[Federal Register Volume 79, Number 226 (Monday, November 24, 2014)]
[Proposed Rules]
[Pages 69787-69796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27808]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0698; FRL-9919-64-Region 4]


Approval and Promulgation of Implementation Plans; Mississippi; 
Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part and disapprove in part, the May 29, 2012, and July 26, 
2012, State Implementation Plan (SIP) submissions, provided by the 
Mississippi Department of Environmental Quality (MDEQ) for inclusion 
into the Mississippi SIP. This proposal pertains to the Clean Air Act 
(CAA or the Act) infrastructure requirements for the 2008 8-hour ozone 
national ambient air quality standards (NAAQS). The CAA requires that 
each state adopt and submit a SIP for the implementation, maintenance, 
and enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. MDEQ certified that the 
Mississippi SIP contains provisions that ensure the 2008 8-hour ozone 
NAAQS is implemented, enforced, and maintained in Mississippi 
(hereafter referred to as an ``infrastructure SIP submissions''). With 
the exception of provisions pertaining to prevention of significant 
deterioration (PSD) permitting, interstate transport, visibility 
protection requirements and the state board majority requirements 
respecting significant portion of income, EPA is proposing to determine 
that Mississippi's infrastructure SIP submissions, provided to EPA on 
May 29, 2012, and July 26, 2012, address the required infrastructure 
elements for the 2008 8-hour ozone NAAQS.

DATES: Written comments must be received on or before December 24, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0698, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0698,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0698. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics

[[Page 69788]]

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].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background and Overview
II. What Elements are Required Under Sections 110(a)(1) and (2)?
III. What is EPA's Approach to the Review of Infrastructure SIP 
Submissions?
IV. What is EPA's Analysis of How Mississippi Addressed the Elements 
of Sections 110(a)(1) and (2) ``Infrastructure'' Provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    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. Pursuant to 
section 110(a)(1) of the CAA, states are required to submit SIPs 
meeting the applicable requirements of section 110(a)(2) within three 
years after promulgation of a new or revised NAAQS or within such 
shorter period as EPA may prescribe. Section 110(a)(2) requires states 
to address basic SIP elements such as requirements for monitoring, 
basic program requirements and legal authority that are designed to 
assure attainment and maintenance of the NAAQS. States were required to 
submit such SIPs for the 2008 8-hour ozone NAAQS to EPA no later than 
March 2011.\1\
---------------------------------------------------------------------------

    \1\ In these infrastructure SIP submissions States generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``Air Pollution Control (APC)'' or ``Section 
APC-S-X'' indicates that the cited regulation has been approved into 
Mississippi's federally-approved SIP. The term ``Mississippi Code'' 
indicates cited Mississippi state statutes, which are not a part of 
the SIP unless otherwise indicated. Additionally, since the time of 
Mississippi's infrastructure SIP submissions for the 2008 8-hour 
NAAQS, the state's implementation plan and statutes and have been 
recodified. In its original infrastructure SIP submission, MDEQ 
refers to Mississippi Code Title 49 as ``Appendix A-8.'' However, 
Mississippi supplemented its original infrastructure SIP submission 
following this recodification, and as such, updated the Mississippi 
Code reference to ``Appendix A-9'' to reflect the most current 
codification. Accordingly, EPA utilizes the ``Appendix A-9'' 
reference throughout today's rulemaking.
---------------------------------------------------------------------------

    Today's action is proposing to approve Mississippi's infrastructure 
SIP submissions for the applicable requirements of the 2008 8-hour 
ozone NAAQS, with the exception of the PSD permitting requirements for 
major sources of section 110(a)(2)(C) and (J), the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 
4), the state board majority requirements respecting significant 
portion of income of section 110(a)(2)(E)(ii), and the visibility 
requirements of section 110(a)(2)(J). With respect to Mississippi's 
infrastructure SIP submissions related to the provisions pertaining to 
the PSD permitting requirements for major sources of sections 
110(a)(2)(C) and (J), the interstate transport requirements of section 
110(a)(2)(D)(i)(I) and (II), and the visibility requirements of 
110(a)(2)(J), EPA is not proposing any action today regarding these 
requirements. EPA will act on these portions of the submissions in a 
separate action. With respect to Mississippi's infrastructure SIP 
submissions related to the majority requirements respecting significant 
portion of income of 110(a)(2)(E)(ii), EPA is proposing to disapprove 
this portion of Mississippi's submissions in today's rulemaking. For 
the aspects of Mississippi's submittals proposed for approval today, 
EPA notes that the Agency is not approving any specific rule, but 
rather proposing that Mississippi's already approved SIP meets certain 
CAA requirements.

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

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2008 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with the 1997 8-hour 
ozone NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The general 
requirements that are the subject of EPA's infrastructure SIP 
rulemakings are summarized below and in EPA's September 13, 2013, 
memorandum entitled ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2).'' \2\
---------------------------------------------------------------------------

    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
---------------------------------------------------------------------------

     110(a)(2)(A): Emission Limits and Other Control Measures
     110(a)(2)(B): Ambient Air Quality Monitoring/Data System
     110(a)(2)(C): Programs for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources \3\
---------------------------------------------------------------------------

    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
---------------------------------------------------------------------------

     110(a)(2)(D)(i)(I) and (II): Interstate Pollution 
Transport
     110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
     110(a)(2)(E): Adequate Resources and Authority, Conflict 
of Interest, and Oversight of Local Governments and Regional Agencies
     110(a)(2)(F): Stationary Source Monitoring and Reporting
     110(a)(2)(G): Emergency Powers
     110(a)(2)(H): SIP revisions
     110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
---------------------------------------------------------------------------

    \4\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
---------------------------------------------------------------------------

     110(a)(2)(J): Consultation with Government Officials, 
Public Notification, and PSD and Visibility Protection
     110(a)(2)(K): Air Quality Modeling and Submission of 
Modeling Data

[[Page 69789]]

     110(a)(2)(L): Permitting fees
     110(a)(2)(M): Consultation and Participation by Affected 
Local Entities

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

    EPA is acting upon the SIP submissions from Mississippi that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2008 8-hour ozone NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
---------------------------------------------------------------------------

    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
---------------------------------------------------------------------------

    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
---------------------------------------------------------------------------

    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
---------------------------------------------------------------------------

    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
---------------------------------------------------------------------------

    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
---------------------------------------------------------------------------

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state

[[Page 69790]]

might need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
---------------------------------------------------------------------------

    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------

    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
---------------------------------------------------------------------------

    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------

    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants. By 
contrast, structural PSD program requirements do not include provisions 
that are not required under EPA's regulations at 40 CFR 51.166 but are 
merely available as an option for the state, such as the option to 
provide grandfathering of complete permit applications with respect to 
the 2012 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, among other things, the requirement that states 
have a program to regulate minor new sources. Thus, EPA evaluates 
whether the state has an EPA-approved minor 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

[[Page 69791]]

existing SIP) for compliance with the requirements of the CAA and EPA's 
regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\14\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
---------------------------------------------------------------------------

    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
---------------------------------------------------------------------------

    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\15\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\16\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\17\
---------------------------------------------------------------------------

    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how Mississippi addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Mississippi's infrastructure SIP submissions address the provisions 
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Mississippi's infrastructure SIP submissions provide an overview of the 
provisions of the Mississippi Air Pollution Control (APC) regulations 
relevant to air quality control. Sections APC-S-1--Air Emission 
Regulations for the Prevention, Abatement, and Control of Air 
Contaminants, and APC-S-3--Regulations for the Prevention of Air 
Pollution Emergency Episodes, and Mississippi Code Title 49, Section 
49-17-17(h) (Appendix A-9),\18\ authorize MDEQ to adopt, modify, or 
repeal ambient air quality standards and emissions standards for the 
control of air pollution, including those necessary to obtain EPA 
approval under section 110 of the CAA. EPA has made the preliminary 
determination that the provisions contained in these regulations and 
Mississippi's practices

[[Page 69792]]

are adequate to protect the 2008 8-hour ozone NAAQS in the State.
---------------------------------------------------------------------------

    \18\ Mississippi Code Title 49 is referenced in the State's 
infrastructure SIP submissions as ``Appendix A-9.'' As discussed 
above, unless otherwise indicated herein, portions of the 
Mississippi Code referenced in this proposal are not incorporated 
into the SIP.
---------------------------------------------------------------------------

    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in a separate 
action.\19\ In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible.
---------------------------------------------------------------------------

    \19\ On February 22, 2013, EPA published a proposed action in 
the Federal Register entitled, ``State Implementation Plans: 
Response to Petition for Rulemaking; Findings of Substantial 
Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 
Emissions During Periods of Startup, Shutdown, and Malfunction; 
Proposed Rule.'' 78 FR 12459.
---------------------------------------------------------------------------

    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B): Ambient air quality monitoring/data system: SIPs 
are required to provide for the establishment and operation of ambient 
air quality monitors, the compilation and analysis of ambient air 
quality data, and the submission of these data to EPA upon request. 
Section APC-S-1--Air Emission Regulations for the Prevention, 
Abatement, and Control of Air Contaminants and Mississippi Code Title 
49, Section 49-17-17(g), provide MDEQ with the authority to collect and 
disseminate information relating to air quality and pollution and the 
prevention, control, supervision, and abatement thereof. Annually, 
States develop and submit to EPA for approval statewide ambient 
monitoring network plans consistent with the requirements of 40 CFR 
parts 50, 53, and 58. The annual network plan involves an evaluation of 
any proposed changes to the monitoring network, includes the annual 
ambient monitoring network design plan and a certified evaluation of 
the agency's ambient monitors and auxiliary support equipment.\20\ On 
June 26, 2013, Mississippi submitted its monitoring network plan to 
EPA, which was approved by EPA on November 22, 2013. Mississippi's 
approved monitoring network plan can be accessed at www.regulations.gov 
using Docket ID No. EPA-R04-OAR-2012-0698. EPA has made the preliminary 
determination that Mississippi's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements related to 
the 2008 8-hour ozone NAAQS.
---------------------------------------------------------------------------

    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C): Program for enforcement of control measures 
including review of proposed new sources: In this action, EPA is 
proposing to approve Mississippi's infrastructure SIP submissions for 
the 2008 8-hour ozone NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates new 
and modified sources of emissions that contribute to ozone 
concentrations and the enforcement of oxides of nitrogen 
(NOX) and volatile organic compounds (VOCs) emission limits 
to assist in the protection of air quality in nonattainment, attainment 
or unclassifiable areas. To meet this obligation, Mississippi cited 
Sections APC-S-5, Mississippi Regulations for the Prevention of 
Significant Deterioration of Air Quality and APC-S-2, Permit Regulation 
for the Construction and/or Operation of Air Emissions Equipment, both 
of which pertain to the construction of any new major stationary source 
or any project at an existing major stationary source in an area 
designated as nonattainment, attainment or unclassifiable.
    Enforcement: MDEQ's above-described, SIP-approved regulations 
provide for enforcement of VOC and NOX emission limits and 
control measures and construction permitting for new or modified 
stationary sources.
    Preconstruction PSD Permitting for Major Sources: With respect to 
Mississippi's infrastructure SIP submissions related to the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA is not proposing any action today regarding 
these requirements and instead will act on this portion of the 
submissions in a separate action.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source pre-construction program that regulates emissions of the 2008 8-
hour ozone NAAQS. Mississippi has a SIP-approved minor NSR permitting 
program at APC-S-2, I. D--Permitting Requirements that regulates the 
preconstruction permitting of modifications and construction of minor 
stationary sources.
    EPA has made the preliminary determination that Mississippi's SIP 
and practices are adequate for enforcement of control measures and 
regulation of minor sources and modifications related to the 2008 8-
hour ozone NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(II). Each of these components have two subparts resulting 
in four distinct components, commonly referred to as ``prongs,'' that 
must be addressed in infrastructure SIP submissions. The first two 
prongs, which are codified in section 110(a)(2)(D)(i)(I), are 
provisions that prohibit any source or other type of emissions activity 
in one state from contributing significantly to nonattainment of the 
NAAQS in another state (``prong 1''), and interfering with maintenance 
of the NAAQS in another state (``prong 2''). The third and fourth 
prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state interfering 
with measures required to prevent significant deterioration of air 
quality in another state (``prong 3''), or to protect visibility in 
another state (``prong 4''). With respect to Mississippi's 
infrastructure SIP submissions related to the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) 
(prongs 1 through 4), EPA is not proposing any action today regarding 
these requirements and instead will act on these portions of the 
submissions in a separate action.
    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution: Section APC-S-2--Permit Regulations For 
The Construction and/or Operation of Air Emissions Equipment, provides 
how MDEQ will notify neighboring states of potential impacts from new 
or modified sources consistent with the requirements of 40 CFR 51.166. 
Mississippi does not have any pending obligation under section 115 and 
126 of the CAA. EPA has made the preliminary determination that 
Mississippi's SIP and practices are adequate for insuring compliance 
with the applicable requirements relating to interstate and 
international pollution abatement for the 2008 8-hour ozone NAAQS.

[[Page 69793]]

    6. 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide (i) 
necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the State has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
Mississippi's SIP as meeting the requirements of sections 
110(a)(2)(E)(i) and (iii). EPA is proposing to approve in part and 
disapprove in part Mississippi's SIP respecting section 
110(a)(2)(E)(ii). EPA's rationale for today's proposals respecting each 
section of 110(a)(2)(E) is described in turn below.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), 
Mississippi provides that MDEQ is responsible for promulgating rules 
and regulations for the NAAQS, emissions standards general policies, a 
system of permits, fee schedules for the review of plans, and other 
planning needs as found in Mississippi Code Title 49, Section 49-17-
17(d) and Section 49-17-17(h) (Appendix A-9). As evidence of the 
adequacy of MDEQ's resources with respect to sub-elements (i) and 
(iii), EPA submitted a letter to Mississippi on March 28, 2014, 
outlining 105 grant commitments and the current status of these 
commitments for fiscal year 2013. The letter EPA submitted to 
Mississippi can be accessed at www.regulations.gov using Docket ID No. 
EPA-R04-OAR-2012-0698. Annually, states update these grant commitments 
based on current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. Mississippi satisfactorily met all 
commitments agreed to in the Air Planning Agreement for fiscal year 
2013, therefore Mississippi's grants were finalized and closed out. EPA 
has made the preliminary determination that Mississippi has adequate 
resources for implementation of the 2008 8-hour ozone NAAQS.
    To meet the requirements of section 110(a)(2)(E)(ii), states must 
comply with the requirements respecting state boards pursuant to 
section 128 of the Act. Section 128 of the CAA requires that states 
include provisions in their SIP to address conflicts of interest for 
state boards or bodies that oversee CAA permits and enforcement orders 
and disclosure of conflict of interest requirements. Specifically, CAA 
section 128(a)(1) necessitates that each SIP shall require that at 
least a majority of any board or body which approves permits or 
enforcement orders shall be subject to the described public interest 
service and income restrictions therein. Subsection 128(a)(2) requires 
that the members of any board or body, or the head of an executive 
agency with similar power to approve permits or enforcement orders 
under the CAA, shall also be subject to conflict of interest disclosure 
requirements.
    To meet its section 110(a)(2)(E)(ii) obligations for the 2008 Ozone 
NAAQS, Mississippi's infrastructure SIP submissions cite the State's 
revision to its SIP to meet the requirements of CAA section 128 for the 
1997 and 2006 PM2.5 NAAQS, which was submitted to EPA on 
October 11, 2012.\21\ Based upon the review of the laws and provisions 
as contained in MDEQ's October 11, 2012, SIP revision, which have since 
been incorporated into the SIP, EPA is proposing to approve the section 
110(a)(2)(E)(ii) portions of the infrastructure SIP submission as it 
relates to the public interest requirements of section 128(a)(1) and 
the conflict of interest disclosure provisions of section 128(a)(2). 
EPA is also proposing to disapprove the section 110(a)(2)(E)(ii) 
portion of the infrastructure SIP submission as it pertains to 
compliance with the significant portion of income requirement of 
section 128(a)(1) for the 2008 8-hour ozone NAAQS.\22\
---------------------------------------------------------------------------

    \21\ Mississippi's October 11, 2012, infrastructure SIP 
submission only addressed compliance with 110(a)(2)(E)(ii) 
respecting CAA section 128 requirements. On May 8, 2014, Mississippi 
clarified to EPA that the provisions submitted in the October 11, 
2012, SIP submission to comply with 110(a)(2)(E)(ii) for the 
PM2.5 NAAQS infrastructure SIP were also intended to 
cover the 2008 Lead and 2008 8-hour ozone NAAQS infrastructure SIP.
    \22\ EPA took similar action with respect to Mississippi's 
section 110(a)(2)(E)(ii) submission for the 1997 and 2006 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    With respect to the public interest requirement of section 
128(a)(1) and the adequate disclosure of conflicts of interest 
requirement of section 128(a)(2), EPA has previously found these 
requirements to be satisfied by the existing provisions in 
Mississippi's SIP. See 78 FR 20793.
    With respect to the significant portion of income requirement of 
section 128(a)(1), the provisions included in the October 11, 2012 
infrastructure SIP submission did not preclude at least a majority of 
the members of the Mississippi Board from receiving a significant 
portion of their income from persons subject to permits or enforcement 
orders issued by the Mississippi Boards. While the submitted laws and 
provisions preclude members of the Mississippi Boards from certain 
types of income (e.g., contracts with State or political subdivisions 
thereof, or income obtained through the use of his or her public office 
or obtained to influence a decision of the Mississippi Boards), they do 
not preclude a majority of members of the Mississippi Boards from 
deriving any significant portion of their income from persons subject 
to permits or enforcement orders so long as that income is not derived 
from one of the proscribed methods described in the laws and provisions 
submitted by the State. Because a majority of board members may still 
derive a significant portion of income from persons subject to permits 
or enforcement orders issued by the Mississippi Boards, the Mississippi 
SIP does not meet the section 128(a)(1) majority requirements 
respecting significant portion of income, and as such, EPA is today 
proposing to disapprove the State's 110(a)(2)(E)(ii) submission as it 
relates only to this portion of section 128(a)(1).
    Accordingly, EPA is proposing to approve the section 
110(a)(2)(E)(ii) submission as it relates to the public interest 
requirements of section 128(a)(1) and the conflict of interest 
disclosure provisions of section 128(a)(2) and proposing to disapprove 
Mississippi's section 110(a)(2)(E)(ii) submission as it pertains to 
compliance with the significant portion of income requirement of 
section 128(a)(1) for the 2008 8-hour ozone NAAQS.
    7. 110(a)(2)(F): Stationary source monitoring system: Section APC-
S-2--Permit Regulations for the Construction and/or Operation of Air 
Emissions Equipment, establishes requirements for emissions compliance 
testing utilizing emissions sampling and analysis. It further describes 
how the State ensures the quality of its data through observing 
emissions and monitoring operations. MDEQ uses these data to track 
progress towards maintaining the NAAQS, develop control and maintenance 
strategies, identify sources and general emission levels, and determine 
compliance with emission regulations and additional EPA requirements. 
Mississippi Code 49, Section 49-17-21 (Appendix A-9) provides MDEQ with 
the authority to require the maintenance of records related to the 
operation of air contaminant sources and any authorized representative 
of the Commission may examine and copy any such records or memoranda 
pertaining to the operation

[[Page 69794]]

of such contaminant source. Section APC-S-2 lists requirements for 
compliance testing and reporting that is required to be included in any 
MDEQ air pollution permit and requires that copies of records relating 
to the operation of air contamination sources be submitted to the 
Permit Board as required by the permit or upon request. State-approved 
regulation Section APC-S-1--Air Emission Regulations For The 
Prevention, Abatement, and Control of Air Contaminants, authorizes 
source owners or operators to use any credible evidence or information 
relevant to whether a source would have been in compliance with 
applicable requirements if the appropriate performance or compliance 
test had been performed, for the purpose of submitting compliance 
certifications. Accordingly, EPA is unaware of any provision preventing 
the use of credible evidence in the Mississippi SIP.
    Additionally, Mississippi is required to submit emissions data to 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory System 
(EIS). States report emissions data for the six criteria pollutants and 
the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and VOCs. Many 
states also voluntarily report emissions of hazardous air pollutants. 
Mississippi made its latest update to the 2012 NEI on January 9, 2014. 
EPA compiles the emissions data, supplementing it where necessary, and 
releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary 
determination that Mississippi's SIP and practices are adequate for the 
stationary source monitoring systems related to the 2008 8-hour ozone 
NAAQS.
    8. 110(a)(2)(G): Emergency powers: This section of the CAA requires 
that states demonstrate authority comparable with section 303 of the 
CAA and adequate contingency plans to implement such authority. 
Mississippi Code Title 49 (Appendix A-9) and Section APC-S-3--
Mississippi Regulations for the Prevention of Air Pollution Emergency 
Episodes, identify air pollution emergency episodes and preplanned 
abatement strategies. Specifically, Mississippi Code Title 49, Section 
49-17-27 (Appendix A-9), states that in the event an emergency is found 
to exist by the Mississippi Commission on Environmental Quality, it may 
issue an emergency order as circumstances may require. Section APC-S-3 
authorizes the MDEQ Director, once it has been determined that an Air 
Pollution Emergency Episode condition exists at one or more monitoring 
sites solely because of emissions from a limited number of sources, to 
order source(s) to put into effect the emission control programs which 
are applicable for each episode stage. Section APC-S-3 also lists 
regulations to prevent the excessive buildup of air pollutants during 
air pollution episodes. EPA has made the preliminary determination that 
Mississippi's SIP and practices are adequate for emergency powers 
related to the 2008 8-hour ozone NAAQS. Accordingly, EPA is proposing 
to approve Mississippi's infrastructure SIP submissions with respect to 
section 110(a)(2)(G).
    9. 110(a)(2)(H): SIP revisions: MDEQ is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in Mississippi. Mississippi Code Title 49, Section 49-17-17(h) 
(Appendix A-9), provides MDEQ with the statutory authority to adopt, 
modify or repeal and promulgate ambient air and water quality standards 
and emissions standards for the State. As such, the State has the 
authority to revise the SIP to accommodate changes to NAAQS and revise 
the SIP if the EPA Administrator finds the plan to be substantially 
inadequate to attain the NAAQS. EPA has made the preliminary 
determination that Mississippi's SIP and practices adequately 
demonstrate a commitment to provide future SIP revisions related to the 
2008 8-hour ozone NAAQS when necessary.
    10. 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve Mississippi's infrastructure SIP submissions for the 2008 8-
hour ozone NAAQS with respect to the general requirement in section 
110(a)(2)(J) to include a program in the SIP that provides for meeting 
the applicable consultation requirements of section 121, and the public 
notification requirements of section 127. With respect to Mississippi's 
infrastructure SIP submissions related to the preconstruction PSD 
permitting and visibility protection requirements, EPA is not proposing 
any action today regarding these requirements and instead will act on 
these portions of the submissions in a separate action. EPA's rationale 
for applicable consultation requirements of section 121 and the public 
notification requirements of section 127 is described below.
    Consultation with government officials (121 consultation): This 
requirement is met through Section APC-S-5--Mississippi Regulations for 
the Prevention of Significant Deterioration of Air Quality and 
Mississippi Code Title 49, Section 49-17-17(c) (Appendix A-9), along 
with the State's various implementations plans, such as the State's 
Regional Haze Implementation Plan, provide for consultation between 
appropriate state, local, and tribal air pollution control agencies as 
well as the corresponding Federal Land Managers whose jurisdictions 
might be affected by SIP development activities. Mississippi adopted 
state-wide consultation procedures for the implementation of 
transportation conformity. These consultation procedures were developed 
in coordination with the transportation partners in the State and are 
consistent with the approaches used for development of mobile 
inventories for SIPs. Implementation of transportation conformity as 
outlined in the consultation procedures requires MDEQ to consult with 
federal, state and local transportation and air quality agency 
officials on the development of motor vehicle emissions budgets. EPA 
has made the preliminary determination that Mississippi's SIP and 
practices adequately demonstrate that the State meets applicable 
requirements related to consultation with government officials for the 
2008 8-hour ozone NAAQS when necessary. Accordingly, EPA is proposing 
to approve Mississippi's infrastructure SIP submissions with respect to 
section 110(a)(2)(J) consultation with government officials.
    Public notification: These requirements are met through regulation 
APC-S-3--Mississippi Regulations for the Prevention of Air Pollution 
Emergency Episodes, which requires that MDEQ notify the public of any 
air pollution alert, warning, or emergency. The MDEQ Web site also 
provides air quality summary data, air quality index reports and links 
to more information regarding public awareness of measures that can 
prevent such exceedances and of ways in which the public can 
participate in regulatory and other efforts to improve air quality. EPA 
has

[[Page 69795]]

made the preliminary determination that Mississippi's SIP and practices 
adequately demonstrate the State's ability to provide public 
notification related to the 2008 8-hour ozone NAAQS when necessary. 
Accordingly, EPA is proposing to approve Mississippi's infrastructure 
SIP submissions with respect to section 110(a)(2)(J) public 
notification.
    11. 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data: Sections APC-S-2, V. B.--Permit Regulation for the Construction 
and/or Operation of Air Emissions Equipment, and APC-S-5--Mississippi 
Regulations for the Prevention of Significant Deterioration of Air 
Quality, specify that required air modeling be conducted in accordance 
with 40 CFR part 51, Appendix W ``Guideline on Air Quality Models,'' as 
incorporated into the Mississippi SIP. These standards demonstrate that 
Mississippi has the authority to perform air quality monitoring and 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 2008 8-hour ozone NAAQS. Additionally, 
Mississippi supports a regional effort to coordinate the development of 
emissions inventories and conduct regional modeling for several NAAQS, 
including the 2008 8-hour ozone NAAQS, for the southeastern states. 
Taken as a whole, Mississippi's air quality regulations and practices 
demonstrate that MDEQ has the authority to provide relevant data for 
the purpose of predicting the effect on ambient air quality of the 2008 
8-hour ozone NAAQS. EPA has made the preliminary determination that 
Mississippi's SIP and practices adequately demonstrate the State's 
ability to provide for air quality and modeling, along with analysis of 
the associated data, related to the 2008 8-hour ozone NAAQS when 
necessary. Accordingly, EPA is proposing to approve Mississippi's 
infrastructure SIP submissions with respect to section 110(a)(2)(K).
    12. 110(a)(2)(L): Permitting fees: This element necessitates that 
the SIP require the owner or operator of each major stationary source 
to pay to the permitting authority, as a condition of any permit 
required under the CAA, a fee sufficient to cover (i) the reasonable 
costs of reviewing and acting upon any application for such a permit, 
and (ii) if the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under title V.
    Mississippi's Mississippi Code Title 49, Section 49-2-9(c) 
(Appendix A-9), authorizes MDEQ to apply for, receive, and expend 
Federal or state funds in order to operate its air programs. 
Mississippi SIP Mississippi Code Title 49, Section 49-17-30 (Appendix 
A-9), provides for the assessment of title V permit fees to cover the 
reasonable cost of reviewing and acting upon air permitting activities 
in the state including title V, PSD and NNSR permits. Mississippi Code 
Title 49, Section 49-17-14 (Appendix A-9), allows MDEQ to expend or 
utilize monies in the Mississippi Air Operating Permit Program Fee 
Trust Fund to pay all reasonable direct and indirect costs associated 
with the development and administration of the title V program and the 
PSD and NNSR permitting programs. The Mississippi Air Operating Permit 
Program Fee Trust Fund consists of state legislative appropriations, 
Federal grant funds and title V fees. Additionally, Mississippi has a 
federally-approved title V operating permit program at Section APC-S-6 
\23\ that covers the implementation and enforcement of PSD and NNSR 
permits after they have been issued. EPA has made the preliminary 
determination that Mississippi adequately provide for permitting fees 
related to the 2008 8-hour NAAQS when necessary.
---------------------------------------------------------------------------

    \23\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities: Mississippi Code Title 49, Sections 49-17-17(c) 49-17-19(b) 
(Appendix A-9) requires that MDEQ notify the public of an application, 
preliminary determination, the activity or activities involved in the 
permit action, any emissions change associated with any permit 
modification, and the opportunity for comment prior to making a final 
permitting decision. Additionally, MDEQ works closely with local 
political subdivisions during the development of its Transportation 
Conformity SIP and Regional Haze SIP. EPA has made the preliminary 
determination that Mississippi's SIP and practices adequately 
demonstrate consultation with affected local entities related to the 
2008 8-hour ozone NAAQS when necessary.

V. Proposed Action

    With the exception of the PSD permitting requirements for major 
sources of section 110(a)(2)(C) and (J), the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 
4), the state board majority requirements respecting the significant 
portion of income of section 110(a)(2)(E)(ii), and the visibility 
requirements of section 110(a)(2)(J), EPA is proposing to approve that 
MDEQ's infrastructure SIP submissions, submitted May 29, 2012, and July 
26, 2012, for the 2008 8-hour ozone NAAQS have met the above described 
infrastructure SIP requirements. EPA is proposing to disapprove in part 
section 110(a)(2)(E)(ii) of Mississippi's infrastructure submissions 
because a majority of board members may still derive a significant 
portion of income from persons subject to permits or enforcement orders 
issued by the Mississippi Boards, therefore, its current SIP does not 
meet the section 128(a)(1) majority requirements respecting significant 
portion of income. This proposed approval in part and disapproval in 
part, however, does not include the PSD permitting requirements for 
major sources of section 110(a)(2)(C) and (J), the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 
4), and the visibility requirements of section 110(a)(2)(J) and will be 
addressed by EPA in a separate action.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a CAA Part D Plan or is required in 
response to a finding of substantial inadequacy as described in CAA 
section 110(k)(5) (SIP call) starts a sanctions clock. The portion of 
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for 
disapproval in today's notice) were not submitted to meet requirements 
for Part D or a SIP call, and therefore, if EPA takes final action to 
disapprove this submittal, no sanctions will be triggered. However, if 
this disapproval action is finalized, that final action will trigger 
the requirement under section 110(c) that EPA promulgate a federal 
implementation plan (FIP) no later than 2 years from the date of the 
disapproval unless the State corrects the deficiency, and EPA approves 
the plan or plan revision before EPA promulgates such FIP.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions,

[[Page 69796]]

EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. Accordingly, this proposed action merely approves 
state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this proposed action:
     is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     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 (Public Law 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).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 3, 2014.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2014-27808 Filed 11-21-14; 8:45 am]
BILLING CODE 6560-50-P