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Approval and Promulgation of Implementation Plans; State of Missouri
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 14, 2006 (Volume 71, Number 72)]
[Proposed Rules]
[Page 19467-19470]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ap06-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2006-0287; FRL-8158-6]
Approval and Promulgation of Implementation Plans; State of Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
submission by the state of Missouri which revises the Construction
Permits Required rule, and we are taking no action on the revisions
made to the Emissions Banking and Trading rule. We propose to approve
most of the revisions to the Construction Permits Required rule because
the revisions incorporate, by reference, the Federal New Source Review
reforms, published in the Federal Register on December 31, 2002. In a
February 28, 2006, letter from the Missouri Department of Natural
Resources, Missouri requested EPA not act on certain rule references.
Specifically, Missouri requested EPA not act on references to Clean
Unit Exemptions, Pollution Control Projects, and the record keeping
provisions for the actual-to-projected-actual emissions projections.
Missouri requests no action on these provisions because of the June 24,
2005, United States Court of Appeals for the District of Columbia
Circuit's decision, which vacated the Clean Unit Exemption and
Pollution Control Project provisions and remanded back to EPA the
recordkeeping provisions for the actual-to-projected-actual emissions
projections standard for when a source must keep certain project
related records.
DATES: Comments must be received on or before May 15, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2006-0287, by one of the following methods:
1. http://www.regulations.gov 
Follow the on-line
instructions for submitting comments.
2. E-mail: algoe-eakin.amy@epa.gov.
3. Mail: Amy Algoe-Eakin, Environmental Protection Agency, Air
Planning and Development Branch, 901 North 5th Street, Kansas City,
Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to: Amy Algoe-
Eakin, Environmental Protection Agency, Air Planning and Development
Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2006-0287. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov , including any personal
information provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov
or e-mail. The http://www.regulations.gov
Web site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov , your e-mail address
will be automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket. All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas. EPA requests that you contact the person
listed in the FOR FURTHER INFORMATION CONTACT section to schedule your
inspection. The interested persons wanting to examine these documents
should make an appointment with the office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: Amy Algoe-Eakin at (913) 551-7942, or
by e-mail at algoe-eakin.amy@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This section provides
additional information by addressing the following questions:
What Is the Federal Approval Process for a SIP?
What Is Being Addressed in This Document?
What Is the Background for EPA's New Source Review (NSR) Reform Rule?
What Is Missouri's NSR Reform Rule and What Action Has Missouri
Requested on the Rule?
What Is EPA's Proposed Action on Missouri's Definition of "Baseline Area"?
Have the Requirements for Approval of a SIP Revision Been Met?
What Action Is EPA Proposing?
What Is the Federal Approval Process for a SIP?
In order for state regulations to be incorporated into the
Federally-enforceable SIP, states must formally adopt the regulations
and control strategies consistent with state and Federal requirements.
This process generally includes a public notice, public hearing, public
comment period, and a formal adoption by a state-authorized rulemaking
body.
Once a state rule, regulation, or control strategy is adopted, the
state submits it to us for inclusion into the SIP. We must provide
public notice and seek additional public comment regarding the proposed
Federal action on the state submission. If adverse comments are
received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA
under section 110 of the Clean Air Act (CAA or Act) are incorporated
into the Federally-approved SIP. Records of such SIP actions are
maintained in the Code of Federal Regulations (CFR) at title 40, part
52, entitled ``Approval and Promulgation of Implementation Plans.'' The
actual state regulations which are approved are not reproduced in their
[[Page 19468]]
entirety in the CFR outright but are ``incorporated by reference,''
which means that we have approved a given state regulation with a
specific effective date.
What Is Being Addressed in This Document?
We are proposing to approve the Missouri Department of Natural
Resources' (MDNR) request to include, as a revision to Missouri's SIP,
amendments to rule 10 CSR 10-6.060, Construction Permits Required, and
we are not acting on the revisions to 10 CSR 10-6.410, Emissions
Banking and Trading rule. These rules were adopted by the Missouri Air
Conservation Commission on August 26, 2004, and became effective under
state law on December 30, 2004. The rules were submitted to EPA on
February 25, 2005, and the submission included comments on the rules
made during the state's adoption process, the state's response to
comments and other information necessary to meet EPA's completeness
criteria. For additional information on completeness criteria, the
reader should refer to 40 CFR part 51, appendix V.
What Is the Background for EPA's New Source Review (NSR) Reform Rule?
The 2002 NSR Reform rules are part of EPA's implementation of Parts
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I
of the CAA, 42 U.S.C. 7470-7492, is the Prevention of Significant
Deterioration (PSD) program, which applies in areas that meet the
National Ambient Air Quality Standards (NAAQS), also known as,
``attainment areas'' and in areas for which there is insufficient
information to determine whether the area meets the NAAQS, also known
as, ``unclassifiable'' areas. Part D of Title I of the CAA, 42 U.S.C.
7501-7515, is the nonattainment New Source Review (NNSR) program, which
applies in areas that are not in attainment of the NAAQS, also known
as, ``nonattainment areas.'' Collectively, the PSD and NNSR programs
are referred to as the ``New Source Review'' or NSR programs. EPA
regulations implementing these programs are contained in 40 CFR 51.165,
51.166, 52.21 52.24 and part 51, appendix S. The Missouri rules which
are the subject of this proposal address the Part C requirements for
attainment and unclassifiable areas.
The CAA NSR programs are preconstruction review and permitting
programs applicable to new and modified stationary sources of air
pollutants regulated under the CAA. The NSR programs of the CAA include
a combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the CAA, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, states must develop, adopt, and submit to EPA for
approval, an SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of any stationary source of air pollution to assure that
the NAAQS are achieved and maintained; to protect areas of clean air;
to protect air quality related values (such as visibility) in national
parks and other areas; to assure that appropriate emissions controls
are applied, to maximize opportunities for economic development
consistent with the preservation of clean air resources; and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decisions.
The 2002 NSR Reform rules made changes to five areas of the NSR
programs. In summary, the 2002 rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with plantwide applicability limits (PALs) to avoid having a
significant emission increase that triggers the requirements of the
major NSR program; (4) provide a new applicability provision for
emissions units that are designated clean units; and (5) exclude
pollution control projects (PCPs) from the definition of physical
change or change in the method of operation.
After the 2002 NSR Reform rules were finalized and effective,
various petitioners challenged numerous aspects of the 2002 NSR Reform
rules, along with portions of EPA's 1980 NSR rules (45 FR 5276 August
7, 1980). On June 24, 2005, the District of Columbia Court of Appeals
issued a decision on the challenges to the 2002 NSR Reform Rules. New
York v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court
of Appeals for the District of Columbia vacated portions of the rules
pertaining to clean units and pollution control projects, remanded a
portion of the rules regarding exemption from recordkeeping, e.g., 40
CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let stand the other
provisions included as part of the 2002 NSR Reform rules. EPA has not
yet responded to the Court's remand regarding recordkeeping provisions.
What Is Missouri's NSR Reform Rule and What Action Has Missouri
Requested on the Rule?
In this action, we propose approval of revisions to Missouri rule,
10 CSR 10-6.060, Construction Permits Required, into the SIP. This rule
incorporates by reference the Federal PSD program in 40 CFR 52.21,
including the 2002 NSR Reform rules described above.
In relevant parts, the Missouri rule excludes the public
participation requirements in Sec. 52.21(q), in favor of the Missouri
public participation process, previously approved in the SIP, in 10 CSR
10-6.060 section (12)(B). The Missouri rule retains a number of tables
and appendices which apply to the State's minor NSR program as well as
the PSD program. These include provisions on innovative control
technologies (Appendix E), exclusion from increment consumption
(Appendix G), and air quality models (Appendix F). To the extent that
these provisions or similar provisions are addressed by Sec. 52.21,
the provisions of Sec. 52.21 supersede the state provisions for
purposes of the PSD program. Other provisions, such as the permit fee
provisions in Appendix (A) of 10 CSR 10-6.060, which are not addressed
by Sec. 52.21, remain in effect.
Missouri's rule was adopted prior to the New York decision
described above so it included the vacated and remanded provisions of
EPA's rule. However, Missouri requested in a February 28, 2006, letter
that EPA not act on the PCP, Clean Unit Exemption provisions, and the
reasonable possibility provision in the recordkeeping provisions for
the actual-to-projected-actual emissions projections applicability
test. Missouri has also clarified that they commit to following EPA's
definition of `replacement unit' and will follow EPA's clarification of
how baseline emissions for PALs will be calculated (these
clarifications to the EPA's rules were promulgated after the
incorporation by reference date in the Missouri rule). When Missouri
updates the Construction Permits Required rule, 10 CSR 10-6.060,
Missouri commits to incorporating EPA's definition of replacement unit
by reference and will include EPA's clarification of how baseline
emissions for PALs are to be calculated.
We are taking no action on these provisions and on revisions to
rule 10 CSR 6.410, Emissions Banking and Trading, because the only
revision to this rule was a change to prevent
[[Page 19469]]
sources from generating Early Reduction Credits from Pollution Control
Projects (PCPs) that take advantage of the PCP exclusion provisions in
EPA's NSR Reform rules. Since the PCP exclusion was vacated and we are
not acting on it, as it relates to Missouri rule 10 CSR 10-6.060, we
are not acting upon the revision to Missouri rule 10 CSR 10-6.410.
The remaining rule revisions being proposed are approvable because
Missouri incorporated the December 31, 2002, New Source Review reform
regulation found in 40 CFR 52.21 by reference. We also note that
Missouri clarified section (9)(C)1 of the Construction Permits Required
rule. Section 9 outlines Hazardous Air Pollutant permit requirements
which are exempt from hazardous air pollutant permit requirements
unless they are listed on the source category list established in
accordance with section 112(c) of the CAA. We are taking no action on
including revisions to Section 9, because Section 9 addresses hazardous
air pollutants under Section 112 and is not presently in the SIP.
What Is EPA's Proposed Action on Missouri's Definition of "Baseline Area"?
Missouri's initial NSR reform submission, which largely
incorporates 40 CFR 52.21 by reference, retained the state's own
definition of ``baseline area'' for purposes of section (1)(A)1.
Additionally, Missouri requested in the February 28, 2006, letter that
we approve the Construction Permits Required rule and retain Missouri's
definition of baseline area in section (1)(A)1. Missouri acknowledges
that the current Construction Permits Required rule does not contain
the statement, ``designated as attainment or classifiable under section
107(d)(1)(D) or (E) of the Act consistent with the Federal definition
of ``baseline area.'' We had previously approved this definition of
baseline area with the specification that Missouri redesignate the
areas of significant impact as the baseline area (proposed rule, 47 FR
7696, and final rule, 47 FR 26833). Missouri must make area-specific
designation requests and EPA must approve the redesignation of the area
before Missouri could establish new baseline areas under its rule.
Missouri commits to revising the ``baseline area'' definition to
clarify it will redesignate the areas of significant impact as baseline
areas according to section 107(d)(1)(D) or (E) of the CAA. Missouri
will submit these redesignations to EPA for formal approval before the
new baseline area can be used for PSD permitting purposes. While
Missouri works to revise the rule, Missouri commits to implementing the
baseline area definition consistent with all Federal regulations and
will ensure that the air quality increment analysis for permit
applications complies with all Federal and state requirements.
Have the Requirements for Approval of an SIP Revision Been Met?
The state submittal has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submittal also
satisfied the completeness criteria of 40 CFR part 51, appendix V. In
addition, as explained below and in more detail in the technical
support document that is part of this document, EPA believes that the
revisions meet the substantive SIP requirements of the CAA, including
section 110 and implementing regulations.
What Action Is EPA Proposing?
We propose to approve revisions to Missouri rule, 10 CSR 10-6.060,
Construction Permits Required. Per Missouri's request, we are taking no
action on Clean Unit Exemptions, Pollution Control Projects, and the
record keeping provisions for the actual-to-projected-actual emissions
projections. We are not acting on revisions to Missouri rule 10 CSR 10-
6.410, Emissions Banking and Trading, because the only revision made to
the rule involves Pollution Control Projects.
Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that the
proposed approvals in this proposed rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The proposed partial
disapproval will not affect any existing state requirements applicable
to small entities. Federal disapproval of the state submittal does not
affect its state-enforceability. Moreover, EPA's partial disapproval of
the submittal does not impose a new Federal requirement. Therefore, the
Administrator certifies that this proposed disapproval action does not
have a significant impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule proposes to approve pre-existing requirements under state law
and does not impose any additional enforceable duty beyond that
required by state law, it 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).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (59 FR 22951, November 9, 2000). This action also does not
have federalism implications because it does not have substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely proposes to approve a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove an SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews an SIP
submission, to use VCS in place of an SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
[[Page 19470]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: April 7, 2006.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 06-3593 Filed 4-13-06; 8:45 am]
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