[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37457-37463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14755]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2013-0208; FRL-9825-7]
Approval and Promulgation of Implementation Plans; State of
Missouri; Infrastructure SIP Requirements for the 1997 and 2006 Fine
Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing approval of four Missouri State
Implementation Plan (SIP) submissions. EPA is approving portions of two
SIP submissions addressing the applicable infrastructure requirements
of the Clean Air Act (CAA) for the 1997 and 2006 National Ambient Air
Quality Standards (NAAQS) for fine particulate matter
(PM2.5). These infrastructure requirements are designed to
ensure that the structural components of each state's air quality
management program are adequate to meet the state's responsibilities
under the CAA. EPA is also taking final action to approve two
additional SIP submissions from Missouri, one addressing the Prevention
of Significant Deterioration (PSD) program in Missouri, and another
addressing the requirements applicable to any board or body which
approves permits or enforcement orders of the CAA, both of which
support requirements associated with infrastructure SIPs. The rationale
for this action is explained in this notice and in more detail in the
notice of proposed rulemaking for this action, which was published on
April 10, 2013.
DATES: This rule will be effective July 22, 2013.
ADDRESSES: EPA has established docket number EPA-R07-OAR-2013-0208 for
this action. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at http://www.regulations.gov or in hard copy at U.S. Environmental
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas
66219 from 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding
legal 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: Ms. Amy Bhesania, Air Planning and
Development Branch, U.S. Environmental Protection Agency, Region 7,
11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-
7147; fax number: (913) 551-7065; email address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we refer to EPA. This section provides
additional information by addressing the following:
I. Background and Purpose
II. EPA's Responses to Comments
III. Summary of EPA Final Action
IV. Statutory and Executive Order Review
I. Background and Purpose
On April 10, 2013, EPA proposed to approve four Missouri SIP
submissions (78 FR 21281). EPA received the first submission on
February 27, 2007, addressing the infrastructure SIP requirements
relating to the 1997 PM2.5 NAAQS. EPA received the second
submission on December 28, 2009, addressing the infrastructure SIP
requirements relating to the 2006 PM2.5 NAAQS. As originally
detailed in the proposed rulemaking, EPA had previously approved
section 110(a)(2)(D)(i)(I) and (II)--Interstate and international
transport requirements of Missouri's February 27, 2007, SIP submission
for the 1997 PM2.5 NAAQS (72 FR 25975, May 8, 2007); and EPA
disapproved section 110(a)(2)(D)(i)(I)--Interstate and international
transport requirements of Missouri's December 28, 2009, SIP submission
for the 2006 PM2.5 NAAQS (76 FR 43156, July 20, 2011).
Therefore, in the April 10, 2013, proposed action, we did not propose
to act on those portions since they have already been acted upon by
EPA. With this final action, we will have acted on both the February
27, 2007, and the December 28, 2009, submissions in their entirety,
excluding those provisions that are not within the scope of today's
rulemaking as identified in section IV of the April 10, 2013, proposed
action for
[[Page 37458]]
both the 1997 and 2006 PM2.5 infrastructure SIP submissions.
The third submission was received by EPA on September 5, 2012. This
submission revises Missouri's rule in Title 10, Division 10, Chapter
6.060 of the Code of State Regulations (CSR) (10 CSR 10-6.060)
``Construction Permits Required'' to implement certain elements of the
``Prevention of Significant Deterioration (PSD) for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)''
rule (75 FR 64864, October 20, 2010). On March 19, 2013, Missouri
amended and clarified its submission so that it no longer included
specific provisions affected by the January 22, 2013, U.S. Court of
Appeals for the District of Columbia court decision which vacated and
remanded the provisions concerning implementation of the
PM2.5 SILs and vacated the provisions adding the
PM2.5 SMC that were promulgated as part of the October 20,
2010, PM2.5 PSD Rule (Sierra Club v. EPA, No. 10-1413 (filed
December 17, 2010)). In addition, this rule amendment defers the
application of PSD permitting requirements to carbon dioxide emissions
from bioenergy and other biogenic stationary sources.
EPA received the fourth submission on August 8, 2012. This
submission addresses the conflict of interest provisions in section 128
of the CAA as it relates to element E of the infrastructure SIP.
In summary, EPA is taking final action today to approve these four
SIP submissions from Missouri. The first two submissions addressed the
requirements of CAA sections 110 (a)(1) and (2) as applicable to the
1997 and 2006 NAAQS for PM2.5. With this final action, we
will have acted on both the 1997 and 2006 submissions in their entirety
excluding those provisions that are not within the scope of the
rulemaking. EPA is also taking final action to approve two additional
SIP submissions from Missouri, one addressing the Prevention of
Significant Deterioration (PSD) program in Missouri as it relates to
PM2.5, unless otherwise noted in EPA's proposed action on
April 10, 2013 (78 FR 21281), and another SIP revision addressing the
requirements of section 128 of the CAA, both of which support the
requirements associated with infrastructure SIPs.
In today's action, EPA also acknowledges an administrative error in
our April 10, 2013 proposal. Under section V, within EPA's analysis of
the state's submittal for element E related to infrastructure SIP
requirements, we referenced that both sections 643.040.2 and 105.450
were a part of the ``Air Conservation'' chapter of the Missouri Revised
Statutes. Through today's action, EPA acknowledges that section 105.450
is not a part of the ``Air Conservation'' chapter, but instead is a
part of the ``Public Officers and Employees--Miscellaneous Provisions''
chapter of the Missouri Revised Statutes. No changes were made based on
this correction.
We also note that within the April 10, 2013, proposed rulemaking,
we relied upon a separate direct final action from April 2, 2013,\1\ to
demonstrate that Missouri met all the requirements of element C of the
infrastructure SIP (78 FR at 21286). EPA received no comments on this
direct final action, and therefore this SIP revision became effective
on June 3, 2013.
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\1\ Approval and Promulgation of Implementation Plans and
Operating Permits Program, State of Missouri (78 FR 19602).
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II. EPA's Responses to Comments
The public comment period on EPA's proposed rule opened April 10,
2013, the date of its publication in the Federal Register, and closed
on May 10, 2013. During this period, EPA received three comment
letters: One from a citizen received April 18, 2013; one from the
Sierra Club and Earthjustice received May 10, 2013 (hereinafter
``Sierra Club''); and one from the National Parks Conservation
Association received May 10, 2013 (hereinafter ``NPCA''). All three
letters are available in the docket to today's final rule. The citizen
comment was made in support of EPA's action, and we appreciate the
support for this rulemaking. No changes were made to this final action
based on this comment. The remaining two letters contained some similar
comments, and therefore we have grouped those similar comments into
single comments and responses where appropriate.
Comment 1: The Sierra Club contends that Missouri's infrastructure
SIP submissions for the 1997 and 2006 PM2.5 NAAQS do not
meet the requirements of section 110(a)(2)(A). First, the commenter
suggests that the SIP submissions are deficient because the state
relies ``on general, existing statutory and regulatory authority in
lieu of developing specific new requirements tailored to ensure that
the 1997 and 2006 PM2.5 NAAQS is maintained and enforced.''
Second, the Commenter suggests that certain existing provisions in
Missouri's SIP and relied upon in the SIP submissions may be
insufficiently specific to be enforceable emissions limits. In support
of the latter concern, the Commenter cites the court decision in McEvoy
v. IEI Barge Services, 622 F.3d 671 (7th Cir. 2010) for the proposition
that ``some (but not all) courts have suggested that only an emissions
limitation that specifically `limits the quantity, rate, or
concentration of emissions,' can be an `enforceable emission
limitation''' under the CAA. The implication of this comment is that
only an emissions limitation that is sufficiently specific could meet
the legal requirements of section 110(a)(2)(A) for purposes of
enforcement, and thus for purposes of an infrastructure SIP submission
as well.
Response 1: EPA disagrees with the Sierra Club's contention that
Missouri's infrastructure SIP submissions are not approvable with
respect to section 110(a)(2)(A) because they do not contain ``new
requirements'' for the 1997 and 2006 PM2.5 NAAQS. Similarly,
EPA disagrees with the Commenter's view that the existing provisions of
the Missouri SIP are not enforceable emissions limitations for purposes
of the 1997 and 2006 PM2.5 NAAQS.
With respect to the concerns about the reliance on general,
existing statutory and regulatory authority to meet the requirements of
section 110(a)(2)(A) in lieu of developing specific new requirements,
the Sierra Club is incorrect with respect to the scope of what is
germane to an action on an infrastructure SIP. This rulemaking pertains
to EPA's action on infrastructure SIP submissions, which must only
establish that the state's SIP meets the general structural
requirements described in section 110(a)(2)(A) for the NAAQS at issue.
That section states that each implementation plan submitted by a State
under the CAA shall include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of this Act. In the
context of an infrastructure SIP submission, states may establish that
they have sufficient SIP provisions for this purpose through existing
SIP provisions, through newly submitted SIP provisions, or through a
combination of the two.
The Commenter seems to believe that in the context of an
infrastructure SIP submission, section 110(a)(2)(A) explicitly requires
that a state adopt all possible new enforceable emission limits,
control measures and other
[[Page 37459]]
means developed specifically for attaining and maintaining the new
NAAQS within the state. EPA does not believe that this is a reasonable
interpretation of the provision with respect to infrastructure SIP
submissions. Rather, EPA believes that different requirements for SIPs
become due at different times depending on the precise applicable
requirements in the CAA. For example, SIP submissions that may contain
new emissions limitations for purposes of attaining and maintaining the
NAAQS are required pursuant to CAA section 172(b), as part of an
attainment demonstration for areas designated as nonattainment for the
NAAQS. The timing of such an attainment demonstration would be after
promulgation of a NAAQS, after completion of designations, and after
development of the applicable nonattainment plans, i.e., long after the
time when section 110(a)(1) requires an infrastructure SIP submission.
The Sierra Club comment suggests that EPA should disapprove a
state's infrastructure SIP submission if the state has not already
developed all the substantive emissions limitations that may ultimately
be required for all purposes, such as attainment and maintenance of the
NAAQS as part of an attainment plan for a designated nonattainment
area. Instead, for purposes of section 110(a)(2)(A), and for purposes
of an infrastructure SIP submission, EPA believes the proper inquiry is
whether the state has met the basic structural SIP requirements
appropriate at the point in time EPA is acting upon it. EPA does not
interpret section 110(a)(2)(A) to require states in an infrastructure
SIP submission to have developed and submitted the full range of
emissions limits that may ultimately be necessary for purposes of
attainment and maintenance of the NAAQS within the state. As explained
in the proposal, EPA has concluded that Missouri has adequately
established that it has met basic requirements for implementation,
maintenance, and enforcement of the 1997 and 2006 PM2.5
NAAQS through the existing SIP provisions identified in the proposal.
With respect to the Sierra Club's concerns about Missouri's use of
``broad provisions'' in its SIP to address the requirements of section
110(a)(2)(A), EPA has reviewed Missouri's statutes and regulations in
light of the McEvoy court decision noted by the Commenter. EPA
acknowledges the Commenter's concern that SIP provisions must contain
sufficient specificity, so that the regulated community, regulators,
and members of the public can clearly ascertain what is required of
sources, and so that enforcement can occur in the event of violations.
EPA believes that the Court's decision in McEvoy is limited to the
specific facts and circumstances of that case, but nevertheless
reflects what may happen in an enforcement proceeding if a given SIP
provision is ultimately deemed insufficiently specific to be
enforceable. However, based on a review of the provisions at issue, we
conclude that Missouri has sufficiently specific statutory and
regulatory provisions in place to meet the requirements of section
110(a)(2)(A) for purposes of an infrastructure SIP submission.
As we noted in the proposed rulemaking and as Sierra Club
acknowledges, RsMO section 643.050.1(1)(b) gives the Missouri Air
Conservation Commission the authority to adopt, promulgate, amend and
repeal rules and regulations that establish ``maximum quantities of air
contaminants that may be emitted from any air contaminant source.''
Pursuant to that authority, Missouri has adopted ambient air quality
standards at 10 CSR 10-6.010 that mirror the 1997 PM2.5
annual and 2006 PM2.5 24-hour NAAQS, along with the NAAQS
for other criteria pollutants such as sulfur dioxide, carbon monoxide,
ozone, lead and nitrogen dioxide. The regulations at 10 CSR 10-
6.020(3)(A) provide specific emissions limits for PM2.5 and
other pollutants. See also 10 CSR 10-6.060(11) (providing maximum
allowable increases of particulate matter in Class I, Class II, and
Class III areas in Missouri).
The regulations at 10 CSR 10-6.030(5) provide specific requirements
for sampling the concentration of particulate matter emissions from
sources; these requirements specifically incorporate by reference the
test methods contained in 40 CFR part 60, appendix A and 40 CFR part
51, appendix M. Furthermore, the regulations at 10 CSR 10-6.040(4)
provide reference methods for determining the concentration of
particulate matter necessary for the enforcement of air pollution
control regulations throughout Missouri. These regulations incorporate
by reference the standards found at 40 CFR part 50.
EPA also notes that the Missouri air pollution control regulations
contain specific requirements concerning the control of particulate
matter. See, e.g., 10 CSR 10-6.170 (Restriction of Particulate Matter
to the Ambient Air Beyond the Premises of Origin); 10 CSR 10-6.400
(Restriction of Emission of Particulate Matter From Industrial
Processes); 10 CSR 10-6.405 (Restriction of Particulate Matter
Emissions From Fuel Burning Equipment Used for Indirect Heating).
Furthermore, Missouri's regulations require that operating permits
issued to sources contain specific ``emissions limitations or standards
applicable to the installation'' and ``operational requirements or
limitations as necessary to assure compliance with all applicable
requirements.'' 10 CSR 10-6.065(6)(C)1. Thus, in addition to the
emission limitations applicable to sources through the generally
applicable provisions of the SIP, sources that are required to obtain
permits will have additional legally enforceable requirements to meet
specific emission limitations, control measures, or other restrictions
as appropriate.
Coupled with the enforcement authority provided by Missouri's
statutes and regulations, which provides MDNR the authority to issue
compliance orders or assess administrative penalties for violations of
any emissions limitations of the SIP, EPA continues to believe that
Missouri has sufficient authority to address the requirements of
section 110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS.
Comment 2: The Sierra Club and NPCA commented that emission
reductions from the Clean Air Interstate Rule (CAIR) are not permanent
and enforceable and therefore EPA cannot rely on CAIR to satisfy the
requirements of CAA section 110(a)(2)(D)(i)(II)--prong 4. Sierra Club
argued that in light of the remand of the rule by the D.C. Circuit
Court of Appeals in North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir.
2008), CAIR is neither permanent nor enforceable. Sierra Club also
states that EPA has acknowledged in other Federal Register notices that
CAIR was remanded without vacatur, was only temporary and could not be
relied on as permanent and enforceable emission reductions for SIP
approval purposes. Sierra Club also states that the Court's decision in
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012)
does not extend the life of CAIR and does not make CAIR a permanent and
enforceable measure on which the state or EPA can rely. Therefore, the
commenters state that EPA should disapprove this sub-element of
Missouri's SIP.
Response 2: EPA agrees that all control measures in a SIP must be
enforceable based on the requirements of CAA section 110(a)(2)(A). EPA
disagrees, however, that CAIR is not enforceable at this time, given
the scope of the court's order in EME Homer City and the issuance of
the mandate in that case.
[[Page 37460]]
On May 12, 2005, EPA published CAIR, which requires significant
reductions in emissions of SO2 and NOX from
electric generating units (EGUs) to limit the interstate transport of
these pollutants and the ozone and fine particulate matter they form
secondarily in the atmosphere (76 FR 70093). The D.C. Circuit initially
vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but
ultimately remanded the rule to EPA without vacatur to preserve the
environmental benefits provided by CAIR, North Carolina v. EPA, 550
F.3d 1176, 1178 (D.C. Cir. 2008). In response to the Court's decision,
EPA issued the Cross State Air Pollution Rule (CSAPR) to address the
interstate transport of NOX and SO2 in the
eastern United States (76 FR 48208, August 8, 2011). On August 21,
2012, the D.C. Circuit issued a decision vacating CSAPR, EME Homer City
Generation v. EPA, 696 F.3d 7.\2\ In that decision, it also ordered EPA
to continue administering CAIR, ``pending . . . development of a valid
replacement rule'' (Id. at 38).
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\2\ On March 29, 2013, EPA and other parties filed petitions
seeking Supreme Court review of the D.C. Circuit decision.
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The direction from the D.C. Circuit in EME Homer City ensures that
the reductions associated with CAIR will be enforceable and in place
for a number of years. EPA has been ordered by the court to develop a
new rule and the opinion makes clear that after promulgating the new
rule, EPA must provide states an opportunity to draft and submit SIPs
to implement that rule. CAIR thus will remain in force until EPA has
promulgated a final rule through a notice-and-comment rulemaking
process, states have had an opportunity to draft and submit SIPs, EPA
has reviewed the SIPs to determine if they can be approved, and EPA has
taken action on the SIPs, including promulgating a Federal
Implementation Plan (FIP) if appropriate. In the meantime, neither the
State nor EPA has taken any final action to remove the CAIR
requirements from the Missouri SIP. These SIP provisions remain in
place and are Federally enforceable.
Further, in vacating CSAPR and requiring EPA to continue
administering CAIR, the D.C. Circuit emphasized that the consequences
of vacating CAIR ``might be more severe now in light of the reliance
interests accumulated over the intervening four years'' (EME Homer
City, 696 F.3d at 38). The accumulated reliance interests include the
interests of the states who reasonably assumed they could rely on
reductions associated with CAIR to meet the requirements of the
Regional Haze Rule and, in turn, the requirements of Prong 4 of section
110 (a)(2)(D)(i)(II).
The proposed and final EPA actions cited by the Commenter as
support for its argument that EPA has considered CAIR to be temporary
all pre-date the vacatur of CSAPR and were based on EPA's expectation
that CSAPR would be the replacement for CAIR, and thus CAIR would end
soon.\3\ At the time of these actions, CAIR was reasonably expected to
sunset by operation of law in a fairly short timeframe. That background
assumption no longer applies. Based on the vacatur of CSAPR and the
Court's related decision to keep CAIR in place, EPA believes that it is
appropriate at this time to rely on CAIR emission reductions as
permanent and enforceable SIP measures while a valid replacement rule
is developed and until implementation plans complying with any such new
rule are submitted by the States and acted upon by EPA or until the EME
Homer City case is resolved in a way that provides different direction
regarding CAIR and CSAPR.
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\3\ On August 21, 2012, the D.C. Circuit issued an opinion to
vacate CSAPR and keep CAIR in place pending promulgation of a valid
replacement rule. However, the court also ordered the Clerk to
withhold issuance of the mandate until seven days after disposition
of any timely petition for rehearing or rehearing en banc. All
petitions for rehearing were denied on January 24, 2013, and the
mandate was issued by the D.C. Circuit on February 4, 2013. As noted
above, EPA and other parties subsequently filed petitions seeking
Supreme Court review of the D.C. Circuit decision.
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EPA is taking final action to approve the infrastructure SIP
submission with respect to prong 4 because Missouri's regional haze
SIP, to which EPA has given limited approval in combination with its
SIP provisions to implement CAIR, adequately prevents sources in
Missouri from interfering with measures adopted by other states to
protect visibility during the first planning period. While EPA is not
at this time proposing to change the June 7, 2012, or June 26, 2012,
limited disapproval and limited approval of Missouri's regional haze
SIP, EPA expects to propose appropriate action regarding this SIP, if
necessary, upon final resolution of the EME Homer City litigation. A
more detailed rationale to support EPA's approval of prong 4 for
Missouri's 1997 and 2006 PM2.5 infrastructure submission can
be found in EPA's proposed rulemaking for today's final action (78 FR
21281).
Comment 3: The NPCA commented that EPA cannot approve portions of
the Missouri infrastructure SIP submissions addressing the requirements
of CAA section 110(a)(2)(D)(i)(II) with respect to visibility because
these submittals rely on CAIR, and CAIR cannot meet the BART or
reasonable progress requirements of the visibility program. NPCA argues
that to meet the requirements of the visibility prong of section
110(a)(2)(D)(i)(II), EPA must direct Missouri to develop an
implementation plan that meets the BART and reasonable progress
requirements of the regional haze rule. In particular, NPCA raised a
number of legal arguments in support of its position that section 169A
of the CAA requires source-specific BART determinations for power
plants and does not allow states to adopt alternative programs, such as
CAIR, in lieu of these source-specific requirements. The NPCA also
stated that CAIR cannot be used to shield sources from review under the
CAA's reasonable progress requirements. NPCA commented that in the
absence of a source-specific review to determine reasonable progress
measures, it is not possible to determine whether CAIR will fulfill the
reasonable progress requirements, assuming it could overcome the lack
of enforceability of the program.
Response 3: The visibility prong of section 110(a)(2)(D)(II) of the
CAA requires SIPs to ``contain adequate provisions . . . prohibiting .
. . any source . . . within the state from emitting any air pollutant
in amounts which will . . . interfere with measures required to be
included in the applicable implementation plan for any other State
under part C of this subchapter . . . to protect visibility.'' We
interpret this provision of section 110 of the CAA as requiring states
to include in their SIPs measures to prohibit emissions that would
interfere with the reasonable progress goals set to protect Class I
areas in other states. This is consistent with the requirements in the
regional haze program which explicitly require each state to address
its share of the emission reductions needed to meet the reasonable
progress goals for surrounding Class I areas (40 CFR 51.308(d)(3)(i);
see also 77 FR 11958, 11962, February 28, 2012). Given this explicit
requirement in the regional haze rule, states may satisfy the
visibility prong of section 110(a)(2)(D)(II) through an EPA-approved
regional haze SIP. EPA issued a limited approval of Missouri's regional
haze plan on June 26, 2012, having determined, among other things, that
the SIP submittal provided sufficient evidence to demonstrate that its
long-term strategy includes all measures necessary to obtain its share
of emission reductions needed to address the
[[Page 37461]]
impacts of Missouri's emissions sources on Class I areas in other
states (77 FR 38007, 38009).
In its comments, however, NPCA argues that important elements of
Missouri's approved regional haze SIP do not meet the requirements of
section 169A of the CAA. EPA disagrees with the Commenter that the CAA
does not allow states to rely on an alternative program such as CAIR in
lieu of source-specific BART. EPA's regulations allowing states to
adopt alternatives to BART that provide for greater reasonable
progress, and the Agency's determination that states may rely on CAIR
to meet the BART requirements, have been upheld by the D.C. Circuit,
Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006) as
meeting the requirements of the CAA. We also note that the regional
haze regulations do not require a source-specific analysis of controls
for reasonable progress. Even assuming, however, that the Missouri
regional haze SIP improperly relied on CAIR to meet the BART and
reasonable progress requirements, the NPCA has not shown that the
State's plan does not comply with section 110(a)(2)(D)(i).
III. Summary of Final Action
Based upon review of the State's infrastructure SIP submissions for
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and
regulatory authorities and provisions referenced in those submissions
or referenced in Missouri's SIP, EPA believes that Missouri has the
infrastructure to address all applicable required elements of sections
110(a)(1) and(2) (except otherwise noted) to ensure that the 1997 and
2006 PM2.5 NAAQS are implemented in the state. Therefore,
EPA is taking final action to approve Missouri's infrastructure SIP
submissions for the 1997 and 2006 NAAQS for PM2.5 for the
following section 110(a)(2) elements and sub-elements: (A), (B), (C),
(D)(i)(II) (prongs 3 and 4), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M). In addition, EPA is approving two SIP submissions, one
addressing the Prevention of Significant Deterioration (PSD) program in
Missouri as it relates to PM2.5, and another SIP revision
addressing the requirements of section 128 of the CAA, both of which
support the requirements associated with infrastructure SIPs.
IV. Statutory and Executive Order Review
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 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 Order
12866 (58 FR 51735, October 4, 1993);
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 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 CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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 action 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 August 20, 2013. 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, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: June 10, 2013.
Mark Hague,
Acting Regional Administrator, Region 7.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart AA--Missouri
0
2. In Sec. 52.1320:
0
a. The table in paragraph (c) is amended by adding a new Chapter 1
heading in numerical order, adding a new entry 10-1.020 (1) and (2),
and revising the entry for 10-6.060.
0
b. The table in paragraph (e) is amended by adding new entries (58),
(59) and (60) in numerical order at the end of the table.
The additions read as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(c) * * *
[[Page 37462]]
EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
State
Missouri citation Title effective EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
Missouri Department of Natural Resources
Chapter 1--Organization
----------------------------------------------------------------------------------------------------------------
10-1.020 (1) and (2)............ Commission Voting 7/30/1998 6/21/2013 [INSERT .......................
and Meeting Federal Register
Procedures. PAGE NUMBER WHERE
THE DOCUMENT
BEGINS].
* * * * * * *
Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
Regulations for the State of Missouri
----------------------------------------------------------------------------------------------------------------
* * * * * * *
10-6.060........................ Construction 9/30/2012 6/21/2013 [INSERT Provisions of the 2010
Permits Required. Federal Register PM2.5 PSD--Increments,
PAGE NUMBER WHERE SILs and SMCs rule (75
THE DOCUMENT FR 64865, October 20,
BEGINS]. 2010) relating to SILs
and SMCs that were
affected by the
January 22, 2013 U.S.
Court of Appeals
decision are not SIP
approved.
Provisions of the 2002
NSR reform rule
relating to the Clean
Unit Exemption,
Pollution Control
Projects, and
exemption from
recordkeeping
provisions for certain
sources using the
actual-to-projected-
actual emissions
projections test are
not SIP approved.
In addition, we have
not approved
Missouri's rule
incorporating EPA's
2007 revision of the
definition of
``chemical processing
plants'' (the
``Ethanol Rule,'' 72
FR 24060 (May 1, 2007)
or EPA's 2008
``fugitive emissions
rule,'' 73 FR 77882
(December 19, 2008).
Although exemptions
previously listed in
10 CSR 10-6.060 have
been transferred to 10
CSR 10-6.061, the
Federally-approved SIP
continues to include
the following
exemption, ``Livestock
and livestock handling
systems from which the
only potential
contaminant is odorous
gas.''
Section 9, pertaining
to hazardous air
pollutants, is not SIP
approved.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
Sec. 52.1320 Identification of plan.
* * * * *
(e)* * *
EPA-Approved Missouri Nonregulatory SIP Provisions
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable geographic State
revision or nonattainment area submittal date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(58) Section 110(a)(2) Statewide.............. 2/27/2007 6/21/2013 [INSERT This action
Infrastructure Requirements CITATION OF addresses the
for the 1997 PM2.5 NAAQS. PUBLICATION]. following CAA
elements:
110(a)(2)(A),
(B), (C),
(D)(i)(II) prongs
3 and 4, (D)(ii),
(E), (F), (G),
(H), (J), (K),
(L), and (M).
(59) Section 110(a)(2) Statewide.............. 12/28/2009 6/21/2013 [INSERT This action
Infrastructure Requirements CITATION OF addresses the
for the 2006 PM2.5 NAAQS. PUBLICATION]. following CAA
elements:
110(a)(2)(A),
(B), (C),
(D)(i)(II) prongs
3 and 4, (D)(ii),
(E), (F), (G),
(H), (J), (K),
(L), and (M).
[[Page 37463]]
(60) Section 128 Declaration: Statewide.............. 8/08/2012 6/21/2013 [INSERT ..................
Missouri Air Conservation CITATION OF
Commission Representation and PUBLICATION].
Conflicts of Interest
Provisions; Missouri Revised
Statutes (RSMo) RSMo 105.450,
RSMo 105.452, RSMo 105.454,
RSMo 105.462, RSMo 105.463,
RSMo 105.466, RSMo 105.472,
and RSMo 643.040.2.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2013-14755 Filed 6-20-13; 8:45 am]
BILLING CODE 6560-50-P