E9-30774. Approval and Promulgation of Implementation Plans; State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a revision to the State Implementation Plan (SIP) submitted by the state of Missouri. This revision applies to Missouri's rule relating to restriction of emission of visible air contaminants and removes redundant definitions, removes an outdated exemption for incinerators used to burn refuse in the outstate area, and clarifies that the test methods stated in the rule shall be used to determine the opacity of visible emissions. EPA is not taking action on the state submitted revisions relating to open burning, as these provisions revise a rule that has not been adopted into the SIP. Approval of this revision will ensure consistency between the state and the Federally approved rules.

DATES:

This direct final rule will be effective March 1, 2010, without further notice, unless EPA receives adverse comment by January 28, 2010. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2008-0787, by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail: Lachala Kemp, 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 Lachala Kemp, 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-2008-0787. 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 through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. 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 docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available; i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. 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 66101. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m. excluding Federal holidays. 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:

Lachala Kemp at [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

What is a SIP?

What is the Federal approval process for a SIP?

What does Federal approval of a state regulation mean to me?

What is being addressed in this document?

Have the requirements for approval of a SIP revision been met?

What action is EPA taking?

What is a SIP?

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

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 CAA 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 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 does Federal approval of a state regulation mean to me?

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

What is being addressed in this document?

On September 16, 2008, EPA received a request from the Missouri Department of Natural Resources to approve revisions to the SIP amending 10 CSR 10-6.220, “Restriction of Emission of Visible Air Contaminants,” sections (1) Applicability, (2) Definitions, (3) General Provisions, and (4) Test Methods.

In general, these revisions relate to provisions of the state rule incorporating various Federal rules by reference. The revisions add dates to clarify the version of the incorporated Federal rules referenced in the state rules.

Subsection (1)(H), in the applicability section, exempts from the SIP visible emissions requirements sources which are subject to the new source performance standards promulgated by EPA and incorporated by reference into the state rule. The subsection is amended to provide specific references to the Federal rule (40 CFR part 60, promulgated as of July 1, 2007).

Subsection (1)(I), in the applicability section, is not being acted on. This subsection exempts from the visible emissions requirements certain activities exempted from Missouri's open burning rule. The open burning rule, 10 CSR 10-6.045, has not been submitted by Missouri for approval into the state's implementation plan. Therefore, EPA is not taking action at this time to approve this revision in the SIP.

Subsection (1)(J), in the applicability section, is being removed from the SIP. This subsection exempted from the rule incinerators used to burn refuse in the outstate areas of Missouri. EPA has determined that elimination of this exemption strengthens the SIP.

In section 2, “Definitions,” the definitions of “opacity” and “outstate area” were removed. These definitions were either no longer applicable or more clearly defined in other rules. The definition of “six-minute period,” applicable to sources using continuous opacity monitoring data, was revised to specify the applicable Federal rule (40 CFR part 60, App. B) which is incorporated by reference in the state definition.

In General Provisions, (3)(F) was revised to reflect that all sources subject to the rule, including those required to have continuous opacity monitors, are subject to the testing requirements in section 5 of 10 CSR 10-6.220.

Missouri's reference to test method 203A—Visual Determination of Opacity of Emissions from Stationary Sources for Time-Averaged Regulations, was revised in (5)(A)2 to update the reference to Federal test methods. The reference to test method 203B—Visual Determination of Opacity of Emissions from Stationary Sources for Time-Exception Regulations, (5)(A)3., was revised to reference the Federal methods promulgated as of July 1, 2007.

Subsections (5)(B), “Emissions from Mobile Internal Combustion Engines,” and (5)(C), “Fugitive Emissions from Material Sources, Smoke Emissions from Flares and as Required by Permit Condition,” were revised to specify that Missouri is incorporating applicable EPA test methods promulgated as of July 1, 2007 (Method 22, 40 CFR part 60, App. A). EPA has determined that these rule updates do not substantively change the stringency of the SIP.

Have the requirements for approval of a SIP revision been met?

The submittal satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the state submittal has met the public notice requirements for SIP submission in accordance with 40 CFR 51.102. The revisions are not substantive changes to the existing SIP, but merely clarify existing requirements. Therefore the revisions continue to meet the substantive SIP requirements of the CAA, including section 110.

What action is EPA taking?

We are approving the request to revise the Missouri SIP (10 CSR 10-6.220) as described above. We are not acting on the revision exempting sources which are exempt from the open burning rule, as described above. This revision will ensure consistency between the state and the Federally-approved rules. We have determined that these changes will not relax the SIP or adversely impact air quality.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial, and they do not contain substantive changes. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

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 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 action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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 Clean Air Act; 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 1, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the final rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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: December 15, 2009.

William Rice,

Acting Regional Administrator, Region 7.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart AA—Missouri

2. In § 52.1320(c) the table is amended under Chapter 6 by revising the entry for “10-6.220” to read as follows:

§ 52.1320

Identification of plan.

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(c) * * *

EPA-Approved Missouri Regulations

Missouri citation	Title	State effective date	EPA approval date	Explanation
Missouri Department of Natural Resources
	*         *         *         *         *         *         *
Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods and Air Pollution Control Regulations for the Entire State of Missouri
	*         *         *         *         *         *         *
10-6.220	Restriction of Emission of Visible Air Contaminants	9/30/08	12/29/09 [insert FR page number where the document begins]	Subsection (1)(I) referring to the open burning rule, 10 CSR 10-6.045, is not SIP approved.
	*         *         *         *         *         *         *

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