83 FR 13712 - Air Plan Approval; MS; Section 128 Board Requirements for Infrastructure SIPs

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 62 (March 30, 2018)

Page Range		13712-13716
FR Document		2018-06544

The Environmental Protection Agency (EPA) is proposing to approve the draft State Implementation Plan (SIP) submissions, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ) for parallel processing, on June 23, 2017, and February 2, 2018. Together these draft submittals address specific Clean Air Act (CAA or Act) requirements applicable to Mississippi state boards or bodies that approve CAA permits and enforcement orders. These submissions also request that EPA convert the previous partial disapproval of Mississippi's infrastructure SIPs related to the CAA state board significant portion of income requirements for the 2008 8-hour Ozone, 2008 Lead, 2010 Nitrogen Dioxide (NO<INF>2</INF>), 2010 Sulfur Dioxide (SO<INF>2</INF>), and 1997, 2006 and 2012 fine particulate matter (PM<INF>2.5</INF>) national ambient air quality standards (NAAQS) to full approvals. Whenever EPA promulgates a new or revised NAAQS, the CAA requires the state to make a new SIP submission establishing that the existing SIP meets the various applicable requirements, or revising the SIP to meet those requirements. This type of SIP submission is commonly referred to as an ``infrastructure'' SIP. In this proposed action, EPA is proposing to approve the June 23, 2017, and February 2, 2018 submissions with respect to the CAA requirements applicable to state boards; and the related state board infrastructure SIP requirements for the 2008 8-hour Ozone, 2008 Lead, 2010 NO<INF>2</INF>, 2010 SO<INF>2</INF> and 1997, 2006 and 2012 PM<INF>2.5</INF>, NAAQS. If this proposed approval action is finalized, EPA will no longer be required to promulgate a Federal Implementation Plan (FIP) to address the CAA state board requirements for Mississippi, as described in more detail below.

Federal Register, Volume 83 Issue 62 (Friday, March 30, 2018)

[Federal Register Volume 83, Number 62 (Friday, March 30, 2018)]
[Proposed Rules]
[Pages 13712-13716]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-06544]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0546; FRL-9976-16--Region 4]

Air Plan Approval; MS; Section 128 Board Requirements for
Infrastructure SIPs

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the draft State Implementation Plan (SIP) submissions,
submitted by the State of Mississippi, through the Mississippi
Department of Environmental Quality (MDEQ) for parallel processing, on
June 23, 2017, and February 2, 2018. Together these draft submittals
address specific Clean Air Act (CAA or Act) requirements applicable to
Mississippi state boards or bodies that approve CAA permits and
enforcement orders. These submissions also request that EPA convert the
previous partial disapproval of Mississippi's infrastructure SIPs
related to the CAA state board significant portion of income
requirements for the 2008 8-hour Ozone, 2008 Lead, 2010 Nitrogen
Dioxide (NO2), 2010 Sulfur Dioxide (SO2), and
1997, 2006 and 2012 fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS) to full approvals. Whenever EPA
promulgates a new or revised NAAQS, the CAA requires the state to make
a new SIP submission establishing that the existing SIP meets the
various applicable requirements, or revising the SIP to meet those
requirements. This type of SIP submission is commonly referred to as an
``infrastructure'' SIP. In this proposed action, EPA is proposing to
approve the June 23, 2017, and February 2, 2018 submissions with
respect to the CAA requirements applicable to state boards; and the
related state board infrastructure SIP requirements for the 2008 8-hour
Ozone, 2008 Lead, 2010 NO2, 2010 SO2 and 1997,
2006 and 2012 PM2.5, NAAQS. If this proposed approval action
is finalized, EPA will no longer be required to promulgate a Federal
Implementation Plan (FIP) to address the CAA state board requirements
for Mississippi, as described in more detail below.

DATES: Written comments must be received on or before April 30, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0546 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, 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) 562-9140. Ms. Ward can be
reached via electronic mail at ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION:

[[Page 13713]]

I. What is parallel processing?

Consistent with EPA regulations found at 40 CFR part 51, Appendix
V, section 2.3.1, for purposes of expediting review of a SIP submittal,
parallel processing allows a state to submit a plan to EPA prior to
actual adoption by the state. Generally, the state submits a copy of
the proposed regulation or other revisions to EPA before conducting its
public hearing. EPA reviews this proposed state action, and prepares a
notice of proposed rulemaking. EPA's notice of proposed rulemaking is
published in the Federal Register during the same time frame that the
state is holding its public process. The state and EPA then provide for
concurrent public comment periods on both the state action and Federal
action.
If the revision that is finally adopted and submitted by the State
is changed in aspects other than those identified in the proposed
rulemaking on the parallel process submission, EPA will evaluate those
changes and if necessary and appropriate, issue another notice of
proposed rulemaking. The final rulemaking action by EPA will occur only
after the SIP revision has been adopted by the state and submitted
formally to EPA for incorporation into the SIP.
On June 23, 2017, the State of Mississippi, through MDEQ, submitted
a request for parallel processing of a draft SIP revision that the
State has taken through public comment. On February 2, 2018, the State
of Mississippi submitted an additional draft SIP revision that the
State is taking through public comment. MDEQ requested parallel
processing of both submissions so that EPA could begin to take action
on its draft SIP revisions in advance of the State's submission of the
final SIP revision. As stated above, the final rulemaking action by EPA
will occur only after the SIP revisions have been: (1) Adopted by
Mississippi, (2) submitted formally to EPA for incorporation into the
SIP; and (3) evaluated by EPA, including any changes made by the State
after the June 23, 2017, and February 2, 2018, draft submissions were
submitted to EPA.

II. Background

By statute, states are required to have SIPs that provide for the
implementation, maintenance, and enforcement of the NAAQS. States are
further required to make a SIP submission meeting the applicable
requirements of sections 110(a)(1) and (2) within three years after EPA
promulgates a new or revised NAAQS.\1\ EPA has historically referred to
this type of SIP submission as an ``infrastructure SIP'' submission.
Sections 110(a)(1) and (2) require states to address basic SIP elements
such as for monitoring, basic program requirements and legal authority
that are designed to assure attainment and maintenance with the newly
established or revised NAAQS. More specifically, section 110(a)(1)
provides the procedural and timing requirements for infrastructure SIP
submissions. 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 existing EPA approved SIP at the time when the state
develops and submits the infrastructure SIP submission for a new or
revised NAAQS.
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\1\ EPA has long noted that a literal reading of the statutory
provisions of 110(a)(2) on the schedule provided in 110(a)(1) would
create a conflict with the nonattainment provisions in part D of
Title I of the CAA, which specifically address nonattainment area
SIP requirements. See, e.g., ``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 at 4. For example, 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. The provisions in section 172(b) for
submission of such plans for nonattainment areas differs from the
timing requirements for an infrastructure SIP submission under
110(a)(1). Thus, rather than applying all the stated requirements of
section 110(a)(2) in a strict literal sense, EPA has determined that
certain provisions like 110(a)(2)(I) of section 110(a)(2) are not
applicable to infrastructure SIP submissions.
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This action pertains to one of the requirements of section
110(a)(2) that is relevant in the context of a state's development, and
EPA's evaluation of, infrastructure SIP submissions. Section
110(a)(2)(E)(ii) of the CAA requires states to have SIPs that contain
provisions that comply with certain specific requirements respecting
State boards or bodies or heads of states agencies under CAA section
128. Section 128 of the CAA requires that states include provisions in
their SIP that require that any state board or body which approves
permits or enforcement orders shall have a majority of members who
represent the public interest and do not receive a significant portion
of their income from parties subject to such permits or enforcement
orders (section 128(a)(1)); and require that the members of any such
board or body, or the head of an executive agency with similar power to
approve permits or enforcement orders under the CAA, shall adequately
disclose potential conflicts of interest (section 128(a)(2)).
Specifically, this action is limited to specific section 128
requirements applicable to state boards or bodies.
On October 11, 2012, MDEQ submitted SIP revisions for incorporation
of Article 4, Section 109 of the Mississippi Constitution and portions
of Mississippi Code sections 25-4-25, -27, -29, -103, -105, and -109
into its SIP to meet its section 128 and related section
110(a)(2)(E)(ii) obligations for the 1997 and 2006 PM2.5
NAAQS. On April 8, 2013, EPA took final action to incorporate these
provisions into the Mississippi SIP to meet the certain requirements of
CAA sections 128 and 110(a)(2)(E)(ii). See 78 FR 20793.\2\ In this same
final action, 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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\2\ 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.
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Subsequently, EPA took final action to disapprove Mississippi's
infrastructure SIP submissions pertaining to section 110(a)(2)(E)(ii)
for failing to comply with the significant portion of income
requirement of section 128(a)(1) of for the 2008 8-hour Ozone on March
2, 2015 (80 FR 11133), 2008 Lead on March 30, 2015 (80 FR 16566), 2010
NO2 on August 16, 2016 (81 FR 63705), 2010 SO2 on
September 30, 2016 (81 FR 67171), and 2012 PM2.5 NAAQS on
December 12, 2016 (81 FR 89391).\3\ Under section 110(c)(1)(B), these
disapprovals started a two-year clock for the EPA to promulgate a FIP
to address the deficiency.
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\3\ EPA has already approved or will consider in separate
actions all other elements of Mississippi's infrastructure SIP
submissions related to the 2008 8-hour Ozone, 2008 Lead, 2010
NO2, 2010 SO2, and 1997, 2006 and 2012
PM2.5 NAAQS.
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In order to fully address the requirements of section 128, and thus
the requirements of section 110(a)(2)(E)(ii), Mississippi made the June
23, 2017, and February 2, 2018, SIP submissions to revise the existing
federally approved SIP and include these necessary revisions. Through
this action, EPA is proposing approval of Mississippi's draft SIP
revisions to incorporate into its SIP state law and regulatory
provisions to meet certain state board requirements of section 128.
More detail on how Mississippi's SIP revisions meet these requirements
is provided below. As a result of the addition of these new SIP
provisions to

[[Page 13714]]

meet the requirements of section 128, EPA is also proposing to approve
the section 110(a)(2)(E)(ii) infrastructure element for the 2008 8-hour
Ozone, 2008 Lead, 2010 NO2, 2010 SO2, and 1997,
2006 and 2012 PM2.5 NAAQS. The approvals proposed herein
would fully address the SIP deficiencies from EPA's prior disapprovals
for the 2008 8-hour Ozone, 2008 Lead, 2010 NO2, 2010
SO2, and 1997, 2006 and 2012 PM2.5 NAAQS. Thus,
if we finalize this proposed approval, this will resolve the prior
disapprovals for element 110(a)(2)(E)(ii) for the 2008 8-hour Ozone,
2008 Lead, 2010 NO2, 2010 SO2, and 1997, 2006 and
2012 PM2.5 NAAQS, and terminate EPA's FIP obligation.
A brief background regarding the NAAQS relevant to this action is
provided below. For comprehensive information on these NAAQS, please
refer to the Federal Register rulemakings cited below.

A. 2008 8-Hour Ozone NAAQS

On March 27, 2008, EPA promulgated a revised NAAQS for ozone based
on 8-hour average concentrations. EPA revised the level of the 8-hour
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. States were
required to submit infrastructure SIP submissions for the 2008 8-hour
Ozone NAAQS to EPA no later than March 2011.

B. 2008 Lead NAAQS

On November 12, 2008 (75 FR 81126), EPA issued a final rule to
revise the Lead NAAQS. The Lead NAAQS was revised to 0.15 micrograms
per cubic meter ([micro]g/m\3\). States were required to submit
infrastructure SIP submissions to EPA no later than October 15, 2011,
for the 2008 Lead NAAQS.

C. 2010 NO2 NAAQS

On February 9, 2010 (75 FR 6474), EPA established 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. States were
required to submit infrastructure SIP submissions for the 2010
NO2 NAAQS to EPA no later than January 2013.

D. 2010 SO2 NAAQS

On June 2, 2010 (75 FR 35520), EPA promulgated a revised primary
SO2 NAAQS to an hourly standard of 75 ppb based on a 3-year
average of the annual 99th percentile of 1-hour daily maximum
concentrations. States were required to submit such SIPs for the 2010
1-hour SO2 NAAQS to EPA no later than June 2, 2013.

E. 1997 and 2006 PM2.5 NAAQS

On July 18, 1997 (62 FR 36852), EPA established an annual
PM2.5 NAAQS at 15.0 [mu]g/m\3\ based on a 3-year average of
annual mean PM2.5 concentrations. At that time, EPA also
established a 24-hour NAAQS of 65 [mu]g/m\3\. See 40 CFR 50.7. On
October 17, 2006 (71 FR 61144), EPA retained the 1997 annual
PM2.5 NAAQS at 15.0 [mu]g/m\3\ based on a 3-year average of
annual mean PM2.5 concentrations, and promulgated a new 24-
hour NAAQS of 35 [mu]g/m\3\ based on a 3-year average of the 98th
percentile of 24-hour concentrations. States were required to submit
such SIPs to EPA no later than July 2000 for the 1997 annual
PM2.5 NAAQS, and no later than October 2009 for the 2006 24-
hour PM2.5 NAAQS.

F. 2012 PM2.5 NAAQS

On December 14, 2012, EPA revised the primary annual
PM2.5 NAAQS to 12.0 [mu]g/m\3\. See 78 FR 3086 (January 15,
2013). An area meets the standard if the three-year average of its
annual average PM2.5 concentration (at each monitoring site
in the area) is less than or equal to 12.0 [mu]g/m\3\. States were
required to submit infrastructure SIP submissions for the 2012
PM2.5 NAAQS to EPA no later than December 14, 2015.

III. What is EPA's analysis of how Mississippi addressed the
requirements of section 128(a)(1)?

On June 23, 2017, and February 2, 2018, Mississippi submitted for
parallel processing, draft SIP submissions to revise the Mississippi
SIP to meet certain portions of the state board requirements of CAA
section 128. Of note, EPA has previously approved SIP revisions to
address all elements of section 128 for Mississippi except the
significant portion of income requirement of 128(a)(1). See 78 FR
20793. The draft submissions under review in this proposed action
primarily address this outstanding significant portion of income
requirement, but also include additional supplemental language relevant
to other elements of section 128.\4\
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\4\ EPA has fully approved revisions to the Mississippi SIP to
address all elements of Section 128, except the significant portion
of income requirement. Thus, these additional provisions supplement
Mississippi's already approved SIP for these other elements of
section 128, as described below.
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If a state has a board or body that approves CAA permits or
enforcement orders, it is subject to section 128(a)(1), which requires
that any state ``board or body which approves permits or enforcement
orders under [the CAA] shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits or enforcement under
[the CAA].'' Section 128(a)(2) applies to the members of any such board
or body that approves CAA permits and enforcement orders, and also to
the head of an executive agency with similar powers, and requires that
``any potential conflicts of interest . . . be adequately disclosed.''
In 1978, EPA issued guidance recommending potential ways that
states might elect to meet the requirements of section 128, including
suggested interpretations of key terms.\5\ In this guidance, EPA
recognized that states may have a variety of procedures and special
concerns that may warrant differing approaches to implementation of
section 128 and that the guidance does not create a requirement that
all SIPs must include the suggested definitions verbatim, or that
definitions per se must be included in SIPs. EPA provided further
guidance with respect to these statutory requirements in its 2013
infrastructure SIP guidance.\6\ In the 2013 guidance, EPA clarified
that provisions to implement section 128 need to be contained within
the SIP. Therefore, EPA will not approve an infrastructure SIP
submission that only provides a narrative description or references
existing state laws or requirements that are not approved into the SIP
in order to address section 128. EPA has also provided certain
interpretations of the statutory requirements of section 128 in its
actions on infrastructure SIP submissions from various states, based on
the facts and circumstances of those actions.\7\ In several actions,
EPA has approved state law requirements that closely track or mirror
the explicit statutory language of section 128.\8\
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\5\ Memorandum from David O. Bickart, Deputy General Counsel, to
Regional Air Directors, Guidance to States for Meeting Conflict of
Interest Requirements of Section 128 (March 2, 1978).
\6\ ``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.
\7\ Id., pp. 43-44.
\8\ See, EPA proposed rule on Montana's SIP/infrastructure
requirements, 81 FR 4225, 4233, finalized at 81 FR 23180; and EPA's
approval of Georgia's infrastructure requirements, 77 FR 65125;
proposed at 77 FR 35909.
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The legislative history of the 1977 amendments to the CAA also
indicates that states have some flexibility in determining the specific
requirements needed to meet the section 128 requirements, so long as
the statutory

[[Page 13715]]

requirements are met.\9\ Also, section 128 explicitly provides that
states may adopt any requirements respecting conflicts of interest for
such boards or bodies or heads of executive agencies, or any other
entities which are more stringent than the requirements of paragraphs
(1) and (2), and that the Administrator shall approve any such more
stringent requirements submitted as part of an implementation plan.
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\9\ Specifically, the conference committee for the 1977
amendments stated that ``it is the responsibility of each state to
determine the specific requirements to meet the general requirements
of [section 128].'' H.R. Rep. 95-564 (1977), reprinted in
Legislative History of the Clean Air Act Amendments of 1977, 526-527
(1978).
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On June 23, 2017, Mississippi submitted for incorporation into its
SIP changes to Mississippi Code section 49-2-5. This provision
specifically addresses the Mississippi Commission on Environmental
Quality, which has CAA enforcement order approval authority. This
change adds a provision which provides that: ``At least a majority of
the members of the commission shall represent the public interest and
shall not derive any significant portion of their income from persons
subject to permits under the Federal Clean Air Act or enforcement order
under the Federal Clean Air Act. In the event of any potential conflict
of interest by a member of the commission, such member shall disclose
the potential conflict to the other members of the commission and shall
recuse himself or herself from participating in or voting on any matter
related to such conflict of interest.'' EPA notes that this provision
addresses certain section 128 requirements for which Mississippi's SIP
has already received full approval; namely the representation of the
public interest requirement of section 128(a)(1) and the conflict of
interest disclosure requirements of section 128(a)(2). As explained
below, EPA believes these additional provisions are approvable as well.
On February 2, 2018, MDEQ submitted for incorporation into the SIP
provisions that address section 128(a)(1) for the MDEQ Permit Board.
First, the submissions requests incorporation of a new provision in
Appendix C-26, ``Air Emissions Regulations for the Prevention,
Abatement, and Control of Air Contaminants'' Title 11, Part 2, Chapter
1, Rule 1.1, which provides that ``the Mississippi Environmental
Quality Permit Board (``Permit Board'') shall ensure that at least a
majority of the members of the Permit Board shall represent the public
interest and shall not derive any significant portion of their income
from persons subject to permits under the Federal Clean Air Act or
enforcement orders under the Federal Clean Air Act.''
Second, the submission requests incorporation of revisions to the
MDEQ Permit Board procedural rules at Appendix A-13, ``Regulations
Regarding Administrative Procedures Pursuant to the Mississippi
Administrative Procedures Act'', Title 11, Part 1 Chapter 5, Rule 5.1.
This rule describes the composition of the MDEQ Permit Board as seven
members who serve by virtue of Mississippi State Office as ``Ex Officio
Members,'' (e.g., Chief of the Bureau of Environmental Health of the
State Board of Health). Each Ex Officio Member is allowed to designate
a replacement. Two Board members are appointed by the Governor of
Mississippi and are required to be a retired professional engineer
knowledgeable in the engineering of water wells and a retired water
well contractor, respectively, but these members only vote on matters
pertaining to the Office of Land and Water Resources. Administrative
Procedures Act Rules, Title 11, Part 1 Chapter 5, Rule 5.1 provides
that ``at least the majority of the Ex Officio Members of the MDEQ
Permit Board shall represent the public interest and shall not derive
any significant portion of their income from persons subject to permits
under the Federal Clean Air Act or enforcement orders under the Federal
Clean Air Act (CAA).'' It also provides for annual certification as to
whether the member derives a significant portion of income from persons
subject to permits or enforcement orders under the CAA and a process
for replacing members as needed to ensure that a majority does derive a
significant portion of income from regulated entities.
EPA is proposing to approve Mississippi's June 23, 2017, and
February 2, 2018, draft SIP submissions as meeting the public interest
and significant portion of income requirements of section 128 because
we believe these provisions comply with the statutory requirements and
are consistent with EPA's guidance. The State has submitted a statutory
provision for incorporation into the Mississippi SIP for the
Mississippi Commission on Environmental Quality and this provision
mirrors section 128(a)(1) regarding the majority composition public
interest and significant income requirements. As noted above, EPA has
determined that state requirements that closely track or mirror the
section 128 requirements satisfy CAA requirements. The provision also
requires disclosure of potential conflicts of interest and recusal if
such a conflict exists. EPA previously incorporated Mississippi Code
Section 25-4-27 into Mississippi's SIP, which required the Commission
and Board members to file annual statements of economic interests with
the Mississippi Ethics Commission, and 25-4-27, which prescribed the
contents for economic interest statements. See 78 FR 20793. In this
previous approval action, EPA found that the state satisfied the
disclosure requirements of section 128(a)(2). EPA views this additional
disclosure requirement, which mirrors the language of section
128(a)(2), as approvable. Regarding recusal when a conflict exists, EPA
notes that this step is not required under section 128. As section 128
explicitly provides that EPA ``shall approve . . . more stringent
requirements submitted as part of an implementation plan,'' and EPA
views the recusal requirement as more stringent than the section 128
requirements, EPA is proposing to approve this provision.\10\
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\10\ See EPA's proposed rule on a Montana SIP revision to
address section 128 and infrastructure SIP requirements for a
discussion on EPA's approach to this type of recusal requirement. 81
FR 4225, 4233.
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For the MDEQ Permit Board, the state submitted regulations at Title
11, Part 1 Chapter 5, Rule 5.1 and Title 11, Part 2, Chapter 1, Rule
1.1 for incorporation into the SIP, which again mirrors section
128(a)(1) regarding the public interest and significant income
requirements and therefore satisfy CAA section 128. In Title 11, Part 1
Chapter 5, Rule 5.1, Mississippi is also including certain procedural
provisions that address implementation of the significant income
requirement of section 128(a)(1) and provisions that describe the
composition of the MDEQ Permit Board. EPA believes these provisions are
not inconsistent with the section 128 requirements and associated
guidance and are therefore approvable.
With the incorporation of these specific statutory and regulatory
provisions to comply with the relevant CAA requirements into the SIP,
EPA believes that Mississippi will meet all the requirements of section
128 of the CAA.

IV. What is EPA's analysis of how Mississippi addressed the
requirements of section 110(a)(2)(E)(ii)?

Mississippi also requested in the draft SIP submissions that EPA
convert the previous partial disapproval of its infrastructure SIPs
with regard to the significant portion of income board requirements to
full approvals. Section 110(a)(2)(E)(ii) of the CAA requires

[[Page 13716]]

states to have SIP provisions that comply with the requirements of CAA
section 128. Because EPA is proposing to approve provisions into
Mississippi's SIP to meet the significant portion of income
requirements of section 128(a)(1) as discussed above, it is also
proposing to fully approve the SIP submission with respect to the
related requirements of section 110(a)(2)(E)(ii) for the NAAQS
previously mentioned. EPA notes that section 128 is not NAAQS-specific,
and thus once a state has met the requirements of section 128 it will
continue to do so for purposes of future NAAQS, unless there were
future changes to the approved SIP provisions which would require
further evaluation.

V. Incorporation by Reference

In this notice, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Mississippi Code section 49-2-5 to include certain section
128 requirements for the MDEQ Commission on Environmental Quality; and
Appendix C-26, ``Air Emissions Regulations for the Prevention,
Abatement, and Control of Air Contaminants'' Title 11, Part 2, Chapter
1, Rule 1.1, and Appendix A-13, ``Regulations Regarding Administrative
Procedures Pursuant to the Mississippi Administrative Procedures Act'',
Title 11, Part 1 Chapter 5, Rule 5.1 to incorporate certain section 128
requirements for the MDEQ Permit Board. EPA has made, and will continue
to make, these materials generally available through
www.regulations.gov and at the EPA Region 4 office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).

VI. Proposed Action

As described above, EPA is proposing to approve that the
Mississippi SIP meets the significant portion of income requirements of
128(a)(1) of the CAA. EPA is also proposing to conclude that, if
Mississippi's June 23, 2017, and February 2, 2018, SIP revisions are
approved, the section 110(a)(2)(E)(ii) requirements are met for the
2008 8-hour Ozone, 2008 Lead, 2010 NO2, 2010 SO2,
and 1997, 2006 and 2012 PM2.5, NAAQS for section
110(a)(2)(E)(ii). Consequently, if EPA finalizes approval of this
action, the deficiencies identified in the previous partial
disapprovals of Mississippi infrastructure SIP submissions related to
the state board requirements for the 2008 8-hour Ozone, 2008 Lead, 2010
NO2, 2010 SO2, and 1997, 2006 and 2012
PM2.5 NAAQS will be cured. Finally, EPA is proposing to
approve the new supplemental provisions regarding representation of the
public interest of section 128(a)(1) for the MDEQ Permit Board and
Mississippi Commission on Environmental Quality, and disclosure of
potential conflicts of interest of section 128(a)(2) for the
Mississippi Commission on Environmental Quality.

VII. 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. This 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 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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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, Lead, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds.

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

Dated: March 15, 2018.
Onis ``Trey'' Glenn, III,
Regional Administrator, Region 4.
[FR Doc. 2018-06544 Filed 3-29-18; 8:45 am]
BILLING CODE 6560-50-P

13712 Federal Register / Vol. 83, No. 62 / Friday, March 30, 2018 / Proposed Rules

made, and will continue to make, these practicable and legally permissible the CAA requires the state to make a
documents generally available through methods, under Executive Order 12898 new SIP submission establishing that
www.regulations.gov and at the EPA (59 FR 7629, February 16, 1994). the existing SIP meets the various
Region 5 Office (please contact the In addition, the SIP is not approved applicable requirements, or revising the
person identified in the FOR FURTHER to apply on any Indian reservation land SIP to meet those requirements. This
INFORMATION CONTACT section of this or in any other area where EPA or an type of SIP submission is commonly
preamble for more information). Indian tribe has demonstrated that a referred to as an ‘‘infrastructure’’ SIP. In
tribe has jurisdiction. In those areas of this proposed action, EPA is proposing
VI. Statutory and Executive Order Indian country, the rule does not have to approve the June 23, 2017, and
Reviews tribal implications and will not impose February 2, 2018 submissions with
Under the Clean Air Act (CAA), the substantial direct costs on tribal respect to the CAA requirements
Administrator is required to approve a governments or preempt tribal law as applicable to state boards; and the
SIP submission that complies with the specified by Executive Order 13175 (65 related state board infrastructure SIP
provisions of the CAA and applicable FR 67249, November 9, 2000). requirements for the 2008 8-hour Ozone,
Federal regulations. 42 U.S.C. 7410(k); 2008 Lead, 2010 NO2, 2010 SO2 and
List of Subjects in 40 CFR Part 52
40 CFR 52.02(a). Thus, in reviewing SIP 1997, 2006 and 2012 PM2.5, NAAQS. If
submissions, EPA’s role is to approve Environmental protection, Air this proposed approval action is
state choices, provided that they meet pollution control, Incorporation by finalized, EPA will no longer be
the criteria of the CAA. Accordingly, reference, Intergovernmental relations, required to promulgate a Federal
this action merely approves state law as Volatile organic compounds, and Implementation Plan (FIP) to address
meeting Federal requirements and does Ozone. the CAA state board requirements for
not impose additional requirements Dated: March 20, 2018. Mississippi, as described in more detail
beyond those imposed by state law. For Edward H. Chu, below.
that reason, this action: Acting Regional Administrator, Region 5. DATES: Written comments must be
• Is not a significant regulatory action [FR Doc. 2018–06543 Filed 3–29–18; 8:45 am] received on or before April 30, 2018.
subject to review by the Office of
BILLING CODE 6560–50–P
Management and Budget under ADDRESSES: Submit your comments,
Executive Orders 12866 (58 FR 51735, identified by Docket ID No. EPA–R04–
October 4, 1993) and 13563 (76 FR 3821, OAR–2017–0546 at http://
ENVIRONMENTAL PROTECTION
January 21, 2011); www.regulations.gov. Follow the online
AGENCY
• Is not an Executive Order 13771 (82 instructions for submitting comments.
FR 9339, February 2, 2017) regulatory 40 CFR Part 52 Once submitted, comments cannot be
action because SIP approvals are edited or removed from Regulations.gov.
[EPA–R04–OAR–2017–0546; FRL–9976– EPA may publish any comment received
exempted under Executive Order 12866;
16—Region 4]
• Does not impose an information to its public docket. Do not submit
collection burden under the provisions Air Plan Approval; MS; Section 128 electronically any information you
of the Paperwork Reduction Act (44 Board Requirements for Infrastructure consider to be Confidential Business
U.S.C. 3501 et seq.); SIPs Information (CBI) or other information
• Is certified as not having a whose disclosure is restricted by statute.
significant economic impact on a AGENCY: Environmental Protection Multimedia submissions (audio, video,
substantial number of small entities Agency. etc.) must be accompanied by a written
under the Regulatory Flexibility Act (5 ACTION: Proposed rule. comment. The written comment is
U.S.C. 601 et seq.); considered the official comment and
• Does not contain any unfunded SUMMARY: The Environmental Protection should include discussion of all points
mandate or significantly or uniquely Agency (EPA) is proposing to approve you wish to make. EPA will generally
affect small governments, as described the draft State Implementation Plan not consider comments or comment
in the Unfunded Mandates Reform Act (SIP) submissions, submitted by the contents located outside of the primary
of 1995 (Pub. L. 104–4); State of Mississippi, through the submission (i.e. on the web, cloud, or
• Does not have Federalism Mississippi Department of other file sharing system). For
implications as specified in Executive Environmental Quality (MDEQ) for additional submission methods, the full
Order 13132 (64 FR 43255, August 10, parallel processing, on June 23, 2017, EPA public comment policy,
1999); and February 2, 2018. Together these information about CBI or multimedia
• Is not an economically significant draft submittals address specific Clean submissions, and general guidance on
regulatory action based on health or Air Act (CAA or Act) requirements making effective comments, please visit
safety risks subject to Executive Order applicable to Mississippi state boards or http://www2.epa.gov/dockets/
13045 (62 FR 19885, April 23, 1997); bodies that approve CAA permits and commenting-epa-dockets.
• Is not a significant regulatory action enforcement orders. These submissions
also request that EPA convert the FOR FURTHER INFORMATION CONTACT:
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); previous partial disapproval of Nacosta C. Ward, Air Regulatory
• Is not subject to requirements of Mississippi’s infrastructure SIPs related Management Section, Air Planning and
section 12(d) of the National to the CAA state board significant Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
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Technology Transfer and Advancement portion of income requirements for the
Act of 1995 (15 U.S.C. 272 note) because 2008 8-hour Ozone, 2008 Lead, 2010 Environmental Protection Agency,
application of those requirements would Nitrogen Dioxide (NO2), 2010 Sulfur Region 4, 61 Forsyth Street SW, Atlanta,
be inconsistent with the CAA; and Dioxide (SO2), and 1997, 2006 and 2012 Georgia 30303–8960. The telephone
• Does not provide EPA with the fine particulate matter (PM2.5) national number is (404) 562–9140. Ms. Ward
discretionary authority to address, as ambient air quality standards (NAAQS) can be reached via electronic mail at
appropriate, disproportionate human to full approvals. Whenever EPA ward.nacosta@epa.gov.
health or environmental effects, using promulgates a new or revised NAAQS, SUPPLEMENTARY INFORMATION:

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13714 Federal Register / Vol. 83, No. 62 / Friday, March 30, 2018 / Proposed Rules

meet the requirements of section 128, E. 1997 and 2006 PM2.5 NAAQS who represent the public interest and do
EPA is also proposing to approve the On July 18, 1997 (62 FR 36852), EPA not derive any significant portion of
section 110(a)(2)(E)(ii) infrastructure established an annual PM2.5 NAAQS at their income from persons subject to
element for the 2008 8-hour Ozone, 15.0 mg/m3 based on a 3-year average of permits or enforcement under [the
2008 Lead, 2010 NO2, 2010 SO2, and annual mean PM2.5 concentrations. At CAA].’’ Section 128(a)(2) applies to the
1997, 2006 and 2012 PM2.5 NAAQS. The that time, EPA also established a 24- members of any such board or body that
approvals proposed herein would fully hour NAAQS of 65 mg/m3. See 40 CFR approves CAA permits and enforcement
address the SIP deficiencies from EPA’s 50.7. On October 17, 2006 (71 FR orders, and also to the head of an
prior disapprovals for the 2008 8-hour 61144), EPA retained the 1997 annual executive agency with similar powers,
Ozone, 2008 Lead, 2010 NO2, 2010 SO2, PM2.5 NAAQS at 15.0 mg/m3 based on a and requires that ‘‘any potential
and 1997, 2006 and 2012 PM2.5 NAAQS. 3-year average of annual mean PM2.5 conflicts of interest . . . be adequately
Thus, if we finalize this proposed concentrations, and promulgated a new disclosed.’’
approval, this will resolve the prior 24-hour NAAQS of 35 mg/m3 based on In 1978, EPA issued guidance
disapprovals for element 110(a)(2)(E)(ii) a 3-year average of the 98th percentile recommending potential ways that
for the 2008 8-hour Ozone, 2008 Lead, of 24-hour concentrations. States were states might elect to meet the
2010 NO2, 2010 SO2, and 1997, 2006 required to submit such SIPs to EPA no requirements of section 128, including
and 2012 PM2.5 NAAQS, and terminate later than July 2000 for the 1997 annual suggested interpretations of key terms.5
EPA’s FIP obligation. PM2.5 NAAQS, and no later than In this guidance, EPA recognized that
A brief background regarding the October 2009 for the 2006 24-hour PM2.5 states may have a variety of procedures
NAAQS relevant to this action is NAAQS. and special concerns that may warrant
provided below. For comprehensive differing approaches to implementation
F. 2012 PM2.5 NAAQS
information on these NAAQS, please of section 128 and that the guidance
refer to the Federal Register On December 14, 2012, EPA revised does not create a requirement that all
rulemakings cited below. the primary annual PM2.5 NAAQS to SIPs must include the suggested
12.0 mg/m3. See 78 FR 3086 (January 15, definitions verbatim, or that definitions
A. 2008 8-Hour Ozone NAAQS 2013). An area meets the standard if the per se must be included in SIPs. EPA
On March 27, 2008, EPA promulgated three-year average of its annual average provided further guidance with respect
a revised NAAQS for ozone based on 8- PM2.5 concentration (at each monitoring to these statutory requirements in its
hour average concentrations. EPA site in the area) is less than or equal to 2013 infrastructure SIP guidance.6 In
revised the level of the 8-hour ozone 12.0 mg/m3. States were required to the 2013 guidance, EPA clarified that
NAAQS to 0.075 parts per million. See submit infrastructure SIP submissions provisions to implement section 128
77 FR 16436. States were required to for the 2012 PM2.5 NAAQS to EPA no need to be contained within the SIP.
submit infrastructure SIP submissions later than December 14, 2015.
Therefore, EPA will not approve an
for the 2008 8-hour Ozone NAAQS to III. What is EPA’s analysis of how infrastructure SIP submission that only
EPA no later than March 2011. Mississippi addressed the requirements provides a narrative description or
B. 2008 Lead NAAQS of section 128(a)(1)? references existing state laws or
On June 23, 2017, and February 2, requirements that are not approved into
On November 12, 2008 (75 FR 81126), the SIP in order to address section 128.
2018, Mississippi submitted for parallel
EPA issued a final rule to revise the processing, draft SIP submissions to EPA has also provided certain
Lead NAAQS. The Lead NAAQS was revise the Mississippi SIP to meet interpretations of the statutory
revised to 0.15 micrograms per cubic certain portions of the state board requirements of section 128 in its
meter (mg/m3). States were required to requirements of CAA section 128. Of actions on infrastructure SIP
submit infrastructure SIP submissions to note, EPA has previously approved SIP submissions from various states, based
EPA no later than October 15, 2011, for revisions to address all elements of on the facts and circumstances of those
the 2008 Lead NAAQS. section 128 for Mississippi except the actions.7 In several actions, EPA has
C. 2010 NO2 NAAQS significant portion of income approved state law requirements that
requirement of 128(a)(1). See 78 FR closely track or mirror the explicit
On February 9, 2010 (75 FR 6474), 20793. The draft submissions under statutory language of section 128.8
EPA established a new 1-hour primary review in this proposed action primarily The legislative history of the 1977
NAAQS for NO2 at a level of 100 parts address this outstanding significant amendments to the CAA also indicates
per billion (ppb), based on a 3-year portion of income requirement, but also that states have some flexibility in
average of the 98th percentile of the include additional supplemental determining the specific requirements
yearly distribution of 1-hour daily language relevant to other elements of needed to meet the section 128
maximum concentrations. States were section 128.4 requirements, so long as the statutory
required to submit infrastructure SIP If a state has a board or body that
submissions for the 2010 NO2 NAAQS approves CAA permits or enforcement 5 Memorandum from David O. Bickart, Deputy
to EPA no later than January 2013. orders, it is subject to section 128(a)(1), General Counsel, to Regional Air Directors,
which requires that any state ‘‘board or Guidance to States for Meeting Conflict of Interest
D. 2010 SO2 NAAQS Requirements of Section 128 (March 2, 1978).
body which approves permits or 6 ‘‘Guidance on Infrastructure State
On June 2, 2010 (75 FR 35520), EPA enforcement orders under [the CAA] Implementation Plan (SIP) Elements under Clean
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promulgated a revised primary SO2 shall have at least a majority of members Air Act Sections 110(a)(1) and 110(a)(2),’’
NAAQS to an hourly standard of 75 ppb Memorandum from Stephen D. Page, September 13,
based on a 3-year average of the annual 4 EPA has fully approved revisions to the 2013.
99th percentile of 1-hour daily Mississippi SIP to address all elements of Section 7 Id., pp. 43–44.

maximum concentrations. States were 128, except the significant portion of income 8 See, EPA proposed rule on Montana’s SIP/

requirement. Thus, these additional provisions infrastructure requirements, 81 FR 4225, 4233,
required to submit such SIPs for the supplement Mississippi’s already approved SIP for finalized at 81 FR 23180; and EPA’s approval of
2010 1-hour SO2 NAAQS to EPA no these other elements of section 128, as described Georgia’s infrastructure requirements, 77 FR 65125;
later than June 2, 2013. below. proposed at 77 FR 35909.

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Federal Register / Vol. 83, No. 62 / Friday, March 30, 2018 / Proposed Rules 13715

requirements are met.9 Also, section 128 permits under the Federal Clean Air Act potential conflicts of interest and
explicitly provides that states may adopt or enforcement orders under the Federal recusal if such a conflict exists. EPA
any requirements respecting conflicts of Clean Air Act.’’ previously incorporated Mississippi
interest for such boards or bodies or Second, the submission requests Code Section 25–4–27 into Mississippi’s
heads of executive agencies, or any incorporation of revisions to the MDEQ SIP, which required the Commission
other entities which are more stringent Permit Board procedural rules at and Board members to file annual
than the requirements of paragraphs (1) Appendix A–13, ‘‘Regulations statements of economic interests with
and (2), and that the Administrator shall Regarding Administrative Procedures the Mississippi Ethics Commission, and
approve any such more stringent Pursuant to the Mississippi 25–4–27, which prescribed the contents
requirements submitted as part of an Administrative Procedures Act’’, Title for economic interest statements. See 78
implementation plan. 11, Part 1 Chapter 5, Rule 5.1. This rule FR 20793. In this previous approval
On June 23, 2017, Mississippi describes the composition of the MDEQ action, EPA found that the state satisfied
submitted for incorporation into its SIP Permit Board as seven members who the disclosure requirements of section
changes to Mississippi Code section 49– serve by virtue of Mississippi State 128(a)(2). EPA views this additional
2–5. This provision specifically Office as ‘‘Ex Officio Members,’’ (e.g., disclosure requirement, which mirrors
addresses the Mississippi Commission Chief of the Bureau of Environmental the language of section 128(a)(2), as
on Environmental Quality, which has Health of the State Board of Health). approvable. Regarding recusal when a
CAA enforcement order approval Each Ex Officio Member is allowed to conflict exists, EPA notes that this step
authority. This change adds a provision designate a replacement. Two Board is not required under section 128. As
which provides that: ‘‘At least a members are appointed by the Governor section 128 explicitly provides that EPA
majority of the members of the of Mississippi and are required to be a ‘‘shall approve . . . more stringent
commission shall represent the public retired professional engineer requirements submitted as part of an
interest and shall not derive any knowledgeable in the engineering of implementation plan,’’ and EPA views
significant portion of their income from water wells and a retired water well the recusal requirement as more
persons subject to permits under the contractor, respectively, but these stringent than the section 128
Federal Clean Air Act or enforcement members only vote on matters requirements, EPA is proposing to
order under the Federal Clean Air Act. pertaining to the Office of Land and approve this provision.10
In the event of any potential conflict of Water Resources. Administrative For the MDEQ Permit Board, the state
interest by a member of the commission, Procedures Act Rules, Title 11, Part 1 submitted regulations at Title 11, Part 1
such member shall disclose the Chapter 5, Rule 5.1 provides that ‘‘at Chapter 5, Rule 5.1 and Title 11, Part 2,
potential conflict to the other members least the majority of the Ex Officio Chapter 1, Rule 1.1 for incorporation
of the commission and shall recuse Members of the MDEQ Permit Board into the SIP, which again mirrors
himself or herself from participating in shall represent the public interest and section 128(a)(1) regarding the public
or voting on any matter related to such shall not derive any significant portion interest and significant income
conflict of interest.’’ EPA notes that this of their income from persons subject to requirements and therefore satisfy CAA
provision addresses certain section 128 permits under the Federal Clean Air Act section 128. In Title 11, Part 1 Chapter
requirements for which Mississippi’s or enforcement orders under the Federal 5, Rule 5.1, Mississippi is also including
SIP has already received full approval; Clean Air Act (CAA).’’ It also provides certain procedural provisions that
namely the representation of the public for annual certification as to whether address implementation of the
interest requirement of section 128(a)(1) the member derives a significant portion significant income requirement of
and the conflict of interest disclosure of income from persons subject to section 128(a)(1) and provisions that
requirements of section 128(a)(2). As permits or enforcement orders under the describe the composition of the MDEQ
explained below, EPA believes these CAA and a process for replacing Permit Board. EPA believes these
additional provisions are approvable as members as needed to ensure that a provisions are not inconsistent with the
well. majority does derive a significant section 128 requirements and associated
On February 2, 2018, MDEQ portion of income from regulated guidance and are therefore approvable.
submitted for incorporation into the SIP entities. With the incorporation of these
provisions that address section 128(a)(1) EPA is proposing to approve specific statutory and regulatory
for the MDEQ Permit Board. First, the Mississippi’s June 23, 2017, and provisions to comply with the relevant
submissions requests incorporation of a February 2, 2018, draft SIP submissions CAA requirements into the SIP, EPA
new provision in Appendix C–26, ‘‘Air as meeting the public interest and believes that Mississippi will meet all
Emissions Regulations for the significant portion of income the requirements of section 128 of the
Prevention, Abatement, and Control of requirements of section 128 because we CAA.
Air Contaminants’’ Title 11, Part 2, believe these provisions comply with
IV. What is EPA’s analysis of how
Chapter 1, Rule 1.1, which provides that the statutory requirements and are
Mississippi addressed the requirements
‘‘the Mississippi Environmental Quality consistent with EPA’s guidance. The
of section 110(a)(2)(E)(ii)?
Permit Board (‘‘Permit Board’’) shall State has submitted a statutory
ensure that at least a majority of the provision for incorporation into the Mississippi also requested in the draft
members of the Permit Board shall Mississippi SIP for the Mississippi SIP submissions that EPA convert the
represent the public interest and shall Commission on Environmental Quality previous partial disapproval of its
not derive any significant portion of and this provision mirrors section infrastructure SIPs with regard to the
significant portion of income board
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their income from persons subject to 128(a)(1) regarding the majority
composition public interest and requirements to full approvals. Section
9 Specifically, the conference committee for the significant income requirements. As 110(a)(2)(E)(ii) of the CAA requires
1977 amendments stated that ‘‘it is the noted above, EPA has determined that
responsibility of each state to determine the specific state requirements that closely track or 10 See EPA’s proposed rule on a Montana SIP

requirements to meet the general requirements of revision to address section 128 and infrastructure
[section 128].’’ H.R. Rep. 95–564 (1977), reprinted
mirror the section 128 requirements SIP requirements for a discussion on EPA’s
in Legislative History of the Clean Air Act satisfy CAA requirements. The approach to this type of recusal requirement. 81 FR
Amendments of 1977, 526–527 (1978). provision also requires disclosure of 4225, 4233.

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13716 Federal Register / Vol. 83, No. 62 / Friday, March 30, 2018 / Proposed Rules

states to have SIP provisions that 1997, 2006 and 2012 PM2.5 NAAQS will • Does not provide EPA with the
comply with the requirements of CAA be cured. Finally, EPA is proposing to discretionary authority to address, as
section 128. Because EPA is proposing approve the new supplemental appropriate, disproportionate human
to approve provisions into Mississippi’s provisions regarding representation of health or environmental effects, using
SIP to meet the significant portion of the public interest of section 128(a)(1) practicable and legally permissible
income requirements of section for the MDEQ Permit Board and methods, under Executive Order 12898
128(a)(1) as discussed above, it is also Mississippi Commission on (59 FR 7629, February 16, 1994).
proposing to fully approve the SIP Environmental Quality, and disclosure The SIP is not approved to apply on
submission with respect to the related of potential conflicts of interest of any Indian reservation land or in any
requirements of section 110(a)(2)(E)(ii) section 128(a)(2) for the Mississippi other area where EPA or an Indian tribe
for the NAAQS previously mentioned. Commission on Environmental Quality. has demonstrated that a tribe has
EPA notes that section 128 is not jurisdiction. In those areas of Indian
NAAQS-specific, and thus once a state VII. Statutory and Executive Order country, the rule does not have tribal
has met the requirements of section 128 Reviews implications as specified by Executive
it will continue to do so for purposes of Under the CAA, the Administrator is Order 13175 (65 FR 67249, November 9,
future NAAQS, unless there were future required to approve a SIP submission 2000), nor will it impose substantial
changes to the approved SIP provisions that complies with the provisions of the direct costs on tribal governments or
which would require further evaluation. Act and applicable Federal regulations. preempt tribal law.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
V. Incorporation by Reference List of Subjects in 40 CFR Part 52
Thus, in reviewing SIP submissions,
In this notice, EPA is proposing to EPA’s role is to approve state choices, Environmental protection, Air
include in a final EPA rule regulatory provided that they meet the criteria of pollution control, Incorporation by
text that includes incorporation by the CAA. This action merely proposes to reference, Intergovernmental relations,
reference. In accordance with the approve state law as meeting Federal Lead, Nitrogen dioxide, Ozone,
requirements of 1 CFR 51.5, EPA is requirements and does not impose Reporting and recordkeeping
proposing to incorporate by reference additional requirements beyond those requirements, Sulfur oxides, Volatile
Mississippi Code section 49–2–5 to imposed by state law. For that reason, organic compounds.
include certain section 128 this proposed action: Authority: 42 U.S.C. 7401 et seq.
requirements for the MDEQ Commission • Is not a significant regulatory action
on Environmental Quality; and subject to review by the Office of Dated: March 15, 2018.
Appendix C–26, ‘‘Air Emissions Management and Budget under Onis ‘‘Trey’’ Glenn, III,
Regulations for the Prevention, Executive Orders 12866 (58 FR 51735, Regional Administrator, Region 4.
Abatement, and Control of Air October 4, 1993) and 13563 (76 FR 3821, [FR Doc. 2018–06544 Filed 3–29–18; 8:45 am]
Contaminants’’ Title 11, Part 2, Chapter January 21, 2011); BILLING CODE 6560–50–P
1, Rule 1.1, and Appendix A–13, • Is not an Executive Order 13771 (82
‘‘Regulations Regarding Administrative FR 9339, February 2, 2017) regulatory
Procedures Pursuant to the Mississippi action because SIP approvals are ENVIRONMENTAL PROTECTION
Administrative Procedures Act’’, Title exempted under Executive Order 12866; AGENCY
11, Part 1 Chapter 5, Rule 5.1 to • Does not impose an information
incorporate certain section 128 collection burden under the provisions 40 CFR Part 52
requirements for the MDEQ Permit of the Paperwork Reduction Act (44 [EPA–R09–OAR–2017–0661; FRL–9976–
Board. EPA has made, and will continue U.S.C. 3501 et seq.); 18—Region 9]
to make, these materials generally • Is certified as not having a
available through www.regulations.gov significant economic impact on a Air Plan Approval; Arizona; Hayden
and at the EPA Region 4 office (please substantial number of small entities and Miami Areas; Lead and Sulfur
contact the person identified in the FOR under the Regulatory Flexibility Act (5 Dioxide Control Measures—Copper
FURTHER INFORMATION CONTACT section of U.S.C. 601 et seq.); Smelters
this preamble for more information). • Does not contain any unfunded
mandate or significantly or uniquely AGENCY: Environmental Protection
VI. Proposed Action Agency (EPA).
affect small governments, as described
As described above, EPA is proposing in the Unfunded Mandates Reform Act ACTION: Proposed rule.
to approve that the Mississippi SIP of 1995 (Pub. L. 104–4); SUMMARY: The Environmental Protection
meets the significant portion of income • Does not have Federalism
requirements of 128(a)(1) of the CAA. Agency (EPA) is proposing to approve
implications as specified in Executive
EPA is also proposing to conclude that, revisions to the Arizona State
Order 13132 (64 FR 43255, August 10,
if Mississippi’s June 23, 2017, and Implementation Plan (SIP). These
1999);
February 2, 2018, SIP revisions are • Is not an economically significant revisions concern emissions of lead and
approved, the section 110(a)(2)(E)(ii) regulatory action based on health or sulfur dioxide (SO2) from the copper
requirements are met for the 2008 8- safety risks subject to Executive Order smelter at Hayden, AZ and SO2 from the
hour Ozone, 2008 Lead, 2010 NO2, 2010 13045 (62 FR 19885, April 23, 1997); copper smelter at Miami, AZ. We are
SO2, and 1997, 2006 and 2012 PM2.5, • Is not a significant regulatory action proposing to approve State rules to
regulate these emission sources under
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NAAQS for section 110(a)(2)(E)(ii). subject to Executive Order 13211 (66 FR
Consequently, if EPA finalizes approval 28355, May 22, 2001); the Clean Air Act (CAA or the Act). We
of this action, the deficiencies identified • Is not subject to requirements of are taking comments on this proposal
in the previous partial disapprovals of section 12(d) of the National and plan to follow with a final action.
Mississippi infrastructure SIP Technology Transfer and Advancement DATES: Any comments must arrive by
submissions related to the state board Act of 1995 (15 U.S.C. 272 note) because April 30, 2018.
requirements for the 2008 8-hour Ozone, application of those requirements would ADDRESSES: Submit your comments,
2008 Lead, 2010 NO2, 2010 SO2, and be inconsistent with the CAA; and identified by Docket ID No. EPA–R09–

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Document Created: 2018-11-01 08:58:13
Document Modified: 2018-11-01 08:58:13

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 April 30, 2018.
Contact		Nacosta C. Ward, 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) 562-9140. Ms. Ward can be reached via electronic mail at [email protected]
FR Citation		83 FR 13712
CFR Associated		Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Lead; Nitrogen Dioxide; Ozone; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds