[Federal Register: June 27, 2006 (Volume 71, Number 123)]
[Rules and Regulations]
[Page 36486-36489]
[DOCID:fr27jn06-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2006-0287; FRL-8189-2]

Approval and Promulgation of Implementation Plans; State of
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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_NUMBER>, or
by e-mail at<EMAIL_ADDRESS>
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 Sec.  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 Sec.  52.21, the provisions of Sec.  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 Sec.  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.

0
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(c) the table is amended under Chapter 6 by revising
the entry for ``10-6.060'' to read as follows:

Sec.  52.1320  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Missouri Regulations
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                                                 State
   Missouri citation           Title        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

                                                  * * * * * * *
10-6.060...............  Construction           12/30/2004  6/27/2006...................  This revision
                          Permits Required.                                                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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[FR Doc. 06-5713 Filed 6-26-06; 8:45 am]

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