[Federal Register Volume 81, Number 100 (Tuesday, May 24, 2016)]
[Proposed Rules]
[Pages 32707-32716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12102]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0751 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-8726. Mr. Wong can be 
reached via electronic mail at [email protected].

Table of Contents

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

I. Background

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

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[[Page 32708]]

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

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

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

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

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

    EPA is acting upon the SIP submission from Mississippi that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of

[[Page 32709]]

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

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section 110(a)(1) and section 110(a)(2) in the context of acting on a 
particular SIP submission. In other words, EPA assumes that Congress 
could not have intended that each and every SIP submission, regardless 
of the NAAQS in question or the history of SIP development for the 
relevant pollutant, would meet each of the requirements, or meet each 
of them in the same way. Therefore, EPA has adopted an approach under 
which it reviews infrastructure SIP submissions against the list of 
elements in section 110(a)(2), but only to the extent each element 
applies for that particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
fine particulate matter (PM2.5) NAAQS. Accordingly, the 
latter optional provisions are types of provisions EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, among other things, the 
requirement that states have a program to regulate minor new sources. 
Thus, EPA evaluates whether the state has an EPA-approved minor NSR 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review of each and every provision of a state's existing minor source 
program (i.e., already in the existing SIP) for compliance with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\14\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that

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relate to the three specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach 
with respect to infrastructure SIP requirements is based on a 
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA 
provides other avenues and mechanisms to address specific substantive 
deficiencies in existing SIPs. These other statutory tools allow EPA to 
take appropriately tailored action, depending upon the nature and 
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes 
EPA to issue a ``SIP call'' whenever the Agency determines that a 
state's implementation plan is substantially inadequate to attain or 
maintain the NAAQS, to mitigate interstate transport, or to otherwise 
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct 
errors in past actions, such as past approvals of SIP submissions.\16\ 
Significantly, EPA's determination that an action on a state's 
infrastructure SIP submission is not the appropriate time and place to 
address all potential existing SIP deficiencies does not preclude EPA's 
subsequent reliance on provisions in section 110(a)(2) as part of the 
basis for action to correct those deficiencies at a later time. For 
example, although it may not be appropriate to require a state to 
eliminate all existing inappropriate director's discretion provisions 
in the course of acting on an infrastructure SIP submission, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that EPA relies upon in the course of addressing such deficiency in a 
subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Mississippi addressed the elements of 
Sections 110(a)(1) and (2) ``infrastructure'' provisions?

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

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

[[Page 32712]]

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

[[Page 32713]]

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

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

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

[[Page 32714]]

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

[[Page 32715]]

procedures for the implementation of transportation conformity. These 
consultation procedures were developed in coordination with the 
transportation partners in the State and are consistent with the 
approaches used for development of mobile inventories for SIPs. 
Implementation of transportation conformity as outlined in the 
consultation procedures requires MDEQ to consult with federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. EPA has made the 
preliminary determination that Mississippi's SIP and practices 
adequately demonstrate that the State meets applicable requirements 
related to consultation with government officials for the 2010 1-hour 
NO2 NAAQS when necessary. Accordingly, EPA is proposing to 
approve Mississippi's infrastructure SIP submissions with respect to 
section 110(a)(2)(J) consultation with government officials.
    Public notification (127 public notification): These requirements 
are met through regulation Section APC-S-3, Mississippi Regulations for 
the Prevention of Air Pollution Emergency Episodes, which requires that 
MDEQ notify the public of any air pollution alert, warning, or 
emergency. The MDEQ Web site also provides air quality summary data, 
air quality index reports and links to more information regarding 
public awareness of measures that can prevent such exceedances and of 
ways in which the public can participate in regulatory and other 
efforts to improve air quality. EPA has made the preliminary 
determination that Mississippi's SIP and practices adequately 
demonstrate the State's ability to provide public notification related 
to the 2010 1-hour NO2 NAAQS when necessary. Accordingly, 
EPA is proposing to approve Mississippi's infrastructure SIP 
submissions with respect to section 110(a)(2)(J) public notification.
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. 
MDEQ referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under Part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so MDEQ does 
not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that Mississippi's infrastructure SIP 
submission related to the 2010 1-hour NO2 NAAQS is 
approvable for the visibility protection element of section 
110(a)(2)(J) and that Mississippi does not need to rely on its regional 
haze program to address this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. Sections APC-S-2, V. B., Permit Regulation 
for the Construction and/or Operation of Air Emissions Equipment, and 
APC-S-5, Mississippi Regulations for the Prevention of Significant 
Deterioration of Air Quality, specify that required air modeling be 
conducted in accordance with 40 CFR part 51, Appendix W ``Guideline on 
Air Quality Models,'' as incorporated into the Mississippi SIP. These 
standards demonstrate that Mississippi has the authority to perform air 
quality modeling and provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 2010 1-hour 
NO2 NAAQS. Also of note, Mississippi Code Title 49, Section 
49-17-17(e) (Appendix A-9),\23\ authorizes MDEQ to ``encourage, 
participate in, or conduct studies, investigations, research and 
demonstrations relating to air and water quality and pollution and 
causes, prevention, control and abatement as it may deem advisable and 
necessary for the discharge of its duties under [the Mississippi air 
and water pollution control law].'' Additionally, Mississippi 
participates in a regional effort to coordinate the development of 
emissions inventories and conduct regional modeling for several NAAQS, 
including the 2010 1-hour NO2 NAAQS, for the southeastern 
states. Taken as a whole, Mississippi's air quality regulations and 
practices demonstrate that MDEQ has the authority to provide relevant 
data for the purpose of predicting the effect on ambient air quality of 
the 2010 1-hour NO2 NAAQS. EPA has made the preliminary 
determination that Mississippi's SIP and practices adequately 
demonstrate the State's ability to provide for air quality modeling, 
along with analysis of the associated data, related to the 2010 1-hour 
NO2 NAAQS when necessary. Accordingly, EPA is proposing to 
approve Mississippi's infrastructure SIP submissions with respect to 
section 110(a)(2)(K).
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    \23\ Mississippi Code Title 49 is referenced in the State's 
infrastructure SIP submissions as ``Appendix A-9.'' As discussed, 
unless otherwise indicated herein, portions of the Mississippi Code 
referenced in this proposal are not incorporated into the SIP.
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    12. 110(a)(2)(L) Permitting Fees: Section 110(a)(2)(L) requires the 
owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under the 
CAA, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    Mississippi Code Title 49, Section 49-2-9(c) (Appendix A-9), 
authorizes MDEQ to apply for, receive, and expend Federal or state 
funds in order to operate its air programs. Mississippi Code Title 49, 
Section 49-17-30 (Appendix A-9), provides for the assessment of Title V 
permit fees to cover the reasonable cost of reviewing and acting upon 
air permitting activities in the state including title V, PSD and NNSR 
permits. Mississippi Code Title 49, Section 49-17-14 (Appendix A-9), 
allows MDEQ to expend or utilize monies in the Mississippi Air 
Operating Permit Program Fee Trust Fund to pay all reasonable direct 
and indirect costs associated with the development and administration 
of the title V program and the PSD and NNSR permitting including. The 
Mississippi Air Operating Permit Program Fee Trust Fund consists of 
state legislative appropriations, Federal grant funds and title V fees. 
Additionally, Mississippi has a federally-approved title V operating 
permit program at Section APC-S-6 \24\ that covers the implementation 
and enforcement of PSD and NNSR permits after they have been issued. 
EPA has made the preliminary determination that Mississippi adequately 
provides for permitting fees related to the 2010 1-hour NO2 
NAAQS when necessary.
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    \24\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities:

[[Page 32716]]

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

V. Proposed Action

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

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: May 12, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-12102 Filed 5-23-16; 8:45 am]
 BILLING CODE 6560-50-P