Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules 15205 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

The EPA lacks the discretionary 

authority to address environmental 

justice in this rulemaking. 

List of Subjects in 40 CFR Part 52 

Air pollution control, Approval and 

promulgation of implementation plans, 

Environmental protection, Incorporation 

by reference, Oxides of nitrogen, Ozone, 

and Volatile organic compounds. 

Dated: March 15, 2016. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2016–06438 Filed 3–21–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 

[EPA–R04–OAR–2015–0798; FRL–9943–88– 

Region 4] 

Air Plan Disapprovals; MS; Prong 4– 

2008 Ozone, 2010 NO2, SO2, and 2012 

PM2.5

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to 

disapprove the visibility transport 

(prong 4) portions of revisions to the 

Mississippi State Implementation Plan 

(SIP), submitted by the Mississippi 

Department of Environmental Quality 

(MDEQ), addressing the Clean Air Act 

(CAA or Act) infrastructure SIP 

requirements for the 2008 8-hour Ozone, 

2010 1-hour Nitrogen Dioxide (NO2), 

2010 1-hour Sulfur Dioxide (SO2), and 

2012 annual Fine Particulate Matter 

(PM2.5) National Ambient Air Quality 

Standards (NAAQS). The CAA requires 

that each state adopt and submit a SIP 

for the implementation, maintenance, 

and enforcement of each NAAQS 

promulgated by EPA, commonly 

referred to as an ‘‘infrastructure SIP.’’ 

Specifically, EPA is proposing to 

disapprove the prong 4 portions of 

Mississippi’s May 29, 2012, 2008 8-hour 

Ozone infrastructure SIP submission; 

July 26, 2012, 2008 8-hour Ozone 

infrastructure SIP resubmission; 

February 28, 2013, 2010 1-hour NO2

infrastructure SIP submission; June 20, 

2013, 2010 1-hour SO2 infrastructure 

SIP submission; and December 8, 2015, 

2012 annual PM2.5 infrastructure SIP 

submission. All other applicable 

infrastructure requirements for these SIP 

submissions have been or will be 

addressed in separate rulemakings. 

DATES: Comments must be received on 

or before April 21, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2015–0798 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Sean Lakeman of 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. Mr. 

Lakeman can be reached by telephone at 

(404) 562–9043 or via electronic mail at 

lakeman.sean@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) of the CAA are to be submitted by 

states within three years after 

promulgation of a new or revised 

NAAQS to provide for the 

implementation, maintenance, and 

enforcement of the new or revised 

NAAQS. EPA has historically referred to 

these SIP submissions made for the 

purpose of satisfying the requirements 

of sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Sections 110(a)(1) and (2) require states 

to address basic SIP elements such as 

for monitoring, basic program 

requirements, and legal authority that 

are designed to assure attainment and 

maintenance of the newly established or 

revised NAAQS. More specifically, 

section 110(a)(1) provides the 

procedural and timing requirements for 

infrastructure SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for the infrastructure SIP 

requirements related to a newly 

established or revised NAAQS. The 

contents of an infrastructure SIP 

submission may vary depending upon 

the data and analytical tools available to 

the state, as well as the provisions 

already contained in the state’s 

implementation plan at the time in 

which the state develops and submits 

the submission for a new or revised 

NAAQS. 

Section 110(a)(2)(D) has two 

components: 110(a)(2)(D)(i) and 

110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) 

includes four distinct components, 

commonly referred to as ‘‘prongs,’’ that 

must be addressed in infrastructure SIP 

submissions. The first two prongs, 

which are codified in section 

110(a)(2)(D)(i)(I), are provisions that 

prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment of the NAAQS in another 

state (prong 1) and from interfering with 

maintenance of the NAAQS in another 

state (prong 2). The third and fourth 

prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that 

prohibit emissions activity in one state 

from interfering with measures required 

to prevent significant deterioration of air 

quality in another state (prong 3) or 

from interfering with measures to 

protect visibility in another state (prong 

4). Section 110(a)(2)(D)(ii) requires SIPs 

to include provisions insuring 

compliance with sections 115 and 126 

of the Act, relating to interstate and 

international pollution abatement. 

Through this action, EPA is proposing 

to disapprove the prong 4 portions of 

Mississippi’s infrastructure SIP 

submissions for the 2008 8-hour Ozone, 

2010 1-hour NO2, 2010 1-hour SO2, and 

2012 annual PM2.5 NAAQS. All other 

applicable infrastructure SIP 

requirements for these SIP submissions 

have been or will be addressed in 

separate rulemakings. A brief 

background regarding the NAAQS 

relevant to today’s proposal is provided 

below. For comprehensive information 

on these NAAQS, please refer to the 

Federal Register notices cited in the 

following subsections. 

a. 2008 8-Hour Ozone NAAQS 

On March 12, 2008, EPA revised the 

8-hour Ozone NAAQS to 0.075 parts per 

million. See 73 FR 16436 (March 27, 

2008). States were required to submit 

infrastructure SIP submissions for the 


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1For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; Section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of 

Title I of the CAA; and section 110(a)(2)(G) provides 

that states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

2See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

3EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

2008 8-hour Ozone NAAQS to EPA no 

later than March 12, 2011. For the 2008 

8-hour Ozone NAAQS, today’s proposed 

action only addresses the prong 4 

element of Mississippi’s infrastructure 

SIP submissions received on May 29, 

2012, and July 26, 2012. EPA took 

action on the remainder of Mississippi’s 

May 29, 2012, SIP submission, and July 

26, 2012, SIP resubmission in separate 

rulemakings. See 80 FR 11131 (March 2, 

2015); 80 FR 14019 (March 18, 2015); 80 

FR 48355 (August 12, 2015). 

b. 2010 1-Hour NO2 NAAQS 

On January 22, 2010, EPA established 

a new 1-hour primary NAAQS for NO2

at a level of 100 parts per billion, based 

on a 3-year average of the 98th 

percentile of the yearly distribution of 1- 

hour daily maximum concentrations. 

See 75 FR 6474 (February 9, 2010). 

States were required to submit 

infrastructure SIP submissions for the 

2010 1-hour NO2 NAAQS to EPA no 

later than January 22, 2013. For the 2010 

1-hour NO2 NAAQS, today’s proposed 

action only addresses the prong 4 

element of Mississippi’s infrastructure 

SIP submission received on February 

28, 2013. EPA will take action on the 

remainder of Mississippi’s February 28, 

2013, SIP submission through a separate 

rulemaking. 

c. 2010 1-Hour SO2 NAAQS 

On June 2, 2010, EPA revised the 

primary SO2 NAAQS to an hourly 

standard of 75 parts per billion based on 

a 3-year average of the annual 99th 

percentile of 1-hour daily maximum 

concentrations. See 75 FR 35520 (June 

22, 2010). States were required to 

submit infrastructure SIP submissions 

for the 2010 1-hour SO2 NAAQS to EPA 

no later than June 2, 2013. For the 2010 

1-hour SO2 NAAQS, today’s proposed 

action only addresses the prong 4 

element of Mississippi’s infrastructure 

SIP submission received on June 20, 

2013. EPA will take action on the 

remainder of Mississippi’s June 20, 

2013, SIP submission through a separate 

rulemaking. 

d. 2012 Annual PM2.5 NAAQS 

On December 14, 2012, EPA revised 

the primary annual PM2.5 NAAQS to 12 

micrograms per cubic meter (mg/m3). 

See 78 FR 3086 (January 15, 2013). An 

area will meet the standard if the threeyear average of its annual average PM2.5

concentration (at each monitoring site in 

the area) is less than or equal to 12.0 mg/ 

m3. States were required to submit 

infrastructure SIP submissions for the 

2012 PM2.5 NAAQS to EPA no later than 

December 14, 2015. For the 2012 PM2.5

NAAQS, today’s proposed action only 

addresses the prong 4 element of 

Mississippi’s infrastructure SIP 

submission received on December 8, 

2015. EPA will take action on the 

remainder of Mississippi’s December 8, 

2015 SIP submission through a separate 

rulemaking. 

II. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

The requirement for states to make a 

SIP submission of this type arises out of 

section 110(a)(1). Pursuant to section 

110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘each such plan’’ 

submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of section 

110(a)(1) and (2) as ‘‘infrastructure SIP’’ 

submissions. Although the term 

‘‘infrastructure SIP’’ does not appear in 

the CAA, EPA uses the term to 

distinguish this particular type of SIP 

submission from submissions that are 

intended to satisfy other SIP 

requirements under the CAA, such as 

‘‘nonattainment SIP’’ or ‘‘attainment 

plan SIP’’ submissions to address the 

nonattainment planning requirements of 

part D of Title I of the CAA, ‘‘regional 

haze SIP’’ submissions required by EPA 

rule to address the visibility protection 

requirements of section 169A of the 

CAA, and nonattainment new source 

review permit program submissions to 

address the permit requirements of 

CAA, Title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.1 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

Title I of the CAA, which specifically 

address nonattainment SIP 

requirements.2 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years or in some cases three years, 

for such designations to be 

promulgated.3 This ambiguity illustrates 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 


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4See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR 

4337 (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

5On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submission. 

6For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

7EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

8 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

9EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address Section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

DC Circuit decision in EME Homer City, 696 F.3d 

7 (D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

section 110(a)(1) and (2) with respect to 

infrastructure SIPs pertains to whether 

states must meet all of the infrastructure 

SIP requirements in a single SIP 

submission, and whether EPA must act 

upon such SIP submission in a single 

action. Although section 110(a)(1) 

directs states to submit ‘‘a plan’’ to meet 

these requirements, EPA interprets the 

CAA to allow states to make multiple 

SIP submissions separately addressing 

infrastructure SIP elements for the same 

NAAQS. If states elect to make such 

multiple SIP submissions to meet the 

infrastructure SIP requirements, EPA 

can elect to act on such submissions 

either individually or in a larger 

combined action.4 Similarly, EPA 

interprets the CAA to allow it to take 

action on the individual parts of one 

larger, comprehensive infrastructure SIP 

submission for a given NAAQS without 

concurrent action on the entire 

submission. For example, EPA has 

sometimes elected to act at different 

times on various elements and subelements of the same infrastructure SIP 

submission.5

Ambiguities within section 110(a)(1) 

and (2) may also arise with respect to 

infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.6

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

attainment plan SIP submissions 

required by part D to meet the 

‘‘applicable requirements’’ of section 

110(a)(2); thus, attainment plan SIP 

submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of Title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) 

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.7 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).8 EPA developed this 

document to provide states with up-todate guidance for infrastructure SIPs for 

any new or revised NAAQS. Within this 

guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.9 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). EPA 

interprets section 110(a)(1) and (2) such 

that infrastructure SIP submissions need 

to address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 


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10Subsequent to issuing the 2013 Guidance, 

EPA’s interpretation of the CAA with respect to the 

approvability of affirmative defense provisions in 

SIPs has changed. See ‘‘State Implementation Plans: 

Response to Petition for Rulemaking; Restatement 

and Update of EPA’s SSM Policy Applicable to 

SIPs; Findings of Substantial Inadequacy; and SIP 

Calls To Amend Provisions Applying to Excess 

Emissions During Periods of Startup, Shutdown and 

Malfunction,’’ 80 FR 33839 (June 12, 2015). As a 

result, EPA’s 2013 Guidance (p. 21 & n.30) no 

longer represents the EPA’s view concerning the 

validity of affirmative defense provisions, in light 

of the requirements of section 113 and section 304. 

11By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption or affirmative defense for 

excess emissions during SSM events, then EPA 

would need to evaluate that provision for 

compliance against the rubric of applicable CAA 

requirements in the context of the action on the 

infrastructure SIP. 

12For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

Section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in section 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including Greenhouse Gases 

(GHGs). By contrast, structural PSD 

program requirements do not include 

provisions that are not required under 

EPA’s regulations at 40 CFR 51.166 but 

are merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the PM2.5

NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

new source review program and 

whether the program addresses the 

pollutants relevant to that NAAQS. In 

the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction (SSM) that 

may be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; 10 (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that may be 

contrary to the CAA because they 

purport to allow revisions to SIPapproved emissions limits while 

limiting public process or not requiring 

further approval by EPA; and (iii) 

existing provisions for PSD programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (NSR Reform). 

Thus, EPA believes that it may approve 

an infrastructure SIP submission 

without scrutinizing the totality of the 

existing SIP for such potentially 

deficient provisions and may approve 

the submission even if it is aware of 

such existing provisions.11 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

section 110(a)(2) as requiring review of 

each and every provision of a state’s 

existing SIP against all requirements in 

the CAA and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of section 110(a)(1) 

and (2) because the CAA provides other 

avenues and mechanisms to address 

specific substantive deficiencies in 

existing SIPs. These other statutory tools 

allow EPA to take appropriately tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.12 Section 


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13EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under section 110(k)(6) of the 

CAA to remove numerous other SIP provisions that 

the Agency determined it had approved in error. 

See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 

34641 (June 27, 1997) (corrections to American 

Samoa, Arizona, California, Hawaii, and Nevada 

SIPs); 69 FR 67062, November 16, 2004 (corrections 

to California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

14See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

15Section 169A of the CAA and EPA’s 

implementing regulations require states to establish 

long-term strategies for making reasonable progress 

towards the national goal of achieving natural 

visibility conditions in Class I areas. 

Implementation plans must also give specific 

attention to certain stationary sources. Specifically, 

section 169A(b)(2)(A) of the CAA requires states to 

revise their SIPs to contain such measures as may 

be necessary to make reasonable progress towards 

the natural visibility goal, including a requirement 

that certain categories of existing major stationary 

sources 8 built between 1962 and 1977 procure, 

install, and operate BART as determined by the 

state. Under the RHR, states are directed to conduct 

BART determinations for such ‘‘BART-eligible’’ 

sources that may be anticipated to cause or 

contribute to any visibility impairment in a Class 

I area. 

16EPA finalized a limited approval of 

Mississippi’s regional haze SIP on June 27, 2012. 

See 77 FR 38191. 

17EME Homer City Generation, L.P. v. EPA, 696 

F.3d 7 (D.C. Cir. 2012). 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.13

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.14

III. What are the prong 4 requirements? 

Section 110(a)(2)(D)(i)(II) requires a 

state’s SIP to contain provisions 

prohibiting sources in that state from 

emitting pollutants in amounts that 

interfere with any other state’s efforts to 

protect visibility under part C of the 

CAA (which includes sections 169A and 

169B). The 2013 Guidance states that 

these prong 4 requirements can be 

satisfied by approved SIP provisions 

that EPA has found to adequately 

address any contribution of that state’s 

sources to impacts on visibility program 

requirements in other states. The 2013 

Guidance also states that EPA interprets 

this prong to be pollutant-specific, such 

that the infrastructure SIP submission 

need only address the potential for 

interference with protection of visibility 

caused by the pollutant (including 

precursors) to which the new or revised 

NAAQS applies. 

The 2013 Guidance lays out two ways 

in which a state’s infrastructure SIP may 

satisfy prong 4. The first way is through 

an air agency’s confirmation in its 

infrastructure SIP submission that it has 

an EPA-approved regional haze SIP that 

fully meets the requirements of 40 CFR 

51.308 or 51.309. 40 CFR 51.308 and 

51.309 specifically require that a state 

participating in a regional planning 

process include all measures needed to 

achieve its apportionment of emission 

reduction obligations agreed upon 

through that process. A fully approved 

regional haze SIP will ensure that 

emissions from sources under an air 

agency’s jurisdiction are not interfering 

with measures required to be included 

in other air agencies’ plans to protect 

visibility. 

Alternatively, in the absence of a fully 

approved regional haze SIP, a state may 

meet the requirements of prong 4 

through a demonstration in its 

infrastructure SIP submission that 

emissions within its jurisdiction do not 

interfere with other air agencies’ plans 

to protect visibility. Such an 

infrastructure SIP submission would 

need to include measures to limit 

visibility-impairing pollutants and 

ensure that the reductions conform with 

any mutually agreed regional haze 

reasonable progress goals for mandatory 

Class I areas in other states. 

IV. What is EPA’s analysis of how 

Mississippi addressed prong 4? 

Mississippi’s May 29, 2012, 2008 8- 

hour Ozone submission; July 26, 2012, 

2008 8-hour Ozone resubmission; 

February 28, 2013, 2010, NO2

submission; and December 8, 2015, 

2012 PM2.5 submission each cite to the 

State’s regional haze SIP as satisfying 

prong 4 requirements. The June 20, 

2013, 2010 SO2 submission cites to the 

State’s regional haze SIP and to EPA’s 

February 20, 2013 (78 FR 11805) notice 

of proposed rulemaking (NPRM) on the 

prong 4 element of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS. In that 

notice, EPA proposed to approve the 

prong 4 element on the basis that 

Mississippi’s regional haze SIP, in 

combination with its SIP provisions to 

implement the Clean Air Interstate Rule 

(CAIR), prevented sources from 

interfering with measures adopted by 

other states to protect visibility. 

In its regional haze SIP, Mississippi 

relied on CAIR to satisfy the best 

available retrofit technology (BART) 

requirements for its CAIR-subject 

electricity generating units (EGUs).15

Although this reliance on CAIR was 

consistent with the CAA at the time that 

the State submitted its regional haze 

SIP, CAIR has since been replaced by 

the Cross-State Air Pollution Rule 

(CSAPR) and can no longer be relied 

upon as a substitute for BART or as part 

of a long-term control strategy (LTS) for 

regional haze. Therefore, EPA finalized 

a limited disapproval of the Mississippi 

regional haze SIP to the extent that it 

relies on CAIR to satisfy BART and LTS 

requirements.16 See 77 FR 33642 (June 7, 

2012). Because Mississippi’s regional 

haze SIP is not fully approved, the State 

cannot rely on this plan alone to meet 

the prong 4 requirements for the 2008 

Ozone, 2010 1-hour NO2, 2010 1-hour 

SO2, and 2012 PM2.5 NAAQS. 

Furthermore, unlike CAIR, CSAPR does 

not cover SO2 emissions from EGUs in 

Mississippi and therefore cannot be 

relied upon to fully satisfy outstanding 

regional haze requirements for EGUs in 

the State. 

Mississippi’s reference to EPA’s 

February 20, 2013, NPRM to approve 

the prong 4 element of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS is not 

relevant because the legal status of CAIR 

and CSAPR has changed since 

publication of that notice. In June 2012, 

EPA finalized the limited disapproval of 

the State’s regional haze SIP, which 

relied on CAIR to satisfy affected EGUs’ 

BART requirements. At that time, 

questions regarding the legality of 

CSAPR were pending before the United 

States Court of Appeals for the District 

of Columbia Circuit (D.C. Circuit). The 

D.C. Circuit subsequently vacated and 

remanded CSAPR in August 2012, 

leaving CAIR in place temporarily.17 As 

of February 20, 2013, when EPA 

proposed approving the prong 4 element 

of the State’s 1997 and 2006 PM2.5

infrastructure SIP submissions, EPA had 

not yet asked the United States Supreme 

Court to review the D.C. Circuit’s 

decision on CSAPR. Based upon the 


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18EPA v. EME Homer City Generation, L.P., 134 

S. Ct. 1584 (2014). 

D.C. Circuit’s direction to EPA to 

continue administering CAIR, the 

Agency believed that it was appropriate 

for states to rely on CAIR emission 

reductions for prong 4 purposes. EPA 

intended to allow this practice until a 

valid replacement for CAIR was 

developed and EPA acted on SIPs 

submitted in compliance with any new 

rule, or until the CSAPR litigation was 

resolved in a way that provided 

different direction regarding CAIR and 

CSAPR. After publication of the 

February 20, 2013, prong 4 proposal, 

EPA asked the Supreme Court to review 

the DC Circuit’s decision and the 

Supreme Court reversed that ruling and 

upheld CSAPR.18 EPA began 

implementation of CSAPR, which 

replaced CAIR, on January 1, 2015. 

Therefore, because of this intervening 

change in the law, EPA cannot finalize 

its February 20, 2013, proposal to 

approve the prong 4 element that relies 

on CAIR, and Mississippi cannot rely on 

the outdated rationale contained in the 

NPRM regarding CAIR to satisfy prong 

4. 

As mentioned above, a state may meet 

the requirements of prong 4 without a 

fully approved regional haze SIP by 

showing that its SIP contains adequate 

provisions to prevent emissions from 

within the state from interfering with 

other states’ measures to protect 

visibility. Mississippi did not, however, 

provide a demonstration in any of the 

infrastructure SIP submissions subject 

to today’s proposed action that 

emissions within its jurisdiction do not 

interfere with other states’ plans to 

protect visibility. 

As discussed above, Mississippi does 

not have a fully approved regional haze 

SIP that meets the requirements of 40 

CFR 51.308 and has not otherwise 

shown that its SIP contains adequate 

provisions to prevent emissions from 

within the state from interfering with 

other states’ measures to protect 

visibility. Therefore, EPA is proposing 

to disapprove the prong 4 portions of 

Mississippi’s May 29, 2012, 2008 8-hour 

Ozone infrastructure SIP submission; 

July 26, 2012, 2008 8-hour Ozone 

infrastructure SIP resubmission; 

February 28, 2013, 2010 1-hour NO2

infrastructure SIP submission; June 20, 

2013, 2010 1-hour SO2 infrastructure 

SIP submission; and December 8, 2015, 

2012 annual PM2.5 infrastructure SIP 

submission. Mississippi did not submit 

these infrastructure SIPs to meet 

requirements for Part D or a SIP call; 

therefore, if EPA takes final action to 

disapprove the prong 4 portions of these 

submissions, no sanctions will be 

triggered. However, if EPA finalizes this 

proposed disapproval action, that final 

action will trigger the requirement 

under section 110(c) that EPA 

promulgate a FIP no later than two years 

from the date of the disapproval unless 

the State corrects the deficiency through 

a SIP revision and EPA approves the SIP 

revision before EPA promulgates such a 

FIP. 

V. Proposed Action 

As described above, EPA is proposing 

to disapprove the prong 4 portions of 

Mississippi’s May 29, 2012, 2008 Ozone 

infrastructure SIP submission; July 26, 

2012, 2008 Ozone infrastructure SIP 

resubmission; February 28, 2013, 2010 

NO2 infrastructure SIP submission; June 

20, 2013, 2010 SO2 infrastructure SIP 

submission; and December 8, 2015, 

2012 PM2.5 infrastructure SIP 

submission. All other outstanding 

applicable infrastructure requirements 

for these SIP submissions will be 

addressed in separate rulemakings. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. EPA is proposing to determine 

that the prong 4 portions of the 

aforementioned SIP submissions do not 

meet Federal requirements. Therefore, 

this proposed action does not impose 

additional requirements on the state 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: March 8, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–06062 Filed 3–21–16; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 15 

[ET Docket No. 16–56; FCC 16–23] 

Unlicensed White Space Devices 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) proposes to amend its 

rules to improve the quality of the 

geographic location and other data 

submitted for fixed white space devices 


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