[Federal Register Volume 60, Number 63 (Monday, April 3, 1995)]
[Proposed Rules]
[Pages 16824-16829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8082]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-20-1-6442; FRL-5181-8]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve
the State Implementation Plan (SIP) revision by the state of Missouri
that revises the Missouri Part D new source review (NSR) rules, updates
and adds numerous definitions, revises the maximum allowable increase
for particulate matter under the requirements for prevention of
significant deterioration (PSD) of air quality, address emission
statements under title I of the Clean Air Act Amendments (CAAA), and
generally enhance the SIP.
This revision generally meets requirements of the Clean Air Act
(CAA) as Amended in 1990 with regard to NSR in areas that have not
attained the national ambient air quality standard (NAAQS). However,
Missouri is required to make certain changes to the NSR rules, as
outlined in this proposal, before EPA can grant final approval to this
SIP revision. This implementation plan was submitted by the state to
satisfy certain Federal requirements for an approvable nonattainment
NSR SIP for Missouri.
DATES: Comments must be received on or before May 3, 1995.
ADDRESSES: Comments may be mailed to Robert J. Lambrechts,
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue,
Kansas City, Kansas 66101.
FOR FURTHER INFORMATION CONTACT: Robert J. Lambrechts at (913) 551-
7846.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the Act. EPA has issued a ``General
Preamble'' describing EPA's preliminary views on how EPA intends to
review SIP revisions submitted under part D, including those state
submittals containing nonattainment area NSR SIP requirements (see 57
FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). Because
EPA is describing its interpretations here only in broad terms, the
reader should refer to the General Preamble for a more detailed
discussion of the interpretations of part D advanced in today's
proposal and the supporting rationale.
The EPA is currently developing a proposed rule to assist the
implementation of the changes under the amended Act in the NSR
provisions in parts C and D of title I of the Act. If EPA has not taken
final action on the state's NSR submittals by the time the proposed
rule is published for comment, EPA may refer to the proposed rule as
the most authoritative guidance available regarding the approvability
of the submittals. Upon promulgation of the final regulations, EPA will
review the NSR SIPs of all states to determine whether additional SIP
revisions are necessary.
Prior to EPA approval of a state's NSR SIP submission, the state
may continue permitting only in accordance with the new statutory
requirements for permit applications completed after the relevant SIP
submittal date. This policy was explained in transition guidance
memoranda from John Seitz dated March 11, 1991, and September 3, 1992.
As explained in the March 11 memorandum, EPA does not believe Congress
intended to mandate the more stringent Title I NSR requirements during
the time provided for SIP development. States were thus allowed to
continue to issue permits consistent with requirements in their current
NSR SIPs during that period; or apply 40 CFR part 51, appendix S for
newly [[Page 16825]] designated areas that did not previously have NSR
SIP requirements.
II. Construction Permits Required--10 CSR 10-6.060
A. General Nonattainment New Source Review (NSR) Nonattainment Permit
Requirements
The Act requires all states to have submitted the following
nonattainment NSR provisions.
1. Offset Ratios
Federal Requirement: For moderate ozone nonattainment areas, the
state must submit provisions to ensure that new or modified major
stationary sources obtain offsets at a ratio of at least 1.15 to 1 in
order to obtain an NSR permit.
State Response: 10 CSR 10-6.060(7)(B)1 requires that by the time
the source is to commence operation, sufficient offsetting emissions
reductions are to be obtained. The specific offset ratios for all
nonattainment classifications are listed at 10 CSR 10-6.020(2)(O)1 and
satisfy the requirement that volatile organic compound (VOC) and
nitrogen oxides (NOX) emissions in moderate nonattainment areas
will require an offset ratio of actual emission reduction to new
emissions of 1.15:1. Missouri has satisfied this Federal requirement.
2. Geographic Location of Offsets
Federal Requirement: New section 173(c)(1) stipulates that
emissions offsets generally must be obtained by the same source or
other existing sources in the same nonattainment area, except under
narrow circumstances.
State Response: 10 CSR 10-6.060(7)(B)1 provides that offsetting
emissions reductions are to be obtained from existing sources in the
St. Louis nonattainment area. Missouri has satisfied this Federal
requirement.
3. Timing of Offsets
Federal Requirement: New section 173(c)(1) also adds the condition
that any emissions offsets obtained in conjunction with the issuance of
a permit to a new or modified source must be ``by the time a new or
modified source commences operation, in effect and enforceable * * *.''
The 1990 CAAA clarified the offset requirements in the preamended Act
by requiring that the offsets be Federally enforceable before permit
issuance. Accordingly, while it is possible for a state to issue a
permit to construct once sufficient emissions offsets have been
identified and made Federally enforceable, the state must also ensure
that the required emissions reductions actually occur no later than the
date on which the new source or modified source would commence
operation.
State Response: The Missouri definition of ``Federally
enforceable'' found at 10 CSR 10-6.020(2)(F)2 provides that
requirements within any applicable state implementation plan, any
permit requirement established pursuant to 40 CFR part 52.21, or under
regulations pursuant to 40 CFR part 51 are Federally enforceable.
Therefore, the requirement to obtain an emission offset will be
Federally enforceable once approved into the SIP.
10 CSR 10-6.060(7)(B)1 provides that offsetting emissions
reductions are to be obtained by the time the source is to commence
operation. In addition, 10 CSR 10-6.060(12)(C)1.C provides that the
owner or operator of the source from which offsets are obtained shall
enter into a binding agreement to limit emissions of the offset
pollutant at the source to the levels identified after the offset is
applied. 10 CSR 10-6.060(12)(C)2 provides that it shall be a violation
of the construction permits required rule (10 CSR 10-6.060) to operate
a source from which offsets were obtained so as to emit the offset
pollutant at levels greater than identified in the agreement referred
to previously. Therefore, the commitment to obtain emission reductions
is Federally enforceable at the time of permit issuance, and the
Missouri regulation satisfies the CAAA section 173 mandate.
4. Actual Emissions Reductions
Federal Requirement: New section 173(c)(1) includes the provision
that:
* * * Total tonnage of increased emissions from the new or
modified source shall be offset by an equal or greater amount, as
applicable, in the actual emissions of such air pollutant from the
same or other sources in the area.
EPA's current regulation concerning the baseline for emissions
offsets, as contained in the part 51 NSR nonattainment regulations,
provides that the offset baseline is the emissions limit under the
applicable SIP in effect at the time the permit application is filed,
unless the state's demonstration of reasonable further progress (RFP)
and NAAQS attainment is based on actual emissions, or the applicable
SIP does not contain an emissions limitation for that particular source
or source category. The new statutory requirement provides that
emissions increases from the new or modified source must be offset by
real reductions in actual emissions.
State Response: The nonattainment provisions for Missouri found at
10 CSR 10-6.060(7)(B)3 require that offsets be obtained in accordance
with the offset procedures found in the offsets appendix of the
construction permits rule at 10 CSR 10-6.060(12)(C). The appendix
language requires the applicant to provide documentation satisfactory
to the permitting authority showing that ``* * * the level of emission
of the offset pollutant at the offsetting source prior to and after the
offset is applied.'' This language requires that offset calculations
must take into account actual emissions as the reference is to the
``level of emission * * * prior to and after the offset * * *.''
Therefore, Missouri satisfies the requirement that emissions increases
from the new or modified source must be offset by real reductions in
actual emissions.
5. NOX Requirements
Federal Requirement: In addition to requirements for ozone
nonattainment areas, section 182(f) of the CAAA states that
requirements for major stationary sources of VOC shall apply to major
stationary sources of NOX unless the Administrator determines that
net air quality benefits are greater in the absence of NOX
reductions from the sources concerned.
State Response: The Missouri construction rule at 10 CSR 10-
6.060(7)(E) requires that for purposes of nonattainment area permits,
any significant increase due to the levels of emission of NOX
shall be considered significant for ozone. The rule further provides
that any installation with the potential to emit one hundred (100) tons
per year of NOX located within an area which is nonattainment for
ozone must comply with the specific permit requirements of the
nonattainment provisions of the Missouri construction permit rule.
Missouri has satisfied this Federal requirement.
6. Creditable Reductions
Federal Requirement: Section 173(c)(2) prevents emissions
reductions otherwise required by the Act from being credited for
purposes of satisfying the Part D offset requirement. However, the
statutory language does allow reductions that are achieved indirectly
pursuant to a requirement of the CAAA (incidental emission reductions)
to be credited if they meet the other criteria for offsets contained in
section 173(c)(1).
State Response: 10 CSR 10-6.060(12)(C)4 provides that offset credit
may not be taken for emission reductions required by state or local
emission control rules or ordinances; state or Federal court order; or
order of [[Page 16826]] a Federal, state, or local air pollution
control agency. MDNR will be modifying the language of this provision
to address how offset credits will be impacted by Federal regulations
and permit terms (see section I.D.4 of the Technical Support Document).
7. Prohibition on Old Growth Allowances
Federal Requirements: Section 173(b) expands the pre-1990
requirements by prohibiting the continued use of old growth allowances
in any nonattainment area that either received a notice that the SIP
was substantially inadequate under section 110(a)(2)(H)(ii) of the 1977
Act, or receives notice of inadequacy under new section 110(k)(1) of
the amended Act.
State Response: MDNR deleted the reference to available growth
increment previously found at 10 CSR 10-6.060(4)(B). Therefore, the
growth allowance is no longer available for offsets. Missouri has
satisfied this Federal requirement.
8. Analysis of Alternatives
Federal Requirements: New sources in nonattainment areas must
undertake an analysis of alternatives prior to receiving a permit. The
section 173(a)(5) analysis and demonstration are now prerequisites to
the issuance of any permit for construction or modification of a major
source in any nonattainment area. Prior to 1990, the analysis was
required only for certain sources of carbon monoxide and ozone.
State Response: This requirement is satisfied by the language in 10
CSR 10-6.060(7)(C)4 which specifies that an applicant must provide an
alternate site analysis before issuance of a permit for the
construction or major modification of an installation with the
potential to emit annually 100 tons or more of a nonattainment
pollutant, or a permit for a modification with the potential to emit
annually 100 tons or more of a nonattainment pollutant. MDNR defines
``alternate site analysis'' at 10 CSR 10-6.020(2)(A)23 as an analysis
of alternative sites, sizes, production processes, and environmental
control techniques for the proposed source which demonstrates that
benefits of the proposed installation significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification. Missouri has satisfied this Federal
requirement.
9. RFP
Federal Requirements: As required by section 173(a)(1)(A) of the
CAAA, the permitting authority must be able to ensure that calculations
of emissions offsets are based on the same emissions baseline used in
the demonstration of RFP. The EPA interprets section 173(a)(1)(A) to
ratify current EPA regulations requiring that the emissions baseline
for offset purposes be calculated in a manner consistent with the
emissions baseline used to demonstrate RFP. Regarding the amount of
offsets necessary to show noninterference with RFP, EPA will presume
that so long as a new source obtains offsets in an amount equal to or
greater than the amount specified in the applicable offset ratio, the
offsets will represent RFP.
State Response: Missouri utilizes 10 CSR 10-6.060(7)(B)1 to obtain
reasonable further progress in new source permitting. A permit for
construction or major modification of an installation with the
potential to emit the nonattainment pollutants in amounts equal to or
greater than the de minimis levels, shall not be issued unless the RFP
requirements, among others set forth in 10 CSR 10-6.060, are met.
10. Reasonably Available Control Technology/Best Available Control
Technology/Lowest Achievable Emission Rate Clearinghouse Information
Federal Requirement: The 1990 CAAA added a new section 173(d),
which requires states to submit to EPA control technology information
from permits issued under section 173 for purposes of making such
information available to other states and to the general public.
State Response: 10 CSR 10-6.060(12)(B)2.G provides that the
permitting authority shall submit a copy of the final control
technology determination to the Administrator. Therefore, Missouri has
satisfied this Federal requirement.
11. Stationary Source Definition
Federal Requirement: The 1990 CAAA added a new definition of
``stationary source'' in section 302(z) of Title III of the Act, and
amended the existing definition already contained in section 111(a)(3).
The addition of the new definition appears to strengthen Congressional
intent that certain internal combustion engines must be subject to
control under state permit programs, while providing for the exclusion
of those internal combustion engines which fall under the newly defined
category of ``nonroad engines.''
State Response: Missouri uses the definition of ``installation'' at
10 CSR 10-6.020(2)(I)7 as its definition of ``stationary source'' under
the Act. The ``installation'' definition encompasses all source
operations including activities that result in fugitive emissions. MDNR
interprets this definition to include stationary internal combustion
engines and the fugitives such as reintrained road dust generated by
nonroad machinery. However, it excludes the exhaust emissions of
nonroad engines. Missouri has satisfied this Federal requirement.
Finally, Missouri exempts from construction permitting requirements any
equipment used for any mode of transportation as provided for at 10 CSR
10-6.060(1)(D)2.C.
B. Missouri Construction Permit Program Deficiencies
1. Particulate Matter
Federal Requirement: On June 3, 1993, EPA published in the Federal
Register a revision to the maximum allowable increases for particulate
matter (PM) under the requirements for PSD of air quality. As a result,
the PSD increments and the NAAQS for PM will be measured by the same
indicator for PM, namely PM10.
State Response: PM10 increments were incorporated into 10 CSR
10-6.060 during the December 1993 rule adoption by the Missouri Air
Conservation Commission. Missouri revised the Ambient Air Increment
Table found at 10 CSR 10-6.060(11)(A) Table 1 to include the new
PM10 ambient air increments for classes I through III, as set
forth at 58 FR 31637. However, the Class I Variance table found at 10
CSR 10-6.060 (12)(H)2 does not reflect the revised PM10 numerical
maximum allowable increases. Specifically, the table at 10 CSR 10-6.060
(12) (H)2 must include PM10 as a pollutant with numerical values
at least as stringent as those found at 58 FR 31637. There is further
discussion following in section II.B.4 regarding MDNR's efforts to
incorporate these changes.
2. Waiver Policy
Federal Requirement: EPA major NSR rules require that permits be
issued prior to construction of a major source or modification. The PSD
rules provide that sources may not begin actual construction without a
permit. 40 CFR 51.166(b)(11) and 51.166(i)(1). Section 51.165(a)(1)(xv)
contains a definition of ``begin actual construction.''
State Response: The Missouri Construction Permits Required rule, 10
CSR 10-6.060, in conjunction with the definition of ``construction'' at
10 CSR 10-6.020(2)(C)22, can be interpreted as allowing major sources
to commence [[Page 16827]] construction without a permit in
contravention of the CAA and EPA regulations. The definition of
``construction'' allows for synthetic minor sources, those that are
major in reality but which seek Federally enforceable limitations to
limit their potential-to-emit, to submit a waiver request to MDNR
allowing the source to commence limited and specified construction
activities. The Missouri SIP submittal cannot be approved into the SIP
in its present form. However, MDNR is currently pursuing a course of
action that will amend the construction permit rule to allow for
approval. This process is discussed below in section II.B.4 of this
proposed rulemaking.
3. Offset Credits
A deficiency has also been discovered in the language of 10 CSR 10-
6.060(12)(C)4. This provision addresses various situations where offset
credits may not be taken. However, the rule lacks any reference to
limits on taking offset credits for emission reductions which are
required by Federal law or a Federally enforceable permit. MDNR intends
to modify this provision by including language that disallows any
offset credit for emission reductions required under the Federal CAA or
the Missouri Air Conservation Law or regulations promulgated under
either.
4. Correction Process
MDNR is aware of the deficiencies outlined above and has agreed to
pursue an amendment to the 10 CSR 10-6.020 definition of
``construction'' and the provision in the construction rule at 10 CSR
10-6.060(12)(C)(4) addressing offset credits. By way of this Federal
Register proposed rule action, EPA is providing notice that a
deficiency exists with the MDNR Construction Permits Required rule (10
CSR 10-6.060). MDNR has committed to amend the language of these rules.
EPA is proposing to take final action to approve the Construction
Permits Required rule (10 CSR 10-6.060), if the change is made to
prohibit major sources from beginning construction without a permit.
If the Missouri rule is not amended as described above, then the
Construction Permits Required rule (10 CSR 10-6.060), along with
specified definitions within 10 CSR 10-6.020, will be disapproved. MDNR
has also committed to correct the deficiencies pertaining to the
Impacts on Class I Variance table discussed above in section II.B.1.,
while pursuing corrections pertaining to the waiver policy and the
offset credit provision.
III. Update to Definitions Found in 10 CSR 10-6.020
There are many definitions which are being revised within the SIP
or added to the SIP. Many of these definitions pertain to the title V
and asbestos programs. These definitions are being approved into the
SIP because they provide overall consistency in the use of terms in the
air program. Because many of these terms do pertain to Title V, it is
important to recognize that EPA approval into the SIP of these
definitions does not constitute approval with respect to the title V
submission. The reader is referred to the technical support document
(TSD) for clarification on changes to definitions and additions to the
list of definitions.
IV. Confidential Information 10 CSR 10-6.210
The SIP currently addresses confidential business information at 10
CSR 10-6.110(5) which EPA approved on April 17, 1986 (51 FR 13000). The
December 1993 adoption of 10 CSR 10-6.210 served to transfer the
provisions currently found in the SIP at 10 CSR 10-6.110(5) in their
entirety to 10 CSR 10-6.210. Only minor adjustments were made to the
rule at 10 CSR 10-6.210(4)(D). First, Missouri changed the number of
days from 20 to 15 working days that the owner or operator will have
from the receipt of the preliminary decision to deny the claim of
confidentiality in which to submit further justification or comments to
the director.
Second, 10 CSR 10-6.210(5)(D)1 modifies the number of days from 20,
as previously set forth in 10 CSR 10-6.110, to 15 in which the owner or
operator is given prior notice to obtain an order from a court of
competent jurisdiction restraining or enjoining the disclosure to a
local agency.
V. Emission Statement Rule 10 CSR 10-6.110
A. Background
The air quality planning and SIP requirements for ozone
nonattainment and transport areas are set out in subparts I and II of
part D of title I of the CAA, as amended by the 1990 CAAA. EPA has
published a ``General Preamble'' describing EPA's preliminary views on
how EPA intends to review SIPs and SIP revisions submitted under title
I of the CAA, including those state submittals for ozone transport
areas within the states (see 57 FR 13498 (April 16, 1992) (``SIP:
General Preamble for the Implementation of title I of the Clean Air Act
Amendments of 1990''), 57 FR 18070 (April 28, 1992) (``Appendices to
the General Preamble''), and 57 FR 55620 (November 25, 1992) (``SIP:
NOX Supplement to the General Preamble'')).
EPA has also issued a draft guidance document describing the
requirements for the emission statement programs discussed in this
Notice, entitled ``Guidance on the Implementation of an Emission
Statement Program'' (July 1992). The Agency is also conducting a
rulemaking process to modify part 51 of the CFR to consolidate the
reporting requirements for annual statewide emission inventories,
Periodic Ozone/Carbon Monoxide emission inventories, and the emission
statement program.
Section 182 of the Act sets out a graduated control program for
ozone nonattainment areas. Section 182(a) sets out requirements
applicable in marginal nonattainment areas, which are also made
applicable in subsections (b), (c), (d), and (e) to all other ozone
nonattainment areas. Among the requirements in section 182(a) is a
program in paragraph (3) of that subsection for stationary sources to
prepare and submit to the state each year emission statements showing
actual emissions of VOC and NOX. This section of the Act provides
that the states are to submit a revision to their SIPs by November 15,
1992, establishing this emission statement program.
The states may waive, with EPA approval, the requirement for an
emission statement for classes or categories of sources with less than
25 tons per year of actual plantwide NOX or VOC emissions in
nonattainment areas, if the class or category is included in the base
year and periodic inventories and emissions are calculated using
emission factors established by EPA (such as those found in EPA
publication AP-42) or other methods acceptable to EPA. Whatever minimum
reporting level is established in a state emission statement program,
if either VOC or NOX is emitted at or above the designated level,
the other pollutant should be included in the emission statement, even
if it is emitted at levels below the specified cutoffs.
The CAA requires facilities to submit the first emission statement
to the state within three years after November 15, 1990, and annually
thereafter. EPA requests that the states submit the emission data to
EPA through the Aerometric Information Retrieval System (AIRS). The
minimum emission statement data should include: certification of data
accuracy, source identification information, operating schedule,
emissions information (to include annual and typical ozone season day
emissions), control [[Page 16828]] equipment information, and process
data. EPA developed emission statements data elements to be consistent
with other source and state reporting requirements. This consistency is
essential to assist states with quality assurance for emission
estimates and to facilitate consolidation of all EPA reporting
requirements.
In addition to the submission of the emission statement data to
AIRS, states should provide EPA with a status report that outlines the
degree of compliance with the emissions statement program. Beginning
July 1, 1993, states should report quarterly to EPA the total number of
sources affected by the emission statement provisions, the number that
have complied with the provisions, and the number that have not. This
status report should also include the total annual and typical ozone
season day emissions from all reporting sources, both corrected and
noncorrected for rule effectiveness. States should include in their
status report a list of sources that are delinquent in submitting their
emission statement and that emit 500 tpy or more of VOC or 2500 tpy or
more of NOX. This report should be a quarterly submittal until all
the regulated sources have complied for the reporting year. Suggested
submittal dates for the quarterly status reports are July 1, October 1,
January 1, and April 1.
B. Description of the State Emission Statement Submittal--Procedural
Background
The Act requires states to observe certain procedural requirements
in developing their SIPs, of which the emission statement program will
become a part. Section 110(a)(2) of the Act provides that each
implementation plan submitted by a state must be adopted after
reasonable notice and public hearing.1 Section 110(l) similarly
provides that each revision to an implementation plan submitted by a
state under the CAAA must be adopted by such state after reasonable
notice and public hearing.
\1\Also, section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
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The submittal was found to be complete and a letter dated June 17,
1994, was forwarded to the Governor's designee indicating the
completeness of the submittal and the next steps to be taken in the
review process.
C. Components of Emission Statement Program
There are several key general and specific components of an
acceptable emission statement program. Specifically, the state must
submit a revision to its SIP and the emission statement program must
meet the minimum requirements for reporting by the sources and the
state. In general, the program must include provisions for
applicability, definitions, compliance provisions, and specific source
requirements. In an August 4, 1993, policy memo from J. David Mobley,
Chief of EPA's Emission Inventory Branch to the Regional Air Branch
Chiefs, EPA defined the minimum essential elements of an emission
statement rule. Missouri rule 10 CSR 6.110 meets or exceeds EPA's
minimum guidelines.
D. Implementation
The state of Missouri's emission statement SIP will ensure that the
requirements of section 182(a)(3)(B) and sections 184(b)(2) and 182(f)
are adequately implemented. Once EPA completes the rulemaking process
approving Missouri's Emission Statement program as part of the SIP, it
will be Federally enforceable.
EPA has determined that the submittal made by the state of Missouri
satisfies the relevant requirements of the CAA and EPA's guidance
document, ``Guidance on the Implementation of an Emission Statement
Program'' (July 1992), and the August 4, 1993, policy memo from J.
David Mobley, Chief of EPA's Emission Inventory Branch to the Regional
Branch Chiefs regarding ``First Emission Statements Due to EPA/
Essential Emission Statement Rule Elements.'' EPA's detailed review of
Missouri's Emission Statement Program is contained in a TSD which is
available, upon request, from the EPA Regional Office listed in the
Addresses section of the notice.
EPA Action
EPA is proposing to approve a revision that revises the NSR rules,
updates and adds numerous definitions, revises the maximum allowable
increase for particulate matter, and addresses emission statements
under Title I of the CAAA.
However, for Missouri to receive final approval on this SIP
revision the state must modify several rules. First, the class I
Variance table found at 10 CSR 10-6.060(12)(H)2 does not reflect the
revised PM10 numerical maximum allowable increases. Specifically,
the table at 10 CSR 10-6.060(12)(H)2 must include PM10 as a
pollutant with numerical values at least as stringent as those found at
58 FR 31637.
Second, the Missouri Construction Permits Required rule, 10 CSR 10-
6.060, in conjunction with the definition of ``construction'' at 10 CSR
10-6.020(2)(C)22, can be interpreted as allowing major sources to
commence construction without a permit in contravention of the CAA. The
definition of ``construction'' allows for synthetic minor sources
(those that are major in reality but which seek Rederally enforceable
limitations to limit their potential-to-emit) to submit a waiver
request to MDNR allowing the source to commence limited and specified
construction activities. These Missouri rules cannot be approved into
the SIP in their present form. As a result, MDNR is currently pursuing
a course of action to amend the definitions rule to satisfy EPA
concerns.
Finally, a deficiency has also been discovered in the construction
permit rule at 10 CSR 10-6.060(12)(C)4. This provision addresses
various situations where offset credits may not be taken. The Missouri
rule lacks any reference to limits on taking offset credits which are
required by Federal law or a Federally enforceable permit. Again, MDNR
intends to modify this provision by including language that disallows
any offset credit for emission reductions required under the Federal
CAA or the Missouri Air Conservation Law, or regulations promulgated
under either.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5. U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, EPA certifies that it
does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-state relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
[[Page 16829]] Federal inquiry into the economic reasonableness of
state action. The CAA forbids EPA to base its actions concerning SIPs
on such grounds (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-
66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).
The Office of Management and Budget has exempted these actions from
review under Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Volatile organic
compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 9, 1995.
Dennis Grams,
Regional Administrator.
[FR Doc. 95-8082 Filed 3-31-95; 8:45 am]
BILLING CODE 6560-50-P
