E7-23484. Approval and Promulgation of Implementation Plans; State of Missouri; General Conformity

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to the Missouri State Implementation Plan (SIP) to amend the General Conformity Rule to include de minimis emission levels for Particulate Matter 2.5 (PM_2.5). This update ensures consistency with the Federal General Conformity Rule.

DATES:

This direct final rule will be effective February 4, 2008, without further notice, unless EPA receives adverse comment by January 3, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-1055, by one of the following methods:

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

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

3. Mail: Barbara Shepard, Environmental Protection Agency, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, KS 66101.

4. Hand Delivery or Courier: Deliver your comments to Barbara Shepard, Environmental Protection Agency, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, KS 66101.

Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2007-1055. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, KS 66101. 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:

Barbara Shepard 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 SUPPLEMENTARY INFORMATION section is arranged as follows:

I. General Conformity

II. Background for This Action

III. State Submittal and EPA Evaluation

IV. Public Comment and Final Action

V. Statutory and Executive Order Reviews

I. General Conformity

General conformity is required under section 176(c) of the Clean Air Act (CAA or Act) to prevent the air quality impacts of Federal actions from causing or contributing to a violation of the National Ambient Air Quality Standards (NAAQS) or interfering with the purpose of a SIP. Conformity currently applies to areas that are designated nonattainment, and to certain areas that have been redesignated to attainment after 1990 (maintenance areas).

The general conformity regulation is found in 40 CFR part 93 and provisions related to conformity SIPs are found in 40 CFR 51.390.

II. Background for This Action

In the CAA, Congress recognized that actions taken by Federal agencies could affect states', tribes', and local agencies' abilities to attain and maintain the NAAQS. Section 176(c) of the CAA requires Federal agencies ensure that their actions conform to the applicable SIP for attaining and maintaining the NAAQS. EPA published the General Conformity Regulations in 1993 to cover all Federal actions not related to highway and mass transit funding and approval to implement a portion of section 176(c). The General Conformity Regulations define NAAQS as “those standards established pursuant to section 109 of the Act and include standards for carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide.” Since 1993, EPA has reviewed and revised the NAAQS for particulate matter to include a new PM_2.5 standard (particulate matter with an aerodynamic diameter of up to 2.5 microns). General conformity requirements are applicable to areas designated nonattainment for this standard, and to certain areas redesignated from nonattainment to attainment (maintenance areas). In July 1997, EPA promulgated a new NAAQS established pursuant to section 109 of the CAA for PM_2.5. On April 5, 2005, the EPA designated areas as nonattainment for PM_2.5, and subsequently proposed regulations to implement the new particulate matter standard. Section 176(c)(6) states that the conformity requirements of 176(c) do not apply to an area newly designated nonattainment for a new NAAQS until one year after the designation. The EPA made PM_2.5 designations on April 5, 2005; thus, the applicable general conformity requirements were not effective in these areas until April 5, 2006. The proposed rule published on April 5, 2006, solicited comments on establishing 100 tons per year of PM_2.5 direct or precursor emissions as the de minimis threshold for General Conformity applicability.

On July 17, 2006, EPA published a final rule (71 FR 40420), PM_2.5 De Minimis Emission Levels for General Conformity Applicability, which amended the regulations relating to the CAA requirement that Federal actions conform to the appropriate state, tribal or Federal implementation plan for attaining clean air (“general conformity”). This action revised the tables in subparagraphs (b)(1) and (b)(2) of 40 CFR 51.853 and 40 CFR 93.153 by adding the de minimis emissions levels for PM_2.5 and established the previously proposed 100 tons per year as the de minimis emission level for direct PM_2.5 and each of its precursors in nonattainment and maintenance areas.

III. State Submittal and EPA Evaluation

The SIP revision submitted to EPA on September 10, 2007, amends the state rule, Conformity of General Federal Actions to State Implementation Plans (10 Code of State Regulations (CSR) 10-6.300), to be consistent with the Federal conformity requirements described above. This revision added de minimis emissions levels for PM_2.5 to the state's rule and updated the state's tables for de minimis emissions levels for direct PM_2.5 and the relevant precursors in nonattainment and maintenance areas.

This Missouri rule implements Section 176(c) of the CAA, as amended (42 U.S.C. 7401-7671q) and regulations under 40 CFR part 51, subpart W, with respect to conformity of general Federal actions to the applicable implementation plan. Missouri rule 10 CSR 10-6.300 at Subsection (2)(B)26.C, was revised to identify precursors of PM_2.5 consistent with the Federal rule. The state rule identifies the following precursors: Sulfur dioxide, nitrogen oxides (unless the state and EPA have determined they are not significant precursors), and volatile organic compounds and ammonia (only where the state or EPA has determined they are significant precursors). Rule 10 CSR 10-6.300, Subsection (3)(B) was revised to add a requirement that a conformity determination must be made for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any of the rates in paragraph (3)(B)1. or 2. of the rule. Subsection (3)(B) of 10 CSR 10-6.300 revised tables in subparagraphs (B)1. and (B)2. by incorporating the Federally established 100 tons per year as the de minimis emission level for direct PM_2.5, and each of its precursors in nonattainment and maintenance areas.

The submittal documents public notice and hearing for this SIP revision in compliance with CAA section 110(l) and 40 CFR 51.102.

We have reviewed the submittal to assure consistency with the current CAA, and EPA regulations (40 CFR part 93 and 40 CFR 51.390) governing state procedures for general conformity and interagency consultation and have concluded that the submittal is approvable. Details of our review are set forth in a technical support document, which has been included in the docket for this action.

IV. Public Comment and Final Action

Under section 110(k) of the Act, and for the reasons set forth above, EPA is taking action to approve the revision to the Missouri SIP which adds de minimis emissions levels for PM_2.5 and precursors, for general conformity purposes.

We do not expect objection to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submittal. If we receive adverse comments by January 3, 2008, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on February 4, 2008. This will incorporate these general conformity procedures into the Federally-enforceable SIP and thereby replace the previous version. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 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 this 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.). 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 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 state law implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This 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 approves a state rule implementing a Federal standard.

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 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.).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Nitrogen dioxide
• Ozone
• Particulate matter,

Dated: November 26, 2007.

William 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 the table in paragraph (c) is amended by revising the entry for 10-6.300 under Chapter 6 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
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Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
*         *         *         *         *         *         *
10-6.300	Conformity of General Federal Actions to State Implementation Plans	9/30/07	12/04/07 [insert FR page number where the document begins].
*         *         *         *         *         *         *

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