcement orders and decision of the Mississippi Boards), they
6. 110(a)(2)(E) Adequate Resources disclosure of conflict of interest do not preclude a majority of members
and Authority, Conflict of Interest, and requirements. Specifically, CAA section of the Mississippi Boards from deriving
Oversight of Local Governments and 128(a)(1) necessitates that each SIP shall any significant portion of their income
Regional Agencies: Section 110(a)(2)(E) require that at least a majority of any from persons subject to permits or
requires that each implementation plan board or body which approves permits enforcement orders so long as that
provide (i) necessary assurances that the or enforcement orders shall be subject to income is not derived from one of the
State will have adequate personnel, the described public interest service and proscribed methods described in the
funding, and authority under state law income restrictions therein. Subsection laws and provisions submitted by the
to carry out its implementation plan, (ii) 128(a)(2) requires that the members of State. To date, because a majority of
that the State comply with the any board or body, or the head of an board members may still derive a
requirements respecting State Boards executive agency with similar power to significant portion of income from
pursuant to section 128 of the Act, and approve permits or enforcement orders persons subject to permits or
(iii) necessary assurances that, where under the CAA, shall also be subject to enforcement orders issued by the
the State has relied on a local or conflict of interest disclosure Mississippi Boards, the Mississippi SIP
regional government, agency, or requirements. does not meet the section 128(a)(1)
instrumentality for the implementation To meet its section 110(a)(2)(E)(ii) majority requirements respecting
of any plan provision, the State has obligations for the 2010 1-hour NO2 significant portion of income, and as
responsibility for ensuring adequate NAAQS, Mississippi’s infrastructure SIP such, EPA is proposing to disapprove
implementation of such plan provisions. submission cites Article 4, Section 109 the State’s 110(a)(2)(E)(ii) submission as
EPA is proposing to approve of the Mississippi Constitution and it relates only to this portion of section
Mississippi’s SIP as meeting the portions of Mississippi Code sections 128(a)(1).
requirements of sections 110(a)(2)(E)(i) 25–4–25, –27, –29, –103, –105, and Accordingly, EPA is proposing to
and (iii). EPA is proposing to approve in –109. These provisions were approve the section 110(a)(2)(E)(ii)
part and disapprove in part incorporated into the Mississippi SIP to submission as it relates to the public
Mississippi’s SIP respecting section meet CAA section 128 requirements in interest requirements of section
110(a)(2)(E)(ii). EPA’s rationale for the EPA’s final action for the 1997 and 2006 128(a)(1) and the conflict of interest
proposals respecting each section of PM2.5 NAAQS infrastructure SIP. See 78 disclosure provisions of section
110(a)(2)(E) is described later on. FR 20793.21 In this same final action for 128(a)(2) and proposing to disapprove
To satisfy the requirements of sections the 1997 and 2006 PM2.5 NAAQS Mississippi’s section 110(a)(2)(E)(ii)
110(a)(2)(E)(i) and (iii), Mississippi infrastructure SIP (78 FR 20793), EPA submission as it pertains to compliance
provides that MDEQ is responsible for disapproved Mississippi’s October 11, with the significant portion of income
promulgating rules and regulations for 2012, submission as not satisfying the requirement of section 128(a)(1) for the
the NAAQS, emissions standards, significant portion of income 2010 1-hour NO2 NAAQS.
general policies, a system of permits, fee requirement of section 128(a)(1). 7. 110(a)(2)(F) Stationary Source
schedules for the review of plans, and With respect to the public interest Monitoring and Reporting: Section
other planning needs as found in requirement of section 128(a)(1) and the 110(a)(2)(F) requires SIPs to meet
Mississippi Code Title 49, Section 49– adequate disclosure of conflicts of applicable requirements addressing: (i)
17–17(d) and Section 49–17–17(h) interest requirement of section 128(a)(2), The installation, maintenance, and
(Appendix A–9). As evidence of the EPA has previously found these replacement of equipment, and the
adequacy of MDEQ’s resources with requirements to be satisfied by the implementation of other necessary
respect to sub-elements (i) and (iii), EPA existing provisions in Mississippi’s SIP. steps, by owners or operators of
submitted a letter to Mississippi on See 78 FR 20793. stationary sources to monitor emissions
April 19, 2016, outlining 105 grant With respect to the significant portion from such sources, (ii) periodic reports
commitments and the current status of of income requirement of section on the nature and amounts of emissions
these commitments for fiscal year 2015. 128(a)(1), the provisions included in the and emissions related data from such
The letter EPA submitted to Mississippi February 28, 2013 infrastructure SIP sources, and (iii) correlation of such
can be accessed at www.regulations.gov submission do not preclude at least a reports by the state agency with any
using Docket ID No. EPA–R04–OAR– majority of the members of the emission limitations or standards
2014–0751. Annually, states update Mississippi Boards 22 from receiving a established pursuant to this section,
these grant commitments based on significant portion of their income from which reports shall be available at
current SIP requirements, air quality persons subject to permits or reasonable times for public inspection.
planning, and applicable requirements enforcement orders issued by such Section APC–S–2, Permit Regulations
related to the NAAQS. There were no Boards. While the submitted laws and for the Construction and/or Operation of
outstanding issues in relation to the SIP provisions preclude members of the Air Emissions Equipment, establishes
for fiscal year 2015, therefore, MDEQ’s Mississippi Boards from certain types of requirements for emissions compliance
grants were finalized and closed out. testing utilizing emissions sampling and
income (e.g., contracts with State or
EPA has made the preliminary analysis. It further describes how the
political subdivisions thereof, or income
determination that Mississippi has State ensures the quality of its data
obtained through the use of his or her
adequate resources for implementation through observing emissions and
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of the 2010 1-hour NO2 NAAQS. 21 This final action pertained to Mississippi’s
monitoring operations. MDEQ uses
To meet the requirements of section October 11, 2012, infrastructure SIP submission and these data to track progress towards
110(a)(2)(E)(ii), states must comply with only addressed compliance with 110(a)(2)(E)(ii) maintaining the NAAQS, develop
the requirements respecting state boards respecting CAA section 128 requirements. control and maintenance strategies,
22 The Mississippi Commission on Environmental
pursuant to section 128 of the Act. identify sources and general emission
Quality issues and supervises enforcement orders,
Section 128 of the CAA requires that and the Mississippi Department of Environmental
levels, and determine compliance with
states include provisions in their SIP to Quality Permit Board has the authority to issue, emission regulations and additional
address conflicts of interest for state modify, revoke or deny permits. EPA requirements. Mississippi Code 49,

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Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 32715

procedures for the implementation of 110(a)(2)(J) in infrastructure SIP practices adequately demonstrate the
transportation conformity. These submittals so MDEQ does not need to State’s ability to provide for air quality
consultation procedures were developed rely on its regional haze program to modeling, along with analysis of the
in coordination with the transportation fulfill its obligations under section associated data, related to the 2010 1-
partners in the State and are consistent 110(a)(2)(J). As such, EPA has made the hour NO2 NAAQS when necessary.
with the approaches used for preliminary determination that Accordingly, EPA is proposing to
development of mobile inventories for Mississippi’s infrastructure SIP approve Mississippi’s infrastructure SIP
SIPs. Implementation of transportation submission related to the 2010 1-hour submissions with respect to section
conformity as outlined in the NO2 NAAQS is approvable for the 110(a)(2)(K).
consultation procedures requires MDEQ visibility protection element of section 12. 110(a)(2)(L) Permitting Fees:
to consult with federal, state and local 110(a)(2)(J) and that Mississippi does Section 110(a)(2)(L) requires the owner
transportation and air quality agency not need to rely on its regional haze or operator of each major stationary
officials on the development of motor program to address this element. source to pay to the permitting
vehicle emissions budgets. EPA has 11. 110(a)(2)(K) Air Quality Modeling authority, as a condition of any permit
made the preliminary determination and Submission of Modeling Data: required under the CAA, a fee sufficient
that Mississippi’s SIP and practices Section 110(a)(2)(K) of the CAA requires to cover (i) the reasonable costs of
adequately demonstrate that the State that SIPs provide for performing air reviewing and acting upon any
meets applicable requirements related to quality modeling so that effects on air application for such a permit, and (ii) if
consultation with government officials quality of emissions from NAAQS the owner or operator receives a permit
for the 2010 1-hour NO2 NAAQS when pollutants can be predicted and for such source, the reasonable costs of
necessary. Accordingly, EPA is submission of such data to the EPA can implementing and enforcing the terms
proposing to approve Mississippi’s be made. Sections APC–S–2, V. B., and conditions of any such permit (not
infrastructure SIP submissions with Permit Regulation for the Construction including any court costs or other costs
respect to section 110(a)(2)(J) and/or Operation of Air Emissions associated with any enforcement
consultation with government officials. Equipment, and APC–S–5, Mississippi action), until such fee requirement is
Public notification (127 public Regulations for the Prevention of superseded with respect to such sources
notification): These requirements are Significant Deterioration of Air Quality, by the Administrator’s approval of a fee
met through regulation Section APC–S– specify that required air modeling be program under title V.
3, Mississippi Regulations for the conducted in accordance with 40 CFR Mississippi Code Title 49, Section 49–
Prevention of Air Pollution Emergency part 51, Appendix W ‘‘Guideline on Air 2–9(c) (Appendix A–9), authorizes
Episodes, which requires that MDEQ Quality Models,’’ as incorporated into MDEQ to apply for, receive, and expend
notify the public of any air pollution the Mississippi SIP. These standards Federal or state funds in order to
alert, warning, or emergency. The demonstrate that Mississippi has the operate its air programs. Mississippi
MDEQ Web site also provides air quality authority to perform air quality Code Title 49, Section 49–17–30
summary data, air quality index reports modeling and provide relevant data for (Appendix A–9), provides for the
and links to more information regarding the purpose of predicting the effect on assessment of Title V permit fees to
public awareness of measures that can ambient air quality of the 2010 1-hour cover the reasonable cost of reviewing
prevent such exceedances and of ways NO2 NAAQS. Also of note, Mississippi and acting upon air permitting activities
in which the public can participate in in the state including title V, PSD and
Code Title 49, Section 49–17–17(e)
regulatory and other efforts to improve NNSR permits. Mississippi Code Title
(Appendix A–9),23 authorizes MDEQ to
air quality. EPA has made the 49, Section 49–17–14 (Appendix A–9),
‘‘encourage, participate in, or conduct
preliminary determination that allows MDEQ to expend or utilize
studies, investigations, research and
Mississippi’s SIP and practices monies in the Mississippi Air Operating
demonstrations relating to air and water
adequately demonstrate the State’s Permit Program Fee Trust Fund to pay
quality and pollution and causes,
ability to provide public notification all reasonable direct and indirect costs
prevention, control and abatement as it
related to the 2010 1-hour NO2 NAAQS associated with the development and
may deem advisable and necessary for
when necessary. Accordingly, EPA is administration of the title V program
the discharge of its duties under [the
proposing to approve Mississippi’s and the PSD and NNSR permitting
Mississippi air and water pollution
infrastructure SIP submissions with including. The Mississippi Air
respect to section 110(a)(2)(J) public control law].’’ Additionally, Mississippi
participates in a regional effort to Operating Permit Program Fee Trust
notification. Fund consists of state legislative
Visibility protection: EPA’s 2013 coordinate the development of
emissions inventories and conduct appropriations, Federal grant funds and
Guidance notes that it does not treat the title V fees. Additionally, Mississippi
visibility protection aspects of section regional modeling for several NAAQS,
including the 2010 1-hour NO2 NAAQS, has a federally-approved title V
110(a)(2)(J) as applicable for purposes of operating permit program at Section
the infrastructure SIP approval process. for the southeastern states. Taken as a
whole, Mississippi’s air quality APC–S–6 24 that covers the
MDEQ referenced its regional haze implementation and enforcement of
program as germane to the visibility regulations and practices demonstrate
that MDEQ has the authority to provide PSD and NNSR permits after they have
component of section 110(a)(2)(J). EPA been issued. EPA has made the
recognizes that states are subject to relevant data for the purpose of
predicting the effect on ambient air preliminary determination that
visibility protection and regional haze
mstockstill on DSK3G9T082PROD with PROPOSALS

quality of the 2010 1-hour NO2 NAAQS. Mississippi adequately provides for
program requirements under Part C of
EPA has made the preliminary permitting fees related to the 2010
the Act (which includes sections 169A
determination that Mississippi’s SIP and 1-hour NO2 NAAQS when necessary.
and 169B). However, there are no newly 13. 110(a)(2)(M) Consultation and
applicable visibility protection Participation by Affected Local Entities:
23 Mississippi Code Title 49 is referenced in the
obligations after the promulgation of a
State’s infrastructure SIP submissions as ‘‘Appendix
new or revised NAAQS. Thus, EPA has A–9.’’ As discussed, unless otherwise indicated 24 Title V program regulations are federally-
determined that states do not need to herein, portions of the Mississippi Code referenced approved but not incorporated into the federally-
address the visibility component of in this proposal are not incorporated into the SIP. approved SIP.

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Document Created: 2016-05-24 05:21:41
Document Modified: 2016-05-24 05:21:41
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Written comments must be received on or before June 23, 2016.
Contact		Richard Wong, 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. The telephone number is (404) 562-8726. Mr. Wong can be reached via electronic mail at [email protected]
FR Citation		81 FR 32707
CFR Associated		Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Reporting and Recordkeeping Requirements and Volatile Organic Compounds