2023-04507. Air Plan Approval; MO; Restriction of Visible Air Contaminant Emissions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Missouri State Implementation Plan (SIP) received on November 29, 2016, and March 7, 2019. The revisions were submitted by Missouri in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, for a provision in the Missouri SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. In the submissions, Missouri requests to revise a regulation related to restriction of emissions of visible air contaminants. The revisions to the rule include removing a statement from the compliance and performance testing provisions that does not meet Clean Air Act (CAA) requirements, adding exemptions for emission units regulated by stricter federal and state regulations or that do not have the capability of exceeding the emission limits of the rule, adding an alternative test method and making other administrative changes. Approval of these revisions will ensure consistency between state and federally approved rules.

DATES:

This final rule is effective on April 7, 2023.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2022-0746 to www.regulations.gov. All documents in the docket are listed on the www.regulations.gov website. 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 through www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information.

FOR FURTHER INFORMATION CONTACT:

Ashley Keas, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. Background

II. What is being addressed in this document?

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

IV. The EPA's Responses to Comments

V. What action is the EPA taking?

VI. Environmental Justice Considerations

VII. Incorporation by Reference

VIII. Statutory and Executive Order Reviews

I. Background

On September 12, 2022, EPA proposed to approve SIP revisions submitted by the State of Missouri, on November 29, 2016, and March 7, 2019 (87 FR 55739). In that proposal, we also proposed to determine that the SIP revision corrects the deficiency with respect to Missouri that we identified in our June 12, 2015 action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction” (“2015 SSM SIP call”) (80 FR 33839, June 12, 2015). The reasons for our proposed approval and determination are stated in the proposed action (87 FR 55739, September 12, 2022) and are not restated here. The public comment period for our proposed approval and determination ended on October 12, 2022. During the comment period, EPA received comments from one entity and responds to those comments in section IV of this document.

II. What is being addressed in this document?

The EPA is taking final action to approve Missouri's revisions to 10 CSR 10-6.220, Restriction of Emissions of Visible Air Contaminants, in the Missouri SIP. The EPA received two SIP revision submissions related to this state rule from the Missouri Department of Natural Resources (MoDNR) on November 29, 2016, and March 7, 2019. On September 12, 2022, the EPA published a notice of proposed rulemaking (NPRM) proposing to approve Missouri's submissions (87 FR 55739). The full text of Missouri's requested rule changes as well as EPA's analysis of the changes can be found in the NPRM and technical support document (TSD), which is included in the docket for this action.

In its November 29, 2016, submission, MoDNR requested to remove the provision that was identified by EPA as being substantially inadequate to meet CAA requirements in EPA's 2015 SSM SIP Action. As explained in our NPRM, EPA finds that removal of this provision is consistent with EPA's policy outlined in the 2015 SSM SIP Action and sufficiently addresses the deficiencies identified by the 2015 SSM SIP Call.

In addition to the removal of the identified SSM deficiency, MoDNR, in both the 2016 and 2019 submissions, also requested revisions related to opacity monitoring requirements and exemptions from the opacity limits and recordkeeping and reporting requirements of 10 CSR 10-6.220 for certain source types. Specifically, MoDNR exempted specific, limited, emission units regulated by stricter federal and state regulations. MoDNR also provided an exemption for certain emission units that do not have the capability of exceeding the emission limits of the rule.

Missouri provided a demonstration pursuant to CAA section 110(l) to ensure the rule revisions, including the added exemptions, do not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Specifically, Missouri demonstrates that sources being exempted from the state opacity limit generally are either subject to an equivalent or more stringent limit in federal or state law or are physically incapable of exceeding the state opacity limit and therefore exempting these sources from the state opacity limit will not result in a net emissions change. Based on EPA's review of Missouri's section 110(l) demonstration and our analysis of these changes as discussed below and more fully described in the NPRM and TSD in the docket for this rule, EPA finds these revisions will result in no net emissions change and no change to status quo air quality. For these reasons, EPA finds the revisions will not interfere with attainment or maintenance of the National Ambient Air Quality Standards (NAAQS) or other CAA requirements consistent with CAA section 110(l).

MoDNR also added an alternative test method and made other administrative wording changes such as adding rule specific definitions. For the reasons explained in the NPRM, TSD, and this document, EPA finds these edits are consistent with CAA requirements, therefore EPA is approving the revisions to 10 CSR 10-6.220 as requested by Missouri.

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

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on the November 29, 2016, SIP revision from June 1, 2016, to August 4, 2016, and held a public hearing on July 28, 2016. During the public comment period, the State received seven comments from five sources, consisting primarily of supportive or clarifying comments from industry groups. The State addresses the comments in its submittal included in the docket for this proposal. The State provided public notice on the March 7, 2019, SIP revision from August 1, 2018, to October 4, 2018, and held a public hearing on September 27, 2018. During the public comment period, the State received nine comments, seven of which were from EPA. The State addresses the comments in its submittal. Further discussion of the state responses to comments received is included in the TSD and the state submittal documents in the docket. In addition, as explained above and in the TSD, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

IV. The EPA's Responses to Comments

The public comment period on the EPA's proposed rule opened September 12, 2022, the date of its publication in the Federal Register and closed on October 12, 2022. During this period, EPA received one comment letter from the Sierra Club.

Comment 1: The commenter supports EPA's proposed approval of Missouri's removal of 10 CSR 10-6.220(3)(C) as satisfying EPA's 2015 SSM SIP Call to Missouri and requests EPA to act quickly to approval removal of this provision from the Missouri SIP.

Response 1: EPA appreciates the supportive comment and as part of today's action is finalizing approval of removal of this deficient provision consistent with the commenter's request.

Comment 2: The commenter expresses concern with Missouri's expansion of the exemption for internal combustion engines. The commenter states EPA previously expressed concern with this change and argues the state did not adequately support the change nor address EPA's concerns. The commenter argues EPA's rationale for proposed approval of this expanded exemption is insufficient. Specifically, the commenter argues reliance on federal mobile source regulations is insufficient because the federal regulations are outdated and only apply to new engines. The commenter asserts that old, dirty engines continue to pollute along roads and highways, disproportionately affecting people of color. The commenter then references the State of Nevada's opacity standard as an example state opacity program that could limit visible emissions from certain vehicles. For these reasons, the commenter requests EPA not approve the proposed exemption for internal combustion engines or that EPA conditionally approve the revisions, provided the state removes the internal combustion exemption no later than one year after EPA's approval.

Response 2: First, in response to the commenter's claim that Missouri did not address EPA's comment on this exemption, this is in reference to Missouri's 2019 SIP revision. The change to this exemption was included in Missouri's 2016 SIP revision. Therefore, in Missouri's 2019 SIP revision, as referenced by commenter, Missouri explained that this exemption was not being changed, public comment was not solicited for this change and therefore Missouri did not make changes as a result of EPA's comment on this provision in the 2019 SIP revision. When this exemption was revised and proposed for public comment during Missouri's 2016 SIP revision, EPA did comment requesting Missouri add supportive information to the TSD, which Missouri responded to and addressed as part of the 2016 SIP revision. EPA discussed this information in the proposed rule and associated TSD included in the docket for this action.

As fully described in EPA's proposed rule and TSD in the docket for this action and as referenced by the commenter, the opacity limits currently in the Missouri SIP only apply to non-stationary internal combustion (IC) engines in the St. Louis and Kansas City metropolitan areas and the requested revision would expand the exemption to all internal combustion engines throughout the state. As the commenter references, the state explains the limits were first adopted in the 1960's to address emissions from older and less efficient vehicles and fuels. Since that time, EPA has enacted more stringent requirements and limits for newer model year vehicles and cleaner fuels and the vehicle population has continued to turnover to newer and cleaner vehicles.

As further explained in the NPRM and TSD, EPA's approval of this revision is consistent with CAA section 110(l) because the revision will not increase net emissions of criteria pollutants or their precursors. The primary basis for this determination is that the sources subject to the state opacity limit, for which Missouri is expanding this exemption in section (1)(A), continue to be subject to more stringent federal requirements. Therefore, sources that are in compliance with the more stringent federal requirements will not exceed the state opacity limit. Therefore, those sources subject to the federal requirements will not have a net increase in emissions. EPA's judgment that such SIP revisions do not “interfere” with attainment of the NAAQS is consistent with the plain and ordinary meaning of the statute, its structure, and EPA's past practice in conducting analyses under section 7410( l). The CAA, 42 U.S.C. 7410( l), provides, in relevant part that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment.” For over fifteen years, EPA has interpreted section 7410( l) as permitting approval of a SIP revision as long as “emissions in the air are not increased,” thereby preserving “status quo air quality.” Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986, 991, 996 (6th Cir. 2006); see also Indiana v. EPA, 796 F.3d 803, 806 (7th Cir. 2015) (same); Alabama Environmental Council v. EPA, 711 F.3d 1277, 1292-93 (11th Cir. 2013) (same); Galveston-Houston Association for Smog Prevention v. EPA, 289 F. Appendix 745, 754 (5th Cir. 2008) (hereinafter “ GHASP ”) (same). EPA implements this interpretation of section 7410( l) by approving SIP revisions if they do not result in a change to status quo air quality and thereby will not interfere with attainment or other CAA requirements. In doing so, “the level of rigor needed for any CAA [section 7410( l)] demonstration will vary depending on the nature and circumstances of the revision.” See EPA final rule 86 FR 48908, 48910; 86 FR 60172. Where EPA anticipates that a SIP revision may increase emissions, it typically requires that a state either (1) submit air quality analysis to demonstrate that the revision would not interfere with any applicable requirement or (2) substitute equivalent or greater emissions reductions in order to preserve status quo air quality. See86 FR 48910; 86 FR 60172; see also Ky. Res. Council, 467 F.3d at 995 (denying petition challenging under section 7410( l) SIP revision approval where the revision would not increase net emissions). However, where the SIP revision does not relax or remove any pollution controls—and therefore does not involve an increase in emissions—such requirements are unnecessary, because there is no reason to believe that such a SIP revision will interfere with any applicable requirement concerning attainment, or, in other words, there is no reason to believe that such a SIP revision would make air quality worse. See86 FR 48911; 86 FR 60173; see also WildEarth Guardians v. EPA, 759 F.3d 1064, 1074 (9th Cir. 2014). EPA applied the same interpretation of section 7410( l) in proposing to approve Missouri's SIP revision. Specifically, because the expanded exemption in section (1)(A) does relax the stringency of state rule 10-6.220, Missouri and EPA evaluated whether this expanded exemption would result in a net change to emissions or change in status quo air quality. As described previously, EPA agrees with Missouri's assertion that due to the continued implementation of the current federal requirements, which are the controlling requirements for this source sector rather than the state opacity limit, this revision will not result in increased net emissions or a change to status quo air quality.

To the commenter's point that the EPA's currently implemented heavy-duty diesel regulations are outdated, the currently implemented heavy-duty vehicle regulations established stringent PM emission standards beginning with model year 2007 vehicles and engines.^[1] Therefore, all new heavy-duty vehicles and engines sold since then have been required to comply with those stringent emission standards for PM. On December 20, 2022, EPA finalized more stringent emission standards for PM from heavy-duty vehicles and engines, beginning with model year 2027.^[2] Similarly, EPA has issued stringent PM emissions standards for various types of nonroad equipment and engines such as construction equipment and locomotives.^[3] EPA is not obligated to issue federal regulations on a specific time schedule and further, the state cannot be held responsible for EPA's regulations addressing emissions from this source sector becoming outdated in the commenter's opinion. The CAA provides EPA with the authority to regulate emissions from mobile source emissions, such as those from cars, trucks and various types of nonroad equipment and engines.^[4] Congress has generally preempted states from setting mobile source emissions standards. Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 938 (9th Cir. 2011) (citing 42 U.S.C. 7543(a)). States such as Missouri do not have the authority to regulate mobile source emissions or fuels directly and per Missouri law may not adopt rules that are more stringent than federal law. In its demonstration, the state also referred to its vehicle emissions inspections in the St. Louis Metropolitan Area to ensure light-duty vehicle emissions control equipment is functioning properly (10 CSR 10-5.381 On-Board Diagnostics Motor Vehicle Emission Inspection), and regulations limiting heavy duty diesel vehicle idling in both Kansas City and St. Louis Metropolitan Areas (10 CSR 10-2.385 and 5.385 Control of Heavy Duty Diesel Vehicle Idling Emissions).

Additionally, there are many voluntary programs being implemented by EPA and states that are targeted at replacing older diesel engines with new cleaner engines or retrofitting older diesel engines to reduce particulate matter emissions. For example, through the Diesel Emissions Reduction Act (DERA) EPA continues to provide millions of dollars of grant funding per year to state, local, and tribal air agencies as well as directly to nonprofit organizations through competitive grant opportunities to replace older diesel engines with new cleaner models.^[5] Specifically, previously awarded national competitive DERA grants included projects to replace school buses, trucks, and commercial marine engines with new cleaner versions in both of these metropolitan areas.^[6] Another example of a program that targets replacement of older diesel engines include the Volkswagen trust fund, which accounts for a major investment in Missouri, up to $41 million by 2027 awarded to Missouri-specific projects to mitigate emissions from diesel engines in Missouri.^[7] While these are voluntary programs and therefore not federally enforceable, and EPA is thus not relying on these programs for its section 110(l) analysis, the replacements and upgrades funded through these programs have played a major role and will continue to result in real reductions of emissions in local communities including the Kansas City and St. Louis metropolitan areas.

To the commenter's point about Nevada's opacity program, EPA agrees that states have this discretion to enforce opacity limits either through regularly required inspections or through roadside pullover programs in their state, however it is not in the scope of this rulemaking action to prescribe how Missouri could potentially alter its rulemaking and enforcement of opacity limits in the future. At issue, is the question of whether this rule revision will result in a net emissions increase. As described in the proposed rule and TSD, EPA finds that the information provided by the state and available to EPA supports the conclusion that this revision will not result in a net emissions increase and therefore will not interfere with attainment or other CAA requirements.

Finally, to the commenter's point about disproportionate impacts from older diesel engines on people of color, in section I.C. of the final rule “Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards” EPA states that, “Our consideration of environmental justice literature indicates that people of color and people with low income are disproportionately exposed to elevated concentrations of many pollutants in close proximity to major roadways.” ^[8] EPA includes additional discussion of the available literature in sections II.C and II.D. of that final rule.^[9]

For these reasons, EPA continues to find that this rule revision to expand the exemption to all IC engines in the state will result in no net emissions change in these areas and therefore will not interfere with attainment or maintenance of the NAAQS or any other CAA requirements.

To further respond to the commenter's concern, EPA reviewed available emissions data for these areas, from the most recent complete national emissions inventory (NEI) for 2017. In that inventory, we evaluated what percentage of the total particulate matter (PM₁₀) emissions in these areas are from the mobile source sector and more specifically from onroad mobile sources. All emissions data referenced here is included in the spreadsheet titled, “2017 NEI MO PM Emissions Data” included in the docket for this action. The key comparisons as shown in Table 1 are contained in the summary tab while the other tabs contain the full datasets.

Table 1—2017 NEI PM ₁₀ Emissions for the Missouri Portions of the St. Louis and Kansas City Metropolitan Areas

Missouri metropolitan area	PM 10 emissions (tons per year)			Percent of total PM 10 emissions
	Total	All mobile sources	Onroad mobile sources	All mobile sources	Onroad mobile sources
Kansas City	137,622	1,755	1,248	1.3	0.9
St. Louis	89,020	2,661	1,931	3.0	2.2

Table 1 shows the total PM₁₀ emissions for the Missouri portion of each metropolitan area as well as the percentage attributable to the mobile source sector and the percentage attributable to onroad mobile sources. The mobile source category includes onroad, nonroad, airport, watercraft and rail source categories. The mobile source category accounts for 1.3% and 3.0% of total PM emissions in the Missouri portions of Kansas City and St. Louis, respectively. The onroad mobile source category includes sources such as heavy duty trucks, transit and school buses. And onroad mobile sources account for 0.9% and 2.2% of total PM emissions in the Missouri portions of Kansas City and St. Louis, respectively. As shown in the table, emissions from onroad mobile sources, including diesel engines, account for a relatively small percentage of overall PM emissions in these areas.

As discussed above and as more fully described in the NPRM and TSD, in reviewing Missouri's requested rule revisions, EPA evaluated all available relevant information including information provided by the state. Based on EPA's review of that information, EPA finds that Missouri's revision to section (1)(A) of state rule 10-6.220, would not result in a net change to emissions or a change in status quo air quality and therefore will not interfere with attainment of the NAAQS or any other applicable requirements, consistent with CAA section 110(l).

Comment 3: The commenter expresses concern with Missouri's addition of an exemption for emission units burning certain fuels. The commenter questions whether AP-42 factors accurately estimate emissions from these fuels. The commenter then argues that while these fuels may generally have lower visible emissions, they may have the potential to emit levels of other pollutants that contribute to opacity.

Response 3: First, with respect to the added section (1)(L) in 10-6.220, EPA continues to find that the units burning the listed fuels are not physically capable of exceeding the state rule opacity limit as demonstrated by Missouri. For this reason, this rule revision will result in no net emissions change and subsequently no change to status quo air quality. Therefore, as explained in response to comment 2, will not interfere with attainment or maintenance or any other CAA requirement consistent with CAA section 110(l). Further, the EPA disagrees with the commenter's assertion that EPA's “Compilation of Air Pollutant Emissions Factors,” also known as AP-42, does not accurately estimate emissions associated with combustion of these fuels. As referenced by the commenter, Missouri includes the calculation used to estimate potential emissions associated with combustion of these fuels and references the appropriate sections of the publicly available AP-42 information maintained by EPA. Through these calculations, the state demonstrates that units combusting the fuels covered by this provision are not physically capable of emitting greater than the 20% opacity limits of the state rule. Further, the state calculations show that the maximum expected percent opacity emissions are at least 25% below the 20% state rule opacity limit ( i.e., cannot exceed 15% opacity) and in most cases at least 50% below the 20% state rule opacity limit ( i.e., cannot exceed 10% opacity) to allow for a reasonable margin of safety in the estimations. For these reasons, EPA continues to find that exempting units that combust only the gaseous fuels listed by Missouri in section (1)(L) of state rule 10-6.220 will result in no net emissions change and therefore will not interfere with attainment or maintenance of the NAAQS or any other CAA requirements, consistent with CAA section 110(l).

Comment 4: The commenter expresses concern with Missouri's added exemption for units subject to an equivalent or more restrictive emission limit under 10 CSR 10-6.075 or any federally enforceable permit. The commenter argues that Missouri did not satisfactorily support this added exemption with a demonstration for EPA to review. The commenter further argues that this exemption violates the Act's SIP revision requirements and EPA's SSM SIP Call policy by allowing sources to be exempt on a case-by-case basis outside the SIP revision process which the commenter argues could also limit the public's ability to participate in the public review process. For these reasons, the commenter requests EPA not approve this exemption or alternately conditionally approve, provided Missouri removes this added exemption no later than one year after EPA's approval.

Response 4: As referenced in Missouri's submittals, the statewide opacity rule was consolidated from several area-specific rules which were originally promulgated in the late 1960's and early 1970's, prior to the enactment of the Clean Air Act. The opacity limits established in 10 CSR 10-6.220 were carried over from these early rules and apply to all sources of visible emissions in Missouri, including a vast array of air pollution sources. These air pollution sources are also subject to federal or state regulations with stricter emission limits and more comprehensive requirements. This has created redundancies in air pollution regulation and duplicative requirements. Missouri's basis for revising this rule was to remove the less stringent requirements on sources and thereby remove duplicative monitoring, reporting and recordkeeping (MRR) requirements to allow sources to focus on compliance with the more stringent requirements that are not being impacted by this rulemaking. Contrary to commenter's assertion, Missouri did provide support for this rule revision in the technical support document included in the submittal for the 2019 revision on page 12 of 38 in the document with Docket ID # EPA-R07-OAR-2022-0746-0008. The state explains that State rule 10 CSR 10-6.075 Maximum Achievable Control Technology Regulations incorporates by reference the delegable federal subparts of 40 CFR part 63 National Emission Standards for Hazardous Air Pollutants for Source Categories. These federal Maximum Achievable Control Technology (MACT) regulations are source-specific and establish detailed requirements tailored to numerous processes and operations emitting hazardous air pollutants. The state goes on to note that many sources and emission units subject to stringent opacity and PM limits under 40 CFR part 63 are also subject to 10 CSR 10-6.220 due to the broad applicability of the opacity rule. The state further explains that since the opacity limits in 10 CSR 10-6.220 are less stringent than those specified in numerous subparts incorporated in 10 CSR 10-6.075, it is appropriate to add an exemption for emission units subject to an equivalent or stricter emission limit under 10 CSR 10-6.075 or a federally enforceable permit condition. The state concludes by stating the addition of this exemption to the opacity rule will eliminate regulatory overlap, simplify the Title V permit application process, streamline permit conditions, and decrease permit review time.

As the commenter points out, Missouri provided a thorough demonstration correlating PM and opacity emissions to show limits for certain sources are indeed stricter than the state rule limit and EPA reviewed this demonstration as explained in the proposed rule and associated TSD. This correlation demonstration was necessary because the state was comparing different types of emission limits, specifically opacity and PM limits. For the “equivalent or more restrictive emission limit” that Missouri includes in this provision, EPA interprets this as a direct comparison between limits involving the same pollutant and same unit of measure. Specifically, EPA interprets this revision as allowing an exemption from the state rule opacity limits only when a limit is very clearly equivalent or more stringent in all cases such that the limits would in fact be duplicitous and that such an exemption be accompanied by a clear comparison demonstrating the stringency of the limits in order to support an exemption from the less stringent limit. This evaluation of stringency must clearly show that when the source complies with the more stringent requirement, the source can be considered to be in compliance with the less stringent requirement. Further, as discussed in the NPRM, in order for a limit to be equivalent or more stringent than the state opacity limit it must be continuous in nature and not allow for exemptions for periods of SSM given EPA's approval through this action to remove section (3)(C) from state rule 10-6.220 as discussed in our response to comment 1.

With EPA's approval and Missouri's implementation of this provision, sources would still be subject to the more stringent limit but no longer be subject to the less stringent limit and its associated MRR requirements. And as stated in our proposed rule and TSD and as referenced by the commenter, exemption from a less stringent limit while continuing to be required to comply with an equivalent or more stringent limit would indeed result in no net emissions change and subsequently no change to status quo air quality as a result of the rule revision. Further, the only material change would be the removal of the MRR requirements associated with the less stringent limit thereby removing unnecessary duplicative requirements.

Missouri also added provisions in sections (1)(J) and (1)(M) of 10-6.220 which, as further discussed in EPA's TSD included in the docket for this action, exempt sources from the state opacity rule that are also subject to specific National Emissions Standards for Hazardous Air Pollutants (NESHAP) regulations which require the covered sources to comply with more stringent emissions limits than the state opacity limits. Missouri's reference to state rule 10-6.075 in section (1)(P) of 10-6.220 is intended to encompass the other MACT and NESHAP regulations that Missouri has accepted delegation for through this state rule. Those MACT and NESHAP regulations incorporated by reference in 10-6.075 include emissions limits set by EPA for certain source categories. Similar to the provisions in sections (1)(J) and (1)(M), section (1)(P) relies on EPA's more stringent requirements for the relevant source categories in order to be exempt from the state opacity limit provided it is indeed shown to be less stringent. This intention is further supported by Missouri's response to comments from EPA (comment and response #2 on page 26 of 38 in Missouri's 2019 submittal in the docket for this action). Specifically, the state's intention in adding this exemption for sources subject to 10-6.075, and the MACT and NESHAP requirements that are incorporated by reference through this state rule, is to exempt emissions units subject to equivalent or more stringent emission limits contained in these federal regulations under 40 CFR part 63 for which Missouri has accepted delegation without explicitly listing each NESHAP or federal regulation as a separate provision under the applicability section in 10-6.220. This method of referring to 10-6.075 where the MACT and NESHAP requirements are incorporated by reference, and for which Missouri has accepted delegation, is a reasonable way of streamlining requirements for impacted sources while maintaining that the most stringent or controlling limit and associated MRR requirements continue to apply.

For these reasons, EPA continues to find there will be no net emissions change and subsequently no change to status quo air quality associated with this revision and therefore, as described at length in our response to comment 2, this revision would not interfere with attainment or other CAA requirements.

Second, EPA disagrees with the commenter's assertion that approval of this exemption would be inconsistent with the Act's SIP revision requirements and EPA's SSM SIP Call policy. First, EPA's action on Missouri delegations and acceptance of enforcement authority for federal regulations, including 10 CSR 10-6.075, is also subject to 40 CFR 51.102 requiring EPA's public notice and comment process. EPA last granted Missouri's delegation authority for 10 CSR 10-6.075, among other rules, on June 1, 2018 (83 FR 25382).

In order for additional source categories subject to MACT and NESHAP regulations that are not already included in 10-6.075 to be exempted from the opacity limits of 10-6.220, Missouri must update 10-6.075 through the normal state rulemaking process, including public notice and comment and submittal to EPA for action. Only after EPA's delegation to the state of the implementation and enforcement authority of the relevant requirements for any newly added source categories could these sources then be eligible for exemption from the opacity limits of 10-6.220 pending the evaluation of stringency showed the delegated limits incorporated in 10-6.075 were indeed equivalent or more stringent than the opacity limits of 10-6.220. Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state air agency. However, EPA also retains the concurrent authority to enforce the standards so granting delegation to a state does not affect EPA's ability to enforce a standard nor does it prohibit the ability for citizens to file lawsuits under Clean Air Act § 304, 42 U.S.C. 7604. Additionally, through the second clause of this provision, Missouri clarifies this revision is limited to federally enforceable permits which are subject to Missouri's SIP approved permitting program which also includes public notice and comment requirements. Further, EPA has an oversight role in permitting and has the ability to review and influence via comment permits which will be relied upon to exempt a source from the state rule opacity limit. EPA also retains authority and discretion pursuant to CAA section 110(k)(5) to require states to revise previously approved SIP provisions if EPA becomes aware that they do not meet CAA requirements. Finally, this revision does not violate EPA's SSM SIP Policy because as described in EPA's NPRM and above, in order to be considered equivalent or more stringent the emissions limit must be continuous in nature and not include exemptions for periods of SSM.

For these reasons, EPA continues to find there will be no net emissions change associated with this revision and for the reasons described in Response to Comment 2, the revision would therefore not interfere with attainment or maintenance of the NAAQS or any other CAA requirements, consistent with CAA section 110(l).

V. What action is the EPA taking?

The EPA is taking final action to approve the revisions to 10 CSR 10-6.220 as requested by Missouri in submissions dated November 29, 2016 and March 7, 2019.

VI. Environmental Justice Considerations

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The state did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. While EPA did not perform an area-specific EJ analysis for purposes of this action, due to the nature of the action being taken here, i.e., to remove an exemption for excess emissions during periods of SSM and add exemptions for sources subject to equivalent or more stringent limits, as explained in this preamble, the preamble to the proposed rule, and the technical support document in this docket, this action is expected to have a neutral to positive impact on air quality. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action approves revisions to a Missouri state rule concerning visible emissions. As explained in this preamble, the preamble to the proposed rule, and technical support document, EPA finds the revisions will result in no net emissions change and subsequently no change to status quo air quality. Therefore, we expect that this action will not interfere with attainment or maintenance of the NAAQS, reasonable further progress, or other CAA requirements. For these reasons, this action is not expected to have a disproportionately high or adverse human health or environmental effects on a particular group of people.

VII. Incorporation by Reference

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Regulation, 10 CSR 10-6.220, state effective March 30, 2019, which regulates visible air contaminant emissions from certain sources throughout the state. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

VIII. Statutory and Executive Order Reviews

Under the Clean Air Act (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, the 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and
• This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The basis for this determination is contained in section VI of this action, “Environmental Justice Considerations.”
• In addition, 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
• This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
• Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 2023. 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. 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: February 28, 2023.

Meghan A. McCollister,

Regional Administrator, Region 7.

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, the table in paragraph (c) is amended by revising the entry “10-6.220” to read as follows:

§ 52.1320

Identification of plan.

* * * * *

(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 State of Missouri
*         *         *         *         *         *         *
10-6.220	Restriction of Emission of Visible Air Contaminants	3/30/2019	3/8/2023, [insert Federal Register citation]	Subsection (1)(I) referring to the open burning rule, 10 CSR 10-6.045, is not SIP approved.
*         *         *         *         *         *         *

* * * * *

Footnotes

1.   See66 FR 5002, January 18, 2001.

2.   See88 FR 4296, January 24, 2023.

3.  For example, Control of Emissions of Air Pollution From Nonroad Diesel Engines and Fuel (69 FR 38958, June 29, 2004) and Control of Emissions of Air Pollution from Locomotive Engines and Marine Compression-Ignition Engines Less Than 30 Liters per Cylinder; Republication (73 FR 37096, June 30, 2008).

4.   See CAA sections 202(a) and 213(a).

5.  EPA posts previously awarded grants to the national DERA website, https://www.epa.gov/​dera.

6.  See listing of nationally awarded competitive grants sorted by state and local organization at https://www.epa.gov/​dera/​national-dera-awarded-grants. For example, St. Louis (Regional) Clean Cities, Mid America Regional Council, and Metropolitan Energy Center have previously managed nationally awarded DERA grants in the St. Louis and Kansas City metropolitan areas, respectively.

7.   https://dnr.mo.gov/​air/​what-were-doing/​volkswagen-trust-funds/​awarded-projects.

8.   See88 FR 4310, January 24, 2023.

9.   See Id.