06-5713. Approval and Promulgation of Implementation Plans; State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) submission by the State of Missouri which revises the Construction Permits Required rule and takes no action on the revisions made to the Emissions Banking and Trading rule. A proposal was published on April 14, 2006, in the Federal Register, and no comments were received. As proposed, we are approving most of the revisions to the Construction Permits Required rule because the revisions incorporate, by reference, the Federal New Source Review reforms, published in the Federal Register on December 31, 2002. As requested by Missouri, EPA is not acting on portions of the state rule relating to Clean Unit Exemptions, Pollution Control Projects, and a portion of the record keeping provisions for the actual-to-projected-actual emissions projections test.

DATES:

Effective Date: July 27, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2006-0287. All documents in the docket are listed on the http://www.regulations.gov Web site. 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 through http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, KS. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 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:

Amy Algoe-Eakin at [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

What Is the Federal Approval Process for a SIP?

What Is the Background of This Action?

What Is EPA's Final Action on Missouri's Rule to Incorporate NSR Reform?

What Is EPA's Final Action on Missouri's Definition of “Baseline Area”?

Have the Requirements for Approval of a SIP Revision Been Met?

What Action Is EPA Taking?

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 final Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the Clean Air Act (CAA or Act) are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

What Is the Background of This Action?

The 2002 NSR Reform rules made changes to five areas of the NSR programs. In summary, the 2002 rules: (1) Provide a new method for determining baseline actual emissions; (2) adopt an actual-to-projected-actual methodology for determining whether a major modification has occurred; (3) allow major stationary sources to comply with plantwide applicability limits (PALs) to avoid having a significant emission increase that triggers the requirements of the major NSR program; (4) provide a new applicability provision for emissions units that are designated clean units; and (5) exclude pollution control projects (PCPs).

After the 2002 NSR Reform rules were finalized and effective, various petitioners challenged numerous aspects of the 2002 NSR Reform rules, along with portions of EPA's 1980 NSR rules (45 FR 5276, August 7, 1980). On June 24, 2005, the District of Columbia Court of Appeals issued a decision on the challenges to the 2002 NSR Reform Rules. New York v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court of Appeals for the District of Columbia vacated portions of the rules pertaining to clean units and pollution control projects, remanded a portion of the rules regarding exemption from record keeping, e.g., 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let stand the other provisions included as part of the 2002 NSR Reform rules. EPA has not yet responded to the Court's remand regarding record keeping provisions.

In the summer of 2004, Missouri revised Missouri rule 10 CSR 10-6.060, Construction Permits Required, and Missouri rule 10 CSR 10-6.410, Emissions Banking and Trading, to incorporate the changes to the Federal NSR program. These rule revisions were adopted by the Missouri Air Conservation Commission on August 26, 2004, and became effective under state law on December 30, 2004. The rules were submitted to EPA on February 25, 2005, and the submission included comments on the rules made during the state's adoption process, the state's response to comments and other information necessary to meet EPA's completeness criteria. Because Missouri's rule revisions occurred prior to the District of Columbia Court of Appeals decision, Missouri requested in a February 28, 2006, letter that EPA not act on the PCP, Clean Unit Exemption provisions, and the reasonable possibility provision in the recordkeeping provisions for the actual-to-projected-actual emissions projections applicability test.

What Is EPA's Final Action on Missouri's Rule to Incorporate NSR Reform?

The final action described in this section is identical to the action we proposed in the April 14, 2006, notice of proposed rulemaking (71 FR 19467). We received no comments on any aspect of the proposal, and we are taking final action based on the rationale in the proposal and in this final rule. With the exception of the revisions affected by the Court decision, we are approving revisions to Missouri rule, 10 CSR 10-6.060, Construction Permits Required, into the SIP. This rule incorporates by reference the Federal Prevention of Significant Deterioration (PSD) program in 40 CFR 52.21, including the 2002 NSR Reform rules described above.

In relevant parts, the Missouri rule excludes the public participation requirements in § 52.21(q), in favor of the Missouri public participation process, previously approved in the SIP, in 10 CSR 10-6.060 section (12)(B). The Missouri rule retains a number of tables and appendices, which apply to the state's minor NSR program as well as the PSD program. These include provisions on innovative control technologies (Appendix E), exclusion from increment consumption (Appendix G), and air quality models (Appendix F). As we explained in the proposed rulemaking, to the extent that these provisions or similar provisions are addressed by § 52.21, the provisions of § 52.21 supersede the state provisions for purposes of the PSD program. Other provisions, such as the permit fee provisions in Appendix (A) of 10 CSR 10-6.060, which are not addressed by § 52.21, remain in effect.

Missouri's rule was adopted prior to the New York decision described above so it included the vacated and remanded provisions of EPA's rule. However, as mentioned previously, Missouri requested in a February 28, 2006, letter that EPA not act on the PCP and Clean Unit Exemption provisions incorporated into the state rule, and the reasonable possibility provision in the record keeping provisions for the actual-to-projected-actual emissions projections applicability test. In that letter, Missouri explained that it intended to remove the Clean Unit and PCP provisions from its rule, and that it would not apply the remanded portion of the Federal rule until EPA responds to the remand and takes final action on this portion of the Missouri rule. In the interim, all sources which use the actual-to-projected-actual applicability test authorized in the Federal rule would be required to maintain the records identified in 40 CFR 52.21(r)(6).

Missouri has also clarified that the state commits to following EPA's definition of “replacement unit” and will follow EPA's clarification of how baseline emissions for PALs will be calculated (these clarifications to the EPA's rules were promulgated after the incorporation by reference date in the Missouri rule). When Missouri updates the Construction Permits Required rule, 10 CSR 10-6.060, Missouri commits to incorporating EPA's definition of “replacement unit” by reference and will include EPA's clarification of how baseline emissions for PALs are to be calculated.

We are taking no action on the revision to rule 10 CSR 10-6.410, Emissions Banking and Trading, because the sole revision to this rule was a change to prevent sources from generating Early Reduction Credits (ERCs) from PCPs that take advantage of the PCP exclusion provisions in EPA's NSR Reform rules. Since the PCP exclusion was vacated, and we are not acting on this provision, as it relates to Missouri rule 10 CSR 10-6.060, we are not acting upon the revision to Missouri rule 10 CSR 10-6.410.

We also note that Missouri clarified section (9)(C)1 of the Construction Permits Required rule. Section 9 outlines Hazardous Air Pollutant permit requirements which are exempt from hazardous air pollutant permit requirements unless they are listed on the source category list established in accordance with section 112(c) of the CAA. We are taking no action on including revisions to section 9, because section 9 addresses hazardous air pollutants under section 112 and is not presently in the SIP.

What Is EPA's Final Action on Missouri's Definition of “Baseline Area”?

Missouri's initial NSR reform submission, which largely incorporates 40 CFR 52.21 by reference, retained the state's own definition of “baseline area,” in 10 CSR 10-6.060(1)(A)1. Additionally, Missouri requested in the February 28, 2006, letter that we approve the Construction Permits Required rule and retain Missouri's definition of baseline area in section (1)(A)1. Missouri acknowledges that the current Construction Permits Required rule does not contain the statement, “designated as attainment or classifiable under section 107(d)(1)(D) or (E) of the Act” consistent with the federal definition of “baseline area.” We had previously approved this definition of baseline area with the specification that Missouri redesignate the areas of significant impact as the baseline area (Final rule, 47 FR 7696, and final rule, 47 FR 26833). We are approving Missouri's Construction Permits Required rule, 10 CSR 10-6.060 because Missouri has acknowledged it must make area-specific designation requests, and EPA must approve the redesignation of the area before Missouri could establish new baseline areas under its rule. Missouri also commits to revising the “baseline area” definition to clarify it will redesignate the areas of significant impact as baseline areas according to Section 107(d)(1)(D) or (E) of the CAA. Missouri will submit these redesignations to EPA for formal approval before the new baseline area can be used for PSD permitting purposes. While Missouri works to revise the rule, Missouri commits to implementing the baseline area definition consistent with all Federal regulations and will ensure that the air quality increment analysis for permit applications complies with all Federal and state requirements.

Have the Requirements for Approval of a SIP Revision Been Met?

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained below and in more detail in the technical support document that is part of this document, EPA believes that the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

What Action Is EPA Taking?

We are approving most of the revisions to Missouri rule, 10 CSR 10-6.060, Construction Permits Required. Per Missouri's request, we are not acting on: (1) Clean Unit Exemptions, (2) Pollution Control Projects, and (3) the “reasonable possibility” portion of the record keeping provisions for the actual-to-projected-actual emissions projections test. We are also not acting on revisions to section (9) for Hazardous Air Pollutants in 10 CSR 10-6.060, because section 9 addresses hazardous air pollutants under section 112 and is not presently in the SIP. We are also taking no action on revisions to Missouri rule 10 CSR 10-6.410, Emissions Banking and Trading, because the only revision made to the rule involves Pollution Control Projects.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this Final action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This final action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that the final approvals in this final rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The final partial disapproval will not affect any existing state requirements applicable to small entities. Federal disapproval of the state submittal does not affect its state-enforceability. Moreover, EPA's partial disapproval of the submittal does not impose a new Federal requirement. Therefore, the Administrator certifies that this final disapproval action does not have a significant impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This final rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This final rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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: June 19, 2006.

William W. Rice,

Acting Regional Administrator, Region 7.

Chapter I, Title 40 of the Code of Federal Regulations 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 “10-6.060” 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
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Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
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10-6.060	Construction Permits Required	12/30/2004	6/27/2006	This revision incorporates by reference elements of EPA's NSR reform rule published December 31, 2002. Provisions of the incorporated reform rule relating to the Clean Unit Exemption, Pollution Control Projects, and exemption from record keeping provisions for certain sources using the actual-to-projected-actual emissions projections test are not SIP approved. This revision also incorporates by reference the other provisions of 40 CFR 52.21 as in effect on July 1, 2003, which supersedes any conflicting provisions in the Missouri rule. Section 9, pertaining to hazardous air pollutants, is not SIP approved.
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