Approval and Promulgation of Implementation Plans; Mississippi; 110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards, 34898-34906 [2012-14267]
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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
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comment, EPA recommends that you
include your name and other contact
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comment and with any disk or CD–ROM
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EPA may not be able to consider your
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the use of special characters, any form
of encryption, and be free of any defects
or viruses.
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electronic docket are listed in the
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listed in the index, some information is
not publicly available, i.e., CBI or other
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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 during normal business
hours at the Air Protection Division,
U.S. Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Maryland Department of
the Environment, 1800 Washington
Boulevard, Suite 705, Baltimore,
Maryland 21230.
FOR FURTHER INFORMATION CONTACT:
Mr.
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
For
further information, please see the
information provided in the direct final
action, also entitled ‘‘Approval and
Promulgation of Air Quality
Implementation Plans; Maryland;
Permit to Construct Exemptions,’’ that is
located in the ‘‘Rules and Regulations’’
section of this Federal Register
publication.
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SUPPLEMENTARY INFORMATION:
Dated: June 1, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012–14107 Filed 6–11–12; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0402; FRL–9686–1]
Approval and Promulgation of
Implementation Plans; Mississippi;
110(a)(1) and (2) Infrastructure
Requirements for the 1997 and 2006
Fine Particulate Matter National
Ambient Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the State Implementation Plan (SIP),
submitted by the State of Mississippi,
through the Mississippi Department of
Environmental Quality (DEQ), as
meeting certain requirements of sections
110(a)(1) and (2) of the Clean Air Act
(CAA or the Act) for the 1997 annual
and 2006 24-hour fine particulate matter
(PM2.5) national ambient air quality
standards (NAAQS). Section 110(a) of
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. Mississippi
certified that the Mississippi SIP
contains provisions that ensure that the
1997 annual and 2006 24-hour PM2.5
NAAQS are implemented, enforced, and
maintained in Mississippi (hereafter
referred to as ‘‘infrastructure
submission’’). EPA is proposing to
determine that Mississippi’s
infrastructure submissions, provided to
EPA on December 7, 2007, and on
October 6, 2009, addressed all the
required infrastructure elements for the
1997 annual and 2006 24-hour PM2.5
NAAQS with the exception of sections
110(a)(2)(E)(ii) and 110(a)(2)(G), both of
which will be addressed in a separate
action.
SUMMARY:
Written comments must be
received on or before July 12, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2012–0402, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4–RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2012–
0402,’’ Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
DATES:
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Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Lynorae
Benjamin, 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 to 4:30, excluding federal
holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R04–OAR–2012–
0402. 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 https://
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
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Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
for the 1997 annual PM2.5 NAAQS, no
later than October 2009 for the 2006 24hour PM2.5 NAAQS.
On March 4, 2004, Earthjustice
submitted a notice of intent to sue
related to EPA’s failure to issue findings
of failure to submit related to the
‘‘infrastructure’’ requirements for the
1997 annual PM2.5 NAAQS. On March
10, 2005, EPA entered into a consent
decree with Earthjustice which required
EPA, among other things, to complete a
Federal Register notice announcing
EPA’s determinations pursuant to
section 110(k)(1)(B) as to whether each
state had made complete submissions to
meet the requirements of section
110(a)(2) for the 1997 PM2.5 NAAQS by
October 5, 2008. In accordance with the
consent decree, EPA made completeness
findings for each state based upon what
the Agency received from each state for
the 1997 PM2.5 NAAQS as of October 3,
2008.
On October 22, 2008, EPA published
a final rulemaking entitled,
‘‘Completeness Findings for Section
110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter
(PM2.5) NAAQS’’ making a finding that
each state had submitted or failed to
Table of Contents
submit a complete SIP that provided the
I. Background
basic program elements of section
II. What elements are required under sections 110(a)(2) necessary to implement the
110(a)(1) and (2)?
1997 PM2.5 NAAQS (See 73 FR 62902).
III. Scope of Infrastructure SIPs
For those states that did receive
IV. What is EPA’s analysis of how
findings, the findings of failure to
Mississippi addressed the elements of
submit for all or a portion of a state’s
sections 110(a)(1) and (2)
implementation plan established a 24‘‘infrastructure’’ provisions?
month deadline for EPA to promulgate
V. Proposed Action
VI. Statutory and Executive Order Reviews
a Federal Implementation Plan (FIP) to
address the outstanding SIP elements
I. Background
unless, prior to that time, the affected
On July 18, 1997 (62 FR 36852), EPA
states submitted, and EPA approved, the
established an annual PM2.5 NAAQS at
required SIPs.
15.0 micrograms per cubic meter (mg/
The findings that all or portions of a
m3) based on a 3-year average of annual state’s submission are complete
mean PM2.5 concentrations. At that time, established a 12-month deadline for
EPA also established a 24-hour NAAQS EPA to take action upon the complete
of 65 mg/m3. See 40 CFR 50.7. On
SIP elements in accordance with section
October 17, 2006 (71 FR 61144), EPA
110(k). Mississippi’s infrastructure
retained the 1997 annual PM2.5 NAAQS submissions were received by EPA on
at 15.0 mg/m3 based on a 3-year average
December 7, 2007, for the 1997 annual
of annual mean PM2.5 concentrations,
PM2.5 NAAQS and on October 6, 2009,
and promulgated a new 24-hour
for the 2006 24-hour PM2.5 NAAQS. The
NAAQS of 35 mg/m3 based on a 3-year
submissions were determined to be
average of the 98th percentile of 24-hour complete on June 7, 2008, and April 6,
concentrations. By statute, SIPs meeting 2010, respectively. Mississippi was
the requirements of sections 110(a)(1)
among other states that did not receive
and (2) are to be submitted by states
findings of failure to submit because it
within three years after promulgation of had provided a complete submission to
a new or revised NAAQS. Sections
EPA to address the infrastructure
110(a)(1) and (2) require states to
elements for the 1997 PM2.5 NAAQS by
address basic SIP requirements,
October 3, 2008.
including emissions inventories,
On July 6, 2011, WildEarth Guardians
monitoring, and modeling to assure
and Sierra Club filed an amended
attainment and maintenance of the
complaint related to EPA’s failure to
NAAQS. States were required to submit take action on the SIP submittal related
such SIPs to EPA no later than July 2000 to the ‘‘infrastructure’’ requirements for
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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 to 4:30,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT:
Sean Lakeman, 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. The
telephone number is (404) 562–9043.
Mr. Lakeman can be reached via
electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
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34899
the 2006 24-hour PM2.5 NAAQS. On
October 20, 2011, EPA entered into a
consent decree with WildEarth
Guardians and Sierra Club which
required EPA, among other things, to
complete a Federal Register notice of
the Agency’s final action either
approving, disapproving, or approving
in part and disapproving in part the
Mississippi 2006 24-hour PM2.5 NAAQS
Infrastructure SIP submittal addressing
the applicable requirements of sections
110(a)(2)(A)-(H), (J)-(M), except for
section 110(a)(2)(C) the nonattainment
area requirements and section
110(a)(2)(D)(i) interstate transport
requirements, by September 30, 2012.
Today’s action is proposing to
approve Mississippi’s infrastructure
submission for the 1997 annual and
2006 24-hour PM2.5 NAAQS for sections
110(a)(2)(A)-(H), (J)-(M), except for
sections 110(a)(2)(C) nonattainment area
requirements, 110(a)(2)(D)(i) interstate
transport requirements, 110(a)(2)(E)(ii)
state board requirements, and
110(a)(2)(G) emergency power
requirements. Section 110(a)(2)(E)(ii)
and (G) will be addressed in a separate
action.1 This action 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 1997 annual and 2006 24hour PM2.5 NAAQS, some states may
need to adopt language specific to the
PM2.5 NAAQS to ensure that they have
adequate SIP provisions to implement
the PM2.5 NAAQS.
1 As described further below in Section II, EPA is
not taking on action on sections 110(a)(2)(C)
nonattainment area requirements and 110(a)(2)(D)(i)
interstate transport requirements.
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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 SIP infrastructure 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 listed below 2 and in EPA’s October
2, 2007, memorandum entitled
‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the
1997 8–Hour Ozone and PM2.5 National
Ambient Air Quality Standards’’ and
September 25, 2009, memorandum
entitled ‘‘Guidance on SIP Elements
Required Under Section 110(a)(1) and
(2) for the 2006 24–Hour Fine Particle
(PM2.5) National Ambient Air Quality
Standards.’’
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.3
• 110(a)(2)(D): Interstate transport.4
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) but does
provide detail on how Mississippi’s SIP addresses
110(a)(2)(C).
3 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
4 Today’s proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997
and 2006 PM2.5 NAAQS. Interstate transport
requirements were formerly addressed by
Mississippi consistent with the Clean Air Interstate
Rule (CAIR). On December 23, 2008, CAIR was
remanded by the DC Circuit Court of Appeals,
without vacatur, back to EPA. See North Carolina
v. EPA, 531 F.3d 896 (DC Cir. 2008). Prior to this
remand, EPA took final action to approve
Mississippi SIP revision, which was submitted to
comply with CAIR. See 72 FR 56268 (October 3,
2007). In so doing, Mississippi CAIR SIP revision
addressed the interstate transport provisions in
section 110(a)(2)(D)(i) for the 1997 and 2006 PM2.5
NAAQS. In response to the remand of CAIR, EPA
has recently finalized a new rule to address the
interstate transport of nitrogen oxides and sulfur
oxides in the eastern United States. See 76 FR
48208 (August 8, 2011) (‘‘the Transport Rule’’). That
rule was recently stayed by the DC Circuit Court of
Appeals. EPA’s action on element 110(a)(2)(D)(i)
will be addressed in a separate action.
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• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source
monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated
nonattainment and meet the applicable
requirements of part D.5
• 110(a)(2)(J): Consultation with
government officials; public
notification; and PSD and visibility
protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on those infrastructure SIP
submissions.6 Those Commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements in other proposals that
it would address two issues separately
and not as part of actions on the
infrastructure SIP submissions: (i)
Existing provisions related to excess
emissions during periods of start-up,
shutdown, or malfunction at sources
(SSM), that may be contrary to the CAA
and EPA’s policies addressing such
excess emissions; and (ii) existing
provisions related to ‘‘director’s
variance’’ or ‘‘director’s discretion’’ that
purport to permit revisions to SIP
approved emissions limits with limited
public process or without requiring
further approval by EPA, that may be
contrary to the CAA (director’s
discretion). EPA notes that there are two
other substantive issues for which EPA
likewise stated in other proposals that it
5 This requirement was inadvertently omitted
from EPA’s October 2, 2007, memorandum entitled
‘‘Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 1997 8–Hour Ozone
and PM2.5 National Ambient Air Quality
Standards,’’ and the September 25, 2009,
memorandum entitled ‘‘Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the
2006 Fine Particle (PM2.5) National Ambient Air
Quality Standards,’’ but as mentioned above is not
relevant to today’s proposed rulemaking.
6 See Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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would address separately: (i) Existing
provisions for minor source new source
review (NSR) programs that may be
inconsistent with the requirements of
the CAA and EPA’s regulations that
pertain to such programs (minor source
NSR); and (ii) existing provisions for
Prevention of Significant Deterioration
(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). In light of the comments, EPA
believes that its statements in various
proposed actions on infrastructure SIPs
with respect to these four individual
issues should be explained in greater
depth. It is important to emphasize that
EPA is taking the same position with
respect to these four substantive issues
in this action on the infrastructure SIPs
for the 1997 and 2006 PM2.5 NAAQS
from Mississippi.
EPA intended the statements in the
other proposals concerning these four
issues merely to be informational and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a re-approval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing state provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit re-approval of any existing
provisions that relate to these four
substantive issues. EPA is reiterating
that position in this action on the
infrastructure SIP for Mississippi.
Unfortunately, the Commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
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integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issues in the context of the
infrastructure SIPs. This was not EPA’s
intention. To the contrary, EPA only
meant to convey its awareness of the
potential for certain types of
deficiencies in existing SIPs and to
prevent any misunderstanding that it
was reapproving any such existing
provisions. EPA’s intention was to
convey its position that the statute does
not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements in those other
proposals, however, we want to explain
more fully the Agency’s reasons for
concluding that these four potential
substantive issues in existing SIPs may
be addressed separately from actions on
infrastructure SIP submissions.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘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
that these SIPs are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
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169A, NSR permitting program
submissions required to address the
requirements of part D, and a host of
other specific types of SIP submissions
that address other specific matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, 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 provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.7 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.8
Notwithstanding that section 110(a)(2)
provides that ‘‘each’’ SIP submission
must meet the list of requirements
therein, EPA has long noted that this
literal reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).9 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
7 For example, section 110(a)(2)(E) 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 substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
8 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains
adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in
other states. This provision contains numerous
terms that require substantial rulemaking by EPA in
order to determine such basic points as what
constitutes significant contribution. See ‘‘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 (May 12,
2005) (defining, among other things, the phrase
‘‘contribute significantly to nonattainment’’).
9 See Id., 70 FR 25162, at 63—65 (May 12, 2005)
(explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
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parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.10 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the state’s implementation
plans. Finally, 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 and the attendant infrastructure
SIP submission for that NAAQS. For
example, the monitoring requirements
that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS
could be very different than what might
be necessary for a different pollutant.
Thus, the content of an infrastructure
SIP submission to meet this element
from a state might be very different for
an entirely new NAAQS, versus a minor
revision to an existing NAAQS.11
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirements applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
10 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8–Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
11 For example, implementation of the 1997 PM
2.5
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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110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these ozone
and PM2.5 NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.12 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 13 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 14 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
12 See ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’).
13 Id., at page 2.
14 Id., at attachment A, page 1.
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SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 15
However, for the one exception to that
general assumption (i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS), EPA gave
much more specific recommendations.
But for other infrastructure SIP
submittals, and for certain elements of
the submittals for the 1997 PM2.5
NAAQS, EPA assumed that each state
would work with its corresponding EPA
regional office to refine the scope of a
state’s submittal based on an assessment
of how the requirements of section
110(a)(2) should reasonably apply to the
basic structure of the state’s
implementation plans for the NAAQS in
question.
On September 25, 2009, EPA issued
guidance to make recommendations to
states with respect to the infrastructure
SIPs for the 2006 PM2.5 NAAQS.16 In the
2009 Guidance, EPA addressed a
number of additional issues that were
not germane to the infrastructure SIPs
for the 1997 8-hour ozone and 1997
PM2.5 NAAQS, but were germane to
these SIP submissions for the 2006
PM2.5 NAAQS (e.g., the requirements of
section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure
elements for those specific 1997 ozone
and PM2.5 NAAQS). Significantly,
neither the 2007 Guidance nor the 2009
Guidance explicitly referred to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and
the 2009 Guidance, however, EPA did
not indicate to states that it intended to
interpret these provisions as requiring a
substantive submission to address these
15 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
16 See ‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS),’’ from William T,
Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I–X, dated
September 25, 2009 (the ‘‘2009 Guidance’’).
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specific issues in existing SIP provisions
in the context of the infrastructure SIPs
for these NAAQS. Instead, EPA’s 2007
Guidance merely indicated its belief
that the states should make submissions
in which they established that they have
the basic SIP structure necessary to
implement, maintain, and enforce the
NAAQS. EPA believes that states can
establish that they have the basic SIP
structure, notwithstanding that there
may be potential deficiencies within the
existing SIP. Thus, EPA’s proposals for
other states mentioned these issues not
because the Agency considers them
issues that must be addressed in the
context of an infrastructure SIP as
required by section 110(a)(1) and (2),
but rather because EPA wanted to be
clear that it considers these potential
existing SIP problems as separate from
the pending infrastructure SIP actions.
The same holds true for this action on
the infrastructure SIPs for Mississippi.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP 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 that, 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 considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
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Agency to take appropriate 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 otherwise to
comply with the CAA.17 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.18
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action 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 the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.19
IV. What is EPA’s analysis of how
Mississippi addressed the elements of
sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
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Mississippi’s infrastructure
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 submissions provide an
17 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21639 (April
18, 2011).
18 EPA has recently utilized 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 EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA 110(k)(6)
to remove numerous other SIP provisions that the
Agency determined it had approved in error. See 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).
19 EPA has recently disapproved 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 75 FR 42342, 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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overview of the provisions of the
Mississippi Air Pollution Control (APC)
Regulations relevant to air quality
control. The regulations described
below have been federally approved
into the Mississippi SIP and include
enforceable emission limitations and
other control measures. Mississippi SIP
Regulations 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, generally
authorizes DEQ to adopt rules for the
control of air pollution, including those
necessary to obtain EPA approval under
section 110 of the CAA. The most recent
federally approved revision in this
regulation was on October 3, 2007 (72
FR 56268). EPA has made the
preliminary determination that the
provisions contained in these
regulations and Mississippi’s practices
are adequate to protect the PM2.5 annual
and 24-hour NAAQS in the State.
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 the future. In the
meantime, EPA encourages any state
having deficient SSM provisions to take
steps to correct it as soon as possible.
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: Mississippi’s
infrastructure submissions cite SIP
Regulation APC–S–1—Air Emission
Regulations for the Prevention,
Abatement, and Control of Air
Contaminants, with regard to the
monitoring program within the State.
Annually, EPA approves the ambient air
monitoring network plan for the state
agencies. On October 6, 2011, EPA
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approved Mississippi’s 2011 monitoring
network plan. Mississippi’s approved
monitoring network plan can be
accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2012–
0402. EPA has made the preliminary
determination that Mississippi’s SIP and
practices are adequate for the ambient
air quality monitoring and data systems
related to the 1997 annual and 2006 24hour PM2.5 NAAQS.
3. 110(a)(2)(C) Program for
enforcement of control measures
including review of proposed new
sources: Mississippi’s authority to
regulate new and modified sources so as
to provide for the protection of air
quality in nonattainment, attainment or
unclassifiable areas is established in the
Mississippi SIP Regulations APC–S–1—
Air Emission Regulations for the
Prevention, Abatement, and Control of
Air Contaminants, APC–S–2—Permit
Regulations for the Construction and/or
Operation of Air Emissions Equipment,
and APC–S–5—Regulations for the
Prevention of Significant Deterioration
of Air Quality. Mississippi’s regulations
provide the permitting requirements for
new major sources or major
modifications of existing sources in
areas classified as attainment or
unclassifiable under section
107(d)(1)(A)(ii) or (iii) of the CAA. This
permitting program is designed to
ensure that sources in areas attaining
the NAAQS at the time of designations
prevent any significant deterioration in
air quality. Additionally, on May 18,
2011, Mississippi submitted a SIP
revision to its NSR/PSD and
Nonattainment New Source Review
(NNSR) programs. Mississippi’s May 18,
2011, SIP submittal would incorporate
by reference the federal NSR provisions
for fine particulate matter (also known
as PM2.5) as amended in EPA’s 2008
NSR PM2.5 Implementation Rule
(hereafter referred to as the ‘‘NSR PM2.5
Rule’’) into the Mississippi SIP at APC–
S–5—Regulations for the Prevention of
Significant Deterioration of Air Quality.
In the May 18, 2011, SIP revision,
Mississippi includes revisions to rules
that address the infrastructure
requirements (C) and (J). As such,
today’s proposed approval of
Mississippi’s SIP respecting
infrastructure element 110(a)(2)(C) is
contingent upon EPA first taking final
action to approve the May 18, 2011,
NSR PM2.5 Rule revision into the State’s
SIP. EPA will propose approval of
Mississippi’s May 18, 2011, NSR PM2.5
Rule revision in a rulemaking separate
from today’s action.
In this action, EPA is proposing to
approve Mississippi’s infrastructure SIP
for the 1997 annual and 2006 24-hour
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PM2.5 NAAQS with respect to the
general requirement in section
110(a)(2)(C) to include a program in the
SIP that regulates the modification and
construction of any stationary source as
necessary to assure that the NAAQS are
achieved. EPA is not proposing to
approve or disapprove the State’s
existing minor NSR program itself to the
extent that it is inconsistent with EPA’s
regulations governing this program. EPA
believes that a number of states may
have minor NSR provisions that are
contrary to the existing EPA regulations
for this program. EPA intends to work
with states to reconcile state minor NSR
programs with EPA’s regulatory
provisions for the program. The
statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing minor NSR
programs, and EPA believes it may be
time to revisit the regulatory
requirements for this program to give
the states an appropriate level of
flexibility to design a program that
meets their particular air quality
concerns, while assuring reasonable
consistency across the country in
protecting the NAAQS with respect to
new and modified minor sources.
EPA has made the preliminary
determination that Mississippi’s SIP and
practices are adequate for program
enforcement of control measures
including review of proposed new
sources related to the 1997 annual and
2006 24-hour PM2.5 NAAQS. As
discussed above, final approval of this
rule is contingent upon the Agency first
taking final action to approve
Mississippi’s May 18, 2011, PM2.5 NSR
Update.
4. 110(a)(2)(D)(ii) Interstate and
International transport provisions: In
Regulation APC–S–2—Permit
Regulations For The Construction and/
or Operation of Air Emissions
Equipment, Mississippi provides how it
will notify neighboring states of
potential impacts from new or modified
sources. The most recent federally
approved revision in this regulation was
on July 10, 2006 (71 FR 38773).
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 1997 annual and 2006 24-hour PM2.5
NAAQS.
5. 110(a)(2)(E) Adequate resources:
Section 110(a)(2)(E) requires that each
implementation plan provide (i)
necessary assurances that the State will
have adequate personnel, funding, and
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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. As with the
remainder of the infrastructure elements
addressed by this notice, EPA is
proposing to approve Mississippi’s SIP
as meeting the requirements of subelements 110(a)(2)(E)(i) and (iii). With
respect to 110(a)(2)(E)(ii) (regarding
state boards), EPA is not taking action
on this sub-element today, and will
instead address this requirement in a
separate action. EPA’s rationale for
today’s proposals respecting subelement 110(a)(2)(E)(i) and (iii) is
described in turn below.
In support of EPA’s proposal to
approve sub-elements 110(a)(2)(E)(i) and
(iii), DEQ 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 evidence of
the adequacy of DEQ’s resources with
respect to sub-elements (i) and (iii), EPA
submitted a letter to Mississippi on
March 8, 2012, outlining 105 grant
commitments and the current status of
these commitments for fiscal year 2011.
The letter EPA submitted to Mississippi
can be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2012–0402. 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 2011, therefore
Mississippi’s grants were finalized and
closed out. EPA has made the
preliminary determination that
Mississippi has adequate resources for
implementation of the 1997 annual and
2006 24-hour PM2.5 NAAQS. In
addition, the requirements of
110(a)(2)(E)(i) and (iii) are met when
EPA performs a completeness
determination for each SIP submittal.
This determination ensures that each
submittal provides evidence that
adequate personnel, funding, and legal
authority under state law has been used
to carry out the state’s implementation
plan and related issues. Mississippi’s
authority is included in all prehearings
and final SIP submittal packages for
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approval by EPA. EPA has made the
preliminary determination that
Mississippi has adequate resources for
implementation of the 1997 annual and
2006 24-hour PM2.5 NAAQS.
6. 110(a)(2)(F) Stationary source
monitoring system: Regulation APC–S–
2—Permit Regulations for the
Construction and/or Operation of Air
Emissions Equipment, of the Mississippi
SIP 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.
Mississippi DEQ 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.
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 NEI on
December 30, 2011. EPA compiles the
emissions data, supplementing it where
necessary, and releases it to the general
public through the Web site https://
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 1997
annual and 2006 24-hour PM2.5 NAAQS.
7. 110(a)(2)(G) Emergency power:
Section 110(a)(2)(G) requires states to
provide for authority to address
activities causing imminent and
substantial endangerment to public
health, including contingency plans to
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implement the emergency episode
provisions in their SIPs. Today, EPA is
not proposing any action with respect to
element 110(a)(2)(G). This element will
be addressed in a separate action.
8. 110(a)(2)(H) Future SIP revisions:
DEQ is responsible for adopting air
quality rules and revising SIPs as
needed to attain or maintain the
NAAQS in Mississippi. DEQ 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 does not have any
nonattainment areas for the 1997 annual
or 2006 24-hour PM2.5 standard but has
submitted an infrastructure submission
for these standards, which is the subject
of this rulemaking. EPA has made the
preliminary determination that
Mississippi’s SIP and practices
adequately demonstrate a commitment
to provide future SIP revisions related to
the 1997 annual and 2006 24-hour PM2.5
NAAQS when necessary.
9. 110(a)(2)(J) (121 consultation)
Consultation with government officials:
Mississippi Code Annotated Regulation
49–17–3, as well as Mississippi’s
Regional Haze Implementation Plan
(which allows for consultation between
appropriate state, local, and tribal air
pollution control agencies as well as the
corresponding Federal Land Managers),
provide for consultation with
government officials whose jurisdictions
might be affected by SIP development
activities. EPA has made the
preliminary determination that
Mississippi’s SIP and practices
adequately demonstrate consultation
with government officials related to the
1997 annual and 2006 24-hour PM2.5
NAAQS when necessary.
10. 110(a)(2)(J) (127 public
notification) Public notification: APC–
S–3—Regulations for the Prevention of
Air Pollution Emergency Episodes, of
the Mississippi SIP requires that DEQ
notify the public of any air pollution
episode or NAAQS violation. DEQ’s has
public notice mechanisms in place to
notify the public of PM and other
pollutant forecasting, including an air
quality monitoring Web site providing
ground level ozone alerts, https://
opc.deq.state.ms.us/aqi/ specifically for
the Jackson Metropolitan Area, DeSoto
County, and the Mississippi Gulf Coast.
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 1997 annual
and 2006 24-hour PM2.5 NAAQS when
necessary.
11. 110(a)(2)(J) (PSD) PSD and
visibility protection: Mississippi
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demonstrates its authority to regulate
new and modified sources of PM to
assist in the protection of air quality in
Regulation APC–S–5—Regulations for
the Prevention of Significant
Deterioration for Air Quality.
Mississippi’s SIP provides the
permitting requirements for new major
sources or major modifications of
existing sources in areas classified as
attainment or unclassifiable under
section 107(d)(1)(A)(ii) or (iii) of the
CAA. These provisions are designed to
prevent significant deterioration of air
quality in areas that are in attainment of
the NAAQS at the time of designations.
As with infrastructure element
110(a)(2)(C), infrastructure element
110(a)(2)(J) also requires compliance
with applicable provisions of the PSD
program described in part C of the Act.
Accordingly, final action to approve the
May 18, 2011, NSR PM2.5 Rule SIP
revision, is a prerequisite to today’s
proposed action to approve the State’s
infrastructure element 110(a)(2)(J). See
the discussion for element 110(a)(2)(C)
above for a description of the submitted
NSR PM2.5 Rule SIP revision to the
Mississippi SIP. EPA will not take final
action to approve Mississippi’s SIP as
meeting the requirements infrastructure
element 110(a)(2)(J) prior to taking final
action to approve the State’s May 10,
2011, NSR PM2.5 Rule SIP revision
With regard to the applicable
requirements for visibility protection,
EPA recognizes that states are subject to
visibility and regional haze program
requirements under part C of the Act
(which includes sections 169A and
169B). In the event of the establishment
of a new NAAQS, however, the
visibility and regional haze program
requirements under part C do not
change. Thus, EPA finds that there is no
new visibility obligation ‘‘triggered’’
under section 110(a)(2)(J) when a new
NAAQS becomes effective. This would
be the case even in the event a
secondary PM2.5 NAAQS for visibility is
established, because that NAAQS would
not affect visibility requirements under
part C. EPA has made the preliminary
determination that Mississippi’s SIP and
practices adequately demonstrate the
State’s ability to implement PSD
programs and to provide for visibility
protection related to the 1997 annual
and 2006 24-hour PM2.5 NAAQS when
necessary. As noted above, final
approval of this element is contingent
upon the Agency first taking final action
to approve Mississippi’s May 18, 2011,
PM2.5 NSR Update submittal.
12. 110(a)(2)(K) Air quality and
modeling/data: DEQ has authority
pursuant to Mississippi SIP Regulation
APC–S–5—Regulations for the
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Fmt 4702
Sfmt 4702
34905
Prevention of Significant Deterioration
for Air Quality, (which incorporates 40
CFR part 51.21 by reference) to conduct
air quality modeling and report the
results of such modeling to EPA.
Additionally, Mississippi supports a
regional effort to coordinate the
development of emissions inventories
and conduct regional modeling for
several NAAQS, including the 1997
annual and 2006 24-hour PM2.5 NAAQS,
for the Southeastern states. Taken as a
whole, Mississippi’s air quality
regulations demonstrate that DEQ has
the authority to provide relevant data
for the purpose of predicting the effect
on ambient air quality of the 1997
annual and 2006 24-hour PM2.5 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 (including analysis of the
associated data) related to the 1997
annual and 2006 24-hour PM2.5 NAAQS
when necessary.
13. 110(a)(2)(L) Permitting fees:
Mississippi addresses the review of
construction permits as previously
discussed in 110(a)(2)(C) above.
Permitting fees are collected through the
State’s title V fees program, which has
been federally approved. EPA has made
the preliminary determination that
Mississippi’s SIP and practices
adequately provide for permitting fees
related to the 1997 annual and 2006 24hour PM2.5 NAAQS when necessary.
14. 110(a)(2)(M) Consultation/
participation by affected local entities:
DEQ coordinates with local
governments affected by the SIP.
Specifically, as described in Section IV
of Regulation APC–S–2, Public
Participation and Public Availability Of
Information, Mississippi requires that
State and local air pollution control
agencies be notified of modifications to
stationary sources or the construction of
new sources within their region of
jurisdiction. Furthermore, DEQ has
demonstrated consultation with, and
participation by, affected local entities
through its work with local political
subdivisions during the developing of
its Regional Haze Implementation Plan.
EPA has made the preliminary
determination that Mississippi’s SIP and
practices adequately demonstrate
consultation with affected local entities
related to the 1997 annual and 2006 24hour PM2.5 NAAQS when necessary.
V. Proposed Action
EPA is proposing to approve that
DEQ’s CAA 110(a)(1) and (2)
infrastructure SIP submissions for the
1997 annual and 2006 24-hour PM2.5
NAAQS meet the above described
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Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
infrastructure SIP requirements
consistent with EPA’s October 2, 2007,
and September 25, 2009, guidance.
Mississippi’s infrastructure
submissions, which are the subject of
today’s proposed rulemaking, were
submitted on December 7, 2007, for
purposes of the 1997 annual PM2.5
NAAQS, and on October 6, 2009, for
purposes of the 2006 24-hour annual
PM2.5 NAAQS. This proposed approval,
however, does not include
infrastructure elements 110(a)(2)(E)(ii)
and 110(a)(2)(G) for either the 1997
annual or 2006 24-hour PM2.5 NAAQS.
These elements will be addressed by
EPA in a separate action. In addition,
final approval of the infrastructure
elements 110(a)(2)(C) and (J) proposed
for approval today is contingent upon
the Agency first taking final action to
approve Mississippi’s May 18, 2011,
PM2.5 NSR Update.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely 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 (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);
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• 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, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Air pollution control, Environmental
protection, Intergovernmental relations,
Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–14267 Filed 6–11–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0382; FRL–9686–2]
Approval and Promulgation of
Implementation Plans; Florida;
110(a)(1) and (2) Infrastructure
Requirements for the 1997 and 2006
Fine Particulate Matter National
Ambient Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the State Implementation Plans (SIPs),
submitted by the State of Florida,
through the Florida Department of
Environmental Protection (FDEP), as
demonstrating that the State meets the
requirements of sections 110(a)(1) and
(2) of the Clean Air Act (CAA or the Act)
for the 1997 annual and 2006 24-hour
fine particulate matter (PM2.5) national
SUMMARY:
PO 00000
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Fmt 4702
Sfmt 4702
ambient air quality standards (NAAQS).
Section 110(a) of 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. Florida certified
that the Florida SIP contains provisions
that ensure the 1997 annual and 2006
24-hour PM2.5 NAAQS are
implemented, enforced, and maintained
in Florida (hereafter referred to as
‘‘infrastructure submission’’). EPA is
proposing to determine that Florida’s
infrastructure submissions, provided to
EPA on April 18, 2008, and on
September 23, 2009, addressed all the
required infrastructure elements for the
1997 annual and 2006 24-hour PM2.5
NAAQS. As discussed further below,
final action to approve elements
110(a)(2)(C), (E)(ii), and (J) is contingent
upon the Agency first taking final action
on submitted SIP revisions associated
with these elements. Final action on
those SIP revisions will be addressed in
a separate action.
DATES: Written comments must be
received on or before July 12, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2012–0382, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4–RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2012–
0382,’’ 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, 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 to 4:30, excluding federal
holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R04–OAR–2012–
0382. 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
E:\FR\FM\12JNP1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Proposed Rules]
[Pages 34898-34906]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14267]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0402; FRL-9686-1]
Approval and Promulgation of Implementation Plans; Mississippi;
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006
Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP), submitted by the State of Mississippi, through the Mississippi
Department of Environmental Quality (DEQ), as meeting certain
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or
the Act) for the 1997 annual and 2006 24-hour fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS).
Section 110(a) of 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. Mississippi certified that the Mississippi SIP
contains provisions that ensure that the 1997 annual and 2006 24-hour
PM2.5 NAAQS are implemented, enforced, and maintained in
Mississippi (hereafter referred to as ``infrastructure submission'').
EPA is proposing to determine that Mississippi's infrastructure
submissions, provided to EPA on December 7, 2007, and on October 6,
2009, addressed all the required infrastructure elements for the 1997
annual and 2006 24-hour PM2.5 NAAQS with the exception of
sections 110(a)(2)(E)(ii) and 110(a)(2)(G), both of which will be
addressed in a separate action.
DATES: Written comments must be received on or before July 12, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0402, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2012-0402,'' 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, 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 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0402. 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 https://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
[[Page 34899]]
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 to
4:30, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Sean Lakeman, 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. The telephone number is (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
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 July 18, 1997 (62 FR 36852), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour NAAQS of
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\
based on a 3-year average of annual mean PM2.5
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\
based on a 3-year average of the 98th percentile of 24-hour
concentrations. By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and
(2) require states to address basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the NAAQS. States were required to submit such SIPs
to EPA no later than July 2000 for the 1997 annual PM2.5
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5
NAAQS.
On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 annual
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent
decree with Earthjustice which required EPA, among other things, to
complete a Federal Register notice announcing EPA's determinations
pursuant to section 110(k)(1)(B) as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state for the 1997
PM2.5 NAAQS as of October 3, 2008.
On October 22, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS''
making a finding that each state had submitted or failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (See
73 FR 62902). For those states that did receive findings, the findings
of failure to submit for all or a portion of a state's implementation
plan established a 24-month deadline for EPA to promulgate a Federal
Implementation Plan (FIP) to address the outstanding SIP elements
unless, prior to that time, the affected states submitted, and EPA
approved, the required SIPs.
The findings that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k).
Mississippi's infrastructure submissions were received by EPA on
December 7, 2007, for the 1997 annual PM2.5 NAAQS and on
October 6, 2009, for the 2006 24-hour PM2.5 NAAQS. The
submissions were determined to be complete on June 7, 2008, and April
6, 2010, respectively. Mississippi was among other states that did not
receive findings of failure to submit because it had provided a
complete submission to EPA to address the infrastructure elements for
the 1997 PM2.5 NAAQS by October 3, 2008.
On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
submittal related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's final action either approving, disapproving, or approving in
part and disapproving in part the Mississippi 2006 24-hour
PM2.5 NAAQS Infrastructure SIP submittal addressing the
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except
for section 110(a)(2)(C) the nonattainment area requirements and
section 110(a)(2)(D)(i) interstate transport requirements, by September
30, 2012.
Today's action is proposing to approve Mississippi's infrastructure
submission for the 1997 annual and 2006 24-hour PM2.5 NAAQS
for sections 110(a)(2)(A)-(H), (J)-(M), except for sections
110(a)(2)(C) nonattainment area requirements, 110(a)(2)(D)(i)
interstate transport requirements, 110(a)(2)(E)(ii) state board
requirements, and 110(a)(2)(G) emergency power requirements. Section
110(a)(2)(E)(ii) and (G) will be addressed in a separate action.\1\
This action is not approving any specific rule, but rather proposing
that Mississippi's already approved SIP meets certain CAA requirements.
---------------------------------------------------------------------------
\1\ As described further below in Section II, EPA is not taking
on action on sections 110(a)(2)(C) nonattainment area requirements
and 110(a)(2)(D)(i) interstate transport 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 1997 annual and 2006 24-hour
PM2.5 NAAQS, some states may need to adopt language specific
to the PM2.5 NAAQS to ensure that they have adequate SIP
provisions to implement the PM2.5 NAAQS.
[[Page 34900]]
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 SIP infrastructure 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 listed below \2\ and in EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' and September
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards.''
---------------------------------------------------------------------------
\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) but does provide detail on how Mississippi's
SIP addresses 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): Program for enforcement of control
measures.\3\
---------------------------------------------------------------------------
\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
---------------------------------------------------------------------------
110(a)(2)(D): Interstate transport.\4\
---------------------------------------------------------------------------
\4\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006
PM2.5 NAAQS. Interstate transport requirements were
formerly addressed by Mississippi consistent with the Clean Air
Interstate Rule (CAIR). On December 23, 2008, CAIR was remanded by
the DC Circuit Court of Appeals, without vacatur, back to EPA. See
North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008). Prior to this
remand, EPA took final action to approve Mississippi SIP revision,
which was submitted to comply with CAIR. See 72 FR 56268 (October 3,
2007). In so doing, Mississippi CAIR SIP revision addressed the
interstate transport provisions in section 110(a)(2)(D)(i) for the
1997 and 2006 PM2.5 NAAQS. In response to the remand of
CAIR, EPA has recently finalized a new rule to address the
interstate transport of nitrogen oxides and sulfur oxides in the
eastern United States. See 76 FR 48208 (August 8, 2011) (``the
Transport Rule''). That rule was recently stayed by the DC Circuit
Court of Appeals. EPA's action on element 110(a)(2)(D)(i) will be
addressed in a separate action.
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\5\
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\5\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' and
the September 25, 2009, memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine
Particle (PM2.5) National Ambient Air Quality
Standards,'' but as mentioned above is not relevant to today's
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/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\6\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources (SSM), that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (director's
discretion). EPA notes that there are two other substantive issues for
which EPA likewise stated in other proposals that it would address
separately: (i) Existing provisions for minor source new source review
(NSR) programs that may be inconsistent with the requirements of the
CAA and EPA's regulations that pertain to such programs (minor source
NSR); and (ii) existing provisions for Prevention of Significant
Deterioration (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). In light of the comments, EPA believes that its statements in
various proposed actions on infrastructure SIPs with respect to these
four individual issues should be explained in greater depth. It is
important to emphasize that EPA is taking the same position with
respect to these four substantive issues in this action on the
infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS from
Mississippi.
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\6\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the other proposals concerning these
four issues merely to be informational and to provide general notice of
the potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for Mississippi.
Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be
[[Page 34901]]
integral parts of acting on an infrastructure SIP submission, and
therefore that EPA was merely postponing taking final action on the
issues in the context of the infrastructure SIPs. This was not EPA's
intention. To the contrary, EPA only meant to convey its awareness of
the potential for certain types of deficiencies in existing SIPs and to
prevent any misunderstanding that it was reapproving any such existing
provisions. EPA's intention was to convey its position that the statute
does not require that infrastructure SIPs address these specific
substantive issues in existing SIPs and that these issues may be dealt
with separately, outside the context of acting on the infrastructure
SIP submission of a state. To be clear, EPA did not mean to imply that
it was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, 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 provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\7\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\8\
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\7\ For example, section 110(a)(2)(E) 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 substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\8\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``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 (May 12,
2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\9\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\10\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's
implementation plans. Finally, 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 and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\11\
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\9\ See Id., 70 FR 25162, at 63--65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\10\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See ``Guidance for State Implementation
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division OAQPS, to Regional Air Division
Director, Regions I-X, dated August 15, 2006.
\11\ 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.
---------------------------------------------------------------------------
Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section
[[Page 34902]]
110(a)(2)(G) with respect to emergency episodes, as such requirements
would not be limited to nonattainment areas. As this example
illustrates, each type of SIP submission may implicate some subsections
of section 110(a)(2) and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\12\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \13\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \14\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \15\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the state's implementation plans for the NAAQS in
question.
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\12\ See ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
\13\ Id., at page 2.
\14\ Id., at attachment A, page 1.
\15\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\16\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the infrastructure SIPs for Mississippi.
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\16\ See ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP 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 that, 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 considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the
[[Page 34903]]
Agency to take appropriate 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 otherwise to comply
with the CAA.\17\ Section 110(k)(6) authorizes EPA to correct errors in
past actions, such as past approvals of SIP submissions.\18\
Significantly, EPA's determination that an action on the infrastructure
SIP is not the appropriate time and place to address all potential
existing SIP problems does not preclude the Agency's subsequent
reliance on provisions in section 110(a)(2) as part of the basis for
action 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 the infrastructure
SIP, EPA believes that section 110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course of addressing the issue in a
subsequent action.\19\
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\17\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
\18\ EPA has recently utilized 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 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 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).
\19\ EPA has recently disapproved 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 75 FR 42342, 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 infrastructure 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 submissions provide an overview of the
provisions of the Mississippi Air Pollution Control (APC) Regulations
relevant to air quality control. The regulations described below have
been federally approved into the Mississippi SIP and include
enforceable emission limitations and other control measures.
Mississippi SIP Regulations 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,
generally authorizes DEQ to adopt rules for the control of air
pollution, including those necessary to obtain EPA approval under
section 110 of the CAA. The most recent federally approved revision in
this regulation was on October 3, 2007 (72 FR 56268). EPA has made the
preliminary determination that the provisions contained in these
regulations and Mississippi's practices are adequate to protect the
PM2.5 annual and 24-hour NAAQS in the State.
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 the future. In the
meantime, EPA encourages any state having deficient SSM provisions to
take steps to correct it as soon as possible.
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:
Mississippi's infrastructure submissions cite SIP Regulation APC-S-1--
Air Emission Regulations for the Prevention, Abatement, and Control of
Air Contaminants, with regard to the monitoring program within the
State. Annually, EPA approves the ambient air monitoring network plan
for the state agencies. On October 6, 2011, EPA approved Mississippi's
2011 monitoring network plan. Mississippi's approved monitoring network
plan can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2012-0402. EPA has made the preliminary determination that
Mississippi's SIP and practices are adequate for the ambient air
quality monitoring and data systems related to the 1997 annual and 2006
24-hour PM2.5 NAAQS.
3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: Mississippi's authority to
regulate new and modified sources so as to provide for the protection
of air quality in nonattainment, attainment or unclassifiable areas is
established in the Mississippi SIP Regulations APC-S-1--Air Emission
Regulations for the Prevention, Abatement, and Control of Air
Contaminants, APC-S-2--Permit Regulations for the Construction and/or
Operation of Air Emissions Equipment, and APC-S-5--Regulations for the
Prevention of Significant Deterioration of Air Quality. Mississippi's
regulations provide the permitting requirements for new major sources
or major modifications of existing sources in areas classified as
attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of
the CAA. This permitting program is designed to ensure that sources in
areas attaining the NAAQS at the time of designations prevent any
significant deterioration in air quality. Additionally, on May 18,
2011, Mississippi submitted a SIP revision to its NSR/PSD and
Nonattainment New Source Review (NNSR) programs. Mississippi's May 18,
2011, SIP submittal would incorporate by reference the federal NSR
provisions for fine particulate matter (also known as PM2.5)
as amended in EPA's 2008 NSR PM2.5 Implementation Rule
(hereafter referred to as the ``NSR PM2.5 Rule'') into the
Mississippi SIP at APC-S-5--Regulations for the Prevention of
Significant Deterioration of Air Quality. In the May 18, 2011, SIP
revision, Mississippi includes revisions to rules that address the
infrastructure requirements (C) and (J). As such, today's proposed
approval of Mississippi's SIP respecting infrastructure element
110(a)(2)(C) is contingent upon EPA first taking final action to
approve the May 18, 2011, NSR PM2.5 Rule revision into the
State's SIP. EPA will propose approval of Mississippi's May 18, 2011,
NSR PM2.5 Rule revision in a rulemaking separate from
today's action.
In this action, EPA is proposing to approve Mississippi's
infrastructure SIP for the 1997 annual and 2006 24-hour
[[Page 34904]]
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA is not proposing to approve or
disapprove the State's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
EPA has made the preliminary determination that Mississippi's SIP
and practices are adequate for program enforcement of control measures
including review of proposed new sources related to the 1997 annual and
2006 24-hour PM2.5 NAAQS. As discussed above, final approval
of this rule is contingent upon the Agency first taking final action to
approve Mississippi's May 18, 2011, PM2.5 NSR Update.
4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: In Regulation APC-S-2--Permit Regulations For The
Construction and/or Operation of Air Emissions Equipment, Mississippi
provides how it will notify neighboring states of potential impacts
from new or modified sources. The most recent federally approved
revision in this regulation was on July 10, 2006 (71 FR 38773).
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 1997 annual and 2006 24-hour
PM2.5 NAAQS.
5. 110(a)(2)(E) Adequate resources: 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. As with the remainder of the infrastructure elements
addressed by this notice, EPA is proposing to approve Mississippi's SIP
as meeting the requirements of sub-elements 110(a)(2)(E)(i) and (iii).
With respect to 110(a)(2)(E)(ii) (regarding state boards), EPA is not
taking action on this sub-element today, and will instead address this
requirement in a separate action. EPA's rationale for today's proposals
respecting sub-element 110(a)(2)(E)(i) and (iii) is described in turn
below.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), DEQ 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 evidence of the adequacy of DEQ's resources with
respect to sub-elements (i) and (iii), EPA submitted a letter to
Mississippi on March 8, 2012, outlining 105 grant commitments and the
current status of these commitments for fiscal year 2011. The letter
EPA submitted to Mississippi can be accessed at www.regulations.gov
using Docket ID No. EPA-R04-OAR-2012-0402. 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 2011, therefore Mississippi's grants were
finalized and closed out. EPA has made the preliminary determination
that Mississippi has adequate resources for implementation of the 1997
annual and 2006 24-hour PM2.5 NAAQS. In addition, the
requirements of 110(a)(2)(E)(i) and (iii) are met when EPA performs a
completeness determination for each SIP submittal. This determination
ensures that each submittal provides evidence that adequate personnel,
funding, and legal authority under state law has been used to carry out
the state's implementation plan and related issues. Mississippi's
authority is included in all prehearings and final SIP submittal
packages for approval by EPA. EPA has made the preliminary
determination that Mississippi has adequate resources for
implementation of the 1997 annual and 2006 24-hour PM2.5
NAAQS.
6. 110(a)(2)(F) Stationary source monitoring system: Regulation
APC-S-2--Permit Regulations for the Construction and/or Operation of
Air Emissions Equipment, of the Mississippi SIP 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. Mississippi DEQ 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.
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 NEI
on December 30, 2011. EPA compiles the emissions data, supplementing it
where necessary, and releases it to the general public through the Web
site https://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
1997 annual and 2006 24-hour PM2.5 NAAQS.
7. 110(a)(2)(G) Emergency power: Section 110(a)(2)(G) requires
states to provide for authority to address activities causing imminent
and substantial endangerment to public health, including contingency
plans to
[[Page 34905]]
implement the emergency episode provisions in their SIPs. Today, EPA is
not proposing any action with respect to element 110(a)(2)(G). This
element will be addressed in a separate action.
8. 110(a)(2)(H) Future SIP revisions: DEQ is responsible for
adopting air quality rules and revising SIPs as needed to attain or
maintain the NAAQS in Mississippi. DEQ 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
does not have any nonattainment areas for the 1997 annual or 2006 24-
hour PM2.5 standard but has submitted an infrastructure
submission for these standards, which is the subject of this
rulemaking. EPA has made the preliminary determination that
Mississippi's SIP and practices adequately demonstrate a commitment to
provide future SIP revisions related to the 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.
9. 110(a)(2)(J) (121 consultation) Consultation with government
officials: Mississippi Code Annotated Regulation 49-17-3, as well as
Mississippi's Regional Haze Implementation Plan (which allows for
consultation between appropriate state, local, and tribal air pollution
control agencies as well as the corresponding Federal Land Managers),
provide for consultation with government officials whose jurisdictions
might be affected by SIP development activities. EPA has made the
preliminary determination that Mississippi's SIP and practices
adequately demonstrate consultation with government officials related
to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
10. 110(a)(2)(J) (127 public notification) Public notification:
APC-S-3--Regulations for the Prevention of Air Pollution Emergency
Episodes, of the Mississippi SIP requires that DEQ notify the public of
any air pollution episode or NAAQS violation. DEQ's has public notice
mechanisms in place to notify the public of PM and other pollutant
forecasting, including an air quality monitoring Web site providing
ground level ozone alerts, https://opc.deq.state.ms.us/aqi/ specifically
for the Jackson Metropolitan Area, DeSoto County, and the Mississippi
Gulf Coast. 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 1997 annual and
2006 24-hour PM2.5 NAAQS when necessary.
11. 110(a)(2)(J) (PSD) PSD and visibility protection: Mississippi
demonstrates its authority to regulate new and modified sources of PM
to assist in the protection of air quality in Regulation APC-S-5--
Regulations for the Prevention of Significant Deterioration for Air
Quality. Mississippi's SIP provides the permitting requirements for new
major sources or major modifications of existing sources in areas
classified as attainment or unclassifiable under section
107(d)(1)(A)(ii) or (iii) of the CAA. These provisions are designed to
prevent significant deterioration of air quality in areas that are in
attainment of the NAAQS at the time of designations. As with
infrastructure element 110(a)(2)(C), infrastructure element
110(a)(2)(J) also requires compliance with applicable provisions of the
PSD program described in part C of the Act. Accordingly, final action
to approve the May 18, 2011, NSR PM2.5 Rule SIP revision, is
a prerequisite to today's proposed action to approve the State's
infrastructure element 110(a)(2)(J). See the discussion for element
110(a)(2)(C) above for a description of the submitted NSR
PM2.5 Rule SIP revision to the Mississippi SIP. EPA will not
take final action to approve Mississippi's SIP as meeting the
requirements infrastructure element 110(a)(2)(J) prior to taking final
action to approve the State's May 10, 2011, NSR PM2.5 Rule
SIP revision
With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS, however, the visibility and regional haze program
requirements under part C do not change. Thus, EPA finds that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because that NAAQS would not affect visibility requirements under part
C. EPA has made the preliminary determination that Mississippi's SIP
and practices adequately demonstrate the State's ability to implement
PSD programs and to provide for visibility protection related to the
1997 annual and 2006 24-hour PM2.5 NAAQS when necessary. As
noted above, final approval of this element is contingent upon the
Agency first taking final action to approve Mississippi's May 18, 2011,
PM2.5 NSR Update submittal.
12. 110(a)(2)(K) Air quality and modeling/data: DEQ has authority
pursuant to Mississippi SIP Regulation APC-S-5--Regulations for the
Prevention of Significant Deterioration for Air Quality, (which
incorporates 40 CFR part 51.21 by reference) to conduct air quality
modeling and report the results of such modeling to EPA. Additionally,
Mississippi supports a regional effort to coordinate the development of
emissions inventories and conduct regional modeling for several NAAQS,
including the 1997 annual and 2006 24-hour PM2.5 NAAQS, for
the Southeastern states. Taken as a whole, Mississippi's air quality
regulations demonstrate that DEQ has the authority to provide relevant
data for the purpose of predicting the effect on ambient air quality of
the 1997 annual and 2006 24-hour PM2.5 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 (including analysis of the associated data) related to the
1997 annual and 2006 24-hour PM2.5 NAAQS when necessary.
13. 110(a)(2)(L) Permitting fees: Mississippi addresses the review
of construction permits as previously discussed in 110(a)(2)(C) above.
Permitting fees are collected through the State's title V fees program,
which has been federally approved. EPA has made the preliminary
determination that Mississippi's SIP and practices adequately provide
for permitting fees related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
14. 110(a)(2)(M) Consultation/participation by affected local
entities: DEQ coordinates with local governments affected by the SIP.
Specifically, as described in Section IV of Regulation APC-S-2, Public
Participation and Public Availability Of Information, Mississippi
requires that State and local air pollution control agencies be
notified of modifications to stationary sources or the construction of
new sources within their region of jurisdiction. Furthermore, DEQ has
demonstrated consultation with, and participation by, affected local
entities through its work with local political subdivisions during the
developing of its Regional Haze Implementation Plan. EPA has made the
preliminary determination that Mississippi's SIP and practices
adequately demonstrate consultation with affected local entities
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
V. Proposed Action
EPA is proposing to approve that DEQ's CAA 110(a)(1) and (2)
infrastructure SIP submissions for the 1997 annual and 2006 24-hour
PM2.5 NAAQS meet the above described
[[Page 34906]]
infrastructure SIP requirements consistent with EPA's October 2, 2007,
and September 25, 2009, guidance. Mississippi's infrastructure
submissions, which are the subject of today's proposed rulemaking, were
submitted on December 7, 2007, for purposes of the 1997 annual
PM2.5 NAAQS, and on October 6, 2009, for purposes of the
2006 24-hour annual PM2.5 NAAQS. This proposed approval,
however, does not include infrastructure elements 110(a)(2)(E)(ii) and
110(a)(2)(G) for either the 1997 annual or 2006 24-hour
PM2.5 NAAQS. These elements will be addressed by EPA in a
separate action. In addition, final approval of the infrastructure
elements 110(a)(2)(C) and (J) proposed for approval today is contingent
upon the Agency first taking final action to approve Mississippi's May
18, 2011, PM2.5 NSR Update.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely 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 (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).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Air pollution control, Environmental protection, Intergovernmental
relations, Nitrogen dioxide, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-14267 Filed 6-11-12; 8:45 am]
BILLING CODE 6560-50-P
