[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71663-71666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32860]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region VII Tracking No. MO-074-1074a; FRL-6512-2]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is announcing a revision to the State Implementation Plan 
(SIP) which incorporates portions of new Kansas City rules contained in 
the Kansas City Air Pollution Control Ordinance in Sections 8-2 and 8-
5. These Sections pertain to the emission of particulate matter from 
incinerators. This revision will concurrently remove incinerator SIP 
provisions contained in Chapter 18 of the 1972 version of the Kansas 
City Code. This action will unify the local, state, and Federal 
requirements for Kansas City incinerators.

DATES: This direct final rule is effective on February 22, 2000 without 
further notice, unless EPA receives adverse comment by January 21, 
2000. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Wayne A. Kaiser at the 
Environmental Protection Agency, Air Branch, 901 North 5th Street, 
Kansas City, Kansas 66101.
    Copies of the state submittals are available at the following 
addresses for inspection during normal business hours: Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101; and the Environmental Protection 
Agency, Air and Radiation Docket and Information Center, Air Docket 
(6102), 401 M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at the Environmental 
Protection Agency at (913) 551-7603.

SUPPLEMENTARY INFORMATION:

Background

    This section provides additional information by addressing the 
following questions:

    What is an SIP?
    What is the Federal approval process for a SIP?
    What does Federal approval of a state regulation mean to me?
    What is being addressed in this action?
    Have the requirements for approval of a SIP revision been met?
    What action is EPA taking?

What Is a SIP?

    Section 110 of the Clean Air Act (CAA) requires states to develop 
air pollution regulations and control strategies to ensure that state 
air quality meets the national ambient air quality standards 
established by EPA. These ambient standards are established under 
section 109 of the CAA, and they currently address six criteria 
pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide.
    Each state must submit these regulations and control strategies to 
EPA for approval and incorporation into the Federally enforceable SIP.
    Each Federally approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

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 EPA for inclusion into the SIP. EPA must provide 
public notice and seek additional public comment regarding the proposed 
Federal action on the state submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
EPA.
    All state regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated into the Federally 
approved SIP. Records of such SIP actions are maintained in the Code of 
Federal

[[Page 71664]]

Regulations (CFR) at Title 40, Part 52, entitled ``Approval and 
Promulgations 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 EPA 
has approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

    Enforcement of the state regulation before and after it is 
incorporated into the Federally approved SIP is primarily a state 
responsibility. However, after the regulation is Federally approved, 
EPA is authorized to take enforcement action against violators. 
Citizens are also offered legal recourse to address violations as 
described in the CAA.

What Is Being Addressed in This Action?

    The Kansas City Air Pollution Control Code (KCAPCC) was originally 
submitted to EPA for approval in 1972. The incinerator provisions which 
were approved in 1972 are still in the Federally approved SIP today. 
The SIP contains two different particulate matter requirements for 
incinerators based on the capacity of the incinerator. Large capacity 
incinerators (with a charging capacity equal to or greater than 4166 
pounds per hour) are required to meet an emission limit of 0.1 grains 
per dry standard cubic foot. Small capacity incinerators (with a 
charging capacity less than 4166 pounds per hour) are required to meet 
an emission limit of 0.2 grains per dry standard cubic foot.
    The KCAPCC was amended in 1984; however, the SIP was not updated at 
that time. Consequently, two separate versions of the Kansas City 
incinerator regulations were in force at that time. The Kansas City 
Health Department Environmental Program enforced the 1984 version while 
EPA enforced the 1972 version in the SIP.
    In 1996, the Air Pollution Control Code was again revised by the 
Kansas City Health Department. This time, a more stringent version of 
the incinerator rule was adopted which required incinerators of any 
charging capacity to meet a 0.1 grains per dry standard cubic foot 
particulate matter emission limit. Other limits were also included in 
the 1996 rule for pollutants such as hydrogen chloride, mercury, and 
dioxin and furans.
    The Missouri Department of Natural Resources held a public hearing 
before the Missouri Air Conservation Commission (MACC) on October 29, 
1998, on the replacement of the 1972 KCAPCC requirements for 
incinerators with the 1996 KCAPCC provisions which pertain to 
incinerators. After considering comments on this issue, on December 10, 
1998, the MACC approved the submission of certain provisions of Section 
8-2, ``Definitions,'' which pertain to incinerators and certain 
provisions of Section 8-5, ``Emission of particulate matter,'' 
pertaining to the emission of particulate matter from incinerators with 
a request to amend the SIP to incorporate this submission. The MACC 
also approved the submittal of a request to remove the 1972 Kansas City 
incinerator requirements contained in KCAPCC Chapter 18, Sections 
18.83, ``Definitions,'' and 18.91, ``Incinerators.''

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 above and in more detail in the technical 
support document which is part of this notice, the revision meets the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations. The revision constitutes a slight increase in 
the stringency of requirements which pertain to incinerators operating 
in Kansas City, Missouri.

What Action Is EPA Taking?

    EPA is processing this action as a direct final action to approve 
the replacement of the 1972 KCAPCC incinerator provisions contained in 
Chapter 18, Sections 18.83, and 18.91, with the incinerator particulate 
matter provisions contained in the 1996 KCAPCC in Chapter 8, Sections 
8-2, ``Definitions,'' and 8-5, ``Emission of particulate matter.'' 
Specifically, the following definitions are being approved from Section 
8-2: Air contaminant, Ambient air, Building, Construction, Emission, 
Fugitive emissions, Incinerator, Installation, Open burning, Owner, 
Particulate matter, Refuse, Smoke, Source, Stack, Trade waste, and 
Uncombined water. EPA is approving the following provisions of Section 
8-5: ``Emission of Particulate Matter''; subsection 8-5(c)(1)b., 
``Emission of Particulate Matter, Incinerators--Test Schedule''; 
subsection 8-5(c)(1)c., ``Emission of Particulate Matter, 
Incinerators--Capacity''; subsection 8-5(c)(2)a., ``Emission of 
Particulate Matter, Incinerators--Particulate and Opacity 
Limitations''; subsection 8-5(c)(3)a., ``Emission of Particulate 
Matter, Incinerators--Performance Testing, Representative Sample''; 
subsection 8-5(c)(3)b., ``Emission of Particulate Matter, 
Incinerators--Performance Testing, Procedure''; subsection 8-5(c)(3)c., 
``Emission of Particulate Matter, Incinerators--Performance Testing, 
Compliance''; and subsection 8-5(c)(3)d., ``Emission of Particulate 
Matter, Incinerators--Performance Testing, When Required.''
    EPA's direct final approval of this submittal incorporates 
incinerator provisions which are already in force under the authority 
of the Kansas City Health Department. These revisions make routine 
changes to the existing SIP rules to make them consistent with the 
local agency rules. EPA views these revisions as noncontroversial. 
Therefore, we do not anticipate any adverse comments.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective February 22, 
2000 without further notice unless the Agency receives adverse comments 
by January 21, 2000.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on February 22, 2000 and no 
further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing 
the Intergovernmental Partnership). Executive Order 13132 requires EPA 
to develop an accountable process to

[[Page 71665]]

ensure ``meaningful and timely input by state and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that 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.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by state and local governments, or EPA consults with 
state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts state law unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation.
    This final rule will 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. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant regulatory action as defined by Executive 
Order 12866, and it does not establish a further health or risk-based 
standard because it approves state rules which implement a previously 
promulgated health or safety-based standard.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements, unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. This final rule will 
not have a significant impact on a substantial number of small entities 
because SIP approvals under section 110 and Subchapter I, Part D of the 
CAA do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. Moreover, due to the nature of the Federal-
state relationship under the CAA, preparation of flexibility analysis 
would constitute Federal inquiry into the economic reasonableness of 
state action. The CAA forbids EPA to base its actions concerning SIPs 
on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 
(1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to state, local, or tribal governments in the aggregate, 
or to the private sector, of $100 million or more. Under section 205, 
EPA must select the most cost-effective and least burdensome 
alternative that achieves the objectives of the rule and is consistent 
with statutory requirements. Section 203 requires EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
preexisting requirements under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    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 United States Senate, the United States 
House of Representatives, and the United States Comptroller General 
prior to publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States

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Court of Appeals for the appropriate circuit by February 22, 2000. 
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 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: December 2, 1999.
 William A. Spratlin,
Acting Regional Administrator, Region VII.

    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 Sec. 52.1320 in paragraph (c), the table for ``Kansas City 
Article III--Air Pollution'' is removed and to the table for ``Kansas 
City Chapter 8--Air Quality 17'' is revised to read as follows:


Sec. 52.1320  Identification of plan.

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    (c) EPA-approved regulations.

                                        EPA-Approved Missouri Regulations
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                                                State         EPA
    MISSOURI citation            Title        effective     approval                  Explanations
                                                 date         date
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                                       Kansas City Chapter 8--Air Quality
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8-2......................  Definitions.....     12/10/98     12/22/99
 
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8-5......................  Emission of          12/10/98     12/22/99  Only subsections 8-5(c)(1)b, 8-5(c)(1)c,
                            Particulate                                 8-5(c)(2)a, 8-5(c)(3)a, 8-5(c)(3)b, 8-
                            Matter.                                     5(c)(3)c, 8-5(c)(3)d are approved in the
                                                                        SIP.
 
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[FR Doc. 99-32860 Filed 12-21-99; 8:45 am]
BILLING CODE 6560-50-P