Air Plan Approval/Disapproval; Mississippi Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 32707-32716 [2016-12102]
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• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 12, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0751; FRL–9946–83–
Region 4]
Air Plan Approval/Disapproval;
Mississippi Infrastructure
Requirements for the 2010 Nitrogen
Dioxide National Ambient Air Quality
Standards
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
in part, and disapprove in part, portions
of the State Implementation Plan (SIP)
submission, submitted by the State of
Mississippi, through the Mississippi
Department of Environmental Quality
(MDEQ) on February 28, 2013, to
demonstrate that the State meets the
infrastructure requirements of the Clean
Air Act (CAA or Act) for the 2010 1hour nitrogen dioxide (NO2) national
ambient air quality standards (NAAQS).
The CAA requires that each state adopt
and submit a SIP for the
implementation, maintenance and
enforcement of each NAAQS
promulgated by the EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. MDEQ certified
that the Mississippi SIP contains
provisions that ensure the 2010 NO2
NAAQS are implemented, enforced, and
maintained in Mississippi. With the
exception of the state board majority
requirements respecting significant
portion of income, for which EPA is
proposing to disapprove, EPA is
proposing to determine that portions of
Mississippi’s infrastructure submission,
submitted to EPA on February 28, 2013,
satisfies certain required infrastructure
elements for the 2010 1-hour NO2
NAAQS.
SUMMARY:
Written comments must be
received on or before June 23, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0751 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
DATES:
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comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Richard Wong, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–8726.
Mr. Wong can be reached via electronic
mail at wong.richard@epa.gov.
Table of Contents
I. Background
II. What elements are required under
Sections 110(a)(1) and (2)?
III. What is EPA’s approach to the review of
infrastructure SIP submissions?
IV. What is EPA’s analysis of how
Mississippi addressed the elements of
Sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On February 9, 2010, EPA
promulgated a new 1-hour primary
NAAQS for NO2 at a level of 100 parts
per billion (ppb), based on a 3-year
average of the 98th percentile of the
yearly distribution of 1-hour daily
maximum concentrations. See 75 FR
6474. Pursuant to section 110(a)(1) of
the CAA, states are required to submit
SIPs meeting the requirements of
section 110(a)(2) within three years after
promulgation of a new or revised
NAAQS or within such shorter period
as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP
elements such as requirements for
monitoring, basic program requirements
and legal authority that are designed to
assure attainment and maintenance of
the NAAQS. States were required to
submit such SIPs for the 2010 NO2
NAAQS to EPA no later than January
22, 2013.1
1 In these infrastructure SIP submissions States
generally certify evidence of compliance with
sections 110(a)(1) and (2) of the CAA through a
combination of state regulations and statutes, some
of which have been incorporated into the federally-
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This action is proposing to approve
Mississippi’s infrastructure SIP
submission for the applicable
requirements of the 2010 1-hour NO2
NAAQS, with the exception of the
preconstruction PSD permitting
requirements for major sources of
sections 110(a)(2)(C), prong 3 of (D)(i)
and (J), the interstate transport
requirements of section 110(a)(2)(D)(i)(I)
and (II) (prongs 1, 2, and 4), and the
state board majority requirements
respecting significant portion of income
of 110(a)(2)(E)(ii). On March 18, 2015,
EPA approved Mississippi’s February
28, 2013, infrastructure SIP submission
regarding the PSD permitting
requirements for major sources of
sections 110(a)(2)(C), prong 3 of D(i) and
(J) for the 2010 1-hour NO2 NAAQS. See
80 FR 14019. Therefore, EPA is not
proposing any action in this document
pertaining to sections 110(a)(2)(C),
prong 3 of D(i) and (J). Additionally,
with respect to the interstate transport
requirements of section 110(a)(2)(D)(i)(I)
and (II) (prongs 1, 2, and 4), EPA is not
proposing any action in this document
on these requirements. With respect to
Mississippi’s infrastructure SIP
submission related to the majority
requirements respecting significant
portion of income of 110(a)(2)(E)(ii),
EPA is proposing to disapprove this
portion of Mississippi’s submission
because Mississippi does not preclude
at least a majority of the members of its
boards from receiving a significant
portion of their income from persons
subject to permits or enforcement orders
issued by such boards. For the aspects
of Mississippi’s submittal proposed for
approval, EPA notes that the Agency is
not approving any specific rule, but
rather proposing that Mississippi’s
already approved SIP meets certain
CAA requirements.
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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
approved SIP. In addition, certain federallyapproved, non-SIP regulations may also be
appropriate for demonstrating compliance with
sections 110(a)(1) and (2). Throughout this
rulemaking, unless otherwise indicated, the term
‘‘Air Pollution Control (APC)’’ or ‘‘Section APC–S–
X’’ indicates that the cited regulation has been
approved into Mississippi’s federally-approved SIP.
The term ‘‘Mississippi Code’’ indicates cited
Mississippi state statutes, which are not a part of
the SIP unless otherwise indicated.
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submission to EPA for a new or revised
NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains. In the
case of the 2010 NO2 NAAQS, states
typically have met the basic program
elements required in section 110(a)(2)
through earlier SIP submissions in
connection with previous NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
requirements related to a newly
established or revised NAAQS. As
mentioned previously, these
requirements include basic SIP elements
such as modeling, monitoring, and
emissions inventories that are designed
to assure attainment and maintenance of
the NAAQS. The requirements that are
the subject of this proposed rulemaking
are summarized later in this preamble
and in EPA’s September 13, 2013,
memorandum entitled ‘‘Guidance on
Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and 110(a)(2).’’ 2
• 110(a)(2)(A): Emission Limits and
Other Control Measures
• 110(a)(2)(B): Ambient Air Quality
Monitoring/Data System
• 110(a)(2)(C): Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources 3
• 110(a)(2)(D)(i)(I) and (II): Interstate
Pollution Transport
• 110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Air
Pollution
• 110(a)(2)(E): Adequate Resources and
Authority, Conflict of Interest, and
2 Two elements identified in section 110(a)(2) are
not governed by the three year submission deadline
of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
pursuant to section 172. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the
extent that subsection refers to a permit program as
required in part D Title I of the CAA; and (2)
submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements
of part D, Title I of the CAA. This proposed
rulemaking does not address infrastructure
elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of
110(a)(2)(C).
3 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
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•
•
•
•
•
•
•
•
Oversight of Local Governments and
Regional Agencies
110(a)(2)(F): Stationary Source
Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for
Nonattainment Areas 4
110(a)(2)(J): Consultation with
Government Officials, Public
Notification, and PSD and Visibility
Protection
110(a)(2)(K): Air Quality Modeling
and Submission of Modeling Data
110(a)(2)(L): Permitting Fees
110(a)(2)(M): Consultation and
Participation by Affected Local
Entities
III. What is EPA’s approach to the
review of infrastructure SIP
submissions?
EPA is acting upon the SIP
submission from Mississippi that
addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2010 NO2 NAAQS.
The requirement for states to make a SIP
submission of this type arises out of
CAA section 110(a)(1). Pursuant to
section 110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
4 As mentioned, this element is not relevant to
this proposed rulemaking.
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CAA section 169A, and nonattainment
new source review (NNSR) permit
program submissions to address the
permit requirements of CAA, title I, part
D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.5 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the Act, which specifically
address nonattainment SIP
requirements.6 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
5 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
6 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
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for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
promulgated.7 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.8
Similarly, EPA interprets the CAA to
allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
given NAAQS without concurrent
action on the entire submission. For
example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.9
7 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
8 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
9 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
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Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.10
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
program required in part C of title I of
the CAA, because PSD does not apply
to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
10 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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section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.11 EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).12 EPA developed
this document to provide states with upto-date guidance for infrastructure SIPs
for any new or revised NAAQS. Within
this guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.13 The guidance also
discusses the substantively important
issues that are germane to certain
11 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
12 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
13 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d7
(D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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subsections of section 110(a)(2).
Significantly, EPA interprets sections
110(a)(1) and 110(a)(2) such that
infrastructure SIP submissions need to
address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However they are addressed by
the state, the substantive requirements
of section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
including greenhouse gases (GHGs). By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS.
Accordingly, the latter optional
provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.
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For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s
implementation plan meets basic
structural requirements. For example,
section 110(a)(2)(C) includes, among
other things, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Thus, EPA believes it may
approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
aware of such existing provisions.14 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
14 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II). Finally, EPA believes
that its approach with respect to
infrastructure SIP requirements is based
on a reasonable reading of sections
110(a)(1) and 110(a)(2) because the CAA
provides other avenues and mechanisms
to address specific substantive
deficiencies in existing SIPs. These
other statutory tools allow EPA to take
appropriately tailored action, depending
upon the nature and severity of the
alleged SIP deficiency. Section 110(k)(5)
authorizes EPA to issue a ‘‘SIP call’’
whenever the Agency determines that a
state’s implementation plan is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
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comply with the CAA.15 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.16
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.17
IV. What is EPA’s analysis of how
Mississippi addressed the elements of
Sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
Mississippi’s February 28, 2013,
infrastructure submission addresses the
provisions of sections 110(a)(1) and (2)
as described later on.
1. 110(a)(2)(A) Emission Limits and
Other Control Measures: Section
110(a)(2)(A) requires that each
implementation plan include
enforceable emission limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
15 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
16 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
17 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
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necessary or appropriate to meet the
applicable requirements. Mississippi’s
infrastructure SIP submission provides
an overview of the provisions of the
Mississippi Air Pollution Control (APC)
regulations relevant to air quality
control. Mississippi Code Title 49,
Section 49–17–17(h) (Appendix A–9),18
authorizes MDEQ to adopt, modify, or
repeal ambient air quality standards and
emissions standards for the control of
air pollution, including those necessary
to obtain EPA approval under section
110 of the CAA. Sections APC–S–1, Air
Emission Regulations for the Prevention,
Abatement, and Control of Air
Contaminants, and APC–S–3,
Regulations for the Prevention of Air
Pollution Emergency Episodes, establish
enforceable emissions limitations and
other control measures, means or
techniques, for activities that contribute
to NO2 concentrations in the ambient air
and provide authority for MDEQ to
establish such limits and measures as
well as schedules for compliance
through SIP-approved permits to meet
the applicable requirements of the CAA.
EPA has made the preliminary
determination that the provisions
contained in these regulations, and
Mississippi’s statute are adequate for
enforceable emission limitations and
other control measures, means, or
techniques, as well as schedules and
timetables for compliance for the 2010
1-hour NO2 NAAQS in the State.
In this action, EPA is not proposing to
approve or disapprove any existing state
provisions with regard to excess
emissions during SSM operations at a
facility. EPA believes that a number of
states have SSM provisions which are
contrary to the CAA and existing EPA
guidance, ‘‘State Implementation Plans:
Policy Regarding Excess Emissions
During Malfunctions, Startup, and
Shutdown’’ (September 20, 1999), and
the Agency is addressing such state
regulations in a separate action.19
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
18 Mississippi Code Title 49 is referenced in the
State’s infrastructure SIP submissions as ‘‘Appendix
A–9.’’ As discussed, unless otherwise indicated
herein, portions of the Mississippi Code referenced
in this proposal are not incorporated into the SIP.
19 On June 12, 2015, EPA published a final action
entitled, ‘‘State Implementation Plans: Response to
Petition for Rulemaking; Restatement and Update of
EPA’s SSM Policy Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction.’’
See 80 FR 33840.
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guidance (52 FR 45109 (November 24,
1987)), and the Agency plans to take
action in the future to address such state
regulations. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision which
is contrary to the CAA and EPA
guidance to take steps to correct the
deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality
monitoring/data system: Section
110(a)(2)(B) requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to (i) monitor,
compile, and analyze data on ambient
air quality, and (ii) upon request, make
such data available to the
Administrator. Section APC–S–1, Air
Emission Regulations for the Prevention,
Abatement, and Control of Air
Contaminants, and Mississippi Code
Title 49, Section 49–17–17(g), provides
MDEQ with the authority to collect and
disseminate information relating to air
quality and pollution and the
prevention, control, supervision, and
abatement thereof. Annually, States
develop and submit to EPA for approval
statewide ambient monitoring network
plans consistent with the requirements
of 40 CFR parts 50, 53, and 58. The
annual network plan involves an
evaluation of any proposed changes to
the monitoring network, includes the
annual ambient monitoring network
design plan and a certified evaluation of
the agency’s ambient monitors and
auxiliary support equipment.20 On June
9, 2015, Mississippi submitted its
monitoring network plan to EPA, and on
October 6, 2015, EPA approved this
plan. Mississippi’s approved monitoring
network plan can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2014–0751. EPA
has made the preliminary determination
that Mississippi’s SIP and practices are
adequate for the ambient air quality
monitoring and data system
requirements related to the 2010 1-hour
NO2 NAAQS.
3. 110(a)(2)(C) Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources: Section 110(a)(2)(C)
consists of three sub-elements;
enforcement, state-wide regulation of
new and modified minor sources and
minor modifications of major sources;
and preconstruction permitting of major
sources and major modifications in
areas designated attainment or
unclassifiable for the subject NAAQS as
20 On occasion, proposed changes to the
monitoring network are evaluated outside of the
network plan approval process in accordance with
40 CFR part 58.
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required by CAA title I part C (i.e., the
major source PSD program). To meet the
requirements for this element, MDEQ
cited Section APC–S–5, Mississippi
Regulations for the Prevention of
Significant Deterioration of Air Quality,
Section APC–S–2, Permit Regulations
for the Construction and/or Operation of
Air Emissions Equipment. These
regulations enable MDEQ to regulate
sources contributing to the 2010 1-hour
NO2 NAAQS through enforceable
permits.
Enforcement: MDEQ’s APC–S–2,
Permit Regulation for the Construction
and/or Operation of Air Emissions
Equipment, Section VI provides for the
enforcement of NO2 emission limits and
control measures through construction
permitting for new or modified
stationary sources. Also note that under
Mississippi Code Title 49, Chapter 17,
MDEQ has enforcement authority to
seek penalties and injunctive relief for
violations of emission limits and other
control measures and violations of
permits.
PSD Permitting for Major Sources:
With respect to Mississippi’s February
28, 2013, infrastructure SIP submission
related to the PSD permitting
requirements for major sources of
section 110(a)(2)(C), EPA took final
action to approve these provisions for
the 2010 1-hour NO2 NAAQS on March
18, 2015. See 80 FR 14019.
Regulation of minor sources and
modifications: Section 110(a)(2)(C) also
requires the SIP to include provisions
that govern the minor source
preconstruction program that regulates
emissions of the 2010 1-hour NO2
NAAQS. Mississippi has a SIP-approved
minor NSR permitting program at
Section APC–S–2, Section I. D,
Permitting Requirements that regulates
the preconstruction permitting of
modifications and construction of minor
stationary sources.
EPA has made the preliminary
determination that Mississippi’s SIP and
practices are adequate for program
enforcement of control measures and
regulation of minor sources and
modifications related to the 2010 1-hour
NO2 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate
Pollution Transport: Section
110(a)(2)(D)(i) has two components;
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II).
Each of these components have two
subparts resulting in four distinct
components, commonly referred to as
‘‘prongs,’’ that must be addressed in
infrastructure SIP submissions. The first
two prongs, which are codified in
section 110(a)(2)(D)(i)(I), are provisions
that prohibit any source or other type of
emissions activity in one state from
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contributing significantly to
nonattainment of the NAAQS in another
state (‘‘prong 1’’), and interfering with
maintenance of the NAAQS in another
state (‘‘prong 2’’). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (‘‘prong 3’’), or
to protect visibility in another state
(‘‘prong 4’’).
110(a)(2)(D)(i)(I)—Prongs 1 and 2:
EPA is not proposing any action in this
rulemaking related to the interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states of section 110(a)(2)(D)(i)(I)
(prongs 1 and 2) because Mississippi’s
2010 1-hour NO2 NAAQS infrastructure
submission did not address prongs 1
and 2.
110(a)(2)(D)(i)(II)—Prong 3: With
respect to Mississippi’s infrastructure
SIP submission related to the interstate
transport requirements for PSD of
section 110(a)(2)(D)(i)(II) (prong 3), EPA
took final action to approve
Mississippi’s February 28, 2013,
infrastructure SIP submission regarding
prong 3 of D(i) for the 2010 1-hour NO2
NAAQS on March 18, 2015. See 80 FR
14019.
110(a)(2)(D)(i)(II)—Prong 4: EPA is not
proposing any action in this rulemaking
related to the interstate transport
provisions pertaining to visibility
protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will
consider these requirements in relation
to Mississippi’s 2010 1-hour NO2
NAAQS infrastructure submission in a
separate rulemaking.
5. 110(a)(2)(D)(ii) Interstate Pollution
Abatement and International Air
Pollution: Section 110(a)(2)(D)(ii)
requires SIPs to include provisions
ensuring compliance with sections 115
and 126 of the Act, relating to interstate
and international pollution abatement.
Section APC–S–5, Mississippi
Regulations for the Prevention of
Significant Deterioration of Air Quality
provides how MDEQ will notify
neighboring states of potential impacts
from new or modified sources
consistent with the requirements of 40
CFR 51.166, which is adopted by
reference into the Mississippi SIP.
Additionally, Mississippi does not have
any pending obligation under section
115 and 126 of the CAA. EPA has made
the preliminary determination that
Mississippi’s SIP and practices are
adequate for insuring compliance with
the applicable requirements relating to
interstate and international pollution
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abatement for the 2010 1-hour NO2
NAAQS.
6. 110(a)(2)(E) Adequate Resources
and Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies: Section 110(a)(2)(E)
requires that each implementation plan
provide (i) necessary assurances that the
State will have adequate personnel,
funding, and authority under state law
to carry out its implementation plan, (ii)
that the State comply with the
requirements respecting State Boards
pursuant to section 128 of the Act, and
(iii) necessary assurances that, where
the State has relied on a local or
regional government, agency, or
instrumentality for the implementation
of any plan provision, the State has
responsibility for ensuring adequate
implementation of such plan provisions.
EPA is proposing to approve
Mississippi’s SIP as meeting the
requirements of sections 110(a)(2)(E)(i)
and (iii). EPA is proposing to approve in
part and disapprove in part
Mississippi’s SIP respecting section
110(a)(2)(E)(ii). EPA’s rationale for the
proposals respecting each section of
110(a)(2)(E) is described later on.
To satisfy the requirements of sections
110(a)(2)(E)(i) and (iii), Mississippi
provides that MDEQ is responsible for
promulgating rules and regulations for
the NAAQS, emissions standards,
general policies, a system of permits, fee
schedules for the review of plans, and
other planning needs as found in
Mississippi Code Title 49, Section 49–
17–17(d) and Section 49–17–17(h)
(Appendix A–9). As evidence of the
adequacy of MDEQ’s resources with
respect to sub-elements (i) and (iii), EPA
submitted a letter to Mississippi on
April 19, 2016, outlining 105 grant
commitments and the current status of
these commitments for fiscal year 2015.
The letter EPA submitted to Mississippi
can be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2014–0751. Annually, states update
these grant commitments based on
current SIP requirements, air quality
planning, and applicable requirements
related to the NAAQS. There were no
outstanding issues in relation to the SIP
for fiscal year 2015, therefore, MDEQ’s
grants were finalized and closed out.
EPA has made the preliminary
determination that Mississippi has
adequate resources for implementation
of the 2010 1-hour NO2 NAAQS.
To meet the requirements of section
110(a)(2)(E)(ii), states must comply with
the requirements respecting state boards
pursuant to section 128 of the Act.
Section 128 of the CAA requires that
states include provisions in their SIP to
address conflicts of interest for state
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boards or bodies that oversee CAA
permits and enforcement orders and
disclosure of conflict of interest
requirements. Specifically, CAA section
128(a)(1) necessitates that each SIP shall
require that at least a majority of any
board or body which approves permits
or enforcement orders shall be subject to
the described public interest service and
income restrictions therein. Subsection
128(a)(2) requires that the members of
any board or body, or the head of an
executive agency with similar power to
approve permits or enforcement orders
under the CAA, shall also be subject to
conflict of interest disclosure
requirements.
To meet its section 110(a)(2)(E)(ii)
obligations for the 2010 1-hour NO2
NAAQS, Mississippi’s infrastructure SIP
submission cites Article 4, Section 109
of the Mississippi Constitution and
portions of Mississippi Code sections
25–4–25, –27, –29, –103, –105, and
–109. These provisions were
incorporated into the Mississippi SIP to
meet CAA section 128 requirements in
EPA’s final action for the 1997 and 2006
PM2.5 NAAQS infrastructure SIP. See 78
FR 20793.21 In this same final action for
the 1997 and 2006 PM2.5 NAAQS
infrastructure SIP (78 FR 20793), EPA
disapproved Mississippi’s October 11,
2012, submission as not satisfying the
significant portion of income
requirement of section 128(a)(1).
With respect to the public interest
requirement of section 128(a)(1) and the
adequate disclosure of conflicts of
interest requirement of section 128(a)(2),
EPA has previously found these
requirements to be satisfied by the
existing provisions in Mississippi’s SIP.
See 78 FR 20793.
With respect to the significant portion
of income requirement of section
128(a)(1), the provisions included in the
February 28, 2013 infrastructure SIP
submission do not preclude at least a
majority of the members of the
Mississippi Boards 22 from receiving a
significant portion of their income from
persons subject to permits or
enforcement orders issued by such
Boards. While the submitted laws and
provisions preclude members of the
Mississippi Boards from certain types of
income (e.g., contracts with State or
political subdivisions thereof, or income
obtained through the use of his or her
21 This final action pertained to Mississippi’s
October 11, 2012, infrastructure SIP submission and
only addressed compliance with 110(a)(2)(E)(ii)
respecting CAA section 128 requirements.
22 The Mississippi Commission on Environmental
Quality issues and supervises enforcement orders,
and the Mississippi Department of Environmental
Quality Permit Board has the authority to issue,
modify, revoke or deny permits.
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public office or obtained to influence a
decision of the Mississippi Boards), they
do not preclude a majority of members
of the Mississippi Boards from deriving
any significant portion of their income
from persons subject to permits or
enforcement orders so long as that
income is not derived from one of the
proscribed methods described in the
laws and provisions submitted by the
State. To date, because a majority of
board members may still derive a
significant portion of income from
persons subject to permits or
enforcement orders issued by the
Mississippi Boards, the Mississippi SIP
does not meet the section 128(a)(1)
majority requirements respecting
significant portion of income, and as
such, EPA is proposing to disapprove
the State’s 110(a)(2)(E)(ii) submission as
it relates only to this portion of section
128(a)(1).
Accordingly, EPA is proposing to
approve the section 110(a)(2)(E)(ii)
submission as it relates to the public
interest requirements of section
128(a)(1) and the conflict of interest
disclosure provisions of section
128(a)(2) and proposing to disapprove
Mississippi’s section 110(a)(2)(E)(ii)
submission as it pertains to compliance
with the significant portion of income
requirement of section 128(a)(1) for the
2010 1-hour NO2 NAAQS.
7. 110(a)(2)(F) Stationary Source
Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet
applicable requirements addressing: (i)
The installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) periodic reports
on the nature and amounts of emissions
and emissions related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to this section,
which reports shall be available at
reasonable times for public inspection.
Section APC–S–2, Permit Regulations
for the Construction and/or Operation of
Air Emissions Equipment, establishes
requirements for emissions compliance
testing utilizing emissions sampling and
analysis. It further describes how the
State ensures the quality of its data
through observing emissions and
monitoring operations. MDEQ uses
these data to track progress towards
maintaining the NAAQS, develop
control and maintenance strategies,
identify sources and general emission
levels, and determine compliance with
emission regulations and additional
EPA requirements. Mississippi Code 49,
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Section 49–17–21 (Appendix A–9)
provides MDEQ with the authority to
require the maintenance of records
related to the operation of air
contaminant sources and any authorized
representative of the Commission may
examine and copy any such records or
memoranda pertaining to the operation
of such contaminant source. Section
APC–S–2 lists requirements for
compliance testing and reporting that is
required to be included in any MDEQ
air pollution permit and requires that
copies of records relating to the
operation of air contamination sources
be submitted to the Permit Board as
required by the permit or upon request.
Section APC–S–1, Air Emission
Regulations For The Prevention,
Abatement, and Control of Air
Contaminants, authorizes source
owners or operators to use any credible
evidence or information relevant to
whether a source would have been in
compliance with applicable
requirements if the appropriate
performance or compliance test had
been performed, for the purpose of
submitting compliance certifications.
EPA is unaware of any provision
preventing the use of credible evidence
in the Mississippi SIP.
Additionally, Mississippi is required
to submit emissions data to EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is EPA’s
central repository for air emissions data.
EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). The
AERR shortened the time states had to
report emissions data from 17 to 12
months, giving states one calendar year
to submit emissions data. All states are
required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through EPA’s online
Emissions Inventory System (EIS).
States report emissions data for the six
criteria pollutants and the precursors
that form them—nitrogen oxides, sulfur
dioxide, ammonia, lead, carbon
monoxide, particulate matter, and
volatile organic compounds. Many
states also voluntarily report emissions
of hazardous air pollutants. Mississippi
made its latest update to the 2012 NEI
on January 9, 2014. EPA compiles the
emissions data, supplementing it where
necessary, and releases it to the general
public through the Web site https://
www.epa.gov/ttn/chief/
eiinformation.html. EPA has made the
preliminary determination that
Mississippi’s SIP and practices are
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adequate for the stationary source
monitoring systems related to the 2010
1-hour NO2 NAAQS.
8. 110(a)(2)(G) Emergency Powers:
Section 110(a)(2)(G) requires that states
demonstrate authority comparable with
section 303 of the CAA and adequate
contingency plans to implement such
authority. Mississippi Code Title 49,
Section 49–17–27 (Appendix A–9) and
APC–S–3, Regulations for the
Prevention of Air Pollution Emergency
Episodes, identify air pollution
emergency episodes and preplanned
abatement strategies. Specifically,
Section APC–S–3 authorizes the MDEQ
Director, once it has been determined
that an Air Pollution Emergency
Episode condition exists at one or more
monitoring sites solely because of
emissions from a limited number of
sources, to order source(s) to put into
effect the emission control programs
which are applicable for each episode
stage. Section APC–S–3 also lists
regulations to prevent the excessive
buildup of air pollutants during air
pollution episodes. Also, Mississippi
Code Title 49, Section 49–17–27
(Appendix A–9), states that in the event
an emergency is found to exist by the
Mississippi Commission on
Environmental Quality, it may issue an
emergency order as circumstances may
require. Emergency situations include
those which create an imminent and
substantial endangerment threatening
the public health and safety or the lives
and property of the people in
Mississippi. EPA has made the
preliminary determination that
Mississippi’s SIP is adequate for
emergency powers related to the 2010
1-hour NO2 NAAQS. Accordingly, EPA
is proposing to approve Mississippi’s
infrastructure SIP submission with
respect to section 110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section
110(a)(2)(H), in summary, requires each
SIP to provide for revisions of such plan
(i) as may be necessary to take account
of revisions of such national primary or
secondary ambient air quality standard
or the availability of improved or more
expeditious methods of attaining such
standard, and (ii) whenever the
Administrator finds that the plan is
substantially inadequate to attain the
NAAQS or to otherwise comply with
any additional applicable requirements.
MDEQ is responsible for adopting air
quality rules and revising SIPs as
needed to attain or maintain the
NAAQS in Mississippi. The State has
the ability and authority to respond to
calls for SIP revisions, and has provided
a number of SIP revisions over the years
for implementation of the NAAQS.
Mississippi Code Title 49, Section 49–
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17–17(h) (Appendix A–9), provides
MDEQ with the statutory authority to
adopt, modify or repeal and promulgate
ambient air and water quality standards
and emissions standards for the State.
As such, the State has the authority to
revise the SIP to accommodate changes
to NAAQS and revise the SIP if the EPA
Administrator finds the plan to be
substantially inadequate to attain the
NAAQS. EPA has made the preliminary
determination that Mississippi’s SIP and
practices adequately demonstrate a
commitment to provide future SIP
revisions related to the 2010 1-hour NO2
NAAQS when necessary.
10. 110(a)(2)(J) Consultation with
Government Officials, Public
Notification, and PSD and Visibility
Protection: EPA is proposing to approve
Mississippi’s infrastructure SIP
submission for the 2010 1-hour NO2
NAAQS with respect to the general
requirement in section 110(a)(2)(J) to
include a program in the SIP that
provides for meeting the applicable
consultation requirements of section
121, the public notification
requirements of section 127; and
visibility protection requirements of
part C of the Act. With respect to
Mississippi’s infrastructure SIP
submission related to the
preconstruction PSD permitting
requirements of section 110(a)(2)(J), EPA
took final action to approve
Mississippi’s February 28, 2013, 2010
1-hour NO2 NAAQS infrastructure SIP
for these requirements on March 18,
2015. See 80 FR 14019. EPA’s rationale
for its proposed action regarding
applicable consultation requirements of
section 121, the public notification
requirements of section 127, and
visibility protection requirements is
described later in this document.
Consultation with government
officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to
provide a process for consultation with
local governments, designated
organizations and federal land managers
carrying out NAAQS implementation
requirements pursuant to section 121
relative to consultation. Section APC–S–
5, Mississippi Regulations for the
Prevention of Significant Deterioration
of Air Quality and Mississippi Code
Title 49, Section 49–17–17(c) (Appendix
A–9), along with the State’s various
implementations plans, such as the
State’s Regional Haze Implementation
Plan, provide for consultation between
appropriate state, local, and tribal air
pollution control agencies as well as the
corresponding Federal Land Managers
whose jurisdictions might be affected by
SIP development activities. Mississippi
adopted state-wide consultation
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procedures for the implementation of
transportation conformity. These
consultation procedures were developed
in coordination with the transportation
partners in the State and are consistent
with the approaches used for
development of mobile inventories for
SIPs. Implementation of transportation
conformity as outlined in the
consultation procedures requires MDEQ
to consult with federal, state and local
transportation and air quality agency
officials on the development of motor
vehicle emissions budgets. EPA has
made the preliminary determination
that Mississippi’s SIP and practices
adequately demonstrate that the State
meets applicable requirements related to
consultation with government officials
for the 2010 1-hour NO2 NAAQS when
necessary. Accordingly, EPA is
proposing to approve Mississippi’s
infrastructure SIP submissions with
respect to section 110(a)(2)(J)
consultation with government officials.
Public notification (127 public
notification): These requirements are
met through regulation Section APC–S–
3, Mississippi Regulations for the
Prevention of Air Pollution Emergency
Episodes, which requires that MDEQ
notify the public of any air pollution
alert, warning, or emergency. The
MDEQ Web site also provides air quality
summary data, air quality index reports
and links to more information regarding
public awareness of measures that can
prevent such exceedances and of ways
in which the public can participate in
regulatory and other efforts to improve
air quality. EPA has made the
preliminary determination that
Mississippi’s SIP and practices
adequately demonstrate the State’s
ability to provide public notification
related to the 2010 1-hour NO2 NAAQS
when necessary. Accordingly, EPA is
proposing to approve Mississippi’s
infrastructure SIP submissions with
respect to section 110(a)(2)(J) public
notification.
Visibility protection: EPA’s 2013
Guidance notes that it does not treat the
visibility protection aspects of section
110(a)(2)(J) as applicable for purposes of
the infrastructure SIP approval process.
MDEQ referenced its regional haze
program as germane to the visibility
component of section 110(a)(2)(J). EPA
recognizes that states are subject to
visibility protection and regional haze
program requirements under Part C of
the Act (which includes sections 169A
and 169B). However, there are no newly
applicable visibility protection
obligations after the promulgation of a
new or revised NAAQS. Thus, EPA has
determined that states do not need to
address the visibility component of
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110(a)(2)(J) in infrastructure SIP
submittals so MDEQ does not need to
rely on its regional haze program to
fulfill its obligations under section
110(a)(2)(J). As such, EPA has made the
preliminary determination that
Mississippi’s infrastructure SIP
submission related to the 2010 1-hour
NO2 NAAQS is approvable for the
visibility protection element of section
110(a)(2)(J) and that Mississippi does
not need to rely on its regional haze
program to address this element.
11. 110(a)(2)(K) Air Quality Modeling
and Submission of Modeling Data:
Section 110(a)(2)(K) of the CAA requires
that SIPs provide for performing air
quality modeling so that effects on air
quality of emissions from NAAQS
pollutants can be predicted and
submission of such data to the EPA can
be made. Sections APC–S–2, V. B.,
Permit Regulation for the Construction
and/or Operation of Air Emissions
Equipment, and APC–S–5, Mississippi
Regulations for the Prevention of
Significant Deterioration of Air Quality,
specify that required air modeling be
conducted in accordance with 40 CFR
part 51, Appendix W ‘‘Guideline on Air
Quality Models,’’ as incorporated into
the Mississippi SIP. These standards
demonstrate that Mississippi has the
authority to perform air quality
modeling and provide relevant data for
the purpose of predicting the effect on
ambient air quality of the 2010 1-hour
NO2 NAAQS. Also of note, Mississippi
Code Title 49, Section 49–17–17(e)
(Appendix A–9),23 authorizes MDEQ to
‘‘encourage, participate in, or conduct
studies, investigations, research and
demonstrations relating to air and water
quality and pollution and causes,
prevention, control and abatement as it
may deem advisable and necessary for
the discharge of its duties under [the
Mississippi air and water pollution
control law].’’ Additionally, Mississippi
participates in a regional effort to
coordinate the development of
emissions inventories and conduct
regional modeling for several NAAQS,
including the 2010 1-hour NO2 NAAQS,
for the southeastern states. Taken as a
whole, Mississippi’s air quality
regulations and practices demonstrate
that MDEQ has the authority to provide
relevant data for the purpose of
predicting the effect on ambient air
quality of the 2010 1-hour NO2 NAAQS.
EPA has made the preliminary
determination that Mississippi’s SIP and
23 Mississippi Code Title 49 is referenced in the
State’s infrastructure SIP submissions as ‘‘Appendix
A–9.’’ As discussed, unless otherwise indicated
herein, portions of the Mississippi Code referenced
in this proposal are not incorporated into the SIP.
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32715
practices adequately demonstrate the
State’s ability to provide for air quality
modeling, along with analysis of the
associated data, related to the 2010 1hour NO2 NAAQS when necessary.
Accordingly, EPA is proposing to
approve Mississippi’s infrastructure SIP
submissions with respect to section
110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees:
Section 110(a)(2)(L) requires the owner
or operator of each major stationary
source to pay to the permitting
authority, as a condition of any permit
required under the CAA, a fee sufficient
to cover (i) the reasonable costs of
reviewing and acting upon any
application for such a permit, and (ii) if
the owner or operator receives a permit
for such source, the reasonable costs of
implementing and enforcing the terms
and conditions of any such permit (not
including any court costs or other costs
associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under title V.
Mississippi Code Title 49, Section 49–
2–9(c) (Appendix A–9), authorizes
MDEQ to apply for, receive, and expend
Federal or state funds in order to
operate its air programs. Mississippi
Code Title 49, Section 49–17–30
(Appendix A–9), provides for the
assessment of Title V permit fees to
cover the reasonable cost of reviewing
and acting upon air permitting activities
in the state including title V, PSD and
NNSR permits. Mississippi Code Title
49, Section 49–17–14 (Appendix A–9),
allows MDEQ to expend or utilize
monies in the Mississippi Air Operating
Permit Program Fee Trust Fund to pay
all reasonable direct and indirect costs
associated with the development and
administration of the title V program
and the PSD and NNSR permitting
including. The Mississippi Air
Operating Permit Program Fee Trust
Fund consists of state legislative
appropriations, Federal grant funds and
title V fees. Additionally, Mississippi
has a federally-approved title V
operating permit program at Section
APC–S–6 24 that covers the
implementation and enforcement of
PSD and NNSR permits after they have
been issued. EPA has made the
preliminary determination that
Mississippi adequately provides for
permitting fees related to the 2010
1-hour NO2 NAAQS when necessary.
13. 110(a)(2)(M) Consultation and
Participation by Affected Local Entities:
24 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP.
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Section 110(a)(2)(M) requires states to
provide for consultation and
participation in SIP development by
local political subdivisions affected by
the SIP. Mississippi Code Title 49,
Appendix A–9, Section 49–17–17(c),
gives the Commission the statutory
authority to advise and consult with any
political subdivisions in the State.
Mississippi Code Title 49, Appendix A–
9, Section 49–17–19(b) requires the
Commission to conduct public hearings
in accordance with EPA regulations
prior to establishing, amending, or
repealing standards of air quality.
Additionally, MDEQ works closely with
local political subdivisions during the
development of its transportation
conformity SIP and regional haze SIP.
EPA has made the preliminary
determination that Mississippi’s SIP and
practices adequately demonstrate
consultation with affected local entities
related to the 2010 1-hour NO2 NAAQS
when necessary.
V. Proposed Action
With the exception of the
preconstruction PSD permitting
requirements for major sources of
section 110(a)(2)(C), prong 3 of (D)(i),
and (J), the interstate transport
provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states and visibility protection of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2,
and 4), and the state board majority
requirements respecting the significant
portion of income of section
110(a)(2)(E)(ii), EPA is proposing to
approve that Mississippi’s February 28,
2013, SIP submission for the 2010 1hour NO2 NAAQS has met the abovedescribed infrastructure SIP
requirements because these aspects of
the submission are consistent with
section 110 of the CAA. EPA is
proposing to disapprove in part section
110(a)(2)(E)(ii) of Mississippi’s
infrastructure submission because a
majority of board members may still
derive a significant portion of income
from persons subject to permits or
enforcement orders issued by the
Mississippi Boards. Therefore, its
current SIP does not meet the section
128(a)(1) majority requirements
respecting significant portion of income.
This proposed action, however, does not
include the preconstruction PSD
permitting requirements for major
sources of section 110(a)(2)(C), prong 3
of (D)(i), and (J), which have been
approved in a separate action, or the
interstate transport provisions
pertaining to the contribution to
nonattainment or interference with
maintenance in other states of prongs 1,
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Jkt 238001
2 and 4 of section 110(a)(2)(D)(i), which
will be addressed by EPA in a separate
action.
Under section 179(a) of the CAA, final
disapproval of a submittal that
addresses a requirement of a CAA Part
D Plan or is required in response to a
finding of substantial inadequacy as
described in CAA section 110(k)(5) (SIP
call) starts a sanctions clock. The
portion of section 110(a)(2)(E)(ii)
provisions (the provisions being
proposed for disapproval in this action)
were not submitted to meet
requirements for Part D or a SIP call,
and therefore, if EPA takes final action
to disapprove this submittal, no
sanctions will be triggered. However, if
this disapproval action is finalized, that
final action will trigger the requirement
under section 110(c) that EPA
promulgate a federal implementation
plan (FIP) no later than 2 years from the
date of the disapproval unless the State
corrects the deficiency, and EPA
approves the plan or plan revision
before EPA promulgates such FIP.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
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Fmt 4702
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• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 12, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–12102 Filed 5–23–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 37
[Docket DOT–OST–2015–0075]
Transportation for Individuals With
Disabilities; Service Criteria for
Complementary Paratransit Fares
Office of the Secretary (OST),
U.S. Department of Transportation
(DOT).
ACTION: Notification of disposition of
petition for rulemaking.
AGENCY:
This document announces the
disposition of a petition for rulemaking
from Access Services concerning the
Department’s regulations implementing
SUMMARY:
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[Federal Register Volume 81, Number 100 (Tuesday, May 24, 2016)]
[Proposed Rules]
[Pages 32707-32716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12102]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0751; FRL-9946-83-Region 4]
Air Plan Approval/Disapproval; Mississippi Infrastructure
Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality
Standards
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve in part, and disapprove in part, portions of the State
Implementation Plan (SIP) submission, submitted by the State of
Mississippi, through the Mississippi Department of Environmental
Quality (MDEQ) on February 28, 2013, to demonstrate that the State
meets the infrastructure requirements of the Clean Air Act (CAA or Act)
for the 2010 1-hour nitrogen dioxide (NO2) national ambient
air quality standards (NAAQS). The CAA requires that each state adopt
and submit a SIP for the implementation, maintenance and enforcement of
each NAAQS promulgated by the EPA, which is commonly referred to as an
``infrastructure'' SIP. MDEQ certified that the Mississippi SIP
contains provisions that ensure the 2010 NO2 NAAQS are
implemented, enforced, and maintained in Mississippi. With the
exception of the state board majority requirements respecting
significant portion of income, for which EPA is proposing to
disapprove, EPA is proposing to determine that portions of
Mississippi's infrastructure submission, submitted to EPA on February
28, 2013, satisfies certain required infrastructure elements for the
2010 1-hour NO2 NAAQS.
DATES: Written comments must be received on or before June 23, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0751 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. The telephone number is (404) 562-8726. Mr. Wong can be
reached via electronic mail at wong.richard@epa.gov.
Table of Contents
I. Background
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP
submissions?
IV. What is EPA's analysis of how Mississippi addressed the elements
of Sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On February 9, 2010, EPA promulgated a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section
110(a)(1) of the CAA, states are required to submit SIPs meeting the
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS or within such shorter period as EPA may
prescribe. Section 110(a)(2) requires states to address basic SIP
elements such as requirements for monitoring, basic program
requirements and legal authority that are designed to assure attainment
and maintenance of the NAAQS. States were required to submit such SIPs
for the 2010 NO2 NAAQS to EPA no later than January 22,
2013.\1\
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\1\ In these infrastructure SIP submissions States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, unless otherwise
indicated, the term ``Air Pollution Control (APC)'' or ``Section
APC-S-X'' indicates that the cited regulation has been approved into
Mississippi's federally-approved SIP. The term ``Mississippi Code''
indicates cited Mississippi state statutes, which are not a part of
the SIP unless otherwise indicated.
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[[Page 32708]]
This action is proposing to approve Mississippi's infrastructure
SIP submission for the applicable requirements of the 2010 1-hour
NO2 NAAQS, with the exception of the preconstruction PSD
permitting requirements for major sources of sections 110(a)(2)(C),
prong 3 of (D)(i) and (J), the interstate transport requirements of
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), and the state
board majority requirements respecting significant portion of income of
110(a)(2)(E)(ii). On March 18, 2015, EPA approved Mississippi's
February 28, 2013, infrastructure SIP submission regarding the PSD
permitting requirements for major sources of sections 110(a)(2)(C),
prong 3 of D(i) and (J) for the 2010 1-hour NO2 NAAQS. See
80 FR 14019. Therefore, EPA is not proposing any action in this
document pertaining to sections 110(a)(2)(C), prong 3 of D(i) and (J).
Additionally, with respect to the interstate transport requirements of
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is not
proposing any action in this document on these requirements. With
respect to Mississippi's infrastructure SIP submission related to the
majority requirements respecting significant portion of income of
110(a)(2)(E)(ii), EPA is proposing to disapprove this portion of
Mississippi's submission because Mississippi does not preclude at least
a majority of the members of its boards from receiving a significant
portion of their income from persons subject to permits or enforcement
orders issued by such boards. For the aspects of Mississippi's
submittal proposed for approval, EPA notes that the Agency is not
approving any specific rule, but rather proposing that Mississippi's
already approved SIP meets certain CAA requirements.
II. What elements are required under Sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 2010 NO2 NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned previously, these
requirements include basic SIP elements such as modeling, monitoring,
and emissions inventories that are designed to assure attainment and
maintenance of the NAAQS. The requirements that are the subject of this
proposed rulemaking are summarized later in this preamble and in EPA's
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).'' \2\
---------------------------------------------------------------------------
\2\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)(2)(C): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \3\
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\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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\4\ As mentioned, this element is not relevant to this proposed
rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
110(a)(2)(L): Permitting Fees
110(a)(2)(M): Consultation and Participation by Affected Local
Entities
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Mississippi that
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states
to make a SIP submission of this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of
[[Page 32709]]
CAA section 169A, and nonattainment new source review (NNSR) permit
program submissions to address the permit requirements of CAA, title I,
part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\5\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\10\
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\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of
[[Page 32710]]
section 110(a)(1) and section 110(a)(2) in the context of acting on a
particular SIP submission. In other words, EPA assumes that Congress
could not have intended that each and every SIP submission, regardless
of the NAAQS in question or the history of SIP development for the
relevant pollutant, would meet each of the requirements, or meet each
of them in the same way. Therefore, EPA has adopted an approach under
which it reviews infrastructure SIP submissions against the list of
elements in section 110(a)(2), but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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\11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHGs). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, among other things, the
requirement that states have a program to regulate minor new sources.
Thus, EPA evaluates whether the state has an EPA-approved minor NSR
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the existing SIP) for compliance with the
requirements of the CAA and EPA's regulations that pertain to such
programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that
[[Page 32711]]
relate to the three specific issues just described.
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\14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach
with respect to infrastructure SIP requirements is based on a
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA
provides other avenues and mechanisms to address specific substantive
deficiencies in existing SIPs. These other statutory tools allow EPA to
take appropriately tailored action, depending upon the nature and
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes
EPA to issue a ``SIP call'' whenever the Agency determines that a
state's implementation plan is substantially inadequate to attain or
maintain the NAAQS, to mitigate interstate transport, or to otherwise
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct
errors in past actions, such as past approvals of SIP submissions.\16\
Significantly, EPA's determination that an action on a state's
infrastructure SIP submission is not the appropriate time and place to
address all potential existing SIP deficiencies does not preclude EPA's
subsequent reliance on provisions in section 110(a)(2) as part of the
basis for action to correct those deficiencies at a later time. For
example, although it may not be appropriate to require a state to
eliminate all existing inappropriate director's discretion provisions
in the course of acting on an infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that EPA relies upon in the course of addressing such deficiency in a
subsequent action.\17\
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\15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\16\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\17\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Mississippi addressed the elements of
Sections 110(a)(1) and (2) ``infrastructure'' provisions?
Mississippi's February 28, 2013, infrastructure submission
addresses the provisions of sections 110(a)(1) and (2) as described
later on.
1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section
110(a)(2)(A) requires that each implementation plan include enforceable
emission limitations and other control measures, means, or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements. Mississippi's infrastructure SIP submission provides an
overview of the provisions of the Mississippi Air Pollution Control
(APC) regulations relevant to air quality control. Mississippi Code
Title 49, Section 49-17-17(h) (Appendix A-9),\18\ authorizes MDEQ to
adopt, modify, or repeal ambient air quality standards and emissions
standards for the control of air pollution, including those necessary
to obtain EPA approval under section 110 of the CAA. Sections APC-S-1,
Air Emission Regulations for the Prevention, Abatement, and Control of
Air Contaminants, and APC-S-3, Regulations for the Prevention of Air
Pollution Emergency Episodes, establish enforceable emissions
limitations and other control measures, means or techniques, for
activities that contribute to NO2 concentrations in the
ambient air and provide authority for MDEQ to establish such limits and
measures as well as schedules for compliance through SIP-approved
permits to meet the applicable requirements of the CAA. EPA has made
the preliminary determination that the provisions contained in these
regulations, and Mississippi's statute are adequate for enforceable
emission limitations and other control measures, means, or techniques,
as well as schedules and timetables for compliance for the 2010 1-hour
NO2 NAAQS in the State.
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\18\ Mississippi Code Title 49 is referenced in the State's
infrastructure SIP submissions as ``Appendix A-9.'' As discussed,
unless otherwise indicated herein, portions of the Mississippi Code
referenced in this proposal are not incorporated into the SIP.
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In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during SSM
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency is addressing such state regulations in a separate action.\19\
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\19\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
[[Page 32712]]
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. Section
APC-S-1, Air Emission Regulations for the Prevention, Abatement, and
Control of Air Contaminants, and Mississippi Code Title 49, Section 49-
17-17(g), provides MDEQ with the authority to collect and disseminate
information relating to air quality and pollution and the prevention,
control, supervision, and abatement thereof. Annually, States develop
and submit to EPA for approval statewide ambient monitoring network
plans consistent with the requirements of 40 CFR parts 50, 53, and 58.
The annual network plan involves an evaluation of any proposed changes
to the monitoring network, includes the annual ambient monitoring
network design plan and a certified evaluation of the agency's ambient
monitors and auxiliary support equipment.\20\ On June 9, 2015,
Mississippi submitted its monitoring network plan to EPA, and on
October 6, 2015, EPA approved this plan. Mississippi's approved
monitoring network plan can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2014-0751. EPA has made the preliminary
determination that Mississippi's SIP and practices are adequate for the
ambient air quality monitoring and data system requirements related to
the 2010 1-hour NO2 NAAQS.
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\20\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources: Section
110(a)(2)(C) consists of three sub-elements; enforcement, state-wide
regulation of new and modified minor sources and minor modifications of
major sources; and preconstruction permitting of major sources and
major modifications in areas designated attainment or unclassifiable
for the subject NAAQS as required by CAA title I part C (i.e., the
major source PSD program). To meet the requirements for this element,
MDEQ cited Section APC-S-5, Mississippi Regulations for the Prevention
of Significant Deterioration of Air Quality, Section APC-S-2, Permit
Regulations for the Construction and/or Operation of Air Emissions
Equipment. These regulations enable MDEQ to regulate sources
contributing to the 2010 1-hour NO2 NAAQS through
enforceable permits.
Enforcement: MDEQ's APC-S-2, Permit Regulation for the Construction
and/or Operation of Air Emissions Equipment, Section VI provides for
the enforcement of NO2 emission limits and control measures
through construction permitting for new or modified stationary sources.
Also note that under Mississippi Code Title 49, Chapter 17, MDEQ has
enforcement authority to seek penalties and injunctive relief for
violations of emission limits and other control measures and violations
of permits.
PSD Permitting for Major Sources: With respect to Mississippi's
February 28, 2013, infrastructure SIP submission related to the PSD
permitting requirements for major sources of section 110(a)(2)(C), EPA
took final action to approve these provisions for the 2010 1-hour
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source preconstruction program that regulates emissions of the 2010 1-
hour NO2 NAAQS. Mississippi has a SIP-approved minor NSR
permitting program at Section APC-S-2, Section I. D, Permitting
Requirements that regulates the preconstruction permitting of
modifications and construction of minor stationary sources.
EPA has made the preliminary determination that Mississippi's SIP
and practices are adequate for program enforcement of control measures
and regulation of minor sources and modifications related to the 2010
1-hour NO2 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components have two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (``prong 3''), or to protect visibility
in another state (``prong 4'').
110(a)(2)(D)(i)(I)--Prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2) because Mississippi's 2010 1-hour NO2 NAAQS
infrastructure submission did not address prongs 1 and 2.
110(a)(2)(D)(i)(II)--Prong 3: With respect to Mississippi's
infrastructure SIP submission related to the interstate transport
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took
final action to approve Mississippi's February 28, 2013, infrastructure
SIP submission regarding prong 3 of D(i) for the 2010 1-hour
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
110(a)(2)(D)(i)(II)--Prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to visibility protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in
relation to Mississippi's 2010 1-hour NO2 NAAQS
infrastructure submission in a separate rulemaking.
5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Section APC-S-5, Mississippi Regulations for the Prevention of
Significant Deterioration of Air Quality provides how MDEQ will notify
neighboring states of potential impacts from new or modified sources
consistent with the requirements of 40 CFR 51.166, which is adopted by
reference into the Mississippi SIP. Additionally, Mississippi does not
have any pending obligation under section 115 and 126 of the CAA. EPA
has made the preliminary determination that Mississippi's SIP and
practices are adequate for insuring compliance with the applicable
requirements relating to interstate and international pollution
[[Page 32713]]
abatement for the 2010 1-hour NO2 NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide (i)
necessary assurances that the State will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the State comply with the requirements respecting State
Boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the State has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the State has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
Mississippi's SIP as meeting the requirements of sections
110(a)(2)(E)(i) and (iii). EPA is proposing to approve in part and
disapprove in part Mississippi's SIP respecting section
110(a)(2)(E)(ii). EPA's rationale for the proposals respecting each
section of 110(a)(2)(E) is described later on.
To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii),
Mississippi provides that MDEQ is responsible for promulgating rules
and regulations for the NAAQS, emissions standards, general policies, a
system of permits, fee schedules for the review of plans, and other
planning needs as found in Mississippi Code Title 49, Section 49-17-
17(d) and Section 49-17-17(h) (Appendix A-9). As evidence of the
adequacy of MDEQ's resources with respect to sub-elements (i) and
(iii), EPA submitted a letter to Mississippi on April 19, 2016,
outlining 105 grant commitments and the current status of these
commitments for fiscal year 2015. The letter EPA submitted to
Mississippi can be accessed at www.regulations.gov using Docket ID No.
EPA-R04-OAR-2014-0751. Annually, states update these grant commitments
based on current SIP requirements, air quality planning, and applicable
requirements related to the NAAQS. There were no outstanding issues in
relation to the SIP for fiscal year 2015, therefore, MDEQ's grants were
finalized and closed out. EPA has made the preliminary determination
that Mississippi has adequate resources for implementation of the 2010
1-hour NO2 NAAQS.
To meet the requirements of section 110(a)(2)(E)(ii), states must
comply with the requirements respecting state boards pursuant to
section 128 of the Act. Section 128 of the CAA requires that states
include provisions in their SIP to address conflicts of interest for
state boards or bodies that oversee CAA permits and enforcement orders
and disclosure of conflict of interest requirements. Specifically, CAA
section 128(a)(1) necessitates that each SIP shall require that at
least a majority of any board or body which approves permits or
enforcement orders shall be subject to the described public interest
service and income restrictions therein. Subsection 128(a)(2) requires
that the members of any board or body, or the head of an executive
agency with similar power to approve permits or enforcement orders
under the CAA, shall also be subject to conflict of interest disclosure
requirements.
To meet its section 110(a)(2)(E)(ii) obligations for the 2010 1-
hour NO2 NAAQS, Mississippi's infrastructure SIP submission
cites Article 4, Section 109 of the Mississippi Constitution and
portions of Mississippi Code sections 25-4-25, -27, -29, -103, -105,
and -109. These provisions were incorporated into the Mississippi SIP
to meet CAA section 128 requirements in EPA's final action for the 1997
and 2006 PM2.5 NAAQS infrastructure SIP. See 78 FR
20793.\21\ In this same final action for the 1997 and 2006
PM2.5 NAAQS infrastructure SIP (78 FR 20793), EPA
disapproved Mississippi's October 11, 2012, submission as not
satisfying the significant portion of income requirement of section
128(a)(1).
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\21\ This final action pertained to Mississippi's October 11,
2012, infrastructure SIP submission and only addressed compliance
with 110(a)(2)(E)(ii) respecting CAA section 128 requirements.
---------------------------------------------------------------------------
With respect to the public interest requirement of section
128(a)(1) and the adequate disclosure of conflicts of interest
requirement of section 128(a)(2), EPA has previously found these
requirements to be satisfied by the existing provisions in
Mississippi's SIP. See 78 FR 20793.
With respect to the significant portion of income requirement of
section 128(a)(1), the provisions included in the February 28, 2013
infrastructure SIP submission do not preclude at least a majority of
the members of the Mississippi Boards \22\ from receiving a significant
portion of their income from persons subject to permits or enforcement
orders issued by such Boards. While the submitted laws and provisions
preclude members of the Mississippi Boards from certain types of income
(e.g., contracts with State or political subdivisions thereof, or
income obtained through the use of his or her public office or obtained
to influence a decision of the Mississippi Boards), they do not
preclude a majority of members of the Mississippi Boards from deriving
any significant portion of their income from persons subject to permits
or enforcement orders so long as that income is not derived from one of
the proscribed methods described in the laws and provisions submitted
by the State. To date, because a majority of board members may still
derive a significant portion of income from persons subject to permits
or enforcement orders issued by the Mississippi Boards, the Mississippi
SIP does not meet the section 128(a)(1) majority requirements
respecting significant portion of income, and as such, EPA is proposing
to disapprove the State's 110(a)(2)(E)(ii) submission as it relates
only to this portion of section 128(a)(1).
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\22\ The Mississippi Commission on Environmental Quality issues
and supervises enforcement orders, and the Mississippi Department of
Environmental Quality Permit Board has the authority to issue,
modify, revoke or deny permits.
---------------------------------------------------------------------------
Accordingly, EPA is proposing to approve the section
110(a)(2)(E)(ii) submission as it relates to the public interest
requirements of section 128(a)(1) and the conflict of interest
disclosure provisions of section 128(a)(2) and proposing to disapprove
Mississippi's section 110(a)(2)(E)(ii) submission as it pertains to
compliance with the significant portion of income requirement of
section 128(a)(1) for the 2010 1-hour NO2 NAAQS.
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing:
(i) The installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. Section APC-S-2, Permit
Regulations for the Construction and/or Operation of Air Emissions
Equipment, establishes requirements for emissions compliance testing
utilizing emissions sampling and analysis. It further describes how the
State ensures the quality of its data through observing emissions and
monitoring operations. MDEQ uses these data to track progress towards
maintaining the NAAQS, develop control and maintenance strategies,
identify sources and general emission levels, and determine compliance
with emission regulations and additional EPA requirements. Mississippi
Code 49,
[[Page 32714]]
Section 49-17-21 (Appendix A-9) provides MDEQ with the authority to
require the maintenance of records related to the operation of air
contaminant sources and any authorized representative of the Commission
may examine and copy any such records or memoranda pertaining to the
operation of such contaminant source. Section APC-S-2 lists
requirements for compliance testing and reporting that is required to
be included in any MDEQ air pollution permit and requires that copies
of records relating to the operation of air contamination sources be
submitted to the Permit Board as required by the permit or upon
request. Section APC-S-1, Air Emission Regulations For The Prevention,
Abatement, and Control of Air Contaminants, authorizes source owners or
operators to use any credible evidence or information relevant to
whether a source would have been in compliance with applicable
requirements if the appropriate performance or compliance test had been
performed, for the purpose of submitting compliance certifications. EPA
is unaware of any provision preventing the use of credible evidence in
the Mississippi SIP.
Additionally, Mississippi is required to submit emissions data to
EPA for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory System
(EIS). States report emissions data for the six criteria pollutants and
the precursors that form them--nitrogen oxides, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Mississippi made its latest update to the
2012 NEI on January 9, 2014. EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through the Web site 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 2010 1-hour NO2 NAAQS.
8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires
that states demonstrate authority comparable with section 303 of the
CAA and adequate contingency plans to implement such authority.
Mississippi Code Title 49, Section 49-17-27 (Appendix A-9) and APC-S-3,
Regulations for the Prevention of Air Pollution Emergency Episodes,
identify air pollution emergency episodes and preplanned abatement
strategies. Specifically, Section APC-S-3 authorizes the MDEQ Director,
once it has been determined that an Air Pollution Emergency Episode
condition exists at one or more monitoring sites solely because of
emissions from a limited number of sources, to order source(s) to put
into effect the emission control programs which are applicable for each
episode stage. Section APC-S-3 also lists regulations to prevent the
excessive buildup of air pollutants during air pollution episodes.
Also, Mississippi Code Title 49, Section 49-17-27 (Appendix A-9),
states that in the event an emergency is found to exist by the
Mississippi Commission on Environmental Quality, it may issue an
emergency order as circumstances may require. Emergency situations
include those which create an imminent and substantial endangerment
threatening the public health and safety or the lives and property of
the people in Mississippi. EPA has made the preliminary determination
that Mississippi's SIP is adequate for emergency powers related to the
2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to
approve Mississippi's infrastructure SIP submission with respect to
section 110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary,
requires each SIP to provide for revisions of such plan (i) as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. MDEQ is responsible for adopting
air quality rules and revising SIPs as needed to attain or maintain the
NAAQS in Mississippi. The State has the ability and authority to
respond to calls for SIP revisions, and has provided a number of SIP
revisions over the years for implementation of the NAAQS. Mississippi
Code Title 49, Section 49-17-17(h) (Appendix A-9), provides MDEQ with
the statutory authority to adopt, modify or repeal and promulgate
ambient air and water quality standards and emissions standards for the
State. As such, the State has the authority to revise the SIP to
accommodate changes to NAAQS and revise the SIP if the EPA
Administrator finds the plan to be substantially inadequate to attain
the NAAQS. EPA has made the preliminary determination that
Mississippi's SIP and practices adequately demonstrate a commitment to
provide future SIP revisions related to the 2010 1-hour NO2
NAAQS when necessary.
10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve Mississippi's infrastructure SIP submission for the 2010 1-hour
NO2 NAAQS with respect to the general requirement in section
110(a)(2)(J) to include a program in the SIP that provides for meeting
the applicable consultation requirements of section 121, the public
notification requirements of section 127; and visibility protection
requirements of part C of the Act. With respect to Mississippi's
infrastructure SIP submission related to the preconstruction PSD
permitting requirements of section 110(a)(2)(J), EPA took final action
to approve Mississippi's February 28, 2013, 2010 1-hour NO2
NAAQS infrastructure SIP for these requirements on March 18, 2015. See
80 FR 14019. EPA's rationale for its proposed action regarding
applicable consultation requirements of section 121, the public
notification requirements of section 127, and visibility protection
requirements is described later in this document.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
federal land managers carrying out NAAQS implementation requirements
pursuant to section 121 relative to consultation. Section APC-S-5,
Mississippi Regulations for the Prevention of Significant Deterioration
of Air Quality and Mississippi Code Title 49, Section 49-17-17(c)
(Appendix A-9), along with the State's various implementations plans,
such as the State's Regional Haze Implementation Plan, provide for
consultation between appropriate state, local, and tribal air pollution
control agencies as well as the corresponding Federal Land Managers
whose jurisdictions might be affected by SIP development activities.
Mississippi adopted state-wide consultation
[[Page 32715]]
procedures for the implementation of transportation conformity. These
consultation procedures were developed in coordination with the
transportation partners in the State and are consistent with the
approaches used for development of mobile inventories for SIPs.
Implementation of transportation conformity as outlined in the
consultation procedures requires MDEQ to consult with federal, state
and local transportation and air quality agency officials on the
development of motor vehicle emissions budgets. EPA has made the
preliminary determination that Mississippi's SIP and practices
adequately demonstrate that the State meets applicable requirements
related to consultation with government officials for the 2010 1-hour
NO2 NAAQS when necessary. Accordingly, EPA is proposing to
approve Mississippi's infrastructure SIP submissions with respect to
section 110(a)(2)(J) consultation with government officials.
Public notification (127 public notification): These requirements
are met through regulation Section APC-S-3, Mississippi Regulations for
the Prevention of Air Pollution Emergency Episodes, which requires that
MDEQ notify the public of any air pollution alert, warning, or
emergency. The MDEQ Web site also provides air quality summary data,
air quality index reports and links to more information regarding
public awareness of measures that can prevent such exceedances and of
ways in which the public can participate in regulatory and other
efforts to improve air quality. EPA has made the preliminary
determination that Mississippi's SIP and practices adequately
demonstrate the State's ability to provide public notification related
to the 2010 1-hour NO2 NAAQS when necessary. Accordingly,
EPA is proposing to approve Mississippi's infrastructure SIP
submissions with respect to section 110(a)(2)(J) public notification.
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process.
MDEQ referenced its regional haze program as germane to the visibility
component of section 110(a)(2)(J). EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under Part C of the Act (which includes sections 169A and 169B).
However, there are no newly applicable visibility protection
obligations after the promulgation of a new or revised NAAQS. Thus, EPA
has determined that states do not need to address the visibility
component of 110(a)(2)(J) in infrastructure SIP submittals so MDEQ does
not need to rely on its regional haze program to fulfill its
obligations under section 110(a)(2)(J). As such, EPA has made the
preliminary determination that Mississippi's infrastructure SIP
submission related to the 2010 1-hour NO2 NAAQS is
approvable for the visibility protection element of section
110(a)(2)(J) and that Mississippi does not need to rely on its regional
haze program to address this element.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to the EPA can be made. Sections APC-S-2, V. B., Permit Regulation
for the Construction and/or Operation of Air Emissions Equipment, and
APC-S-5, Mississippi Regulations for the Prevention of Significant
Deterioration of Air Quality, specify that required air modeling be
conducted in accordance with 40 CFR part 51, Appendix W ``Guideline on
Air Quality Models,'' as incorporated into the Mississippi SIP. These
standards demonstrate that Mississippi has the authority to perform air
quality modeling and provide relevant data for the purpose of
predicting the effect on ambient air quality of the 2010 1-hour
NO2 NAAQS. Also of note, Mississippi Code Title 49, Section
49-17-17(e) (Appendix A-9),\23\ authorizes MDEQ to ``encourage,
participate in, or conduct studies, investigations, research and
demonstrations relating to air and water quality and pollution and
causes, prevention, control and abatement as it may deem advisable and
necessary for the discharge of its duties under [the Mississippi air
and water pollution control law].'' Additionally, Mississippi
participates in a regional effort to coordinate the development of
emissions inventories and conduct regional modeling for several NAAQS,
including the 2010 1-hour NO2 NAAQS, for the southeastern
states. Taken as a whole, Mississippi's air quality regulations and
practices demonstrate that MDEQ has the authority to provide relevant
data for the purpose of predicting the effect on ambient air quality of
the 2010 1-hour NO2 NAAQS. EPA has made the preliminary
determination that Mississippi's SIP and practices adequately
demonstrate the State's ability to provide for air quality modeling,
along with analysis of the associated data, related to the 2010 1-hour
NO2 NAAQS when necessary. Accordingly, EPA is proposing to
approve Mississippi's infrastructure SIP submissions with respect to
section 110(a)(2)(K).
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\23\ Mississippi Code Title 49 is referenced in the State's
infrastructure SIP submissions as ``Appendix A-9.'' As discussed,
unless otherwise indicated herein, portions of the Mississippi Code
referenced in this proposal are not incorporated into the SIP.
---------------------------------------------------------------------------
12. 110(a)(2)(L) Permitting Fees: Section 110(a)(2)(L) requires the
owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under the
CAA, a fee sufficient to cover (i) the reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not including any court costs or other costs associated
with any enforcement action), until such fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V.
Mississippi Code Title 49, Section 49-2-9(c) (Appendix A-9),
authorizes MDEQ to apply for, receive, and expend Federal or state
funds in order to operate its air programs. Mississippi Code Title 49,
Section 49-17-30 (Appendix A-9), provides for the assessment of Title V
permit fees to cover the reasonable cost of reviewing and acting upon
air permitting activities in the state including title V, PSD and NNSR
permits. Mississippi Code Title 49, Section 49-17-14 (Appendix A-9),
allows MDEQ to expend or utilize monies in the Mississippi Air
Operating Permit Program Fee Trust Fund to pay all reasonable direct
and indirect costs associated with the development and administration
of the title V program and the PSD and NNSR permitting including. The
Mississippi Air Operating Permit Program Fee Trust Fund consists of
state legislative appropriations, Federal grant funds and title V fees.
Additionally, Mississippi has a federally-approved title V operating
permit program at Section APC-S-6 \24\ that covers the implementation
and enforcement of PSD and NNSR permits after they have been issued.
EPA has made the preliminary determination that Mississippi adequately
provides for permitting fees related to the 2010 1-hour NO2
NAAQS when necessary.
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\24\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
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13. 110(a)(2)(M) Consultation and Participation by Affected Local
Entities:
[[Page 32716]]
Section 110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP. Mississippi Code Title 49, Appendix A-9, Section
49-17-17(c), gives the Commission the statutory authority to advise and
consult with any political subdivisions in the State. Mississippi Code
Title 49, Appendix A-9, Section 49-17-19(b) requires the Commission to
conduct public hearings in accordance with EPA regulations prior to
establishing, amending, or repealing standards of air quality.
Additionally, MDEQ works closely with local political subdivisions
during the development of its transportation conformity SIP and
regional haze SIP. EPA has made the preliminary determination that
Mississippi's SIP and practices adequately demonstrate consultation
with affected local entities related to the 2010 1-hour NO2
NAAQS when necessary.
V. Proposed Action
With the exception of the preconstruction PSD permitting
requirements for major sources of section 110(a)(2)(C), prong 3 of
(D)(i), and (J), the interstate transport provisions pertaining to the
contribution to nonattainment or interference with maintenance in other
states and visibility protection of section 110(a)(2)(D)(i)(I) and (II)
(prongs 1, 2, and 4), and the state board majority requirements
respecting the significant portion of income of section
110(a)(2)(E)(ii), EPA is proposing to approve that Mississippi's
February 28, 2013, SIP submission for the 2010 1-hour NO2
NAAQS has met the above-described infrastructure SIP requirements
because these aspects of the submission are consistent with section 110
of the CAA. EPA is proposing to disapprove in part section
110(a)(2)(E)(ii) of Mississippi's infrastructure submission because a
majority of board members may still derive a significant portion of
income from persons subject to permits or enforcement orders issued by
the Mississippi Boards. Therefore, its current SIP does not meet the
section 128(a)(1) majority requirements respecting significant portion
of income. This proposed action, however, does not include the
preconstruction PSD permitting requirements for major sources of
section 110(a)(2)(C), prong 3 of (D)(i), and (J), which have been
approved in a separate action, or the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of prongs 1, 2 and 4 of section
110(a)(2)(D)(i), which will be addressed by EPA in a separate action.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a CAA Part D Plan or is required in
response to a finding of substantial inadequacy as described in CAA
section 110(k)(5) (SIP call) starts a sanctions clock. The portion of
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for
disapproval in this action) were not submitted to meet requirements for
Part D or a SIP call, and therefore, if EPA takes final action to
disapprove this submittal, no sanctions will be triggered. However, if
this disapproval action is finalized, that final action will trigger
the requirement under section 110(c) that EPA promulgate a federal
implementation plan (FIP) no later than 2 years from the date of the
disapproval unless the State corrects the deficiency, and EPA approves
the plan or plan revision before EPA promulgates such FIP.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 12, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-12102 Filed 5-23-16; 8:45 am]
BILLING CODE 6560-50-P
