Air Plan Approval; Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 67171-67179 [2016-23598]

Download as PDF Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and updates via Marine Information Broadcasts. L. McClain, Jr., Commander, U.S. Coast Guard, Captain of the Port Pittsburgh. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. Accordingly, 39 CFR part 111 is amended as follows: [FR Doc. 2016–23635 Filed 9–29–16; 8:45 am] BILLING CODE P POSTAL SERVICE 39 CFR Part 111 Enterprise Payment System and Enterprise PO Boxes Online Postal ServiceTM. ACTION: Final rule. AGENCY: PART 111—[AMENDED] The Postal Service is revising Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM®) to provide an enhanced method for commercial customers to pay for and manage their services online using a single account. DATES: Effective Date: September 30, 2016. FOR FURTHER INFORMATION CONTACT: Ingrid Molinary at (202) 268–4138, or Jacqueline Erwin at (202) 268–2158. SUPPLEMENTARY INFORMATION: The Postal Service published an interim final rule (81 FR 48711) on July 26, 2016, to enhance online payment options for commercial customers, with a comment period which ended August 26, 2016. The Postal Service did not receive any customer comments. The U.S. Postal Service is upgrading its payment architecture for business customers. The new Enterprise Payment System (EPS) will replace the current product-centric payment system with a centralized account management system enabling commercial customers to pay for and manage their services online using a single account. EPS has been designed to be part of USPS products and services offered through the existing Business Customer Gateway (BCG) portal. Commercial customers who want to use EPS will need to be a registered BCG user, asabaliauskas on DSK3SPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 18:28 Sep 29, 2016 request access to EPS and open an Enterprise Payment Account (EPA) to pay for their products and services. EPA requires that the customers fund the account via Electronic Funds Transfer— either Automated Clearing House (ACH) Debit or ACH Credit. The first feature of EPS will allow business customers to open, close, and pay for their PO Boxes and Caller Service numbers (including reserved numbers) online using the new Enterprise PO Boxes Online (EPOBOL). EPS customers are required to have an EPA to pay for EPOBOL service. Future phases of EPS will provide commercial customers functionality to pay for additional services. Jkt 238001 67171 Enterprise PO Boxes Online (EPOBOL) system. The EPA with automatic yearly renewal (at twice the semi-annual fee) is the required payment method for EPOBOL customers. * * * * * 5.0 Caller Service * * 5.5 Basis of Fees and Payment * * 5.5.5 * * * * * * Payment [Add text at the end of 5.5.5 as follows:] * * * Registered customers may also pay the fee online using an Enterprise Payment Account (EPA). The EPA with automatic yearly renewal (at twice the semi-annual fee) is the required payment method for EPOBOL customers. * * * * * We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes. Stanley F. Mires, Attorney, Federal Compliance. [FR Doc. 2016–22517 Filed 9–29–16; 8:45 am] BILLING CODE 7710–12–P 1. The authority citation for 39 CFR part 111 continues to read as follows: ■ Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001–3011, 3201– 3219, 3403–3406, 3621, 3622, 3626, 3632, 3633, and 5001. 2. Revise the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) as follows: ■ Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) * * 500 Additional Mailing Services * * 508 Recipient Services * * 4.0 Post Office Box Service * * 4.4 Basis of Fees and Payment * * 4.4.3 * * * * * * * * * * * * * * Payment Frm 00081 Fmt 4700 Sfmt 4700 40 CFR Part 52 [EPA–R04–OAR–2015–0155; FRL–9953–35– Region 4] Air Plan Approval; Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve, in part, and disapprove in part, the State Implementation Plan (SIP) submission, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), on June 20, 2013, for inclusion into the Mississippi SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an SUMMARY: * [Revise third sentence and add e to text in 4.4.3 as follows:] * * * Customers may pay the fee using one of the following methods: * * * e. Online using an Enterprise Payment Account (EPA) when business customers are registered at the PO 00000 ENVIRONMENTAL PROTECTION AGENCY E:\FR\FM\30SER1.SGM 30SER1 67172 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES ‘‘infrastructure SIP submission.’’ MDEQ certified that the Mississippi SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Mississippi. EPA has determined that Mississippi’s infrastructure SIP submission, provided to EPA on June 20, 2013, satisfies certain required infrastructure elements for the 2010 1hour SO2 NAAQS. DATES: This rule will be effective October 31, 2016. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR– 2015–0155. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the 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. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at notarianni.michele@epa.gov or via telephone at (404) 562–9031. SUPPLEMENTARY INFORMATION: I. Background and Overview On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 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 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1 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 1-hour SO2 NAAQS. In a proposed rulemaking published on February 11, 2016, EPA proposed to approve portions of Mississippi’s June 20, 2013, 2010 1-hour SO2 NAAQS infrastructure SIP submission. See 81 FR 7259. The details of Mississippi’s submission and the rationale for EPA’s actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before March 14, 2016. EPA received adverse comments on the proposed action. II. Response to Comments EPA received one set of comments on the February 11, 2016, proposed rulemaking to approve portions of Mississippi’s 2010 1-hour SO2 NAAQS infrastructure SIP submission intended to meet the CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of the comments and EPA’s responses are provided below.2 A full set of these comments is provided in the docket for this final rulemaking action. A. Comments on Infrastructure SIP Requirements for Enforceable Emission Limits 1. The Plain Language of the CAA Comment 1: The Commenter contends that the plain language of section 110(a)(2)(A) of the CAA requires the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. In support, the Commenter quotes the language in section 110(a)(1) that requires states to 1 In the proposed action, EPA incorrectly cited a date of June 22, 2013, for the due date of infrastructure SIPs for the 2010 1-hour SO2 NAAQS. 80 FR 51158 (August 24, 2015). 2 EPA’s responses to these comments are consistent with actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP submissions for Virginia (80 FR 11557, March 4, 2015) at https:// www.gpo.gov/fdsys/pkg/FR-2015-03-04/pdf/201504377.pdf and West Virginia (79 FR 62022, October 16, 2014) at https://www.gpo.gov/fdsys/pkg/FR2014-10-16/pdf/2014-24658.pdf. PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. The Commenter then states that applicable requirements of the CAA include requirements for the attainment and maintenance of the NAAQS, and that CAA section 110(a)(2)(A) requires infrastructure SIPs to include enforceable emission limits to prevent exceedances of the NAAQS. The Commenter claims that Mississippi’s SIP submission does not meet this asserted requirement. Thus, the Commenter asserts that EPA must disapprove Mississippi’s SO2 infrastructure SIP submission because it fails to include enforceable emission limitations necessary to ensure attainment and maintenance of the NAAQS as required by CAA section 110(a)(2)(A). The Commenter then contends that the Mississippi 2010 1hour SO2 infrastructure SIP submission fails to comport with CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment. Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by the Commenter in the context of infrastructure SIP submissions. Section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific SIP planning requirements of the CAA, EPA interprets the requirement in section 110(a)(1) that the plan provide for ‘‘implementation, maintenance and enforcement’’ in conjunction with the requirements in section 110(a)(2)(A) to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations in section 110(a)(2)(A), EPA has interpreted this to mean, for purposes of infrastructure SIP submissions, that the state may rely on E:\FR\FM\30SER1.SGM 30SER1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations measures already in place to address the pollutant at issue or any new control measures that the state may elect to impose as part of such SIP submission. As EPA stated in ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),’’ dated September 13, 2013, (Infrastructure SIP Guidance), ‘‘[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency’s SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency’s air quality management program in light of each new or revised NAAQS.’’ Infrastructure SIP Guidance at pp. 1–2. Mississippi appropriately demonstrated that its SIP has SO2 emissions limitations and the ‘‘structural requirements’’ to implement the 2010 1-hour SO2 NAAQS in its infrastructure SIP submission. The Commenter makes general allegations that Mississippi does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Mississippi’s infrastructure SIP for 110(a)(2)(A) purposes in the proposed rule and explained why the SIP includes enforceable emission limitations and other control measures that aid in maintaining the 2010 1-hour SO2 NAAQS throughout the State. These include State regulations which collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to SO2 concentrations in the ambient air, and provide authority for MDEQ to establish such limits and measures as well as schedules for compliance through SIPapproved permits to meet the applicable requirements of the CAA. See 81 FR 7259. As discussed in this rulemaking, EPA finds these provisions adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the 2010 1hour SO2 NAAQS and finds Mississippi demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS. 2. The Legislative History of the CAA Comment 2: The Commenter cites two excerpts from the legislative history of the 1970 CAA and claims that the ‘‘legislative history of infrastructure SIPs provides that states must include enforceable emission limits in their VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 infrastructure SIPs sufficient to ensure the implementation, maintenance, and attainment of each NAAQS in all areas of the State.’’ Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning attainment. In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to impose additional emission limitations or control measures as part of the infrastructure SIP submission, as opposed to requirements for other types of SIP submissions such as attainment plans required under section 110(a)(2)(I). As provided in Response 1, the proposed rule explains why the SIP includes sufficient enforceable emissions limitations for purposes of the infrastructure SIP submission. 3. Case Law Comment 3: The Commenter also discusses several court decisions concerning the CAA, which the Commenter claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIP submissions to prevent violations of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for ‘‘emission limitations’’ and stating that emission limitations ‘‘are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.’’ The Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that ‘‘SIPs must include certain measures Congress specified’’ to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. PO 00000 Frm 00083 Fmt 4700 Sfmt 4700 67173 Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (‘‘[t]he Clean Air Act directs states to develop implementation plans—SIPs—that ‘assure’ attainment and maintenance of [NAAQS] through enforceable emissions limitations’’); Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) (‘‘EPA’s deference to a state is conditioned on the state’s submission of a plan ‘which satisfies the standards of § 110(a)(2)’ and which includes emission limitations that result in compliance with the NAAQS’’; and Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS. Response 3: None of the cases the Commenter cites support the Commenter’s contention that it is clear that section 110(a)(2)(A) requires infrastructure SIP submissions to include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how EPA may reasonably interpret section 110(a)(2)(A). With the exception of Train, none of the cases the Commenter cites specifically concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the other courts referenced section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions involving challenges to EPA actions on revisions to SIPs that were required and approved under other provisions of the CAA or in the context of an enforcement action. In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the primary statutory provision at that time addressing such submissions. The issue in that case was whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were ‘‘postponements’’ that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state’s choice of the mix of control measures needed to attain the NAAQS, so long as the state met other applicable requirements of the CAA, and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue E:\FR\FM\30SER1.SGM 30SER1 asabaliauskas on DSK3SPTVN1PROD with RULES 67174 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations was not whether the specific SIP at issue needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on a pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved SIP where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA’s disapproval, but did not provide any interpretation of that provision. This decision did not address the question at issue in this action, i.e., what a state must include in an infrastructure SIP submission for purposes of section 110(a)(2)(A). Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here. At issue in Mision Industrial, 547 F.2d 123, was the definition of ‘‘emissions limitation’’ not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not cite to this case to assert that the measures relied on by the state in the infrastructure SIP are not ‘‘emissions limitations’’ and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) that EPA promulgated after a long history of the State failing to submit an adequate SIP in response to EPA’s finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the State’s duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court’s holding in the case, which focused instead on whether EPA’s finding of SIP inadequacy and adoption of a remedial FIP were lawful. The Commenter VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the Commenter also quotes the Court’s statement that ‘‘SIPs must include certain measures Congress specified,’’ but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the State’s ‘‘new source’’ permitting program, not what is required for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A). EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIP submissions must contain emission limitations or measures to ensure attainment and maintenance of the NAAQS. 4. EPA Regulations, Such as 40 CFR 51.112(a) Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that ‘‘Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.’’ The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that ‘‘[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .’’ 51 FR 40656. Thus, the Commenter contends that ‘‘the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs; the regulation instead applies to Infrastructure SIPs, which are required to attain and maintain the NAAQS in all areas of a state, including those not designated nonattainment.’’ Response 4: The Commenter’s reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits which ensure attainment and maintenance of the NAAQS is incorrect. It is clear on its face that 40 CFR 51.112 directly applies to state SIP submissions for control strategy SIPs, i.e., plans that are specifically required to attain and/or PO 00000 Frm 00084 Fmt 4700 Sfmt 4700 maintain the NAAQS. These regulatory requirements apply when states are developing ‘‘control strategy’’ SIPs under other provisions of the CAA, such as attainment plans required for the various NAAQS in Part D and maintenance plans required in section 175A. The Commenter’s suggestion that 40 CFR 51.112 must apply to all SIP submissions required by section 110 based on the preamble to EPA’s action ‘‘restructuring and consolidating’’ provisions in part 51, is also incorrect.3 EPA’s action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. Although EPA was explicit that it was not establishing requirements interpreting the provisions of new ‘‘Part D’’ of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (‘‘Control strategy: SOX and PM (portion)’’), 51.14 (‘‘Control strategy: CO, HC, OX and NO2 (portion)’’), 51.80 (‘‘Demonstration of attainment: Pb (portion)’’), and 51.82 (‘‘Air quality data (portion)’’). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan. 5. EPA Interpretations in Other Rulemakings Comment 5: The Commenter also references a 2006 partial approval and partial disapproval of revisions to Missouri’s existing plan addressing the SO2 NAAQS and claims it was an action in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an infrastructure SIP. Specifically, the Commenter asserts that in that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure attainment and maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the SO2 NAAQS. Response 5: EPA’s partial approval and partial disapproval of revisions to restrictions on emissions of sulfur 3 EPA noted that it had already issued guidance addressing the new ‘‘Part D’’ attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. See 51 FR 40657. E:\FR\FM\30SER1.SGM 30SER1 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES compounds for the Missouri SIP in 71 FR 12623 specifically addressed Missouri’s attainment SIP submission— not Missouri’s infrastructure SIP submission. It is clear from the final Missouri rule that EPA was not reviewing an initial infrastructure SIP submission, but rather reviewing proposed SIP revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. Therefore, EPA does not agree that the 2006 Missouri action referenced by the Commenter establishes how EPA reviews infrastructure SIP submissions for purpose of section 110(a)(2)(A). As discussed in the proposed rule, EPA finds that the Mississippi 2010 1hour SO2 infrastructure SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.4 B. Comments on Mississippi SIP SO2 Emission Limits Comment 6: The Commenter asserts that EPA may not approve the Mississippi proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires that emission limits must limit the quantity, rate or concentration of emissions and must apply on a continuous basis. The Commenter states that ‘‘[e]nforceable emission limitations contained in the I– SIP must, therefore, be accompanied by proper averaging times; otherwise an appropriate numerical emission limit could allow for peaks that exceed the NAAQS and yet still be permitted since they would be averaged with lower emissions at other times.’’ The Commenter also cites to recommended averaging times in EPA guidance providing that SIP emissions limits, ‘‘should not exceed the averaging time of the applicable NAAQS that the limit is intended to help attain.’’ EPA Memorandum of April 23, 2014, to Regional Air Division Directors, Regions 1–10, Guidance for 1-Hour SO2 NAAQS Nonattainment Area SIP Submissions, at 22, available at https://www.epa.gov/ sites/production/files/2016-06/ documents/20140423guidance_ nonattainment_sip.pdf. The Commenter 4 EPA’s final action does not address CAA section 110(a)(2)(D)(i)(I) because Mississippi has not made a submission for these elements. VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 notes that this EPA guidance provides that ‘‘ ‘any emissions limits based on averaging periods longer than 1 hour should be designed to have comparable stringency to a 1-hour average limit at the critical emission value.’ ’’ The Commenter also cites to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1hour SO2 emission limits in a prevention of significant deterioration (PSD) permit, an EPA Environmental Appeals Board decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA’s disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates and claims EPA has stated that 1-hour averaging times are necessary for the 2010 1-hour SO2 NAAQS.5 The Commenter states, ‘‘Therefore, in order to ensure that Mississippi’s Infrastructure SIP actually implements the SO2 NAAQS in every area of the state, the I–SIP must contain enforceable emission limits with one-hour averaging times, monitored continuously, for large sources of SO2.’’ The Commenter asserts that EPA must disapprove Mississippi’s infrastructure SIP because it fails to require emission limits with adequate averaging times. Response 6: As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to implement and enforce the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.6 EPA disagrees that it must disapprove the proposed Mississippi infrastructure 5 The Commenter cited to In re: Mississippi Lime Co., PSD APPEAL 11–01, 2011 WL 3557194, at *26–27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP). 6 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. As noted by the Commenter, EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not taken final action to approve any specific submission of such a limit that a state has relied upon to demonstrate NAAQS attainment, and Mississippi has not submitted such a limit for that purpose here, so it is premature at this time to evaluate whether any emission limit in Mississippi’s SIP is in accordance with the April 23, 2014, guidance. If and when Mississippi submits an emission limitation that relies upon such a longer averaging time to demonstrate NAAQS attainment, EPA will evaluate it then. PO 00000 Frm 00085 Fmt 4700 Sfmt 4700 67175 SIP submission merely because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, as this issue is not appropriate for resolution in this action.7 Therefore, because EPA finds Mississippi’s SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issue of appropriate averaging periods for such future limitations not relevant at this time. Further, the Commenter’s citation to a prior EPA discussion on emission limitations required in PSD permits (from EPA’s Environmental Appeals Board decision and EPA’s letter to Kansas’ permitting authority) pursuant to part C of the CAA is neither relevant nor applicable to infrastructure SIP submissions under CAA section 110. In addition, and as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to an attainment plan SIP submission required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements. Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, the Commenter contends that EPA may not approve Mississippi’s infrastructure SIP because it does not include enforceable 1-hour emission limits for sources that the Commenter claims are currently contributing to NAAQS exceedances. The Commenter asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source oriented. The Commenter states that ‘‘[d]espite the large contribution from coal-fired EGUs [electricity generating units] to the State’s SO2 pollution, Mississippi’s I–SIP lacks enforceable emissions limitations applicable to its coal-fired EGUs sufficient to ensure the implementation, attainment, and maintenance of the 2010 SO2 NAAQS.’’ The Commenter refers to air dispersion modeling it conducted for one power plant in Mississippi, the R.D. Morrow Power Plant. Further, the Commenter cites two court cases to support its statement that ‘‘. . . an agency may not ignore information put in front of it’’ and that thus, the Commenter contends that EPA must consider its expert air dispersion modeling ‘‘which demonstrates the inadequacy of Mississippi’s rules and regulations for 7 There are currently no areas designated nonattainment pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS in Mississippi. EPA believes the appropriate time for examining the necessity of 1-hour SO2 emission limits on specific sources is within the attainment planning process. E:\FR\FM\30SER1.SGM 30SER1 asabaliauskas on DSK3SPTVN1PROD with RULES 67176 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations SO2 emissions.’’ The Commenter summarizes its modeling results for the R.D. Morrow Power Plant claiming that the data predict exceedances of the standard. Thus, the Commenter contends that Mississippi’s infrastructure submission is ‘‘substantially inadequate to attain and maintain the NAAQS which it implements, as evidenced by expert air dispersion modeling demonstrating that the emission limits under the laws and regulations cited to in the SO2 I–SIP Certification allow for exceedances of the NAAQS.’’ Thus, the Commenter asserts that EPA must disapprove Mississippi’s SIP submission, and must establish a FIP ‘‘which incorporates necessary and appropriate sourcespecific enforceable emission limitations (preferably informed by modeling) on Plant Morrow, as well as any other major sources of SO2 pollution in the State which are not presently located in nonattainment areas and have modeled exceedances of the NAAQS.’’ Further, the Commenter states that ‘‘For Plant Morrow enforceable emission limitations must be at least as stringent as the modelingbased limits [provided by the Commenter] in order to protect the onehour SO2 NAAQS and implement, maintain, and enforce the standard in Mississippi.’’ The Commenter also asserts that Mississippi’s infrastructure SIP must contain enforceable emission limits to avoid additional nonattainment designations ‘‘where modeling (or monitoring) shows that SO2 levels exceed the one-hour NAAQS.’’ The Commenter cites to EPA’s Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard 8 (February 6, 2013), and EPA’s Final SO2 NAAQS Rule at 75 FR 35553. The Commenter further contends that EPA’s proposal to designate Lamar County, Mississippi, as attainment/unclassifiable is based on modeling for Plant Morrow provided by the State of Mississippi with two ‘‘significant problems’’: (1) The modeling scenario using allowable emissions was not included in accordance with the EPA-approved modeling protocol and (2) the background SO2 concentrations (14 parts per billion, or 36.65 micrograms per cubic meter) from the Jackson Monitoring Station in Hinds County monitor were ‘‘erroneously relied on’’, given that ‘‘EPA has determined the design values for the Hinds County monitors invalid.’’ For these two issues related to the modeling, the Commenter cites to the modeling from the State VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 performed by Trinity Consultants, 1Hour SO2 NAAQS DESIGNATION MODELING REPORT, pp. 23 and 32, available at https://www.epa.gov/sites/ production/files/2016-03/documents/ ms-rec-att1-r2.pdf, and EPA’s August 3, 2015, SO2 Design Values file. Response 7: As stated previously, EPA believes that the proper inquiry is whether Mississippi has met the basic, structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submissions. Emissions limitations and other control measures, whether on coal-fired EGUs or other SO2 sources, that may be needed to attain and maintain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure SIP submission. A state, like Mississippi, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission for purposes of section 110(a)(2)(A). For example, Mississippi submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in the proposed rulemaking on Mississippi’s SO2 infrastructure SIP. These provisions have the ability to reduce SO2 overall. Although the Mississippi SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 1-hour SO2 NAAQS. Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD and its comments on the modeling submitted by Mississippi pursuant to the section 107 designation process for the R.D. Morrow Power Plant, EPA is not in this action making a determination regarding the air quality status in the area where this facility is located, and is not evaluating whether emissions applicable to this facility are adequate to attain and maintain the NAAQS. Consequently, the EPA does not find the modeling information relevant for review of an infrastructure SIP for purposes of section 110(a)(2)(A). When additional areas in Mississippi are designated under the 2010 1-hour SO2 NAAQS, and if any additional areas in Mississippi are designated nonattainment in the future, any potential future modeling submitted by the State with designations or attainment demonstrations would need to account for any new emissions limitations Mississippi develops to support such designation or PO 00000 Frm 00086 Fmt 4700 Sfmt 4700 demonstration, which at this point is unknown. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations,9 EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs for the 2010 1-hour SO2 NAAQS for purposes of section 110(a)(2)(A), which are not actions in which EPA makes determinations regarding current air quality status. See April 12, 2012, letters to states and 2012 Draft White Paper.10 In conclusion, EPA disagrees with the Commenter’s statements that EPA must disapprove Mississippi’s infrastructure SIP submission because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the 2010 1-hour SO2 NAAQS at this time. Comment 8: The Commenter alleges that the SO2 infrastructure SIP submittal does not address sources significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must therefore disapprove the infrastructure SIP and impose a FIP. The Commenter states that ‘‘EPA must implement a FIP containing source-specific emission limitations and other measures to ensure that pollution from Mississippi is not preventing other states from attaining or maintaining the NAAQS.’’ The Commenter notes that regardless of whether the Mississippi submitted a SIP revision to address CAA section 110(a)(2)(D)(i)(I), the State ‘‘has long since passed the June 2013 deadline to submit such provisions; rather than await some potential future submission, Mississippi’s failure to satisfy its Good Neighbor obligations must be rectified now.’’ The Commenter explains that the Supreme Court disapproved the view that states cannot address section 110(a)(2)(D)(i) until EPA resolves issues related to CSAPR and that compliance with this provision is a ‘‘mandatory duty’’, citing to Homer City, 696 F.3d 7, 37 (D.C. Cir. 2012), rev’d, No. 12–1182, slip op. at 27–28 (U.S. Apr. 29, 2014). The Commenter also highlights from 9 See for example, EPA’s discussion of modeling for characterizing air quality in the Agency’s August 21, 2015, final rule at 80 FR 51052 and for nonattainment planning in the April 23, 2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. 10 Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) and a sample April 12, 2012, letter from EPA to states are available in the docket for this action. E:\FR\FM\30SER1.SGM 30SER1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations Order on Petition No. VI–2014–04 at 10 (citing EPA v. EME Homer City Generation, 134 S.Ct. 1584, 1601 (2014)) that, ‘‘[T]he Supreme Court has affirmed that the EPA is not required to provide any implementation guidance before states’ interstate transport obligation can be addressed.’’ Response 8: This action does not address whether sources in Mississippi are significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the good neighbor provision). Thus, EPA disagrees with the Commenter’s statement that EPA must disapprove the submitted 2010 1-hour SO2 infrastructure SIP due to Mississippi’s failure to address section 110(a)(2)(D)(i)(I). In EPA’s rulemaking proposing to approve Mississippi’s infrastructure SIP for the 2010 1-hour SO2 NAAQS, EPA clearly stated that it was not taking any action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I). Mississippi did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take action on under section 110(k) of the CAA. Similarly, EPA disagrees with the Commenter’s assertion that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. There is no basis for the contention that EPA has triggered its obligation to issue a FIP to address the good neighbor obligation under section 110(c), as EPA has neither found that Mississippi failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 1-hour SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO2 NAAQS. EPA acknowledges the Commenter’s concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses crossstate air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter’s argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101– 228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)). EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Mississippi’s infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Mississippi had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the State’s infrastructure SIP submission, separately or together, as appropriate. The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court’s April 2014 decision in EME Homer City alters EPA’s interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state’s obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA’s action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Mississippi’s infrastructure SIP submission for the 2010 1-hour SO2 NAAQS. EPA has no obligation at this time to issue a FIP pursuant to 110(c)(1) to address Mississippi’s obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Mississippi failed to make PO 00000 Frm 00087 Fmt 4700 Sfmt 4700 67177 a required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submission addressing that element. Until either occurs, EPA does not have the obligation to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter’s contention that it must issue a FIP for Mississippi to address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at this time. III. Final Action With the exception of 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 section 110(a)(2)(E)(ii), EPA is taking final action to approve Mississippi’s infrastructure submission submitted on June 20, 2013, for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is taking final action to approve Mississippi’s infrastructure SIP submission for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements because the submission is consistent with section 110 of the CAA. With regard to the state board majority requirements respecting significant portion of income, EPA is finalizing a disapproval of Mississippi’s June 20, 2013, infrastructure submission. 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 notice) were not submitted to meet requirements for Part D or a SIP call, and therefore, no sanctions will be triggered. However, this final action will trigger the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two 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. IV. 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. E:\FR\FM\30SER1.SGM 30SER1 67178 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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 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). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2). 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. Dated: September 16, 2016. Kenneth R. Lapierre, Acting Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart Z—Mississippi 2. Section 52.1270(e) is amended by adding a new entry ‘‘110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS’’ at the end of the table to read as follows: ■ § 52.1270 * Identification of plan. * * (e) * * * * * EPA APPROVED MISSISSIPPI NON-REGULATORY PROVISIONS Name of non-regulatory SIP provision Applicable geographic or nonattainment area * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS. * Mississippi ........ 3. Section 52.1272 is amended by adding paragraph (e) to read as follows: asabaliauskas on DSK3SPTVN1PROD with RULES ■ § 52.1272 Approval status. * * * * * (e) Disapproval. Submittal from the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ) on June VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 State submittal date/effective date * 6/20/2013 EPA approval date Explanation * 9/30/2016, [Insert Federal Register citation]. * * * With the exception of 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 section 110(a)(2)(E)(ii). 20, 2013, to address the Clean Air Act section 110(a)(2)(E)(ii) for the 2010 1hour sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS) concerning state board majority requirements respecting significant portion of income of section 128(a)(1). EPA is disapproving MDEQ’s submittal with respect to section PO 00000 Frm 00088 Fmt 4700 Sfmt 4700 110(a)(2)(E)(ii) 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, and therefore, its current SIP does not meet the section 128(a)(1) majority requirements E:\FR\FM\30SER1.SGM 30SER1 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations respecting significant portion of income for the 2010 1-hour SO2 NAAQS. [FR Doc. 2016–23598 Filed 9–29–16; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2014–0423; FRL–9953–18– Region 4] Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard Environmental Protection Agency. ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submissions, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on June 3, 2013, and supplemented on January 8, 2014, for inclusion into the Florida SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an ‘‘infrastructure SIP submission.’’ FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Florida. EPA has determined that the Florida’s infrastructure SIP submissions, provided to EPA on June 3, 2013, and supplemented on January 8, 2014, satisfy the required infrastructure elements for the 2010 1-hour SO2 NAAQS. SUMMARY: DATES: This rule is effective October 31, 2016. EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR– 2014–0423. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly asabaliauskas on DSK3SPTVN1PROD with RULES ADDRESSES: VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the 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. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at notarianni.michele@epa.gov or via telephone at (404) 562–9031. SUPPLEMENTARY INFORMATION: I. Background and Overview On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1 EPA is acting upon the SIP submissions from Florida that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 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 1 In the proposed action, EPA incorrectly cited a date of June 22, 2013, for the due date of infrastructure SIPs for the 2010 1-hour SO2 NAAQS. 80 FR 51158 (August 24, 2015). PO 00000 Frm 00089 Fmt 4700 Sfmt 4700 67179 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. In a proposed rulemaking published on August 24, 2015, EPA proposed to approve Florida’s June 3, 2013, and January 8, 2014, 2010 1-hour SO2 NAAQS infrastructure SIP submissions.2 See 80 FR 51157. The details of Florida’s submissions and the rationale for EPA’s actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before September 23, 2015. EPA received adverse comments on the proposed action. II. Response to Comments EPA received one set of comments on the August 24, 2015, proposed rulemaking to approve Florida’s 2010 1hour SO2 NAAQS infrastructure SIP submissions intended to meet the CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of the comments and EPA’s responses are provided below.3 A full set of these comments is provided in the docket for today’s final rulemaking action. A. Comments on Infrastructure SIP Requirements for Enforceable Emission Limits 1. The Plain Language of the CAA Comment 1: The Commenter contends that the plain language of section 110(a)(2)(A) of the CAA requires the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. In support, the Commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. 2 Florida’s 2010 1-hour SO NAAQS 2 infrastructure SIP submission dated June 3, 2013, and supplemented on January 8, 2014, are also collectively referred to as ‘‘Florida’s SO2 infrastructure SIP’’ in this action. 3 EPA’s responses to these comments are consistent with actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP submissions for Virginia (80 FR 11557, March 4, 2015) at https:// www.gpo.gov/fdsys/pkg/FR-2015-03-04/pdf/201504377.pdf and West Virginia (79 FR 62022, October 16, 2014) at https://www.gpo.gov/fdsys/pkg/FR2014-0-16/pdf/2014-24658.pdf. E:\FR\FM\30SER1.SGM 30SER1

Agencies

[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67171-67179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23598]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0155; FRL-9953-35-Region 4]


Air Plan Approval; Mississippi; Infrastructure Requirements for 
the 2010 Sulfur Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve, in part, and disapprove in part, the State 
Implementation Plan (SIP) submission, submitted by the State of 
Mississippi, through the Mississippi Department of Environmental 
Quality (MDEQ), on June 20, 2013, for inclusion into the Mississippi 
SIP. This final action pertains to the infrastructure requirements of 
the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide 
(SO2) national ambient air quality standard (NAAQS). The CAA 
requires that each state adopt and submit a SIP for the implementation, 
maintenance and enforcement of each NAAQS promulgated by EPA, which is 
commonly referred to as an

[[Page 67172]]

``infrastructure SIP submission.'' MDEQ certified that the Mississippi 
SIP contains provisions that ensure the 2010 1-hour SO2 
NAAQS is implemented, enforced, and maintained in Mississippi. EPA has 
determined that Mississippi's infrastructure SIP submission, provided 
to EPA on June 20, 2013, satisfies certain required infrastructure 
elements for the 2010 1-hour SO2 NAAQS.

DATES: This rule will be effective October 31, 2016.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2015-0155. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the 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. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at 
notarianni.michele@epa.gov or via telephone at (404) 562-9031.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a 
revised primary SO2 NAAQS to an hourly standard of 75 parts 
per billion (ppb) based on a 3-year average of the annual 99th 
percentile of 1-hour daily maximum concentrations. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
applicable requirements of section 110(a)(2) within three years after 
promulgation of a new or revised NAAQS or within such shorter period as 
EPA may prescribe. Section 110(a)(2) requires states to address basic 
SIP elements such as requirements for monitoring, basic program 
requirements and legal authority that are designed to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 
2013.\1\
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    \1\ In the proposed action, EPA incorrectly cited a date of June 
22, 2013, for the due date of infrastructure SIPs for the 2010 1-
hour SO2 NAAQS. 80 FR 51158 (August 24, 2015).
---------------------------------------------------------------------------

    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 1-hour SO2 NAAQS. In a proposed 
rulemaking published on February 11, 2016, EPA proposed to approve 
portions of Mississippi's June 20, 2013, 2010 1-hour SO2 
NAAQS infrastructure SIP submission. See 81 FR 7259. The details of 
Mississippi's submission and the rationale for EPA's actions are 
explained in the proposed rulemaking. Comments on the proposed 
rulemaking were due on or before March 14, 2016. EPA received adverse 
comments on the proposed action.

II. Response to Comments

    EPA received one set of comments on the February 11, 2016, proposed 
rulemaking to approve portions of Mississippi's 2010 1-hour 
SO2 NAAQS infrastructure SIP submission intended to meet the 
CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of 
the comments and EPA's responses are provided below.\2\ A full set of 
these comments is provided in the docket for this final rulemaking 
action.
---------------------------------------------------------------------------

    \2\ EPA's responses to these comments are consistent with 
actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP 
submissions for Virginia (80 FR 11557, March 4, 2015) at https://www.gpo.gov/fdsys/pkg/FR-2015-03-04/pdf/2015-04377.pdf and West 
Virginia (79 FR 62022, October 16, 2014) at https://www.gpo.gov/fdsys/pkg/FR-2014-10-16/pdf/2014-24658.pdf.
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A. Comments on Infrastructure SIP Requirements for Enforceable Emission 
Limits

1. The Plain Language of the CAA
    Comment 1: The Commenter contends that the plain language of 
section 110(a)(2)(A) of the CAA requires the inclusion of enforceable 
emission limits in an infrastructure SIP to prevent NAAQS exceedances 
in areas not designated nonattainment. In support, the Commenter quotes 
the language in section 110(a)(1) that requires states to adopt a plan 
for implementation, maintenance, and enforcement of the NAAQS and the 
language in section 110(a)(2)(A) that requires SIPs to include 
enforceable emissions limitations as well as schedules and timetables 
for compliance, as may be necessary or appropriate to meet the 
applicable requirements of the CAA. The Commenter then states that 
applicable requirements of the CAA include requirements for the 
attainment and maintenance of the NAAQS, and that CAA section 
110(a)(2)(A) requires infrastructure SIPs to include enforceable 
emission limits to prevent exceedances of the NAAQS. The Commenter 
claims that Mississippi's SIP submission does not meet this asserted 
requirement. Thus, the Commenter asserts that EPA must disapprove 
Mississippi's SO2 infrastructure SIP submission because it 
fails to include enforceable emission limitations necessary to ensure 
attainment and maintenance of the NAAQS as required by CAA section 
110(a)(2)(A). The Commenter then contends that the Mississippi 2010 1-
hour SO2 infrastructure SIP submission fails to comport with 
CAA requirements for SIPs to establish enforceable emission limits that 
are adequate to prohibit NAAQS exceedances in areas not designated 
nonattainment.
    Response 1: EPA disagrees that section 110 must be interpreted in 
the manner suggested by the Commenter in the context of infrastructure 
SIP submissions. Section 110 is only one provision that is part of the 
complicated structure governing implementation of the NAAQS program 
under the CAA, as amended in 1990, and it must be interpreted in the 
context of not only that structure, but also of the historical 
evolution of that structure. In light of the revisions to section 110 
since 1970 and the later-promulgated and more specific SIP planning 
requirements of the CAA, EPA interprets the requirement in section 
110(a)(1) that the plan provide for ``implementation, maintenance and 
enforcement'' in conjunction with the requirements in section 
110(a)(2)(A) to mean that the infrastructure SIP must contain 
enforceable emission limits that will aid in attaining and/or 
maintaining the NAAQS and that the state demonstrate that it has the 
necessary tools to implement and enforce a NAAQS, such as adequate 
state personnel and an enforcement program.
    With regard to the requirement for emission limitations in section 
110(a)(2)(A), EPA has interpreted this to mean, for purposes of 
infrastructure SIP submissions, that the state may rely on

[[Page 67173]]

measures already in place to address the pollutant at issue or any new 
control measures that the state may elect to impose as part of such SIP 
submission. As EPA stated in ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2),'' dated September 13, 2013, (Infrastructure 
SIP Guidance), ``[t]he conceptual purpose of an infrastructure SIP 
submission is to assure that the air agency's SIP contains the 
necessary structural requirements for the new or revised NAAQS, whether 
by establishing that the SIP already contains the necessary provisions, 
by making a substantive SIP revision to update the SIP, or both. 
Overall, the infrastructure SIP submission process provides an 
opportunity . . . to review the basic structural requirements of the 
air agency's air quality management program in light of each new or 
revised NAAQS.'' Infrastructure SIP Guidance at pp. 1-2. Mississippi 
appropriately demonstrated that its SIP has SO2 emissions 
limitations and the ``structural requirements'' to implement the 2010 
1-hour SO2 NAAQS in its infrastructure SIP submission.
    The Commenter makes general allegations that Mississippi does not 
have sufficient protective measures to prevent SO2 NAAQS 
exceedances. EPA addressed the adequacy of Mississippi's infrastructure 
SIP for 110(a)(2)(A) purposes in the proposed rule and explained why 
the SIP includes enforceable emission limitations and other control 
measures that aid in maintaining the 2010 1-hour SO2 NAAQS 
throughout the State. These include State regulations which 
collectively establish enforceable emissions limitations and other 
control measures, means or techniques for activities that contribute to 
SO2 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. See 81 FR 7259. As discussed in this 
rulemaking, EPA finds these provisions adequately address section 
110(a)(2)(A) to aid in attaining and/or maintaining the 2010 1-hour 
SO2 NAAQS and finds Mississippi demonstrated that it has the 
necessary tools to implement and enforce the 2010 1-hour SO2 
NAAQS.
2. The Legislative History of the CAA
    Comment 2: The Commenter cites two excerpts from the legislative 
history of the 1970 CAA and claims that the ``legislative history of 
infrastructure SIPs provides that states must include enforceable 
emission limits in their infrastructure SIPs sufficient to ensure the 
implementation, maintenance, and attainment of each NAAQS in all areas 
of the State.''
    Response 2: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined that 
structure and deleted relevant language from section 110 concerning 
attainment. In any event, the two excerpts of legislative history the 
Commenter cites merely provide that states should include enforceable 
emission limits in their SIPs and they do not mention or otherwise 
address whether states are required to impose additional emission 
limitations or control measures as part of the infrastructure SIP 
submission, as opposed to requirements for other types of SIP 
submissions such as attainment plans required under section 
110(a)(2)(I). As provided in Response 1, the proposed rule explains why 
the SIP includes sufficient enforceable emissions limitations for 
purposes of the infrastructure SIP submission.
3. Case Law
    Comment 3: The Commenter also discusses several court decisions 
concerning the CAA, which the Commenter claims support its contention 
that courts have been clear that section 110(a)(2)(A) requires 
enforceable emissions limits in infrastructure SIP submissions to 
prevent violations of the NAAQS. The Commenter first cites to language 
in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement 
for ``emission limitations'' and stating that emission limitations 
``are the specific rules to which operators of pollution sources are 
subject, and which if enforced should result in ambient air which meets 
the national standards.'' The Commenter also cites to Pennsylvania 
Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for 
the proposition that the CAA directs EPA to withhold approval of a SIP 
where it does not ensure maintenance of the NAAQS, and to Mision 
Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which 
quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends 
that the 1990 Amendments do not alter how courts have interpreted the 
requirements of section 110, quoting Alaska Dept. of Envtl. 
Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted 
section 110(a)(2)(A) of the CAA and also stated that ``SIPs must 
include certain measures Congress specified'' to ensure attainment of 
the NAAQS. The Commenter also quotes several additional opinions in 
this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th 
Cir. 2012) (``[t]he Clean Air Act directs states to develop 
implementation plans--SIPs--that `assure' attainment and maintenance of 
[NAAQS] through enforceable emissions limitations''); Mich. Dept. of 
Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) (``EPA's 
deference to a state is conditioned on the state's submission of a plan 
`which satisfies the standards of Sec.  110(a)(2)' and which includes 
emission limitations that result in compliance with the NAAQS''; and 
Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA 
may not approve a SIP revision that does not demonstrate how the rules 
would not interfere with attainment and maintenance of the NAAQS.
    Response 3: None of the cases the Commenter cites support the 
Commenter's contention that it is clear that section 110(a)(2)(A) 
requires infrastructure SIP submissions to include detailed plans 
providing for attainment and maintenance of the NAAQS in all areas of 
the state, nor do they shed light on how EPA may reasonably interpret 
section 110(a)(2)(A). With the exception of Train, none of the cases 
the Commenter cites specifically concerned the interpretation of CAA 
section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). 
Rather, the other courts referenced section 110(a)(2)(A) (or section 
110(a)(2)(B) of the pre-1990 CAA) in the background section of 
decisions involving challenges to EPA actions on revisions to SIPs that 
were required and approved under other provisions of the CAA or in the 
context of an enforcement action.
    In Train, 421 U.S. 60, the Court was addressing a state revision to 
an attainment plan submission made pursuant to section 110 of the CAA, 
the primary statutory provision at that time addressing such 
submissions. The issue in that case was whether changes to requirements 
that would occur before attainment was required were variances that 
should be addressed pursuant to the provision governing SIP revisions 
or were ``postponements'' that must be addressed under section 110(f) 
of the CAA of 1970, which contained prescriptive criteria. The Court 
concluded that EPA reasonably interpreted section 110(f) not to 
restrict a state's choice of the mix of control measures needed to 
attain the NAAQS, so long as the state met other applicable 
requirements of the CAA, and that revisions to SIPs that would not 
impact attainment of the NAAQS by the attainment date were not subject 
to the limits of section 110(f). Thus the issue

[[Page 67174]]

was not whether the specific SIP at issue needs to provide for 
attainment or whether emissions limits are needed as part of the SIP; 
rather the issue was which statutory provision governed when the state 
wanted to revise the emission limits in its SIP if such revision would 
not impact attainment or maintenance of the NAAQS.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on a pre-1990 provision of the CAA. At issue was whether 
EPA properly rejected a revision to an approved SIP where the 
inventories relied on by the state for the updated submission had gaps. 
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. This decision did not address the question at issue in this 
action, i.e., what a state must include in an infrastructure SIP 
submission for purposes of section 110(a)(2)(A). Yet, even if the Court 
had interpreted that provision, EPA notes that it was modified by 
Congress in 1990; thus, this decision has little bearing on the issue 
here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the Commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The Commenter does not cite to this 
case to assert that the measures relied on by the state in the 
infrastructure SIP are not ``emissions limitations'' and the decision 
in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) 
that EPA promulgated after a long history of the State failing to 
submit an adequate SIP in response to EPA's finding under section 
110(k)(5) that the previously approved SIP was substantially inadequate 
to attain or maintain the NAAQS, which triggered the State's duty to 
submit a new SIP to show how it would remedy that deficiency and attain 
the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) 
of the CAA for the proposition that SIPs should assure attainment and 
maintenance of NAAQS through emission limitations, but this language 
was not part of the Court's holding in the case, which focused instead 
on whether EPA's finding of SIP inadequacy and adoption of a remedial 
FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. 
Conservation, 540 U.S. 461, stands for the proposition that the 1990 
CAA Amendments do not alter how courts interpret section 110. This 
claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), 
which, as noted previously, differs from the pre-1990 version of that 
provision and the court makes no mention of the changed language. 
Furthermore, the Commenter also quotes the Court's statement that 
``SIPs must include certain measures Congress specified,'' but that 
statement specifically referenced the requirement in section 
110(a)(2)(C), which requires an enforcement program and a program for 
the regulation of the modification and construction of new sources. 
Notably, at issue in that case was the State's ``new source'' 
permitting program, not what is required for purposes of an 
infrastructure SIP submission for purposes of section 110(a)(2)(A).
    EPA does not believe any of these court decisions addressed 
required measures for infrastructure SIPs and believes nothing in the 
opinions addressed whether infrastructure SIP submissions must contain 
emission limitations or measures to ensure attainment and maintenance 
of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that 
``Each plan must demonstrate that the measures, rules, and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the national standard that it implements.'' The 
Commenter relies on a statement in the preamble to the 1986 action 
restructuring and consolidating provisions in part 51, in which EPA 
stated that ``[i]t is beyond the scope of th[is] rulemaking to address 
the provisions of Part D of the Act . . .'' 51 FR 40656. Thus, the 
Commenter contends that ``the provisions of 40 CFR 51.112 are not 
limited to nonattainment SIPs; the regulation instead applies to 
Infrastructure SIPs, which are required to attain and maintain the 
NAAQS in all areas of a state, including those not designated 
nonattainment.''
    Response 4: The Commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
which ensure attainment and maintenance of the NAAQS is incorrect. It 
is clear on its face that 40 CFR 51.112 directly applies to state SIP 
submissions for control strategy SIPs, i.e., plans that are 
specifically required to attain and/or maintain the NAAQS. These 
regulatory requirements apply when states are developing ``control 
strategy'' SIPs under other provisions of the CAA, such as attainment 
plans required for the various NAAQS in Part D and maintenance plans 
required in section 175A. The Commenter's suggestion that 40 CFR 51.112 
must apply to all SIP submissions required by section 110 based on the 
preamble to EPA's action ``restructuring and consolidating'' provisions 
in part 51, is also incorrect.\3\ EPA's action in 1986 was not to 
establish new substantive planning requirements, but rather was meant 
merely to consolidate and restructure provisions that had previously 
been promulgated.
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    \3\ EPA noted that it had already issued guidance addressing the 
new ``Part D'' attainment planning obligations. Also, as to 
maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. See 51 FR 
40657.
---------------------------------------------------------------------------

    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``Part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
OX and NO2 (portion)''), 51.80 (``Demonstration 
of attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
    Comment 5: The Commenter also references a 2006 partial approval 
and partial disapproval of revisions to Missouri's existing plan 
addressing the SO2 NAAQS and claims it was an action in 
which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an 
infrastructure SIP. Specifically, the Commenter asserts that in that 
action, EPA cited section 110(a)(2)(A) as a basis for disapproving a 
revision to the State plan on the basis that the State failed to 
demonstrate the SIP was sufficient to ensure attainment and maintenance 
of the SO2 NAAQS after revision of an emission limit and 
cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules 
in a SIP are adequate to attain the SO2 NAAQS.
    Response 5: EPA's partial approval and partial disapproval of 
revisions to restrictions on emissions of sulfur

[[Page 67175]]

compounds for the Missouri SIP in 71 FR 12623 specifically addressed 
Missouri's attainment SIP submission--not Missouri's infrastructure SIP 
submission. It is clear from the final Missouri rule that EPA was not 
reviewing an initial infrastructure SIP submission, but rather 
reviewing proposed SIP revisions that would make an already approved 
SIP designed to demonstrate attainment of the NAAQS less stringent. 
Therefore, EPA does not agree that the 2006 Missouri action referenced 
by the Commenter establishes how EPA reviews infrastructure SIP 
submissions for purpose of section 110(a)(2)(A).
    As discussed in the proposed rule, EPA finds that the Mississippi 
2010 1-hour SO2 infrastructure SIP meets the appropriate and 
relevant structural requirements of section 110(a)(2) of the CAA that 
will aid in attaining and/or maintaining the 2010 1-hour SO2 
NAAQS and that the State demonstrated that it has the necessary tools 
to implement and enforce the 2010 1-hour SO2 NAAQS.\4\
---------------------------------------------------------------------------

    \4\ EPA's final action does not address CAA section 
110(a)(2)(D)(i)(I) because Mississippi has not made a submission for 
these elements.
---------------------------------------------------------------------------

B. Comments on Mississippi SIP SO2 Emission Limits

    Comment 6: The Commenter asserts that EPA may not approve the 
Mississippi proposed SO2 infrastructure SIP because it fails 
to include enforceable emission limitations with a 1-hour averaging 
time that applies at all times. The Commenter cites to CAA section 
302(k) which requires that emission limits must limit the quantity, 
rate or concentration of emissions and must apply on a continuous 
basis. The Commenter states that ``[e]nforceable emission limitations 
contained in the I-SIP must, therefore, be accompanied by proper 
averaging times; otherwise an appropriate numerical emission limit 
could allow for peaks that exceed the NAAQS and yet still be permitted 
since they would be averaged with lower emissions at other times.'' The 
Commenter also cites to recommended averaging times in EPA guidance 
providing that SIP emissions limits, ``should not exceed the averaging 
time of the applicable NAAQS that the limit is intended to help 
attain.'' EPA Memorandum of April 23, 2014, to Regional Air Division 
Directors, Regions 1-10, Guidance for 1-Hour SO2 NAAQS 
Nonattainment Area SIP Submissions, at 22, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. The Commenter notes that this 
EPA guidance provides that `` `any emissions limits based on averaging 
periods longer than 1 hour should be designed to have comparable 
stringency to a 1-hour average limit at the critical emission value.' 
''
    The Commenter also cites to a February 3, 2011, EPA Region 7 letter 
to the Kansas Department of Health and Environment regarding the need 
for 1-hour SO2 emission limits in a prevention of 
significant deterioration (PSD) permit, an EPA Environmental Appeals 
Board decision rejecting use of a 3-hour averaging time for a 
SO2 limit in a PSD permit, and EPA's disapproval of a 
Missouri SIP which relied on annual averaging for SO2 
emission rates and claims EPA has stated that 1-hour averaging times 
are necessary for the 2010 1-hour SO2 NAAQS.\5\ The 
Commenter states, ``Therefore, in order to ensure that Mississippi's 
Infrastructure SIP actually implements the SO2 NAAQS in 
every area of the state, the I-SIP must contain enforceable emission 
limits with one-hour averaging times, monitored continuously, for large 
sources of SO2.'' The Commenter asserts that EPA must 
disapprove Mississippi's infrastructure SIP because it fails to require 
emission limits with adequate averaging times.
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    \5\ The Commenter cited to In re: Mississippi Lime Co., PSD 
APPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 
FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control 
strategy SO2 SIP).
---------------------------------------------------------------------------

    Response 6: As explained in detail in previous responses, the 
purpose of the infrastructure SIP is to ensure that a state has the 
structural capability to implement and enforce the NAAQS and thus, 
additional SO2 emission limitations to ensure attainment and 
maintenance of the NAAQS are not required for such infrastructure 
SIPs.\6\ EPA disagrees that it must disapprove the proposed Mississippi 
infrastructure SIP submission merely because the SIP does not contain 
enforceable SO2 emission limitations with 1-hour averaging 
periods that apply at all times, as this issue is not appropriate for 
resolution in this action.\7\ Therefore, because EPA finds 
Mississippi's SO2 infrastructure SIP approvable without the 
additional SO2 emission limitations showing attainment of 
the NAAQS, EPA finds the issue of appropriate averaging periods for 
such future limitations not relevant at this time.
---------------------------------------------------------------------------

    \6\ For a discussion on emission averaging times for emissions 
limitations for SO2 attainment SIPs, see the April 23, 
2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. As 
noted by the Commenter, EPA explained that it is possible, in 
specific cases, for states to develop control strategies that 
account for variability in 1-hour emissions rates through emission 
limits with averaging times that are longer than 1-hour, using 
averaging times as long as 30-days, but still provide for attainment 
of the 2010 SO2 NAAQS as long as the limits are of at 
least comparable stringency to a 1-hour limit at the critical 
emission value. EPA has not taken final action to approve any 
specific submission of such a limit that a state has relied upon to 
demonstrate NAAQS attainment, and Mississippi has not submitted such 
a limit for that purpose here, so it is premature at this time to 
evaluate whether any emission limit in Mississippi's SIP is in 
accordance with the April 23, 2014, guidance. If and when 
Mississippi submits an emission limitation that relies upon such a 
longer averaging time to demonstrate NAAQS attainment, EPA will 
evaluate it then.
    \7\ There are currently no areas designated nonattainment 
pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS 
in Mississippi. EPA believes the appropriate time for examining the 
necessity of 1-hour SO2 emission limits on specific 
sources is within the attainment planning process.
---------------------------------------------------------------------------

    Further, the Commenter's citation to a prior EPA discussion on 
emission limitations required in PSD permits (from EPA's Environmental 
Appeals Board decision and EPA's letter to Kansas' permitting 
authority) pursuant to part C of the CAA is neither relevant nor 
applicable to infrastructure SIP submissions under CAA section 110. In 
addition, and as previously discussed, the EPA disapproval of the 2006 
Missouri SIP was a disapproval relating to an attainment plan SIP 
submission required pursuant to part D attainment planning and is 
likewise not relevant to the analysis of infrastructure SIP 
requirements.
    Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, 
the Commenter contends that EPA may not approve Mississippi's 
infrastructure SIP because it does not include enforceable 1-hour 
emission limits for sources that the Commenter claims are currently 
contributing to NAAQS exceedances. The Commenter asserts that emission 
limits are especially important for meeting the 1-hour SO2 
NAAQS because SO2 impacts are strongly source oriented. The 
Commenter states that ``[d]espite the large contribution from coal-
fired EGUs [electricity generating units] to the State's SO2 
pollution, Mississippi's I-SIP lacks enforceable emissions limitations 
applicable to its coal-fired EGUs sufficient to ensure the 
implementation, attainment, and maintenance of the 2010 SO2 
NAAQS.'' The Commenter refers to air dispersion modeling it conducted 
for one power plant in Mississippi, the R.D. Morrow Power Plant. 
Further, the Commenter cites two court cases to support its statement 
that ``. . . an agency may not ignore information put in front of it'' 
and that thus, the Commenter contends that EPA must consider its expert 
air dispersion modeling ``which demonstrates the inadequacy of 
Mississippi's rules and regulations for

[[Page 67176]]

SO2 emissions.'' The Commenter summarizes its modeling 
results for the R.D. Morrow Power Plant claiming that the data predict 
exceedances of the standard. Thus, the Commenter contends that 
Mississippi's infrastructure submission is ``substantially inadequate 
to attain and maintain the NAAQS which it implements, as evidenced by 
expert air dispersion modeling demonstrating that the emission limits 
under the laws and regulations cited to in the SO2 I-SIP 
Certification allow for exceedances of the NAAQS.'' Thus, the Commenter 
asserts that EPA must disapprove Mississippi's SIP submission, and must 
establish a FIP ``which incorporates necessary and appropriate source-
specific enforceable emission limitations (preferably informed by 
modeling) on Plant Morrow, as well as any other major sources of 
SO2 pollution in the State which are not presently located 
in nonattainment areas and have modeled exceedances of the NAAQS.'' 
Further, the Commenter states that ``For Plant Morrow enforceable 
emission limitations must be at least as stringent as the modeling-
based limits [provided by the Commenter] in order to protect the one-
hour SO2 NAAQS and implement, maintain, and enforce the 
standard in Mississippi.''
    The Commenter also asserts that Mississippi's infrastructure SIP 
must contain enforceable emission limits to avoid additional 
nonattainment designations ``where modeling (or monitoring) shows that 
SO2 levels exceed the one-hour NAAQS.'' The Commenter cites 
to EPA's Next Steps for Area Designations and Implementation of the 
Sulfur Dioxide National Ambient Air Quality Standard \8\ (February 6, 
2013), and EPA's Final SO2 NAAQS Rule at 75 FR 35553. The 
Commenter further contends that EPA's proposal to designate Lamar 
County, Mississippi, as attainment/unclassifiable is based on modeling 
for Plant Morrow provided by the State of Mississippi with two 
``significant problems'': (1) The modeling scenario using allowable 
emissions was not included in accordance with the EPA-approved modeling 
protocol and (2) the background SO2 concentrations (14 parts 
per billion, or 36.65 micrograms per cubic meter) from the Jackson 
Monitoring Station in Hinds County monitor were ``erroneously relied 
on'', given that ``EPA has determined the design values for the Hinds 
County monitors invalid.'' For these two issues related to the 
modeling, the Commenter cites to the modeling from the State performed 
by Trinity Consultants, 1-Hour SO2 NAAQS DESIGNATION MODELING REPORT, 
pp. 23 and 32, available at https://www.epa.gov/sites/production/files/2016-03/documents/ms-rec-att1-r2.pdf, and EPA's August 3, 2015, 
SO2 Design Values file.
    Response 7: As stated previously, EPA believes that the proper 
inquiry is whether Mississippi has met the basic, structural SIP 
requirements appropriate at the point in time EPA is acting upon the 
infrastructure submissions. Emissions limitations and other control 
measures, whether on coal-fired EGUs or other SO2 sources, 
that may be needed to attain and maintain the NAAQS in areas designated 
nonattainment for that NAAQS are due on a different schedule from the 
section 110 infrastructure SIP submission. A state, like Mississippi, 
may reference pre-existing SIP emission limits or other rules contained 
in part D plans for previous NAAQS in an infrastructure SIP submission 
for purposes of section 110(a)(2)(A). For example, Mississippi 
submitted a list of existing emission reduction measures in the SIP 
that control emissions of SO2 as discussed above in response 
to a prior comment and discussed in the proposed rulemaking on 
Mississippi's SO2 infrastructure SIP. These provisions have 
the ability to reduce SO2 overall. Although the Mississippi 
SIP relies on measures and programs used to implement previous 
SO2 NAAQS, these provisions are not limited to reducing 
SO2 levels to meet one specific NAAQS and will continue to 
provide benefits for the 2010 1-hour SO2 NAAQS.
    Regarding the air dispersion modeling conducted by the Commenter 
pursuant to AERMOD and its comments on the modeling submitted by 
Mississippi pursuant to the section 107 designation process for the 
R.D. Morrow Power Plant, EPA is not in this action making a 
determination regarding the air quality status in the area where this 
facility is located, and is not evaluating whether emissions applicable 
to this facility are adequate to attain and maintain the NAAQS. 
Consequently, the EPA does not find the modeling information relevant 
for review of an infrastructure SIP for purposes of section 
110(a)(2)(A). When additional areas in Mississippi are designated under 
the 2010 1-hour SO2 NAAQS, and if any additional areas in 
Mississippi are designated nonattainment in the future, any potential 
future modeling submitted by the State with designations or attainment 
demonstrations would need to account for any new emissions limitations 
Mississippi develops to support such designation or demonstration, 
which at this point is unknown. While EPA has extensively discussed the 
use of modeling for attainment demonstration purposes and for 
designations,\9\ EPA has recommended that such modeling was not needed 
for the SO2 infrastructure SIPs for the 2010 1-hour 
SO2 NAAQS for purposes of section 110(a)(2)(A), which are 
not actions in which EPA makes determinations regarding current air 
quality status. See April 12, 2012, letters to states and 2012 Draft 
White Paper.\10\
---------------------------------------------------------------------------

    \9\ See for example, EPA's discussion of modeling for 
characterizing air quality in the Agency's August 21, 2015, final 
rule at 80 FR 51052 and for nonattainment planning in the April 23, 
2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions.
    \10\ Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft 
White Paper for Discussion, May 2012 (2012 Draft White Paper) and a 
sample April 12, 2012, letter from EPA to states are available in 
the docket for this action.
---------------------------------------------------------------------------

    In conclusion, EPA disagrees with the Commenter's statements that 
EPA must disapprove Mississippi's infrastructure SIP submission because 
it does not establish specific enforceable SO2 emission 
limits, either on coal-fired EGUs or other large SO2 
sources, in order to demonstrate attainment and maintenance with the 
2010 1-hour SO2 NAAQS at this time.
    Comment 8: The Commenter alleges that the SO2 
infrastructure SIP submittal does not address sources significantly 
contributing to nonattainment or interfering with maintenance of the 
2010 1-hour SO2 NAAQS in other states as required by section 
110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must therefore 
disapprove the infrastructure SIP and impose a FIP. The Commenter 
states that ``EPA must implement a FIP containing source-specific 
emission limitations and other measures to ensure that pollution from 
Mississippi is not preventing other states from attaining or 
maintaining the NAAQS.'' The Commenter notes that regardless of whether 
the Mississippi submitted a SIP revision to address CAA section 
110(a)(2)(D)(i)(I), the State ``has long since passed the June 2013 
deadline to submit such provisions; rather than await some potential 
future submission, Mississippi's failure to satisfy its Good Neighbor 
obligations must be rectified now.'' The Commenter explains that the 
Supreme Court disapproved the view that states cannot address section 
110(a)(2)(D)(i) until EPA resolves issues related to CSAPR and that 
compliance with this provision is a ``mandatory duty'', citing to Homer 
City, 696 F.3d 7, 37 (D.C. Cir. 2012), rev'd, No. 12-1182, slip op. at 
27-28 (U.S. Apr. 29, 2014). The Commenter also highlights from

[[Page 67177]]

Order on Petition No. VI-2014-04 at 10 (citing EPA v. EME Homer City 
Generation, 134 S.Ct. 1584, 1601 (2014)) that, ``[T]he Supreme Court 
has affirmed that the EPA is not required to provide any implementation 
guidance before states' interstate transport obligation can be 
addressed.''
    Response 8: This action does not address whether sources in 
Mississippi are significantly contributing to nonattainment or 
interfering with maintenance of the 2010 1-hour SO2 NAAQS in 
another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the 
good neighbor provision). Thus, EPA disagrees with the Commenter's 
statement that EPA must disapprove the submitted 2010 1-hour 
SO2 infrastructure SIP due to Mississippi's failure to 
address section 110(a)(2)(D)(i)(I). In EPA's rulemaking proposing to 
approve Mississippi's infrastructure SIP for the 2010 1-hour 
SO2 NAAQS, EPA clearly stated that it was not taking any 
action with respect to the good neighbor provision in section 
110(a)(2)(D)(i)(I). Mississippi did not make a submission to address 
the requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour 
SO2 NAAQS, and thus there is no such submission upon which 
EPA proposed to take action on under section 110(k) of the CAA. 
Similarly, EPA disagrees with the Commenter's assertion that EPA cannot 
approve other elements of an infrastructure SIP submission without the 
good neighbor provision. There is no basis for the contention that EPA 
has triggered its obligation to issue a FIP to address the good 
neighbor obligation under section 110(c), as EPA has neither found that 
Mississippi failed to timely submit a required 110(a)(2)(D)(i)(I) SIP 
submission for the 2010 1-hour SO2 NAAQS or found that such 
a submission was incomplete, nor has EPA disapproved a SIP submission 
addressing 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour 
SO2 NAAQS.
    EPA acknowledges the Commenter's concern for the interstate 
transport of air pollutants and agrees in general with the Commenter 
that sections 110(a)(1) and (a)(2) of the CAA generally require states 
to submit, within three years of promulgation of a new or revised 
NAAQS, a plan which addresses cross-state air pollution under section 
110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's 
argument that EPA cannot approve an infrastructure SIP submission 
without the good neighbor provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve state SIP revisions in separable parts was included in the 1990 
Amendments to the CAA to overrule a decision in the Court of Appeals 
for the Ninth Circuit holding that EPA could not approve individual 
measures in a plan submission without either approving or disapproving 
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 
F.2d 1071 (9th Cir. 1987)).
    EPA interprets its authority under section 110(k)(3) of the CAA, as 
affording EPA the discretion to approve, or conditionally approve, 
individual elements of Mississippi's infrastructure SIP submissions for 
the 2010 1-hour SO2 NAAQS, separate and apart from any 
action with respect to the requirements of section 110(a)(2)(D)(i)(I) 
of the CAA with respect to that NAAQS. EPA views discrete 
infrastructure SIP requirements, such as the requirements of 
110(a)(2)(D)(i)(I), as severable from the other infrastructure elements 
and interprets section 110(k)(3) as allowing it to act on individual 
severable measures in a plan submission. In short, EPA believes that 
even if Mississippi had made a SIP submission for section 
110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, 
which to date it has not, EPA would still have discretion under section 
110(k) of the CAA to act upon the various individual elements of the 
State's infrastructure SIP submission, separately or together, as 
appropriate.
    The Commenter raises no compelling legal or environmental rationale 
for an alternate interpretation. Nothing in the Supreme Court's April 
2014 decision in EME Homer City alters EPA's interpretation that EPA 
may act on individual severable measures, including the requirements of 
section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer 
City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation 
to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) 
independent of EPA's action finding significant contribution or 
interference with maintenance). In sum, the concerns raised by the 
Commenter do not establish that it is inappropriate or unreasonable for 
EPA to approve the portions of Mississippi's infrastructure SIP 
submission for the 2010 1-hour SO2 NAAQS.
    EPA has no obligation at this time to issue a FIP pursuant to 
110(c)(1) to address Mississippi's obligations under section 
110(a)(2)(D)(i)(I) until EPA first either finds Mississippi failed to 
make a required submission addressing the element or the State has made 
such a submission but it is incomplete, or EPA disapproves a SIP 
submission addressing that element. Until either occurs, EPA does not 
have the obligation to issue a FIP pursuant to section 110(c) with 
respect to the good neighbor provision. Therefore, EPA disagrees with 
the Commenter's contention that it must issue a FIP for Mississippi to 
address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at 
this time.

III. Final Action

    With the exception of 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 
section 110(a)(2)(E)(ii), EPA is taking final action to approve 
Mississippi's infrastructure submission submitted on June 20, 2013, for 
the 2010 1-hour SO2 NAAQS for the above described 
infrastructure SIP requirements. EPA is taking final action to approve 
Mississippi's infrastructure SIP submission for the 2010 1-hour 
SO2 NAAQS for the above described infrastructure SIP 
requirements because the submission is consistent with section 110 of 
the CAA.
    With regard to the state board majority requirements respecting 
significant portion of income, EPA is finalizing a disapproval of 
Mississippi's June 20, 2013, infrastructure submission. 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 notice) were not submitted to meet requirements for 
Part D or a SIP call, and therefore, no sanctions will be triggered. 
However, this final action will trigger the requirement under section 
110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later 
than two 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.

IV. 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.

[[Page 67178]]

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP 
submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the CAA. Accordingly, this 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 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).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 29, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

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.

    Dated: September 16, 2016.
Kenneth R. Lapierre,
Acting Regional Administrator, Region 4.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart Z--Mississippi

0
2. Section 52.1270(e) is amended by adding a new entry ``110(a)(1) and 
(2) Infrastructure Requirements for the 2010 1-hour SO2 
NAAQS'' at the end of the table to read as follows:


Sec.  52.1270  Identification of plan.

* * * * *
    (e) * * *

                               EPA Approved Mississippi Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                                             State
  Name of non-regulatory SIP     Applicable geographic  submittal date/ EPA approval date       Explanation
           provision             or nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110(a)(1) and (2)               Mississippi...........       6/20/2013  9/30/2016,         With the exception of
 Infrastructure Requirements                                             [Insert Federal    the interstate
 for the 2010 1-hour SO2 NAAQS.                                          Register           transport
                                                                         citation].         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 section
                                                                                            110(a)(2)(E)(ii).
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.1272 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.1272  Approval status.

* * * * *
    (e) Disapproval. Submittal from the State of Mississippi, through 
the Mississippi Department of Environmental Quality (MDEQ) on June 20, 
2013, to address the Clean Air Act section 110(a)(2)(E)(ii) for the 
2010 1-hour sulfur dioxide (SO2) National Ambient Air 
Quality Standards (NAAQS) concerning state board majority requirements 
respecting significant portion of income of section 128(a)(1). EPA is 
disapproving MDEQ's submittal with respect to section 110(a)(2)(E)(ii) 
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, and therefore, its current SIP does 
not meet the section 128(a)(1) majority requirements

[[Page 67179]]

respecting significant portion of income for the 2010 1-hour 
SO2 NAAQS.

[FR Doc. 2016-23598 Filed 9-29-16; 8:45 am]
 BILLING CODE 6560-50-P