81 FR 66591 - Air Plan Approval; Mississippi; Interstate Transport (Prongs 1 and 2) for the 2010 1-hour NO2
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 188 (September 28, 2016)
Federal Register Volume 81, Issue 188 (September 28, 2016)
| Page Range | 66591-66596 | |
| FR Document | 2016-23300 |
[Federal Register Volume 81, Number 188 (Wednesday, September 28, 2016)] [Proposed Rules] [Pages 66591-66596] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-23300] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0421; FRL-9953-16-Region 4] Air Plan Approval; Mississippi; Interstate Transport (Prongs 1 and 2) for the 2010 1-hour NO2 Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve a revision to the Mississippi State Implementation Plan (SIP), submitted by the Mississippi Department of Environmental Quality (MS DEQ), on May 23, 2016, addressing the Clean Air Act (CAA or Act) interstate transport (prongs 1 and 2) infrastructure SIP requirements for the 2010 1-hour Nitrogen Dioxide (NO2 ) National Ambient Air Quality Standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an ``infrastructure SIP.'' Specifically, EPA is proposing to approve Mississippi's May 23, 2016, SIP submission addressing prongs 1 and 2, to ensure that air emissions in the State do not significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour NO2 NAAQS in any other state. DATES: Comments must be received on or before October 28, 2016. ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04- [[Page 66592]] OAR-2016-0421 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: Nacosta C. Ward of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Ward can be reached by telephone at (404) 562-9140 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. Background By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS. Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as ``prongs,'' that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). 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. Through this proposed action, EPA is proposing to approve Mississippi's May 23, 2016, SIP submission addressing prong 1 and prong 2 requirements for the 2010 1-hour NO2 NAAQS. All other applicable infrastructure SIP requirements for Mississippi for the 2010 1-hour NO2 NAAQS have been addressed in separate rulemakings. See 80 FR 14019 (March 18, 2015), 81 FR 32707 (May 24, 2016), and 81 FR 33139 (May 25, 2016). A brief background regarding the 2010 1-hour NO2 NAAQS is provided below. On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NOX ). NO2 is the component of greatest concern and is used as the indicator for the larger group of NOX. Emissions that lead to the formation of NO2 generally also lead to the formation of other NOX . Therefore, control measures that reduce NO2 can generally be expected to reduce population exposures to all gaseous NOX which may have the co-benefit of reducing the formation of ozone and fine particles both of which pose significant public health threats. States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013. For comprehensive information on 2010 1-hour NO2 NAAQS, please refer to the Federal Register notice cited above. II. What is EPA's approach to the review of infrastructure SIP submissions? The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``each such plan'' submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of Title I of the CAA, ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, Title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to [[Page 66593]] required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\1\ EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \1\ For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; Section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of Title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ``each'' SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.\2\ Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.\3\ This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. --------------------------------------------------------------------------- \2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). \3\ EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. --------------------------------------------------------------------------- Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ``a plan'' to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.\4\ Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.\5\ --------------------------------------------------------------------------- \4\ See, e.g., ``Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and ``Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). \5\ On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal. --------------------------------------------------------------------------- Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.\6\ --------------------------------------------------------------------------- \6\ For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. --------------------------------------------------------------------------- EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires attainment plan SIP submissions required by part D to meet the ``applicable requirements'' of section 110(a)(2); thus, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the Prevention of Significant Deterioration (PSD) program required in part C of Title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews [[Page 66594]] infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.\7\ EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).\8\ EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.\9\ The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. --------------------------------------------------------------------------- \7\ EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. \8\ ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. \9\ EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations. --------------------------------------------------------------------------- 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 section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including Greenhouse Gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; \10\ (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.\11\ It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that [[Page 66595]] relate to the three specific issues just described. --------------------------------------------------------------------------- \10\ Subsequent to issuing the 2013 Guidance, EPA's interpretation of the CAA with respect to the approvability of affirmative defense provisions in SIPs has changed. See ``State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the EPA's view concerning the validity of affirmative defense provisions, in light of the requirements of section 113 and section 304. \11\ By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption or affirmative defense for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. --------------------------------------------------------------------------- EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ``implementation, maintenance, and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.\12\ Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.\13\ Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.\14\ --------------------------------------------------------------------------- \12\ For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ``Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011). \13\ EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ``Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has previously used its authority under section 110(k)(6) of the CAA to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). \14\ See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). --------------------------------------------------------------------------- III. What are the prongs 1 and 2 requirements? For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires each state to submit a SIP revision that contains adequate provisions prohibiting emissions activity in the state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in any downwind state. EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or conjointly as the ``good neighbor'' provision of the CAA. Section 110(a)(2)(D)(i)(I) requires the elimination of upwind state emissions that significantly contribute to nonattainment or interference with maintenance of the NAAQS in another state. IV. What is EPA's analysis of how Mississippi addressed prongs 1 and 2? Mississippi has concluded that it does not contribute significantly to nonattainment or interfere with maintenance of the 2010 1-hour NO2 NAAQS in any other state for the following reasons: (1) All areas in Mississippi and in the surrounding states are designated as unclassifiable/attainment for the 2010 1-hour NO2 NAAQS; (2) monitored ambient NO2 concentrations in the State and surrounding states are well below the 2010 1-hour NO2 NAAQS; (3) total NOX emissions in the State and surrounding states are trending downward; and (4) there are SIP-approved state regulations in place to control NOX emissions in the State. EPA preliminarily agrees with the State's conclusion based on the rationale discussed below. First, there are no designated nonattainment areas for the 2010 1- hour NO2 NAAQS. On February 17, 2012 (77 FR 9532), EPA designated the entire country as ``unclassifiable/attainment'' for the 2010 1-hour NO2 NAAQS, stating that ``available information does not indicate that the air quality in these areas exceeds the 2010 1-hour NO2 NAAQS.'' Second, as part of its May 23, 2016, SIP submittal, Mississippi examined NO2 monitoring data from 2009-2014 in the State and surrounding states. According to this data, the design values during this period are well below the 100 ppb standard with Alabama and Tennessee having the highest 2012-2014 design values (51 ppb). Third, Mississippi's submittal provides total NOX emissions data reported to the National Emissions Inventory in 2005, 2008, and 2011 for Mississippi and the surrounding states. This data shows that NOX emissions generally decreased over this time period in these states. Fourth, in its submittal, Mississippi identifies SIP-approved regulations APC-S-1 (``Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants''), APC-S-2 (``Permit Regulation for the Construction and/or Operation of Air Emissions Equipment''), APC-S-3 (``Mississippi Regulations for the Prevention of Air Pollution Emergency Episodes''), and APC-S-5 (``Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality'') as regulations that control NOX emitting sources in the State. APC- [[Page 66596]] S-2, for example, contains permitting requirements that require controls and emission limits for certain NOX emitting sources in the State. These permitting requirements help ensure that no new or modified NOX sources in the State subject to these permitting regulations will significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour NO2 NAAQS. For all the reasons discussed above, EPA has preliminarily determined that Mississippi does not contribute significantly to nonattainment or interfere with maintenance of the 2010 1-hour NO2 NAAQS in any other state and that Mississippi's SIP includes adequate provisions to prevent emissions sources within the State from significantly contributing to nonattainment or interfering with maintenance of this standard in any other state. V. Proposed Action As described above, EPA is proposing to approve Mississippi's May 23, 2016, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely proposes to approve 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 actions'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); 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 actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory actions 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. Authority: 42 U.S.C. 7401 et seq. Dated: September 15, 2016. Kenneth R. Lapierre, Acting Regional Administrator, Region 4. [FR Doc. 2016-23300 Filed 9-27-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 188 / Wednesday, September 28, 2016 / Proposed Rules 66591
emission levels would equal those in results in the applicability of November 9, 2000), because
the attainment year. requirements contained in the CAA for redesignation is an action that affects
As shown in Table 12 above, Ohio is areas that have been redesignated to the status of a geographical area and
allocating a portion of that safety margin attainment. Moreover, the Administrator does not impose any new regulatory
to the mobile source sector. Specifically, is required to approve a SIP submission requirements on tribes, impact any
in 2020, Ohio is allocating 6.61 TPSD that complies with the provisions of the existing sources of air pollution on
and 12.98 TPSD of the VOC and NOX CAA and applicable Federal regulations. tribal lands, nor impair the maintenance
safety margins, respectively. In 2030, 42 U.S.C. 7410(k); 40 CFR 52.02(a). of ozone national ambient air quality
Ohio is allocating 5.78 TPSD and 11.10 Thus, in reviewing SIP submissions, standards in tribal lands.
TPSD of the VOC and NOX safety EPA’s role is to approve state choices,
margins, respectively. Ohio EPA is not List of Subjects in 40 CFR Part 52
provided that they meet the criteria of
requesting allocation to the MVEBs of the CAA. Accordingly, this action Environmental protection, Air
the entire available safety margins merely approves state law as meeting pollution control, Incorporation by
reflected in the demonstration of Federal requirements and does not reference, Intergovernmental relations,
maintenance. In fact, the amount impose additional requirements beyond Oxides of nitrogen, Ozone, Volatile
allocated to the MVEBs represents only those imposed by state law. For that organic compounds.
a small portion of the 2020 and 2030 reason, this action: Dated: September 19, 2016.
safety margins. Therefore, even though • Is not a significant regulatory action Robert A. Kaplan,
the State is requesting MVEBs that subject to review by the Office of
exceed the projected onroad mobile Acting Regional Administrator, Region 5.
Management and Budget under
source emissions for 2020 and 2030 [FR Doc. 2016–23293 Filed 9–27–16; 8:45 am]
Executive Orders 12866 (58 FR 51735,
contained in the demonstration of October 4, 1993) and 13563 (76 FR 3821, BILLING CODE 6560–50–P
maintenance, the increase in onroad January 21, 2011);
mobile source emissions that can be • Does not impose an information
considered for transportation collection burden under the provisions ENVIRONMENTAL PROTECTION
conformity purposes is well within the of the Paperwork Reduction Act (44 AGENCY
safety margins of the ozone maintenance U.S.C. 3501 et seq.); 40 CFR Part 52
demonstration. Further, once allocated • Is certified as not having a
to mobile sources, these safety margins significant economic impact on a [EPA–R04–OAR–2016–0421; FRL–9953–16–
will not be available for use by other substantial number of small entities Region 4]
sources. under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.); Air Plan Approval; Mississippi;
VI. Proposed Actions Interstate Transport (Prongs 1 and 2)
• Does not contain any unfunded
EPA is proposing to determine that mandate or significantly or uniquely for the 2010 1-hour NO2 Standard
the Columbus nonattainment is affect small governments, as described AGENCY: Environmental Protection
attaining the 2008 ozone standard, in the Unfunded Mandates Reform Act Agency (EPA).
based on quality-assured and certified of 1995 (Pub. L. 104–4); ACTION: Proposed rule.
monitoring data for 2013–2015 and that • Does not have Federalism
the Ohio portion of this area has met the implications as specified in Executive SUMMARY: The Environmental Protection
requirements for redesignation under Order 13132 (64 FR 43255, August 10, Agency (EPA) is proposing to approve a
section 107(d)(3)(E) of the CAA. EPA is 1999); revision to the Mississippi State
thus proposing to approve Ohio EPA’s • Is not an economically significant Implementation Plan (SIP), submitted
request to change the legal designation regulatory action based on health or by the Mississippi Department of
of the Columbus area from safety risks subject to Executive Order Environmental Quality (MS DEQ), on
nonattainment to attainment for the 13045 (62 FR 19885, April 23, 1997); May 23, 2016, addressing the Clean Air
2008 ozone standard. EPA is also • Is not a significant regulatory action Act (CAA or Act) interstate transport
proposing to approve, as a revision to subject to Executive Order 13211 (66 FR (prongs 1 and 2) infrastructure SIP
the Ohio SIP, the state’s maintenance 28355, May 22, 2001); requirements for the 2010 1-hour
plan for the area. The maintenance plan • Is not subject to requirements of
Nitrogen Dioxide (NO2) National
is designed to keep the Columbus area Section 12(d) of the National
Ambient Air Quality Standard
in attainment of the 2008 ozone NAAQS Technology Transfer and Advancement
(NAAQS). The CAA requires that each
through 2030. Finally, EPA finds Act of 1995 (15 U.S.C. 272 note) because
state adopt and submit a SIP for the
adequate and is proposing to approve application of those requirements would
implementation, maintenance, and
the newly-established 2020 and 2030 be inconsistent with the CAA; and
enforcement of each NAAQS
MVEBs for the Columbus area. • Does not provide EPA with the
promulgated by EPA, commonly
discretionary authority to address, as
VII. Statutory and Executive Order referred to as an ‘‘infrastructure SIP.’’
appropriate, disproportionate human
Reviews Specifically, EPA is proposing to
health or environmental effects, using
Under the CAA, redesignation of an approve Mississippi’s May 23, 2016, SIP
practicable and legally permissible
area to attainment and the submission addressing prongs 1 and 2,
methods, under Executive Order 12898
accompanying approval of a to ensure that air emissions in the State
(59 FR 7629, February 16, 1994).
sradovich on DSK3GMQ082PROD with PROPOSALS
maintenance plan under section In addition, the SIP is not approved do not significantly contribute to
107(d)(3)(E) are actions that affect the to apply on any Indian reservation land nonattainment or interfere with
status of a geographical area and do not or in any other area where EPA or an maintenance of the 2010 1-hour NO2
impose any additional regulatory Indian tribe has demonstrated that a NAAQS in any other state.
requirements on sources beyond those tribe has jurisdiction. In those areas of DATES: Comments must be received on
imposed by state law. A redesignation to Indian country, this rule does not have or before October 28, 2016.
attainment does not in and of itself tribal implications as specified by ADDRESSES: Submit your comments,
create any new requirements, but rather Executive Order 13175 (65 FR 67249, identified by Docket ID No EPA–R04–
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![66596 Federal Register / Vol. 81, No. 188 / Wednesday, September 28, 2016 / Proposed Rules
S–2, for example, contains permitting • does not have Federalism Tennessee through the Tennessee
requirements that require controls and implications as specified in Executive Department of Environment and
emission limits for certain NOX emitting Order 13132 (64 FR 43255, August 10, Conservation (TDEC) on April 19, 2013.
sources in the State. These permitting 1999); Tennessee’s April 19, 2013, SIP revision
requirements help ensure that no new or • is not an economically significant (Progress Report) addresses
modified NOX sources in the State regulatory actions based on health or requirements of the Clean Air Act (CAA
subject to these permitting regulations safety risks subject to Executive Order or Act) and EPA’s rules that require
will significantly contribute to 13045 (62 FR 19885, April 23, 1997); each state to submit periodic reports
nonattainment or interfere with • is not a significant regulatory describing progress towards reasonable
maintenance of the 2010 1-hour NO2 actions subject to Executive Order progress goals (RPGs) established for
NAAQS. 13211 (66 FR 28355, May 22, 2001); regional haze and a determination of the
For all the reasons discussed above, • is not subject to requirements of adequacy of the state’s existing SIP
EPA has preliminarily determined that Section 12(d) of the National
Mississippi does not contribute addressing regional haze (regional haze
Technology Transfer and Advancement
significantly to nonattainment or plan). EPA is proposing to approve
Act of 1995 (15 U.S.C. 272 note) because
interfere with maintenance of the 2010 application of those requirements would Tennessee’s Progress Report on the basis
1-hour NO2 NAAQS in any other state be inconsistent with the CAA; and that it addresses the progress report and
and that Mississippi’s SIP includes • does not provide EPA with the adequacy determination requirements
adequate provisions to prevent discretionary authority to address, as for the first implementation period for
emissions sources within the State from appropriate, disproportionate human regional haze.
significantly contributing to health or environmental effects, using DATES: Comments must be received on
nonattainment or interfering with practicable and legally permissible or before October 28, 2016.
maintenance of this standard in any methods, under Executive Order 12898
other state. (59 FR 7629, February 16, 1994). ADDRESSES: Submit your comments,
The SIP is not approved to apply on identified by Docket ID No. EPA–R04–
V. Proposed Action
any Indian reservation land or in any OAR–2013–0799 at http://
As described above, EPA is proposing other area where EPA or an Indian tribe www.regulations.gov. Follow the online
to approve Mississippi’s May 23, 2016, has demonstrated that a tribe has instructions for submitting comments.
SIP revision addressing prongs 1 and 2 jurisdiction. In those areas of Indian Once submitted, comments cannot be
of CAA section 110(a)(2)(D)(i) for the country, the rule does not have tribal edited or removed from Regulations.gov.
2010 1-hour NO2 NAAQS. implications as specified by Executive EPA may publish any comment received
VI. Statutory and Executive Order Order 13175 (65 FR 67249, November 9, to its public docket. Do not submit
Reviews 2000), nor will it impose substantial electronically any information you
direct costs on tribal governments or consider to be Confidential Business
Under the CAA, the Administrator is
preempt tribal law. Information (CBI) or other information
required to approve a SIP submission
that complies with the provisions of the List of Subjects in 40 CFR Part 52 whose disclosure is restricted by statute.
Act and applicable federal regulations. Multimedia submissions (audio, video,
Environmental protection, Air
See 42 U.S.C. 7410(k); 40 CFR 52.02(a). etc.) must be accompanied by a written
pollution control, Incorporation by
Thus, in reviewing SIP submissions, comment. The written comment is
reference, Intergovernmental relations,
EPA’s role is to approve state choices, considered the official comment and
Nitrogen dioxide, Ozone, Reporting and
provided that they meet the criteria of recordkeeping requirements. should include discussion of all points
the CAA. Accordingly, this proposed you wish to make. EPA will generally
action merely proposes to approve state Authority: 42 U.S.C. 7401 et seq. not consider comments or comment
law as meeting federal requirements and Dated: September 15, 2016. contents located outside of the primary
does not impose additional Kenneth R. Lapierre, submission (i.e., on the web, cloud, or
requirements beyond those imposed by Acting Regional Administrator, Region 4. other file sharing system). For
state law. For that reason, this proposed [FR Doc. 2016–23300 Filed 9–27–16; 8:45 am] additional submission methods, the full
action: BILLING CODE 6560–50–P EPA public comment policy,
• Is not a ‘‘significant regulatory information about CBI or multimedia
actions’’ subject to review by the Office submissions, and general guidance on
of Management and Budget under ENVIRONMENTAL PROTECTION making effective comments, please visit
Executive Orders 12866 (58 FR 51735, AGENCY http://www2.epa.gov/dockets/
October 4, 1993) and 13563 (76 FR 3821,
commenting-epa-dockets.
January 21, 2011); 40 CFR Part 52
• does not impose an information FOR FURTHER INFORMATION CONTACT:
collection burden under the provisions [EPA–R04–OAR–2013–0799; FRL–9953–17–
Region 4] Michele Notarianni, Air Regulatory
of the Paperwork Reduction Act (44 Management Section, Air Planning and
U.S.C. 3501 et seq.); Air Plan Approval; Tennessee; Implementation Branch, Air, Pesticides
• is certified as not having a Regional Haze Progress Report and Toxics Management Division, U.S.
significant economic impact on a
sradovich on DSK3GMQ082PROD with PROPOSALS
Environmental Protection Agency,
substantial number of small entities AGENCY: Environmental Protection
Region 4, 61 Forsyth Street SW.,
under the Regulatory Flexibility Act (5 Agency (EPA).
Atlanta, Georgia 30303–8960. Ms.
U.S.C. 601 et seq.); ACTION: Proposed rule.
• does not contain any unfunded Notarianni can be reached by phone at
mandate or significantly or uniquely SUMMARY: The Environmental Protection (404) 562–9031 and via electronic mail
affect small governments, as described Agency (EPA) is proposing to approve a at notarianni.michele@epa.gov.
in the Unfunded Mandates Reform Act State Implementation Plan (SIP) SUPPLEMENTARY INFORMATION:
of 1995 (Pub. L. 104–4); revision submitted by the State of
VerDate Sep<11>2014 17:27 Sep 27, 2016 Jkt 238001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1](https://thefederalregister.org/doc/81_FR_66779/page/6.svg)
Document Created: 2016-09-28 01:08:43
Document Modified: 2016-09-28 01:08:43
| 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 | Comments must be received on or before October 28, 2016. | |
| Contact | Nacosta C. Ward of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Ward can be reached by telephone at (404) 562-9140 or via electronic mail at [email protected] | |
| FR Citation | 81 FR 66591 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone and Reporting and Recordkeeping Requirements |
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