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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 NO**  2, **SO** 2 **, and 2012**

**PM** 2.5

**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 (NO 2 ), 2010 1-hour Sulfur Dioxide (SO 2 ), and
2012 annual Fine Particulate Matter (PM 2.5 ) 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 NO 2 infrastructure SIP submission; June 20, 2013, 2010 1-hour SO 2 infrastructure SIP submission; and December 8, 2015,
2012 annual PM 2.5 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 NO 2 , 2010 1-hour SO 2 , and
2012 annual PM 2.5 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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1 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; Section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of Title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

2 See, e.g., ‘‘Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;

Revisions to the NO X 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)).

3 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note,

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

for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. 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 NO 2 NAAQS
On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO 2 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 NO 2 NAAQS to EPA no later than January 22, 2013. For the 2010
1-hour NO 2 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 SO 2 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 SO 2 NAAQS to EPA no later than June 2, 2013. For the 2010
1-hour SO 2 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 PM 2.5 NAAQS

On December 14, 2012, EPA revised the primary annual PM 2.5 NAAQS to 12 micrograms per cubic meter ( mg/m 3 ).

See 78 FR 3086 (January 15, 2013). An
area will meet the standard if the threeyear average of its annual average PM 2.5 concentration (at each monitoring site in the area) is less than or equal to 12.0 mg/

m 3 . States were required to submit
infrastructure SIP submissions for the

2012 PM 2.5 NAAQS to EPA no later than December 14, 2015. For the 2012 PM 2.5 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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4 See, e.g., ‘‘Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,’’ 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA’s 2008 PM 2.5 NSR rule), and ‘‘Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM 2.5 NAAQS,’’ 78 FR 4337 (January 22, 2013) (EPA’s final action on the

infrastructure SIP for the 2006 PM 2.5 NAAQS).

5 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee’s December 14, 2007

submission. 6 For example, implementation of the 1997 PM 2.5 NAAQS required the deployment of a system of

new monitors to measure ambient levels of that new indicator species for the new NAAQS. 7 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

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.

9 EPA’s September 13, 2013, guidance did not make recommendations with respect to

infrastructure SIP submissions to address Section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the

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 thisdocument 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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10 Subsequent 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.

11 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption 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. 12 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM

events. See ‘‘Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,’’ 74 FR 21639 (April 18, 2011). 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 PM 2.5 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 theypurport 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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13 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD

programs. See ‘‘Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,’’ 75 FR 82536 (December 30, 2010). EPA has previously used its authority under 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).

14 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). 15 Section 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.

16 EPA finalized a limited approval of Mississippi’s regional haze SIP on June 27, 2012.

See 77 FR 38191.

17 EME 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, NO 2 submission; and December 8, 2015,

2012 PM 2.5 submission each cite to the State’s regional haze SIP as satisfying prong 4 requirements. The June 20,
2013, 2010 SO 2 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 PM 2.5 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 NO 2, 2010 1-hour

SO 2 , and 2012 PM 2.5 NAAQS. Furthermore, unlike CAIR, CSAPR does

not cover SO 2 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 PM 2.5 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 PM 2.5 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


### 15210 Federal Register / Vol. 81, No. 55 / Tuesday, March 22, 2016 / Proposed Rules

18 EPA 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 NO 2 infrastructure SIP submission; June 20, 2013, 2010 1-hour SO 2 infrastructure SIP submission; and December 8, 2015,
2012 annual PM 2.5 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

NO 2 infrastructure SIP submission; June
20, 2013, 2010 SO 2 infrastructure SIP submission; and December 8, 2015,

2012 PM 2.5 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