[Federal Register Volume 87, Number 135 (Friday, July 15, 2022)]
[Proposed Rules]
[Pages 42424-42431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15124]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0947; FRL-9640-01-R4]


Air Plan Approval; Mississippi; Infrastructure Requirements for 
the 2015 8-Hour Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part, and conditionally approve in part, a State 
Implementation Plan (SIP) submission provided by the State of 
Mississippi, through the Mississippi Department of Environmental 
Quality (MDEQ), through a letter dated January 25, 2021. This proposal 
pertains to certain infrastructure requirements of the Clean Air Act 
(CAA or Act) for the 2015 8-hour ozone national ambient air quality 
standards (NAAQS or standards). Whenever EPA promulgates a new or 
revised NAAQS, the CAA requires that each state adopt and submit a SIP 
for the implementation, maintenance, and enforcement of that NAAQS. The 
January 25, 2021, SIP submission addresses all infrastructure elements 
except for those pertaining to the contribution to nonattainment or 
interference with maintenance in other states. EPA is proposing to 
approve the January 25, 2021, SIP revision with the exception of the 
prevention of significant deterioration (PSD) infrastructure elements, 
the air quality modeling element, and the visibility protection 
element. EPA is proposing to conditionally approve the portions of the 
submittal related to the prevention of significant deterioration (PSD) 
infrastructure elements and the air quality modeling element. EPA will 
act on the visibility protection element in a separate rulemaking.

DATES: Comments must be received on or before August 15, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0947 at 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 www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Josue Ortiz Borrero, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-8085. Mr. Ortiz Borrero can also be reached via electronic 
mail at <a href="/cdn-cgi/l/email-protection#0e617c7a67746c617c7c6b7c612064617d7b6b4e6b7e6f20696178"><span class="__cf_email__" data-cfemail="513e2325382b333e232334233e7f3b3e222434113421307f363e27">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background and Overview
II. What elements are required under Sections 110(a)(1) and 
110(a)(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 the section 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    On October 1, 2015, EPA promulgated a revised primary and secondary 
NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts 
per million (ppm) to a new more protective level of 0.070 ppm. See 80 
FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIP revisions meeting the applicable 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS or within such shorter period as EPA may 
prescribe. Section 110(a)(2) requires states to address basic SIP 
elements such as requirements for monitoring, basic program 
requirements, and legal authority that are designed to assure 
attainment and maintenance of the NAAQS. This particular type of SIP is 
commonly referred to as an ``infrastructure SIP'' or ``iSIP.'' States 
were required to submit such SIP revisions for the 2015 8-hour ozone 
NAAQS to EPA no later than October 1, 2018.\1\
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    \1\ In 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 SIP. In addition, certain 
federally-approved, non-SIP regulations may also be appropriate for 
demonstrating compliance with sections 110(a)(1) and (2).
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    With the exception of the visibility protection provisions of 
section 110(a)(2)(D)(i)(II), the prevention of significant 
deterioration (PSD) provisions related to major sources under sections 
110(a)(2)(C),

[[Page 42425]]

110(a)(2)(D)(i)(II), and 110(a)(2)(J), and the air quality modeling 
element of 110(a)(2)(K), EPA is proposing to approve Mississippi's 
January 25, 2021, SIP revision provided to EPA through the MDEQ for the 
applicable requirements of the 2015 8-hour ozone NAAQS.\2\ EPA will 
consider the portion of Mississippi's January 25, 2021, SIP revision 
that addresses the visibility protection provisions of section 
110(a)(2)(D)(i)(II) in a separate rulemaking.
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    \2\ On September 6, 2019, Mississippi provided a SIP submission 
addressing the interstate transport provisions of section 
110(a)(2)(D)(i)(I) pertaining to contribution to nonattainment or 
interference with maintenance in other states. EPA will address the 
interstate transport provisions of section 110(a)(2)(D)(i)(I) 
through a separate rulemaking.
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    As part of the January 25, 2021, SIP submission, Mississippi 
requested conditional approval of the PSD provisions related to major 
sources under sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(J), and the air quality modeling elements under 
110(a)(2)(K).\3\ Related to its request for conditional approval, 
Mississippi provided a written commitment under section 110(k)(4) of 
the CAA to take action to meet the requirements of the PSD and air 
quality modeling elements for its 2015 ozone iSIP by adopting a rule 
revision no later than one year after EPA's conditional approval of 
these portions of Mississippi's ozone iSIP. Specifically, MDEQ intends 
to amend 11 Mississippi Administrative Code (MAC), Part 2, Chapter 2, 
as well as 11 MAC, Part 2, Chapter 5, to cite to the current version of 
40 CFR part 51, Appendix W, Guideline on Air Quality Models, and submit 
a revision containing the revised regulations to EPA within one year of 
EPA conditional approval to meet its conditional approval commitment to 
EPA. For this reason, in this notice of proposed rulemaking EPA is 
proposing to conditionally approve the portions of Mississippi's 2015 
8-hour ozone NAAQS iSIP for Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 
110(a)(2)(J), and 110(a)(2)(K) of the CAA, related to the PSD program 
and air quality modeling. With the exceptions noted, EPA is proposing 
to fully approve the other infrastructure elements for the 2015 Ozone 
iSIP addressed in the January 25, 2021, submission.
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    \3\ Under CAA section 110(k)(4), EPA may conditionally approve a 
SIP revision based on a commitment from a state to adopt specific 
enforceable measures by a date certain, but not later than one year 
from the date of approval. If the state fails to meet the commitment 
within one year of the final conditional approval, the conditional 
approval will be treated as a disapproval and EPA will issue a 
finding of disapproval.
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II. What elements are required under Sections 110(a)(1) and 110(a)(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.
    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 above, these 
requirements include 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. The 
requirements of section 110(a)(2) are listed below and are described 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),'' (2013 Guidance).\4\
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    \4\ Two elements identified in section 110(a)(2) are not 
governed by the three-year submission deadline of section 110(a)(1) 
for infrastructure SIPs because SIPs incorporating necessary local 
nonattainment area controls are not due within three years after 
promulgation of a new or revised NAAQS, but rather are due at the 
time the nonattainment area plan requirements are due pursuant to 
section 172. These elements 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 major source nonattainment 
permitting requirements of 110(a)(2)(C).

<bullet> 110(a)(2)(A): Emission Limits and Other Control Measures
<bullet> 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
<bullet> 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources
<bullet> 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport 
(broken down into four separate Prongs)
<bullet> 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
<bullet> 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
<bullet> 110(a)(2)(F): Stationary Source Monitoring and Reporting
<bullet> 110(a)(2)(G): Emergency Powers
<bullet> 110(a)(2)(H): SIP Revisions
<bullet> 110(a)(2)(I): Plan Revisions for Nonattainment Areas
<bullet> 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and Prevention of Significant Deterioration (PSD) and 
Visibility Protection
<bullet> 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
<bullet> 110(a)(2)(L): Permitting Fees
<bullet> 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    As discussed above, whenever EPA promulgates a new or revised 
NAAQS, CAA section 110(a)(1) requires states to submit infrastructure 
SIPs that meet the various requirements of CAA section 110(a)(2), as 
applicable. Due to ambiguity in some of the language of CAA section 
110(a)(2), EPA believes that it is appropriate to interpret these 
provisions in the specific context of acting on infrastructure SIP 
submissions. EPA has previously provided comprehensive guidance on the 
application of these provisions through a guidance document for 
infrastructure SIP submissions and through regional actions on 
infrastructure submissions.\5\
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    \5\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its 2013 Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions including EPA's prior 
actions on Mississippi infrastructure SIPs such as the action to 
address the 2012 PM2.5 NAAQS. See 81 FR 36848 (June 8, 2016).
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    Unless otherwise noted below, EPA is following that existing 
approach in acting on this submission. In addition, in the context of 
acting on such infrastructure submissions, EPA evaluates the submitting 
state's implementation plan for facial compliance with statutory and 
regulatory requirements, not for the

[[Page 42426]]

state's implementation of its SIP.\6\ EPA has other authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \6\ See Mont. Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th 
Cir. 2018).
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IV. What is EPA's analysis of how Mississippi addressed the elements of 
Section 110(a)(1) and (2)?

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.
    Several regulations within Mississippi's SIP are relevant to 
emission limits and other air quality control measures. These include 
SIP-approved regulations 11 MAC, Part 2, Chapter 1, Chapter 3, and 
Chapter 5. Collectively, these regulations establish enforceable 
emissions limitations and other control measures, means, or techniques 
for activities that contribute to ozone concentrations in the ambient 
air. Additionally, Mississippi Code Title 49, section 49-17-17(h) \7\ 
provides MDEQ the authority to adopt, modify, or repeal and promulgate 
ambient air quality standards and emission standards for the state 
under such conditions as the Mississippi Commission on Environmental 
Quality (Commission) may prescribe for the prevention, control, and 
abatement of pollution.
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    \7\ Mississippi Code Title 49 is referenced in the State's 
infrastructure SIP submissions as ``Appendix A-9.'' Unless otherwise 
indicated herein, portions of the Mississippi Code referenced in 
this proposal are not incorporated into the SIP.
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    EPA has made the preliminary determination that the provisions 
contained in Mississippi's state statutes and SIP-approved state 
regulations are adequate for enforceable emission limitations and other 
control measures, means, or techniques, as well as schedules and 
timetables for compliance to satisfy the requirements of section 
110(a)(2(A) for the 2015 8-hour ozone NAAQS.

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. To meet the requirements of element B, Mississippi's 
January 25, 2021, submission cites to State Code Title 49, specifically 
section 49-17-17(g), which gives MDEQ authority to collect and 
disseminate information relating to air quality and pollution and the 
prevention, control, supervision, and abatement thereof. Additionally, 
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.\8\ The annual network plan involves an 
evaluation of any proposed changes to the monitoring network and 
includes the annual ambient monitoring network design plan and a 
certified evaluation of the state's ambient monitors and auxiliary 
support equipment. On June 28, 2021, Mississippi submitted its 
monitoring network plan to EPA. On August 26, 2021, EPA approved the 
monitoring network plan for Mississippi. EPA's approval of 
Mississippi's monitoring network plan is available in the docket for 
this proposed action.
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    \8\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    EPA has made the preliminary determination that Mississippi's SIP 
submission is adequate for the ambient air quality monitoring and data 
system requirements related to the 2015 8-hour ozone NAAQS.

3. Section 110(a)(2)(C) Programs for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources

    This element 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 a NAAQS as required by CAA title I part C (i.e., the 
major source PSD program). Mississippi's 2015 8-hour ozone NAAQS 
infrastructure SIP submission cites to a number of SIP-approved 
provisions to address these requirements. EPA's rationale for its 
proposed action regarding each sub-element is described below.
    Enforcement: Mississippi regulation 11 MAC Part 2, Chapter 2, 
Permit Regulation for the Construction and/or Operation of Air 
Emissions Equipment, Rule 2.6 provides for the enforcement of ozone 
precursors emissions limitations and control measures through 
construction permitting for new or modified stationary sources. 
Furthermore, 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.
    Regulation of Minor Sources and Modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions that contribute to ozone 
concentrations related to the 2015 8-hour ozone NAAQS. MDEQ cites to 11 
MAC, Part 2, Chapter 2, Rule 2.5. for its minor source construction 
permitting. EPA notes that other SIP-approved provisions in 11 MAC Part 
2, Chapter 2 apply to minor source construction permitting such as Rule 
2.1.D, which requires any new or modified stationary source to have a 
permit to construct prior to construction. EPA has made the preliminary 
determination that Mississippi's SIP is adequate for program 
enforcement of control measures, and regulation of minor sources and 
modifications related to the 2015 8-hour ozone NAAQS.
    Preconstruction PSD Permitting for Major Sources: For the major 
source PSD program sub-element of section 110(a)(2)(C), EPA interprets 
the CAA to require that a state's infrastructure SIP submission for a 
particular NAAQS demonstrate that the state has an up-to-date PSD 
permitting program in place covering the PSD requirements for all 
regulated NSR pollutants.\9\ A state's PSD permitting program is 
complete for this sub-element (as well as prong 3 of D(i)(II), and J 
related to PSD) if EPA has already approved or is simultaneously 
approving the state's implementation plan with respect to all PSD 
requirements that are due under EPA regulations or the CAA on or before 
the date of EPA's action on the infrastructure SIP submission. 
Mississippi's 2015 8-hour ozone NAAQS infrastructure SIP submission 
cites to a number of SIP-approved provisions to address the major 
source PSD program sub-element of section 110(a)(2)(C) as described 
below.
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    \9\ See EPA's 2013 Guidance.
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    Mississippi's January 25, 2021, iSIP submission cites to two 
separate SIP-approved regulations. Specifically, Mississippi cites to 
11 MAC, Part 2, Chapter 5 and portions of Chapter 2. These SIP-approved 
regulations provide that new major sources and major

[[Page 42427]]

modifications in areas of the State designated attainment or 
unclassifiable for any given NAAQS are subject to a federally-approved 
PSD permitting program under part C of title I of the CAA. However, the 
most current version of Mississippi's SIP-approved PSD regulations 
cited above do not reference the most updated version of EPA's 
Guideline on Air Quality Models, codified at 40 CFR part 51, Appendix 
W.\10\
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    \10\ EPA approved the most recent version of Appendix W on 
January 17, 2017, at 82 FR 5182.
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    EPA's PSD regulations at 40 CFR 51.166(l) require that modeling be 
conducted in accordance with Appendix W. As detailed in EPA's 2013 
Guidance, approval of element C requires a fully approved and up-to-
date PSD permitting program, which requires application of Appendix W 
consistent with EPA's PSD implementing regulations, (approval of PSD 
elements D(i)(II), and J is also contingent on an up-to-date PSD 
program). As noted, Mississippi's PSD program does not meet these 
updated modeling requirements and, for this reason, the State has 
committed to update its PSD regulations to reference the most current 
version of Appendix W and submit a SIP revision containing the revised 
regulations within one year of EPA's conditional approval. In this 
notice of proposed rulemaking, EPA is proposing to conditionally 
approve Mississippi's January 25, 2021, submission related to the PSD 
element of 110(a)(2)(C).

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 has 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, 2, and 4: 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) or the visibility protection 
provisions (prong 4). EPA will consider these requirements in relation 
to Mississippi's 2015 8-hour ozone NAAQS infrastructure in a separate 
rulemaking.
    110(a)(2)(D)(i)(II)--prong 3: Section 110(a)(2)(D)(i)(II) requires 
that the SIP contain adequate provisions that prohibit emissions 
activity in one state from interfering with measures required to 
prevent significant deterioration of air quality in another state. With 
regards to prong 3 of section 110(a)(2)(D)(i)(II), a state may meet 
this requirement by a confirmation in its infrastructure SIP submission 
that new major sources and major modifications in the state are subject 
to a PSD program meeting current structural requirements of part C, or 
(if the state contains a nonattainment area that has the potential to 
impact PSD in another state) a nonattainment NSR program.
    To meet prong 3, Mississippi's January 25, 2021, iSIP submission 
cites to SIP-approved regulation 11 MAC, Part 2, Chapter 5. This 
regulation provides that new major sources and major modifications in 
areas of the State designated attainment or unclassifiable for any 
given NAAQS are subject to a federally-approved PSD permitting program 
under part C of title I of the CAA.
    However, as described in section IV.3. concerning 110(a)(2)(C) 
above, the most current version of Mississippi's SIP-approved PSD 
regulations do not reference the most updated version of EPA's 
Guideline on Air Quality Models, codified at 40 CFR part 51, Appendix 
W. For this reason, Mississippi's January 25, 2021, iSIP submission 
includes a request for conditional approval of prong 3 and a commitment 
to update its PSD regulations to reference the most current version of 
Appendix W and submit a SIP revision containing the revised regulations 
to EPA, within one year of EPA conditional approval.
    EPA has made the preliminary determination that Mississippi's SIP 
and practices are adequate to meet the prong 3 requirements related to 
the 2015 8-hour ozone NAAQS, with the exception of the citation to an 
outdated version of Appendix W. Accordingly, EPA is proposing to 
conditionally approve Mississippi's infrastructure SIP submission with 
respect to the PSD provisions for section 110(a)(2)(D)(II)[prong 3].

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(b) of the Act, relating 
to interstate and international pollution abatement. Mississippi's 
January 25, 2021, iSIP submission cites to SIP-approved 11 MAC, Part 2, 
Chapter 5. This regulation provides where 40 CFR 51.166 was adopted by 
reference into the SIP and requires notification of potential impacts 
from new or modified sources to state and local agencies of neighboring 
states. Additionally, Mississippi has no pending obligations under 
sections 115 or 126 of the CAA. EPA has made the preliminary 
determination that Mississippi's and practices are adequate for 
ensuring compliance with the applicable requirements relating to 
interstate and international pollution abatement for the 2015 8-hour 
ozone 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's rationale 
respecting each sub-element for which EPA is proposing action in this 
rulemaking is described below.
    In support of sub-element 110(a)(2)(E)(i), Mississippi's SIP 
submission demonstrates that it has adequate authority to carry out its 
SIP. Specifically related to sub-element 110(a)(2)(E)(i), Mississippi's 
infrastructure SIP submission cites to Mississippi Code Title 49 
section 49-17-17(d), which gives MDEQ authority to accept and 
administer loans and grants from the federal government, and from other 
sources, public and private, for carrying out any of its functions. 
Additionally, MDEQ cites to Mississippi Code Title 49 section 49-17-
17(h), which gives authority under State law to

[[Page 42428]]

carry out its SIP and related issues. For section 110(a)(2)(E)(iii), 
Mississippi's January 25, 2021, submission establishes that the State 
does not rely on any local or regional government, agency, or 
instrumentality for the implementation of any plan provision, and so 
the State has sole responsibility for ensuring adequate implementation 
of such plan provisions, as established in Mississippi Code Title 49 
section 49-17-17(h).
    As further evidence of the adequacy of MDEQ's resources, EPA 
submitted a letter to Mississippi on November 4, 2021, outlining CAA 
section 105 grant commitments and the current status of these 
commitments for fiscal year 2022. The letter EPA submitted to 
Mississippi can be accessed at www.regulations.gov using Docket ID No. 
EPA-R04-OAR-2021-0947. Annually, states update these grant commitments 
based on current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. Mississippi satisfactorily met all 
commitments agreed to in the Air Planning Agreement for fiscal year 
2022. Collectively, these rules and commitments provide evidence that 
MDEQ has adequate personnel, funding, and legal authority to carry out 
the State's implementation plan and related issues. EPA has made the 
preliminary determination that Mississippi has adequate resources and 
authority to satisfy sections 110(a)(2)(E)(i) and (iii) of the 2015 8-
hour ozone NAAQS.
    Section 110(a)(2)(E)(ii) requires that the State comply with 
section 128 of the CAA. Section 128 requires that the SIP contain 
requirements providing that: (a)(1) The majority of members of the 
state board or body which approves permits or enforcement orders 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permitting or enforcement 
orders under the CAA; and (a)(2) any potential conflicts of interest by 
such board or body, or the head of an executive agency with similar 
powers be adequately disclosed.
    On April 8, 2013, EPA incorporated Article 4, Section 109 of the 
Mississippi Constitution and portions of Mississippi Code sections 25-
4-25, -27, -29, -101, -103, and -105 into the Mississippi SIP to meet 
the CAA section 128(a)(1) public interest requirements for state boards 
and the conflict of interest disclosure requirement of section 
128(a)(2). See 78 FR 20793. On October 4, 2018, (83 FR 50014), EPA 
approved additional revisions to the Mississippi SIP to incorporate 
provisions to address remaining CAA section 128 requirements and 
strengthen the SIP's conflict of interest requirements.
    First, Mississippi Code section 49-2-5 was incorporated into the 
SIP to address conflicts of interest for the Mississippi Commission on 
Environmental Quality, which has CAA enforcement order approval 
authority. This provision addresses the requirement in CAA section 
128(a)(1) by prohibiting a majority of the members of the Commission 
from deriving any significant portion of their income from persons 
subject to permits under the Federal Clean Air Act or enforcement order 
under the Federal Clean Air Act. In addition, this provision also 
addresses any potential conflict of interest by a member of the 
Commission by requiring such member to disclose potential conflicts and 
recuse himself or herself from participating in or voting on any matter 
related to such conflict of interest.
    Next, EPA approved SIP revisions to address section 128 
requirements for the MDEQ Permit Board. Specifically, EPA approved 
``Air Emissions Regulations for the Prevention, Abatement, and Control 
of Air Contaminants'' Title 11, Part 2, Chapter 1, Rule 1.1. Chapter 1, 
Rule 1.1, which ensures that at least a majority of the members of the 
Permit Board shall represent the public interest and shall not derive 
any significant portion of their income from persons subject to permits 
or enforcement orders under the Clean Air Act.
    Additionally, EPA approved revisions to the MDEQ Permit Board 
procedural rules, ``Regulations Regarding Administrative Procedures 
Pursuant to the Mississippi Administrative Procedures Act'', Title 11, 
Part 1 Chapter 5, Rule 5.1. This rule describes the composition of the 
MDEQ Permit Board and provides that a majority of board members 
represent the public interest and not derive any significant portion of 
their income from persons subject to permits or enforcement orders 
under the CAA. It also provides for annual certification as to whether 
each member derives a significant portion of income from persons 
subject to permits or enforcement orders under the CAA and a process 
for replacing members as needed to ensure that a majority does derive a 
significant portion of income from regulated entities.
    EPA has made the preliminary determination that Mississippi's SIP 
has adequately addressed the requirements of section 128(a), and 
accordingly have met the requirements of section 110(a)(2)(E)(ii). EPA 
is proposing to approve Mississippi's infrastructure SIP submission as 
meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and 
(iii).

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. EPA's rules 
regarding how SIPs need to address source monitoring requirements at 40 
CFR 51.212 require SIPs to exclude any provision that would prevent the 
use of credible evidence of noncompliance.
    Additionally, states are required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI), pursuant to 
Subpart A to 40 CFR part 51--``Air Emissions Reporting Requirements.'' 
The NEI is EPA's central repository for air emissions data. All states 
are required to submit a comprehensive emission inventory every three 
years and report emissions for certain larger sources annually through 
EPA's online Emissions Inventory System. States report emissions data 
for criteria pollutants and the precursors that form them including 
nitrogen oxides and volatile organic compounds. Many states also 
voluntarily report emissions of hazardous air pollutants. Mississippi 
most recently published triennial compiled emissions information as 
part of the 2017 NEI. EPA compiles the emissions data, supplementing it 
where necessary, and releases it to the public through the website: 
https://www.epa.gov/air-emissions-inventories/2017-national-emissions-inventory-nei-data.
    MDEQ's January 25, 2021, infrastructure SIP submission identifies 
that Mississippi Code Title 49 section 49-17-21, states that the 
Mississippi Commission on Environmental Quality may require the 
installation, maintenance, and use of such monitoring equipment and 
methods at such locations and intervals as the Commission deems 
necessary. In addition, MDEQ cites to SIP-approved rule 11 MAC, Part 2, 
Chapter 2, Rule 2.6, which lists the requirements for compliance 
testing and reporting that

[[Page 42429]]

must be included in any MDEQ air pollution permit.
    Further, MDEQ cites to Mississippi Code Title 49 section 49-17-21, 
which states that MDEQ has the authority to require the maintenance of 
records related to the operation of air contaminant sources and that 
any authorized representative of the Commission may examine and copy 
any such records or memoranda pertaining to the operation of such 
contaminant source. Finally, Mississippi cited to SIP-approved 11 MAC, 
Part 2, Chapter 2, Rule 2.9, which 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.
    Also note that Section 11 MAC, Part 2, Chapter 1, Air Emission 
Regulations For The Prevention, Abatement, and Control of Air 
Contaminants, authorizes the use of 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 establishing 
whether or not a source has violated or is in violation of any standard 
or applicable requirement. EPA is unaware of any provision preventing 
the use of credible evidence in the Mississippi SIP.
    EPA has made the preliminary determination that Mississippi's SIP 
submission and practices adequately provide for the stationary source 
monitoring systems related to the 2015 8-hour ozone NAAQS. Accordingly, 
EPA is proposing to approve Mississippi's infrastructure SIP submission 
with respect to section 110(a)(2)(F).

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

    Section 110(a)(2)(G) of the Act requires that states demonstrate 
authority comparable with section 303 of the CAA and adequate 
contingency plans to implement such authority. Mississippi's January 
25, 2021, submission cites to Mississippi Code Title 49 section 49-17-
27, stating that in the event an emergency is found to exist by the 
Commission, it may issue an emergency order as the circumstances may 
require. Additionally, Mississippi cites to SIP-approved regulation 11 
MAC, Part 2, Chapter 3, which states that the MDEQ Director may 
determine that an Air Pollution Emergency Episode condition exists at 
one or more monitoring sites solely because of emissions from a limited 
number of sources, and that he may order such source or sources to put 
into effect the emission control programs which are applicable for each 
episode stage. Further, 11 MAC, Part 2, Chapter 3 lists regulations 
that prevent the excessive buildup of air pollutants during air 
pollution episodes.
    EPA has made the preliminary determination that Mississippi's SIP 
submission adequately addresses emergency powers related to the 2015 8-
hour ozone 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.
    To comply with the requirements of section 110(a)(2)(H)(i), 
Mississippi's January 25, 2021, infrastructure SIP submission cites to 
Mississippi Code Title 49 section 49-17-17(h), which provides MDEQ with 
the necessary statutory authority to revise the SIP to accommodate 
changes to the NAAQS. Mississippi Code Title 49 section 49-17-17(h) 
also provides MDEQ with the necessary statutory authority to revise the 
SIP if the Administrator finds the plan to be substantially inadequate 
to attain the NAAQS to comply with the requirements of section 
110(a)(2)(H)(ii).
    EPA has made the preliminary determination that Mississippi's SIP 
submission adequately demonstrates a commitment and authority to 
provide future SIP revisions related to the 2015 8-hour ozone NAAQS 
when necessary. Accordingly, EPA is proposing to approve Mississippi's 
infrastructure SIP submission with respect to section 110(a)(2)(H).

10. 110(a)(2)(J) Consultation With Government Officials, Public 
Notification, and PSD and Visibility Protection

    Section 110(a)(2)(J) has four components related to: (1) 
consultation with government officials, (2) public notification, (3) 
PSD, and (4) visibility protection.
    Consultation with Government Officials: With regard to 
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 (FLMs) carrying out NAAQS 
implementation requirements pursuant to the consultation provisions 
section 121. To meet the consultation requirements of element J, 
Mississippi's iSIP submission cites to SIP-approved regulation 11 MAC, 
Part 2, Chapter 5, which provides for continued consultation with 
government officials. Additionally, SIP submission Appendix A-9, 
Mississippi Code Title 49 section 49-17-17(c), provides MDEQ with the 
necessary statutory authority to advise, consult, cooperate, or enter 
into contracts, grants, and cooperative agreements with any federal or 
state agency or subdivision.
    EPA has made the preliminary determination that Mississippi's SIP 
submission adequately demonstrates that the State meets applicable 
requirements related to consultation with government officials for the 
2015 8-hour ozone NAAQS. Thus, EPA is proposing to approve 
Mississippi's infrastructure SIPs for the 2015 8-hour ozone NAAQS with 
respect to the general requirement in section 110(a)(2)(J) for this 
provision.
    Public Notification: With respect to public notification, section 
110(a)(2)(J) of the CAA requires states to notify the public of NAAQS 
exceedances and associated health hazards, and to enhance public 
awareness of measures that can prevent such exceedances in accordance 
with the public notice requirements of CAA section 127. To meet these 
requirements of element J, Mississippi's iSIP submission cites to SIP-
approved regulation 11 MAC, Part 2, Chapter 3, which requires MDEQ to 
notify the public of any air pollution alert, warning, or emergency. To 
notify the public regarding ozone, MDEQ has a public notice mechanism 
in place. One of the mechanisms is the MDEQ website where changes in 
regulations, air quality summary data, and daily Air Quality Index 
reports can be found. Additionally, certain regulatory actions may also 
be published in newspapers and/or addressed at public hearings.
    EPA has made the preliminary determination that Mississippi's SIP 
submission adequately demonstrates that the State meets applicable 
requirements related to the ability to provide public notification of 
section 110(a)(2)(J) for the 2015 8-hour ozone NAAQS. Thus, EPA is 
proposing to approve Mississippi's infrastructure SIPs for the 2015 8-
hour ozone NAAQS with respect to the general requirement in section 
110(a)(2)(J) for this provision.
    PSD: With regard to the PSD element of section 110(a)(2)(J), this 
requirement is met (similarly to 110(a)(2)(C)) by a state's 
confirmation, in an infrastructure

[[Page 42430]]

SIP submission, that the state has a SIP-approved PSD program meeting 
all the current requirements of part C of title I of the CAA for all 
NSR regulated pollutants. To meet the requirements of element J, 
Mississippi's January 25, 2021, iSIP submission cites to SIP-approved 
regulation 11 MAC, Part 2, Chapter 5, which provides that new major 
sources and major modifications in areas of the State designated 
attainment or unclassifiable for any given NAAQS are subject to a 
federally-approved PSD permitting program under part C of title I of 
the CAA.
    However, as described in section IV.3. concerning 110(a)(2)(C) 
above, the most current version of Mississippi's SIP-approved PSD 
regulations do not reference the most updated version of EPA's 
Guideline on Air Quality Models, codified at 40 CFR part 51, Appendix 
W. For this reason, Mississippi's January 25, 2021, iSIP submission 
includes a request for conditional approval of element J and a 
commitment to update its PSD regulations to reference the most current 
version of Appendix W, and submit a SIP revision containing the revised 
regulations to EPA, within one year of EPA conditional approval.
    Visibility Protection: With regard to the visibility protection 
element of section 110(a)(2)(J), 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. EPA 
recognizes that Mississippi is 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. As such, Mississippi's infrastructure SIP 
submission related to the 2015 8-hour ozone NAAQS does not address the 
visibility protection element of section 110(a)(2)(J).

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 EPA can be made. 110(a)(2)(K) has two components related to: 
(1) the performance of air quality modeling, and (2) the submission of 
data related to such air quality modeling to the Administrator.
    Mississippi's January 25, 2021, iSIP submission cites to two 
separate SIP-approved regulations to meet the modeling requirement of 
element K. Specifically, Mississippi cites to 11 MAC, Part 2, Chapter 2 
and 11 MAC, Part 2, Chapter 5. These SIP-approved regulations include 
requirements for air quality modeling and reporting for the PSD 
permitting program. However, as described in section IV.3 concerning 
110(a)(2)(C) above, the most current version of Mississippi's SIP-
approved PSD regulations cited above do not reference the most updated 
version of EPA's Guideline on Air Quality Models, codified at 40 CFR 
part 51, Appendix W. For this reason, Mississippi's January 25, 2021, 
iSIP submission includes a request for conditional approval of element 
K and a commitment to update its PSD regulations to reference the most 
current version of Appendix W, and submit a SIP revision containing the 
revised regulations to EPA, within one year of EPA conditional 
approval.
    Because of the outdated reference to Appendix W modeling, EPA is 
proposing to conditionally approve Mississippi's infrastructure SIP 
submission with respect to section 110(a)(2)(K).

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

    Section 110(a)(2)(L) requires that the owner or operator of each 
major stationary source pay 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 January 25, 2021, infrastructure SIP submission cites 
to Mississippi Code Title 49 section 49-17-30, which provides for the 
assessment of Title V permit fees to cover these costs. The State notes 
that these title V operating program fees cover the reasonable cost of 
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 2015 
8-hour ozone NAAQS when necessary. Accordingly, EPA is proposing to 
approve Mississippi's infrastructure SIP submission with respect to 
section 110(a)(2)(L).

13. 110(a)(2)(M) Consultation/Participation by Affected Local Entities

    Section 110(a)(2)(M) of the Act requires states to provide for the 
consultation with, and the participation of, local political 
subdivisions affected by the SIP, during the SIP development process. 
To meet this requirement, MDEQ cites to Mississippi Code Title 49 
section 49-17-17(c), which gives the Commission the statutory authority 
to advise and consult with any political subdivisions in the State. 
Additionally, Mississippi Code Title 49 section 49-17-19(b), requires 
that the Commission conduct public hearings in accordance with EPA 
regulations prior to establishing, amending, or repealing standards of 
air quality. Furthermore, MDEQ has demonstrated consultation with, and 
participation by, affected local entities through its work with local 
political subdivisions during the development of its Transportation 
Conformity SIP and has worked with the Federal Land Managers as a 
requirement of the regional haze rule. EPA has made the preliminary 
determination that Mississippi's SIP submission and practices 
adequately demonstrate consultation with affected local entities 
related to the 2015 8-hour ozone NAAQS when necessary. Accordingly, EPA 
is proposing to approve Mississippi's infrastructure SIP submission 
with respect to section 110(a)(2)(M).

V. Proposed Action

    With the exception of the visibility provisions of section 
110(a)(2)(D)(i)(II) and PSD provisions related to major sources under 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), 
and the modeling provision of 110(a)(2)(K), EPA is proposing to approve 
Mississippi's January 25, 2021, SIP submission for the 2015 8-hour 
ozone NAAQS for the above described infrastructure SIP requirements. 
Further, EPA is proposing to conditionally approve the portions of the 
2015 8-hour Ozone NAAQS iSIP that address the PSD related requirements 
of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 
110(a)(2)(J), and the modeling requirements of 110(a)(2)(K). 
Mississippi submitted a separate submittal to address CAA section 
110(a)(2)(D)(i)(I)[prongs 1 and 2], and EPA is addressing that revision 
in a separate rulemaking.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission

[[Page 42431]]

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. This action merely proposes to 
approve state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this proposed action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 11, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-15124 Filed 7-14-22; 8:45 am]
BILLING CODE 6560-50-P


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