Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 32707 

1 In these infrastructure SIP submissions States 

generally certify evidence of compliance with 

sections 110(a)(1) and (2) of the CAA through a 

combination of state regulations and statutes, some 

of which have been incorporated into the federallyContinued 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

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

Dated: May 12, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–12113 Filed 5–23–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2014–0751; FRL–9946–83– 

Region 4] 

Air Plan Approval/Disapproval; 

Mississippi Infrastructure 

Requirements for the 2010 Nitrogen 

Dioxide National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

in part, and disapprove in part, portions 

of the State Implementation Plan (SIP) 

submission, submitted by the State of 

Mississippi, through the Mississippi 

Department of Environmental Quality 

(MDEQ) on February 28, 2013, to 

demonstrate that the State meets the 

infrastructure requirements of the Clean 

Air Act (CAA or Act) for the 2010 1- 

hour nitrogen dioxide (NO2) national 

ambient air quality standards (NAAQS). 

The CAA requires that each state adopt 

and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by the EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. MDEQ certified 

that the Mississippi SIP contains 

provisions that ensure the 2010 NO2

NAAQS are implemented, enforced, and 

maintained in Mississippi. With the 

exception of the state board majority 

requirements respecting significant 

portion of income, for which EPA is 

proposing to disapprove, EPA is 

proposing to determine that portions of 

Mississippi’s infrastructure submission, 

submitted to EPA on February 28, 2013, 

satisfies certain required infrastructure 

elements for the 2010 1-hour NO2

NAAQS. 

DATES: Written comments must be 

received on or before June 23, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2014–0751 at 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: 

Richard Wong, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–8726. 

Mr. Wong can be reached via electronic 

mail at wong.richard@epa.gov. 

Table of Contents 

I. Background 

II. What elements are required under 

Sections 110(a)(1) and (2)? 

III. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

IV. What is EPA’s analysis of how 

Mississippi addressed the elements of 

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

‘‘infrastructure’’ provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background 

On February 9, 2010, EPA 

promulgated a new 1-hour primary 

NAAQS for NO2 at a level of 100 parts 

per billion (ppb), based on a 3-year 

average of the 98th percentile of the 

yearly distribution of 1-hour daily 

maximum concentrations. See 75 FR 

6474. Pursuant to section 110(a)(1) of 

the CAA, states are required to submit 

SIPs meeting the requirements of 

section 110(a)(2) within three years after 

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. Section 110(a)(2) 

requires states to address basic SIP 

elements such as requirements for 

monitoring, basic program requirements 

and legal authority that are designed to 

assure attainment and maintenance of 

the NAAQS. States were required to 

submit such SIPs for the 2010 NO2

NAAQS to EPA no later than January 

22, 2013.1

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32708 Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 

approved SIP. In addition, certain federallyapproved, non-SIP regulations may also be 

appropriate for demonstrating compliance with 

sections 110(a)(1) and (2). Throughout this 

rulemaking, unless otherwise indicated, the term 

‘‘Air Pollution Control (APC)’’ or ‘‘Section APC–S– 

X’’ indicates that the cited regulation has been 

approved into Mississippi’s federally-approved SIP. 

The term ‘‘Mississippi Code’’ indicates cited 

Mississippi state statutes, which are not a part of 

the SIP unless otherwise indicated. 

2Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

pursuant to section 172. These requirements are: (1) 

Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as 

required in part D Title I of the CAA; and (2) 

submissions required by section 110(a)(2)(I) which 

pertain to the nonattainment planning requirements 

of part D, Title I of the CAA. This proposed 

rulemaking does not address infrastructure 

elements related to section 110(a)(2)(I) or the 

nonattainment planning requirements of 

110(a)(2)(C). 

3This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

4As mentioned, this element is not relevant to 

this proposed rulemaking. 

This action is proposing to approve 

Mississippi’s infrastructure SIP 

submission for the applicable 

requirements of the 2010 1-hour NO2

NAAQS, with the exception of the 

preconstruction PSD permitting 

requirements for major sources of 

sections 110(a)(2)(C), prong 3 of (D)(i) 

and (J), the interstate transport 

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

and (II) (prongs 1, 2, and 4), and the 

state board majority requirements 

respecting significant portion of income 

of 110(a)(2)(E)(ii). On March 18, 2015, 

EPA approved Mississippi’s February 

28, 2013, infrastructure SIP submission 

regarding the PSD permitting 

requirements for major sources of 

sections 110(a)(2)(C), prong 3 of D(i) and 

(J) for the 2010 1-hour NO2 NAAQS. See 

80 FR 14019. Therefore, EPA is not 

proposing any action in this document 

pertaining to sections 110(a)(2)(C), 

prong 3 of D(i) and (J). Additionally, 

with respect to the interstate transport 

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

and (II) (prongs 1, 2, and 4), EPA is not 

proposing any action in this document 

on these requirements. With respect to 

Mississippi’s infrastructure SIP 

submission related to the majority 

requirements respecting significant 

portion of income of 110(a)(2)(E)(ii), 

EPA is proposing to disapprove this 

portion of Mississippi’s submission 

because Mississippi does not preclude 

at least a majority of the members of its 

boards from receiving a significant 

portion of their income from persons 

subject to permits or enforcement orders 

issued by such boards. For the aspects 

of Mississippi’s submittal proposed for 

approval, EPA notes that the Agency is 

not approving any specific rule, but 

rather proposing that Mississippi’s 

already approved SIP meets certain 

CAA requirements. 

II. What elements are required under 

Sections 110(a)(1) and (2)? 

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS, or 

within such shorter period as EPA may 

prescribe. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. In the 

case of the 2010 NO2 NAAQS, states 

typically have met the basic program 

elements required in section 110(a)(2) 

through earlier SIP submissions in 

connection with previous NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned previously, these 

requirements include basic SIP elements 

such as modeling, monitoring, and 

emissions inventories that are designed 

to assure attainment and maintenance of 

the NAAQS. The requirements that are 

the subject of this proposed rulemaking 

are summarized later in this preamble 

and in EPA’s September 13, 2013, 

memorandum entitled ‘‘Guidance on 

Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2).’’ 2

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

• 110(a)(2)(C): Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources 3

• 110(a)(2)(D)(i)(I) and (II): Interstate 

Pollution Transport 

• 110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Air 

Pollution 

• 110(a)(2)(E): Adequate Resources and 

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP Revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 4

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting Fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from Mississippi that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 NO2 NAAQS. 

The requirement for states to make a SIP 

submission of this type arises out of 

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

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

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

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5For 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. 

6See, 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)). 

7EPA 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. 

8See, 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). 

9On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

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

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

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

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

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

42997), EPA took separate proposed and final 

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

SIP elements of Tennessee’s December 14, 2007 

submittal. 

10For 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. 

CAA section 169A, and nonattainment 

new source review (NNSR) permit 

program submissions to address the 

permit requirements of CAA, title I, part 

D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

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

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.6 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

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

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.8

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

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

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

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

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.10

EPA notes that interpretation of 

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

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

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

these other types of SIP submissions. 

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

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

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

regarding enforceable emission limits 

and control measures and section 

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

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

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

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

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

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

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

believes that it is appropriate to 

interpret the ambiguous portions of 

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11EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

12 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

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

Memorandum from Stephen D. Page, September 13, 

2013. 

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

make recommendations with respect to 

infrastructure SIP submissions to address section 

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

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

D.C. Circuit decision in EME Homer City, 696 F.3d7 

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

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

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

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

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

14By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

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

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.11 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).12 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

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

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

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

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

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

implementation plan appropriately 

addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 

2013 Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submissions because section 

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

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

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

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

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and new 

source review (NSR) pollutants, 

including greenhouse gases (GHGs). By 

contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

fine particulate matter (PM2.5) NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

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

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s 

implementation plan meets basic 

structural requirements. For example, 

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

other things, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

NSR program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.14 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

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15For 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). 

16EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

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

2009) (corrections to Arizona and Nevada SIPs). 

17See, 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). 

18 Mississippi Code Title 49 is referenced in the 

State’s infrastructure SIP submissions as ‘‘Appendix 

A–9.’’ As discussed, unless otherwise indicated 

herein, portions of the Mississippi Code referenced 

in this proposal are not incorporated into the SIP. 

19On June 12, 2015, EPA published a final action 

entitled, ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown, and Malfunction.’’ 

See 80 FR 33840. 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

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

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

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

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

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

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

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). Finally, EPA believes 

that its approach with respect to 

infrastructure SIP requirements is based 

on a reasonable reading of sections 

110(a)(1) and 110(a)(2) because the CAA 

provides other avenues and mechanisms 

to address specific substantive 

deficiencies in existing SIPs. These 

other statutory tools allow EPA to take 

appropriately tailored action, depending 

upon the nature and severity of the 

alleged SIP deficiency. Section 110(k)(5) 

authorizes EPA to issue a ‘‘SIP call’’ 

whenever the Agency determines that a 

state’s implementation plan is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.15 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

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

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

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

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.17

IV. What is EPA’s analysis of how 

Mississippi addressed the elements of 

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

‘‘infrastructure’’ provisions? 

Mississippi’s February 28, 2013, 

infrastructure submission addresses the 

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

as described later on. 

1. 110(a)(2)(A) Emission Limits and 

Other Control Measures: Section 

110(a)(2)(A) requires that each 

implementation plan include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements. Mississippi’s 

infrastructure SIP submission provides 

an overview of the provisions of the 

Mississippi Air Pollution Control (APC) 

regulations relevant to air quality 

control. Mississippi Code Title 49, 

Section 49–17–17(h) (Appendix A–9),18

authorizes MDEQ to adopt, modify, or 

repeal ambient air quality standards and 

emissions standards for the control of 

air pollution, including those necessary 

to obtain EPA approval under section 

110 of the CAA. Sections APC–S–1, Air 

Emission Regulations for the Prevention, 

Abatement, and Control of Air 

Contaminants, and APC–S–3, 

Regulations for the Prevention of Air 

Pollution Emergency Episodes, establish 

enforceable emissions limitations and 

other control measures, means or 

techniques, for activities that contribute 

to NO2 concentrations in the ambient air 

and provide authority for MDEQ to 

establish such limits and measures as 

well as schedules for compliance 

through SIP-approved permits to meet 

the applicable requirements of the CAA. 

EPA has made the preliminary 

determination that the provisions 

contained in these regulations, and 

Mississippi’s statute are adequate for 

enforceable emission limitations and 

other control measures, means, or 

techniques, as well as schedules and 

timetables for compliance for the 2010 

1-hour NO2 NAAQS in the State. 

In this action, EPA is not proposing to 

approve or disapprove any existing state 

provisions with regard to excess 

emissions during SSM operations at a 

facility. EPA believes that a number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance, ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (September 20, 1999), and 

the Agency is addressing such state 

regulations in a separate action.19

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing state rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

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20On occasion, proposed changes to the 

monitoring network are evaluated outside of the 

network plan approval process in accordance with 

40 CFR part 58. 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient air quality 

monitoring/data system: Section 

110(a)(2)(B) requires SIPs to provide for 

establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to (i) monitor, 

compile, and analyze data on ambient 

air quality, and (ii) upon request, make 

such data available to the 

Administrator. Section APC–S–1, Air 

Emission Regulations for the Prevention, 

Abatement, and Control of Air 

Contaminants, and Mississippi Code 

Title 49, Section 49–17–17(g), provides 

MDEQ with the authority to collect and 

disseminate information relating to air 

quality and pollution and the 

prevention, control, supervision, and 

abatement thereof. Annually, States 

develop and submit to EPA for approval 

statewide ambient monitoring network 

plans consistent with the requirements 

of 40 CFR parts 50, 53, and 58. The 

annual network plan involves an 

evaluation of any proposed changes to 

the monitoring network, includes the 

annual ambient monitoring network 

design plan and a certified evaluation of 

the agency’s ambient monitors and 

auxiliary support equipment.20 On June 

9, 2015, Mississippi submitted its 

monitoring network plan to EPA, and on 

October 6, 2015, EPA approved this 

plan. Mississippi’s approved monitoring 

network plan can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2014–0751. EPA 

has made the preliminary determination 

that Mississippi’s SIP and practices are 

adequate for the ambient air quality 

monitoring and data system 

requirements related to the 2010 1-hour 

NO2 NAAQS. 

3. 110(a)(2)(C) Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources: Section 110(a)(2)(C) 

consists of three sub-elements; 

enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources; 

and preconstruction permitting of major 

sources and major modifications in 

areas designated attainment or 

unclassifiable for the subject NAAQS as 

required by CAA title I part C (i.e., the 

major source PSD program). To meet the 

requirements for this element, MDEQ 

cited Section APC–S–5, Mississippi 

Regulations for the Prevention of 

Significant Deterioration of Air Quality, 

Section APC–S–2, Permit Regulations 

for the Construction and/or Operation of 

Air Emissions Equipment. These 

regulations enable MDEQ to regulate 

sources contributing to the 2010 1-hour 

NO2 NAAQS through enforceable 

permits. 

Enforcement: MDEQ’s APC–S–2, 

Permit Regulation for the Construction 

and/or Operation of Air Emissions 

Equipment, Section VI provides for the 

enforcement of NO2 emission limits and 

control measures through construction 

permitting for new or modified 

stationary sources. Also note that under 

Mississippi Code Title 49, Chapter 17, 

MDEQ has enforcement authority to 

seek penalties and injunctive relief for 

violations of emission limits and other 

control measures and violations of 

permits. 

PSD Permitting for Major Sources: 

With respect to Mississippi’s February 

28, 2013, infrastructure SIP submission 

related to the PSD permitting 

requirements for major sources of 

section 110(a)(2)(C), EPA took final 

action to approve these provisions for 

the 2010 1-hour NO2 NAAQS on March 

18, 2015. See 80 FR 14019. 

Regulation of minor sources and 

modifications: Section 110(a)(2)(C) also 

requires the SIP to include provisions 

that govern the minor source 

preconstruction program that regulates 

emissions of the 2010 1-hour NO2

NAAQS. Mississippi has a SIP-approved 

minor NSR permitting program at 

Section APC–S–2, Section I. D, 

Permitting Requirements that regulates 

the preconstruction permitting of 

modifications and construction of minor 

stationary sources. 

EPA has made the preliminary 

determination that Mississippi’s SIP and 

practices are adequate for program 

enforcement of control measures and 

regulation of minor sources and 

modifications related to the 2010 1-hour 

NO2 NAAQS. 

4. 110(a)(2)(D)(i)(I) and (II) Interstate 

Pollution Transport: Section 

110(a)(2)(D)(i) has two components; 

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

Each of these components have two 

subparts resulting in four distinct 

components, commonly referred to as 

‘‘prongs,’’ that must be addressed in 

infrastructure SIP submissions. The first 

two prongs, which are codified in 

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

that prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment of the NAAQS in another 

state (‘‘prong 1’’), and interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). The third and fourth 

prongs, which are codified in section 

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

prohibit emissions activity in one state 

from interfering with measures required 

to prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). 

110(a)(2)(D)(i)(I)—Prongs 1 and 2: 

EPA is not proposing any action in this 

rulemaking related to the interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states of section 110(a)(2)(D)(i)(I) 

(prongs 1 and 2) because Mississippi’s 

2010 1-hour NO2 NAAQS infrastructure 

submission did not address prongs 1 

and 2. 

110(a)(2)(D)(i)(II)—Prong 3: With 

respect to Mississippi’s infrastructure 

SIP submission related to the interstate 

transport requirements for PSD of 

section 110(a)(2)(D)(i)(II) (prong 3), EPA 

took final action to approve 

Mississippi’s February 28, 2013, 

infrastructure SIP submission regarding 

prong 3 of D(i) for the 2010 1-hour NO2

NAAQS on March 18, 2015. See 80 FR 

14019. 

110(a)(2)(D)(i)(II)—Prong 4: EPA is not 

proposing any action in this rulemaking 

related to the interstate transport 

provisions pertaining to visibility 

protection in other states of section 

110(a)(2)(D)(i)(II) (prong 4) and will 

consider these requirements in relation 

to Mississippi’s 2010 1-hour NO2

NAAQS infrastructure submission in a 

separate rulemaking. 

5. 110(a)(2)(D)(ii) Interstate Pollution 

Abatement and International Air 

Pollution: Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

ensuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

Section APC–S–5, Mississippi 

Regulations for the Prevention of 

Significant Deterioration of Air Quality 

provides how MDEQ will notify 

neighboring states of potential impacts 

from new or modified sources 

consistent with the requirements of 40 

CFR 51.166, which is adopted by 

reference into the Mississippi SIP. 

Additionally, Mississippi does not have 

any pending obligation under section 

115 and 126 of the CAA. EPA has made 

the preliminary determination that 

Mississippi’s SIP and practices are 

adequate for insuring compliance with 

the applicable requirements relating to 

interstate and international pollution 

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21This final action pertained to Mississippi’s 

October 11, 2012, infrastructure SIP submission and 

only addressed compliance with 110(a)(2)(E)(ii) 

respecting CAA section 128 requirements. 

22The Mississippi Commission on Environmental 

Quality issues and supervises enforcement orders, 

and the Mississippi Department of Environmental 

Quality Permit Board has the authority to issue, 

modify, revoke or deny permits. 

abatement for the 2010 1-hour NO2

NAAQS. 

6. 110(a)(2)(E) Adequate Resources 

and Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies: Section 110(a)(2)(E) 

requires that each implementation plan 

provide (i) necessary assurances that the 

State will have adequate personnel, 

funding, and authority under state law 

to carry out its implementation plan, (ii) 

that the State comply with the 

requirements respecting State Boards 

pursuant to section 128 of the Act, and 

(iii) necessary assurances that, where 

the State has relied on a local or 

regional government, agency, or 

instrumentality for the implementation 

of any plan provision, the State has 

responsibility for ensuring adequate 

implementation of such plan provisions. 

EPA is proposing to approve 

Mississippi’s SIP as meeting the 

requirements of sections 110(a)(2)(E)(i) 

and (iii). EPA is proposing to approve in 

part and disapprove in part 

Mississippi’s SIP respecting section 

110(a)(2)(E)(ii). EPA’s rationale for the 

proposals respecting each section of 

110(a)(2)(E) is described later on. 

To satisfy the requirements of sections 

110(a)(2)(E)(i) and (iii), Mississippi 

provides that MDEQ is responsible for 

promulgating rules and regulations for 

the NAAQS, emissions standards, 

general policies, a system of permits, fee 

schedules for the review of plans, and 

other planning needs as found in 

Mississippi Code Title 49, Section 49– 

17–17(d) and Section 49–17–17(h) 

(Appendix A–9). As evidence of the 

adequacy of MDEQ’s resources with 

respect to sub-elements (i) and (iii), EPA 

submitted a letter to Mississippi on 

April 19, 2016, outlining 105 grant 

commitments and the current status of 

these commitments for fiscal year 2015. 

The letter EPA submitted to Mississippi 

can be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2014–0751. Annually, states update 

these grant commitments based on 

current SIP requirements, air quality 

planning, and applicable requirements 

related to the NAAQS. There were no 

outstanding issues in relation to the SIP 

for fiscal year 2015, therefore, MDEQ’s 

grants were finalized and closed out. 

EPA has made the preliminary 

determination that Mississippi has 

adequate resources for implementation 

of the 2010 1-hour NO2 NAAQS. 

To meet the requirements of section 

110(a)(2)(E)(ii), states must comply with 

the requirements respecting state boards 

pursuant to section 128 of the Act. 

Section 128 of the CAA requires that 

states include provisions in their SIP to 

address conflicts of interest for state 

boards or bodies that oversee CAA 

permits and enforcement orders and 

disclosure of conflict of interest 

requirements. Specifically, CAA section 

128(a)(1) necessitates that each SIP shall 

require that at least a majority of any 

board or body which approves permits 

or enforcement orders shall be subject to 

the described public interest service and 

income restrictions therein. Subsection 

128(a)(2) requires that the members of 

any board or body, or the head of an 

executive agency with similar power to 

approve permits or enforcement orders 

under the CAA, shall also be subject to 

conflict of interest disclosure 

requirements. 

To meet its section 110(a)(2)(E)(ii) 

obligations for the 2010 1-hour NO2

NAAQS, Mississippi’s infrastructure SIP 

submission cites Article 4, Section 109 

of the Mississippi Constitution and 

portions of Mississippi Code sections 

25–4–25, –27, –29, –103, –105, and 

–109. These provisions were 

incorporated into the Mississippi SIP to 

meet CAA section 128 requirements in 

EPA’s final action for the 1997 and 2006 

PM2.5 NAAQS infrastructure SIP. See 78 

FR 20793.21 In this same final action for 

the 1997 and 2006 PM2.5 NAAQS 

infrastructure SIP (78 FR 20793), EPA 

disapproved Mississippi’s October 11, 

2012, submission as not satisfying the 

significant portion of income 

requirement of section 128(a)(1). 

With respect to the public interest 

requirement of section 128(a)(1) and the 

adequate disclosure of conflicts of 

interest requirement of section 128(a)(2), 

EPA has previously found these 

requirements to be satisfied by the 

existing provisions in Mississippi’s SIP. 

See 78 FR 20793. 

With respect to the significant portion 

of income requirement of section 

128(a)(1), the provisions included in the 

February 28, 2013 infrastructure SIP 

submission do not preclude at least a 

majority of the members of the 

Mississippi Boards 22 from receiving a 

significant portion of their income from 

persons subject to permits or 

enforcement orders issued by such 

Boards. While the submitted laws and 

provisions preclude members of the 

Mississippi Boards from certain types of 

income (e.g., contracts with State or 

political subdivisions thereof, or income 

obtained through the use of his or her 

public office or obtained to influence a 

decision of the Mississippi Boards), they 

do not preclude a majority of members 

of the Mississippi Boards from deriving 

any significant portion of their income 

from persons subject to permits or 

enforcement orders so long as that 

income is not derived from one of the 

proscribed methods described in the 

laws and provisions submitted by the 

State. To date, because a majority of 

board members may still derive a 

significant portion of income from 

persons subject to permits or 

enforcement orders issued by the 

Mississippi Boards, the Mississippi SIP 

does not meet the section 128(a)(1) 

majority requirements respecting 

significant portion of income, and as 

such, EPA is proposing to disapprove 

the State’s 110(a)(2)(E)(ii) submission as 

it relates only to this portion of section 

128(a)(1). 

Accordingly, EPA is proposing to 

approve the section 110(a)(2)(E)(ii) 

submission as it relates to the public 

interest requirements of section 

128(a)(1) and the conflict of interest 

disclosure provisions of section 

128(a)(2) and proposing to disapprove 

Mississippi’s section 110(a)(2)(E)(ii) 

submission as it pertains to compliance 

with the significant portion of income 

requirement of section 128(a)(1) for the 

2010 1-hour NO2 NAAQS. 

7. 110(a)(2)(F) Stationary Source 

Monitoring and Reporting: Section 

110(a)(2)(F) requires SIPs to meet 

applicable requirements addressing: (i) 

The installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary 

steps, by owners or operators of 

stationary sources to monitor emissions 

from such sources, (ii) periodic reports 

on the nature and amounts of emissions 

and emissions related data from such 

sources, and (iii) correlation of such 

reports by the state agency with any 

emission limitations or standards 

established pursuant to this section, 

which reports shall be available at 

reasonable times for public inspection. 

Section APC–S–2, Permit Regulations 

for the Construction and/or Operation of 

Air Emissions Equipment, establishes 

requirements for emissions compliance 

testing utilizing emissions sampling and 

analysis. It further describes how the 

State ensures the quality of its data 

through observing emissions and 

monitoring operations. MDEQ uses 

these data to track progress towards 

maintaining the NAAQS, develop 

control and maintenance strategies, 

identify sources and general emission 

levels, and determine compliance with 

emission regulations and additional 

EPA requirements. Mississippi Code 49, 

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Section 49–17–21 (Appendix A–9) 

provides MDEQ with the authority to 

require the maintenance of records 

related to the operation of air 

contaminant sources and any authorized 

representative of the Commission may 

examine and copy any such records or 

memoranda pertaining to the operation 

of such contaminant source. Section 

APC–S–2 lists requirements for 

compliance testing and reporting that is 

required to be included in any MDEQ 

air pollution permit and requires that 

copies of records relating to the 

operation of air contamination sources 

be submitted to the Permit Board as 

required by the permit or upon request. 

Section APC–S–1, Air Emission 

Regulations For The Prevention, 

Abatement, and Control of Air 

Contaminants, authorizes source 

owners or operators to use any credible 

evidence or information relevant to 

whether a source would have been in 

compliance with applicable 

requirements if the appropriate 

performance or compliance test had 

been performed, for the purpose of 

submitting compliance certifications. 

EPA is unaware of any provision 

preventing the use of credible evidence 

in the Mississippi SIP. 

Additionally, Mississippi is required 

to submit emissions data to EPA for 

purposes of the National Emissions 

Inventory (NEI). The NEI is EPA’s 

central repository for air emissions data. 

EPA published the Air Emissions 

Reporting Rule (AERR) on December 5, 

2008, which modified the requirements 

for collecting and reporting air 

emissions data (73 FR 76539). The 

AERR shortened the time states had to 

report emissions data from 17 to 12 

months, giving states one calendar year 

to submit emissions data. All states are 

required to submit a comprehensive 

emissions inventory every three years 

and report emissions for certain larger 

sources annually through EPA’s online 

Emissions Inventory System (EIS). 

States report emissions data for the six 

criteria pollutants and the precursors 

that form them—nitrogen oxides, sulfur 

dioxide, ammonia, lead, carbon 

monoxide, particulate matter, and 

volatile organic compounds. Many 

states also voluntarily report emissions 

of hazardous air pollutants. Mississippi 

made its latest update to the 2012 NEI 

on January 9, 2014. EPA compiles the 

emissions data, supplementing it where 

necessary, and releases it to the general 

public through the Web site http:// 

www.epa.gov/ttn/chief/ 

eiinformation.html. EPA has made the 

preliminary determination that 

Mississippi’s SIP and practices are 

adequate for the stationary source 

monitoring systems related to the 2010 

1-hour NO2 NAAQS. 

8. 110(a)(2)(G) Emergency Powers: 

Section 110(a)(2)(G) requires that states 

demonstrate authority comparable with 

section 303 of the CAA and adequate 

contingency plans to implement such 

authority. Mississippi Code Title 49, 

Section 49–17–27 (Appendix A–9) and 

APC–S–3, Regulations for the 

Prevention of Air Pollution Emergency 

Episodes, identify air pollution 

emergency episodes and preplanned 

abatement strategies. Specifically, 

Section APC–S–3 authorizes the MDEQ 

Director, once it has been determined 

that an Air Pollution Emergency 

Episode condition exists at one or more 

monitoring sites solely because of 

emissions from a limited number of 

sources, to order source(s) to put into 

effect the emission control programs 

which are applicable for each episode 

stage. Section APC–S–3 also lists 

regulations to prevent the excessive 

buildup of air pollutants during air 

pollution episodes. Also, Mississippi 

Code Title 49, Section 49–17–27 

(Appendix A–9), states that in the event 

an emergency is found to exist by the 

Mississippi Commission on 

Environmental Quality, it may issue an 

emergency order as circumstances may 

require. Emergency situations include 

those which create an imminent and 

substantial endangerment threatening 

the public health and safety or the lives 

and property of the people in 

Mississippi. EPA has made the 

preliminary determination that 

Mississippi’s SIP is adequate for 

emergency powers related to the 2010 

1-hour NO2 NAAQS. Accordingly, EPA 

is proposing to approve Mississippi’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(G). 

9. 110(a)(2)(H) SIP Revisions: Section 

110(a)(2)(H), in summary, requires each 

SIP to provide for revisions of such plan 

(i) as may be necessary to take account 

of revisions of such national primary or 

secondary ambient air quality standard 

or the availability of improved or more 

expeditious methods of attaining such 

standard, and (ii) whenever the 

Administrator finds that the plan is 

substantially inadequate to attain the 

NAAQS or to otherwise comply with 

any additional applicable requirements. 

MDEQ is responsible for adopting air 

quality rules and revising SIPs as 

needed to attain or maintain the 

NAAQS in Mississippi. The State has 

the ability and authority to respond to 

calls for SIP revisions, and has provided 

a number of SIP revisions over the years 

for implementation of the NAAQS. 

Mississippi Code Title 49, Section 49– 

17–17(h) (Appendix A–9), provides 

MDEQ with the statutory authority to 

adopt, modify or repeal and promulgate 

ambient air and water quality standards 

and emissions standards for the State. 

As such, the State has the authority to 

revise the SIP to accommodate changes 

to NAAQS and revise the SIP if the EPA 

Administrator finds the plan to be 

substantially inadequate to attain the 

NAAQS. EPA has made the preliminary 

determination that Mississippi’s SIP and 

practices adequately demonstrate a 

commitment to provide future SIP 

revisions related to the 2010 1-hour NO2

NAAQS when necessary. 

10. 110(a)(2)(J) Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection: EPA is proposing to approve 

Mississippi’s infrastructure SIP 

submission for the 2010 1-hour NO2

NAAQS with respect to the general 

requirement in section 110(a)(2)(J) to 

include a program in the SIP that 

provides for meeting the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127; and 

visibility protection requirements of 

part C of the Act. With respect to 

Mississippi’s infrastructure SIP 

submission related to the 

preconstruction PSD permitting 

requirements of section 110(a)(2)(J), EPA 

took final action to approve 

Mississippi’s February 28, 2013, 2010 

1-hour NO2 NAAQS infrastructure SIP 

for these requirements on March 18, 

2015. See 80 FR 14019. EPA’s rationale 

for its proposed action regarding 

applicable consultation requirements of 

section 121, the public notification 

requirements of section 127, and 

visibility protection requirements is 

described later in this document. 

Consultation with government 

officials (121 consultation): Section 

110(a)(2)(J) of the CAA requires states to 

provide a process for consultation with 

local governments, designated 

organizations and federal land managers 

carrying out NAAQS implementation 

requirements pursuant to section 121 

relative to consultation. Section APC–S– 

5, Mississippi Regulations for the 

Prevention of Significant Deterioration 

of Air Quality and Mississippi Code 

Title 49, Section 49–17–17(c) (Appendix 

A–9), along with the State’s various 

implementations plans, such as the 

State’s Regional Haze Implementation 

Plan, provide for consultation between 

appropriate state, local, and tribal air 

pollution control agencies as well as the 

corresponding Federal Land Managers 

whose jurisdictions might be affected by 

SIP development activities. Mississippi 

adopted state-wide consultation 

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Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 32715 

23 Mississippi Code Title 49 is referenced in the 

State’s infrastructure SIP submissions as ‘‘Appendix 

A–9.’’ As discussed, unless otherwise indicated 

herein, portions of the Mississippi Code referenced 

in this proposal are not incorporated into the SIP. 

24Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

procedures for the implementation of 

transportation conformity. These 

consultation procedures were developed 

in coordination with the transportation 

partners in the State and are consistent 

with the approaches used for 

development of mobile inventories for 

SIPs. Implementation of transportation 

conformity as outlined in the 

consultation procedures requires MDEQ 

to consult with federal, state and local 

transportation and air quality agency 

officials on the development of motor 

vehicle emissions budgets. EPA has 

made the preliminary determination 

that Mississippi’s SIP and practices 

adequately demonstrate that the State 

meets applicable requirements related to 

consultation with government officials 

for the 2010 1-hour NO2 NAAQS when 

necessary. Accordingly, EPA is 

proposing to approve Mississippi’s 

infrastructure SIP submissions with 

respect to section 110(a)(2)(J) 

consultation with government officials. 

Public notification (127 public 

notification): These requirements are 

met through regulation Section APC–S– 

3, Mississippi Regulations for the 

Prevention of Air Pollution Emergency 

Episodes, which requires that MDEQ 

notify the public of any air pollution 

alert, warning, or emergency. The 

MDEQ Web site also provides air quality 

summary data, air quality index reports 

and links to more information regarding 

public awareness of measures that can 

prevent such exceedances and of ways 

in which the public can participate in 

regulatory and other efforts to improve 

air quality. EPA has made the 

preliminary determination that 

Mississippi’s SIP and practices 

adequately demonstrate the State’s 

ability to provide public notification 

related to the 2010 1-hour NO2 NAAQS 

when necessary. Accordingly, EPA is 

proposing to approve Mississippi’s 

infrastructure SIP submissions with 

respect to section 110(a)(2)(J) public 

notification. 

Visibility protection: EPA’s 2013 

Guidance notes that it does not treat the 

visibility protection aspects of section 

110(a)(2)(J) as applicable for purposes of 

the infrastructure SIP approval process. 

MDEQ referenced its regional haze 

program as germane to the visibility 

component of section 110(a)(2)(J). EPA 

recognizes that states are subject to 

visibility protection and regional haze 

program requirements under Part C of 

the Act (which includes sections 169A 

and 169B). However, there are no newly 

applicable visibility protection 

obligations after the promulgation of a 

new or revised NAAQS. Thus, EPA has 

determined that states do not need to 

address the visibility component of 

110(a)(2)(J) in infrastructure SIP 

submittals so MDEQ does not need to 

rely on its regional haze program to 

fulfill its obligations under section 

110(a)(2)(J). As such, EPA has made the 

preliminary determination that 

Mississippi’s infrastructure SIP 

submission related to the 2010 1-hour 

NO2 NAAQS is approvable for the 

visibility protection element of section 

110(a)(2)(J) and that Mississippi does 

not need to rely on its regional haze 

program to address this element. 

11. 110(a)(2)(K) Air Quality Modeling 

and Submission of Modeling Data: 

Section 110(a)(2)(K) of the CAA requires 

that SIPs provide for performing air 

quality modeling so that effects on air 

quality of emissions from NAAQS 

pollutants can be predicted and 

submission of such data to the EPA can 

be made. Sections APC–S–2, V. B., 

Permit Regulation for the Construction 

and/or Operation of Air Emissions 

Equipment, and APC–S–5, Mississippi 

Regulations for the Prevention of 

Significant Deterioration of Air Quality, 

specify that required air modeling be 

conducted in accordance with 40 CFR 

part 51, Appendix W ‘‘Guideline on Air 

Quality Models,’’ as incorporated into 

the Mississippi SIP. These standards 

demonstrate that Mississippi has the 

authority to perform air quality 

modeling and provide relevant data for 

the purpose of predicting the effect on 

ambient air quality of the 2010 1-hour 

NO2 NAAQS. Also of note, Mississippi 

Code Title 49, Section 49–17–17(e) 

(Appendix A–9),23 authorizes MDEQ to 

‘‘encourage, participate in, or conduct 

studies, investigations, research and 

demonstrations relating to air and water 

quality and pollution and causes, 

prevention, control and abatement as it 

may deem advisable and necessary for 

the discharge of its duties under [the 

Mississippi air and water pollution 

control law].’’ Additionally, Mississippi 

participates in a regional effort to 

coordinate the development of 

emissions inventories and conduct 

regional modeling for several NAAQS, 

including the 2010 1-hour NO2 NAAQS, 

for the southeastern states. Taken as a 

whole, Mississippi’s air quality 

regulations and practices demonstrate 

that MDEQ has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 2010 1-hour NO2 NAAQS. 

EPA has made the preliminary 

determination that Mississippi’s SIP and 

practices adequately demonstrate the 

State’s ability to provide for air quality 

modeling, along with analysis of the 

associated data, related to the 2010 1- 

hour NO2 NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Mississippi’s infrastructure SIP 

submissions with respect to section 

110(a)(2)(K). 

12. 110(a)(2)(L) Permitting Fees: 

Section 110(a)(2)(L) requires the owner 

or operator of each major stationary 

source to pay to the permitting 

authority, as a condition of any permit 

required under the CAA, a fee sufficient 

to cover (i) the reasonable costs of 

reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

Mississippi Code Title 49, Section 49– 

2–9(c) (Appendix A–9), authorizes 

MDEQ to apply for, receive, and expend 

Federal or state funds in order to 

operate its air programs. Mississippi 

Code Title 49, Section 49–17–30 

(Appendix A–9), provides for the 

assessment of Title V permit fees to 

cover the reasonable cost of reviewing 

and acting upon air permitting activities 

in the state including title V, PSD and 

NNSR permits. Mississippi Code Title 

49, Section 49–17–14 (Appendix A–9), 

allows MDEQ to expend or utilize 

monies in the Mississippi Air Operating 

Permit Program Fee Trust Fund to pay 

all reasonable direct and indirect costs 

associated with the development and 

administration of the title V program 

and the PSD and NNSR permitting 

including. The Mississippi Air 

Operating Permit Program Fee Trust 

Fund consists of state legislative 

appropriations, Federal grant funds and 

title V fees. Additionally, Mississippi 

has a federally-approved title V 

operating permit program at Section 

APC–S–6 24 that covers the 

implementation and enforcement of 

PSD and NNSR permits after they have 

been issued. EPA has made the 

preliminary determination that 

Mississippi adequately provides for 

permitting fees related to the 2010 

1-hour NO2 NAAQS when necessary. 

13. 110(a)(2)(M) Consultation and 

Participation by Affected Local Entities: 

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32716 Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 

Section 110(a)(2)(M) requires states to 

provide for consultation and 

participation in SIP development by 

local political subdivisions affected by 

the SIP. Mississippi Code Title 49, 

Appendix A–9, Section 49–17–17(c), 

gives the Commission the statutory 

authority to advise and consult with any 

political subdivisions in the State. 

Mississippi Code Title 49, Appendix A– 

9, Section 49–17–19(b) requires the 

Commission to conduct public hearings 

in accordance with EPA regulations 

prior to establishing, amending, or 

repealing standards of air quality. 

Additionally, MDEQ works closely with 

local political subdivisions during the 

development of its transportation 

conformity SIP and regional haze SIP. 

EPA has made the preliminary 

determination that Mississippi’s SIP and 

practices adequately demonstrate 

consultation with affected local entities 

related to the 2010 1-hour NO2 NAAQS 

when necessary. 

V. Proposed Action 

With the exception of the 

preconstruction PSD permitting 

requirements for major sources of 

section 110(a)(2)(C), prong 3 of (D)(i), 

and (J), the interstate transport 

provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states and visibility protection of section 

110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, 

and 4), and the state board majority 

requirements respecting the significant 

portion of income of section 

110(a)(2)(E)(ii), EPA is proposing to 

approve that Mississippi’s February 28, 

2013, SIP submission for the 2010 1- 

hour NO2 NAAQS has met the abovedescribed infrastructure SIP 

requirements because these aspects of 

the submission are consistent with 

section 110 of the CAA. EPA is 

proposing to disapprove in part section 

110(a)(2)(E)(ii) of Mississippi’s 

infrastructure submission because a 

majority of board members may still 

derive a significant portion of income 

from persons subject to permits or 

enforcement orders issued by the 

Mississippi Boards. Therefore, its 

current SIP does not meet the section 

128(a)(1) majority requirements 

respecting significant portion of income. 

This proposed action, however, does not 

include the preconstruction PSD 

permitting requirements for major 

sources of section 110(a)(2)(C), prong 3 

of (D)(i), and (J), which have been 

approved in a separate action, or the 

interstate transport provisions 

pertaining to the contribution to 

nonattainment or interference with 

maintenance in other states of prongs 1, 

2 and 4 of section 110(a)(2)(D)(i), which 

will be addressed by EPA in a separate 

action. 

Under section 179(a) of the CAA, final 

disapproval of a submittal that 

addresses a requirement of a CAA Part 

D Plan or is required in response to a 

finding of substantial inadequacy as 

described in CAA section 110(k)(5) (SIP 

call) starts a sanctions clock. The 

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

provisions (the provisions being 

proposed for disapproval in this action) 

were not submitted to meet 

requirements for Part D or a SIP call, 

and therefore, if EPA takes final action 

to disapprove this submittal, no 

sanctions will be triggered. However, if 

this disapproval action is finalized, that 

final action will trigger the requirement 

under section 110(c) that EPA 

promulgate a federal implementation 

plan (FIP) no later than 2 years from the 

date of the disapproval unless the State 

corrects the deficiency, and EPA 

approves the plan or plan revision 

before EPA promulgates such FIP. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

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

January 21, 2011); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: May 12, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–12102 Filed 5–23–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 37 

[Docket DOT–OST–2015–0075] 

Transportation for Individuals With 

Disabilities; Service Criteria for 

Complementary Paratransit Fares 

AGENCY: Office of the Secretary (OST), 

U.S. Department of Transportation 

(DOT). 

ACTION: Notification of disposition of 

petition for rulemaking. 

SUMMARY: This document announces the 

disposition of a petition for rulemaking 

from Access Services concerning the 

Department’s regulations implementing 

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