2023-19947. Air Plan Approval; Missouri; Revisions to the Cross-State Air Pollution Rule SO2 Group 1 Trading Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to approve revisions to the State Implementation Plan (SIP) submitted on November 29, 2021, by the State of Missouri. This final action approves revisions to a state regulation related to the Cross-State Air Pollution Rule SO₂ Group 1 Trading Program. The revisions alter the amounts of CSAPR SO₂ Group 1 emission allowances that are allocated to two of the state's units from the state's annual emissions budgets. Additionally, the revisions make non-substantive revisions to rule language that excludes certain provisions in the Code of Federal Regulations from incorporation by reference into the state's regulations. Approval of these revisions will ensure Federal enforceability of the State's rules. The EPA's approval of these SIP revisions is being done in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This final rule is effective October 16, 2023.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA–R07–OAR–2023–0279. 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:

Gerald McIntyre, Environmental Protection Agency, Region 7 Office, Air Permitting and Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 608– 8349; 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. What action is the EPA taking?

V. Incorporation by Reference

VI. Statutory and Executive Order Reviews

I. Background

In the Notice of Proposed Rulemaking (NPRM) for this action (88 FR 39801), the EPA explained the background for the Cross-State Air Pollution Rule (CSAPR) and its relationship to the proposed revision to Missouri's SIP. In this final rule, the EPA is providing additional background information from previous CSAPR actions that does not alter the EPA's analysis or decision to approve the proposed revision to Missouri's SIP.

As detailed in the NPRM, the Cross-State Air Pollution Rule (CSAPR) addresses air pollution from upwind states that crosses state lines and affects air quality in downwind states. CSAPR requires fossil fuel-fired electric generating units at coal-, gas-, and oil-fired facilities in 27 states, including Missouri, to reduce emissions to help downwind areas attain fine particle and/or ozone National Ambient Air Quality Standards (NAAQS).

The emissions reductions required by CSAPR are implemented through requirements for affected sources to participate in several CSAPR allowance trading programs for emissions of sulfur dioxide (SO₂) and/or nitrogen oxides. Under a given allowance trading program, after each control period, each affected source is required to surrender an amount of tradable emission allowances based on the source's emissions during the control period. The trading programs achieve the required emissions reductions by limiting the total quantities of allowances made available for use by all participating sources rather than by imposing unit-specific emission control requirements. The total amount of allowances that may be newly allocated among the sources in each state for a given control period is referred to as the state's emissions budget for the control period.

CSAPR was initially promulgated in the form of Federal Implementation Plan (FIP) requirements (76 FR 48208). However, the CSAPR regulations include provisions under which the EPA will approve certain types of optional SIP revisions—referred to as “abbreviated CSAPR SIP” and “full CSAPR SIP” revisions—to modify or replace the FIP provisions while allowing states to continue to meet their underlying obligations using the CSAPR trading programs.^[1]

An approved abbreviated CSAPR SIP revision replaces the EPA's default unit-level allowance allocation provisions for the state's units with the state's own unit-level allowance allocation provisions while leaving the corresponding CSAPR FIP and all other provisions of the relevant Federal trading program in place for the state's units. Under such a SIP revision, a state has complete flexibility as to how to initially allocate allowances among its units for each control period, as long as the overall quantity of allowances allocated does not exceed the state's emission budget for the control period.

An approved full CSAPR SIP revision replaces a CSAPR Federal trading program for the state's units with a state trading program integrated with the Federal trading program. For a full CSAPR SIP revision to be approvable, the state's trading program regulations must be substantively identical to the corresponding Federal CSAPR trading program regulations with two exceptions. First, the state has the same flexibility with respect to unit-level allowance allocations it would have under an abbreviated CSAPR SIP revision. Second, the state must not regulate units located in Indian country not subject to the state's Clean Air Act planning jurisdiction, with the consequence that if the state's trading program regulations incorporate the relevant Federal trading program regulations by reference, the incorporation by reference must exclude the provisions of the Federal regulations that relate to units in Indian country.

In 2015, Missouri adopted state regulations at 10 Code of State Regulations (CSR) 10–6.376 establishing state-determined unit-level allocations of CSAPR SO₂ Group 1 allowances to replace the EPA's default allocations. The EPA approved the state's regulations as an abbreviated CSAPR SIP revision on June 28, 2016 (see 81 FR 41838). Missouri's allocations replicated the EPA's default allocations with the exception that the state allocated 1,300 more allowances to Asbury Unit 1 and 1,300 fewer allowances to Iatan Unit 1.

In 2018, Missouri adopted revisions to 10 CSR 10–6.376 incorporating into the state's regulations by reference all the provisions of the Federal CSAPR SO₂ Group 1 Trading Program regulations at 40 CFR 97.602 through 97.635 except the EPA's default unit-level allowance allocation provisions and the provisions relating to units located in Indian country. The EPA approved the revisions as a full CSAPR SIP revision on December 4, 2019 (see 84 FR 66316). The revisions replaced the Federal CSAPR SO₂ Group 1 Trading Program regulations for Missouri units with Missouri's CSAPR SO₂ Group 1 Trading Program regulations but made no changes to the previously adopted provisions of 10 CSR 10–6.376 concerning Missouri's unit-level allowance allocations.

On November 29, 2021, Missouri submitted further revisions to 10 CSR 10–6.376 for approval by the EPA into the state's SIP.

II. What is being addressed in this document?

The EPA is approving the SIP revision submitted by the State of Missouri on November 29, 2021. Missouri requested the EPA to approve revisions to 10 CSR 10–6.376 in the Missouri SIP.

First, the state has revised its rule to reallocate 1,300 CSAPR SO₂ Group 1 emission allowances for each control period from Asbury Unit 1, which was retired in March 2020, to Iatan Unit 1. The total amount of CSAPR SO₂ Group 1 allowances allocated by the state to Iatan Unit 1 will increase from 9,833 to 11,133. The total amount of CSAPR SO₂ Group 1 allowances allocated by the state to Asbury Unit 1 will decrease from 4,480 to 3,180. (Under other existing provisions of 10 CSR 10–6.376, the remaining 3,180 allowances allocated to Asbury Unit 1 will be transferred to the new unit set-aside and then redistributed to other units in the state.) The state's revisions do not change the overall quantity of allowances made available under the trading program and will therefore have no environmental effect. Because the regulations at 40 CFR 52.39 governing approvability of CSAPR SIP revisions give a state complete flexibility as to how the state initially allocates the allowances in its emissions budget for each control period among the state's units, Missouri's revision to the unit-level allocation provisions of its rule is approvable.

Second, Missouri has made non-substantive revisions to the rule language concerning the provisions excluded from incorporation by reference. The revisions do not change the set of provisions of the Federal regulations that are excluded from the state's regulations— i.e., the provisions relating to the EPA's default unit-level allowance allocations and the provisions relating to units located in Indian country. The regulations at 40 CFR 52.39 do not prescribe specific language that must be used to accomplish the exclusion of these provisions, so Missouri's editorial revision to the rule language is approvable.

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 this SIP revision from April 15, 2021 to May 27, 2021 and received no comments. The NPRM and supporting information contained in the docket were made available for public comment from June 20, 2023, to July 20, 2023 (88 FR 39801) and no comments were received. In addition, as explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

IV. What action is the EPA taking?

The EPA is taking final action to amend the SIP by approving the State's request in its submission dated November 29, 2021 to revise 10 CSR 10–6.376 “Cross-State Air Pollution Rule Annual SO₂ Group 1 Trading Program.” Because the EPA has already recorded Missouri's previously submitted unit-level allocations of CSAPR SO₂ Group 1 allowances issued for control periods through 2024 in the sources' compliance accounts, Missouri's revised unit-level allocations will take effect starting with allowances issued for the 2025 control period, in accordance with 40 CFR 52.39(f)(1)(iv) and 10 CSR 10–6.376(3)(A)1.D.

V. 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 revised version of Missouri 10 CSR 10–6.376, state effective date July 29, 2021, setting forth the revised version of the state's CSAPR SO₂ Group 1 Trading Program. 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).

Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.^[2]

VI. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act;

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).

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. 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.” 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.”

Missouri 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. EPA did not perform an EJ analysis and did not consider EJ in this action. 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 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 November 14, 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: September 11, 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 “10–6.376” 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
*         *         *         *         *         *         *
10–6.376	Cross-State Air Pollution Rule SO 2 Group 1 Trading Program	7/29/2021	9/15/2023, [insert Federal Register citation]
*         *         *         *         *         *         *

* * * * *

Footnotes

1.   See40 CFR 52.38, 52.39. States also retain the ability to submit SIP revisions to meet their underlying obligations using mechanisms other than the CSAPR federal trading programs or integrated state trading programs.

2.  62 FR 27968, May 22, 1997.