[Federal Register Volume 66, Number 95 (Wednesday, May 16, 2001)]
[Rules and Regulations]
[Pages 27028-27032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12356]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 122-1122; FRL-6980-8]


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 rule revision submitted by the state of 
Missouri to clarify that any credible evidence (referenced as the ``CE 
revisions'' or ``CE'' throughout this document) may be used to 
establish compliance or noncompliance with applicable requirements of 
the Missouri air pollution control regulations under the authority of 
applicable provisions in section 110(a) of the Clean Air Act (the 
``Act'') (CAA). EPA proposed approval of the Missouri rule on February 
6, 1996. The proposal was accompanied by a direct final rule approving 
the Missouri submission. In that rule, EPA stated that the rule would 
become final if no adverse comments were received, but that if EPA 
received adverse comments, it would withdraw the final rule, treat the 
action as a proposed rulemaking, and respond to the comments prior to 
taking a final action. Because it received adverse comments, EPA 
withdrew the final action. We are now taking final action to approve 
the rule. Public comments are addressed in this action and in a 
Response to Comments document.

DATES: This rule is effective on June 15, 2001.

ADDRESSES: Comments may be mailed to Wayne Kaiser, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101.
    Copies of documents relative to this action are available for 
public inspection during normal business hours at the Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101. 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: Wayne Kaiser at (913) 551-7603.

I. SUPPLEMENTARY INFORMATION:

A. Introduction

    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 a State Implementation Plan (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 document?
What comments were received by EPA and what are EPA's responses to 
the comments?
Have the requirements for approval of a SIP revision been met?
What action is EPA taking?

What Is a State Implementation Plan (SIP)?

    Section 110 of the 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 
us 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. We must provide 
public notice and seek additional public comment

[[Page 27029]]

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 us.
    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 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 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 Document?

    EPA is approving a rule revision submitted by the state of Missouri 
to clarify that any credible evidence may be used to establish 
compliance or noncompliance with applicable requirements of the 
Missouri air pollution control regulations under the authority of 
applicable provisions in section 110(a) of the CAA. Missouri adopted 
and submitted the CE revision pursuant to an EPA call for a SIP 
revision under section 110(k)(5) of the Act, issued by us on May 11, 
1994 (the ``SIP call''). The SIP call to Missouri was part of a 
national SIP call announced in a proposed rulemaking published on 
October 22, 1993, at 58 FR 54648, which, in part, proposed rule 
revisions to various EPA rules to clarify that any credible evidence 
can be used to establish compliance or noncompliance with applicable 
requirements of the Act. EPA published its final rule promulgating the 
CE rules on February 24, 1997, at 62 FR 8314. EPA proposed approval of 
the Missouri rule on February 6, 1996, at 61 FR 4391. The proposal was 
accompanied by a direct final rule approving the Missouri submission 
(61 FR 4352). In that rule, we stated that the rule would become final 
if no adverse comments were received, but that if we received adverse 
comment, we would withdraw the final rule, treat the action as a 
proposed rulemaking, and respond to the comments prior to taking a 
final action. Because we received adverse comments, we withdrew the 
final action and we are responding to the comments in this document. 
References to the ``proposal'' or ``proposed rule'' are to the rule 
published initially as a direct final rule.

What Comments Were Received by EPA and What Are EPA's Responses to the 
Comments?

    In response to the proposed approval of the Missouri rule, EPA 
received a number of comments, submitted by six industries and industry 
associations. Some comments relate specifically to the Missouri rule. 
Other comments are the same or similar to comments submitted on the 
1993 national proposed rulemaking (sometimes referenced herein as the 
``national'' rule). In its response to comments, we have responded in 
detail to the Missouri-specific comments, and in summary form to the 
comments that were also submitted on the national proposal. We provided 
a more detailed response to these comments in the ``Supplement to the 
Technical Support Document for the Missouri Compliance Monitor Usage 
Rule--Response to Comments'' and in the February 1997 response to 
comments accompanying the promulgation of the national rule, both of 
which are in the docket for the final action on the Missouri rule. The 
reader may request a copy at the location identified above. A summary 
of the more important comments and our responses follow.
    Because a petition for review, which raised issues relevant to 
EPA's action on the Missouri rule, was pending on the national rule, we 
chose to withhold temporarily our final action on the state rule. Since 
the petition on the national rule has been dismissed, Clean Air 
Implementation Project v. Environmental Protection Agency, 150 F. 3d 
1200 (D.C. Cir. 1998), we are now proceeding with final action on the 
Missouri rule.
Comments Relating to Statutory Authority for the Use of CE
    A number of commenters objected to allowing the use of any credible 
evidence to determine compliance, arguing that section 113(e) allows 
such evidence to be used only to assess penalties, and not to determine 
initially whether a violation has occurred. In general, the commenters 
argue that, by its terms, section 113(e) applies only to evidence 
showing the duration of the violation and not to the evidence that can 
be used to establish the existence of a violation. The commenters also 
argue that the legislative history supports their assertion that CE can 
only be used to establish duration. One commenter also stated that the 
rule is a departure from the ``longstanding'' practice of determining 
violations based solely on the reference test method specified in the 
relevant emission limit.
    As explained in detail in the February 1997 response to comments on 
the national rule (in particular, section 1.1), the CAA provides ample 
authority to allow the states, EPA, and citizens to offer any credible 
evidence to establish the initial existence of a violation as well as 
the duration of a violation. This authority is not only in section 
113(e), but also in other sections (e.g., sections 113(a), 114(a)(3), 
301, and 504(b)). The various provisions dealing with the basis for 
enforcing against violations, for monitoring, and for certifying 
compliance, show that Congress intended to clarify the types of 
evidence that can be used to prove a violation initially, as well as 
the evidence that can be used to show subsequent violations (for 
purposes of establishing the duration of the violation). Moreover, 
because the use of CE does not change existing compliance obligations, 
the credible evidence revisions are a permissible exercise of our 
general rulemaking authority in section 301.
    Regarding past practice concerning the use of the applicable 
reference test method, we explained in the February 1997 response to 
comments that it has used and continues to use the reference test 
method as the major indicator of compliance status. However, we also 
explained that past use of the reference test method as the exclusive 
means to show compliance has not been dictated by any requirement of 
the CAA, but by the language in individual regulations. EPA's 
promulgation of the national CE rules amended the regulations 
consistent with the authority in section 113(a) to base enforcement 
actions on ``any information'' available to us. Similarly, our approval 
of the Missouri compliance usage rule into the SIP clarifies that 
nonreference test data can be used to determine compliance with the 
Missouri air pollution control rules, and remedies a deficiency in the 
SIP, to the extent that state regulations could previously have been 
interpreted to mean that compliance could only be determined by the 
results of a reference test method. (Authority to require CE provisions 
in SIPs is discussed in section 4 of the response to comments 
document.)

[[Page 27030]]

Comments Relating to the Relationship Between CE and Enhanced 
Monitoring
    Several commenters objected to the proposed approval of the 
Missouri rule based on the perceived relationship between the credible 
evidence rule and the enhanced monitoring rule (proposed in 1993 along 
with the proposed national CE rule). The commenters stated that the 
national CE rule was dependent on the proposed enhanced monitoring (EM) 
rule, and that since the EM rule was, according to one commenter, 
withdrawn, EPA could not go forward with the CE rule, the CE SIP call, 
or approval of any state CE rules. Another commenter stated that, since 
the revised EM or compliance assurance monitoring (CAM) rule had not 
yet been developed, there was no meaningful opportunity to comment on 
the effect of the Missouri CE rule on underlying emission limits. 
Finally, one commenter stated that EPA should take no action on the 
Missouri rule until EPA had promulgated a CAM rule.
    We responded extensively to the issues raised in these comments in 
our promulgation of the national CE rule, in the preamble and the 
response to comments document. In summary, we clarified that the EM 
proposal had not been formally withdrawn. In addition, we determined 
that the CE rule, while proposed at the same time as the EM proposal, 
could be promulgated apart from the EM/CAM rule. The purpose of the CE 
rule is to remove barriers to consideration of credible evidence, such 
as EM/CAM data and other relevant data, in determining violations of 
emission standards, and knowledge of the specific requirements of the 
EM/CAM rule is not necessary to formulate comments on the CE rule. In 
addition, we noted that the 1993 proposal gave notice that the CE 
revisions were separate from the EM proposal. Both the national CE rule 
revisions and the Missouri CE rule are revisions to existing 
regulations that were not dependent on promulgation of the EM/CAM rule.
Compliance of the State Rule With Missouri Law
    Two commenters raised issues concerning the validity of the 
Missouri rule under state law. The commenters referenced a provision in 
the Missouri statutes that provides, with certain exceptions, that the 
state environmental agency cannot adopt rules which are ``any stricter 
than those required under the provisions of the Federal Clean Air Act * 
* *'' (Mo. Rev. Stat. section 643.055.1). One commenter stated that 
since EPA had not (as of the date of the comment letter, March 6, 1996) 
adopted either the enhanced monitoring or the credible evidence rule, 
EPA's approval of the state rule would be contrary to the Missouri 
statute referenced above. Another commenter stated that since EPA had 
no authority under the Act to require that Missouri adopt a CE rule 
(see discussion of related comments in sections 1 and 4 of the Response 
to Comments on the Missouri rule), Missouri lacked legal authority to 
adopt the state rule because of the limitation on rulemaking in the 
state statute.
    EPA's authority to issue the call for SIP revisions to Missouri and 
other states was summarized above and in section 4 of the Response to 
Comments and discussed in detail in the national CE rulemaking. As 
shown in those discussions, the premise for the commenters' assertion 
that Missouri lacked authority to adopt its CE rule is incorrect, since 
the state rule was adopted in response to a SIP call issued by EPA to 
correct a deficiency in the state rules to meet a requirement of the 
Act. Therefore, the comments concerning the validity of the state 
regulation are, in large part, a reiteration of the issues relating to 
our authority to issue the CE rule and SIP call, to which we have 
previously responded.
    In addition, contrary to the suggestion of one commenter, the 
state's statutory restriction on adoption of rules is a limitation on 
the state's ability to promulgate rules. It is not a restriction on our 
authority to approve a rule that the state has properly submitted. In 
submitting the state rule, both EPA and Missouri determined that the 
CAA required the rule, and that the state had adequate legal authority 
to adopt and implement the rule (letter dated February 21, 1995, from 
David Shorr, Director, Missouri Department of Natural Resources to 
Dennis Grams, Regional Administrator, EPA). EPA's review of the rule 
was based on whether it met the requirements of section 110 and related 
provisions of the Act.
    Significantly, the record of public comments on the state's 
proposal of the rule does not indicate that this issue, which is 
clearly a matter of state law, was ever raised to the state's 
rulemaking body for consideration prior to its adoption of the rule. 
Even if there were any validity to the assertion that Missouri lacked 
authority to adopt the rule, this would have been an issue for the 
state, not EPA, to consider. In fact, however, the state agency charged 
with promulgating rules in accordance with its enabling authority 
specifically determined that the rule was required by Federal law, and 
that it had adequate authority to adopt the rule. The commenter, in 
effect, asks EPA to second-guess the state's application of its own 
law, by raising an issue that it raised for the first time after the 
state's rulemaking action has been completed. The commenter incorrectly 
states not only the requirements of the CAA, but also our role in 
acting on state revisions to its SIPs. The state determined that it 
properly adopted the rule under state law, and the commenter raises no 
issues that would cause us to question the state's determination.
    One commenter stated that the proposed approval of the Missouri 
rule was procedurally flawed because we had effectively withdrawn the 
national enhanced monitoring rule, and the SIP call had not required 
submission of the Missouri rule until promulgation of the national 
rule. The commenter contended that approval of the Missouri rule would 
be pointless, because state law (referenced previously) bars the state 
from enforcing a rule sooner than required by Federal law.
    The Missouri statute provides that the state agency may not, in 
certain instances, adopt standards that are more stringent than 
required by the Federal Act, and that such standards cannot be 
``enforced'' any sooner than required by the Act. The commenter states 
that, since the SIP call did not require states to submit CE SIP 
revisions until promulgation of the ``enhanced monitoring'' rule (which 
had not been promulgated in any form), the state cannot enforce its 
rule pending EPA action promulgating a national monitoring rule.
    As shown above, Missouri determined that it had adequate authority 
to adopt and implement the CE rule under state law, and EPA has no 
basis to question this determination. In addition to that discussion, 
EPA notes that the comment is based on the implicit assumption that the 
Missouri rule adds substantive requirements that could be ``enforced.'' 
As explained in response to a prior comment, the rule does not add 
substantive new requirements, but only clarifies that nonreference test 
data may be used to determine compliance with the applicable standard. 
Therefore, the rule does not impose requirements that Missouri would be 
enforcing prior to a time required under the Act. EPA notes that its 
position on this issue is consistent with the position stated by 
Missouri in its response to comments on the proposed state rule. In 
response to a comment that the rule would give the state ``undefined 
and unbridled'' enforcement authority, Missouri responded that it 
``does not open a whole new area of enforcement * * * Violations can 
only exist in the context

[[Page 27031]]

of an emission limitation or requirement [in the existing rules].'' 
While the commenters did not ask Missouri to consider its CE rule in 
the context of the statutory restriction, the state clearly understood 
the rule as a clarification of existing emission limitations rather 
than as establishing additional enforceable requirements. (See 
``Comments and Responses on the Proposed Rule 10 CSR 10-6.280 
Compliance Monitoring Usage and Recommendation for Adoption,'' 
Commission Briefing Document, August 25, 1994, p. 222, which is in the 
docket for this rulemaking.)
    Regarding the comment that EPA cannot approve the state rule before 
it takes final action on the national CE rule, EPA regards the comment 
as moot, since we have now taken final action to promulgate the 
national rule. Moreover, our approval of state CE rules is not 
contingent on promulgation of the national rule, but on whether the 
state submittal meets the requirements of the Act. Our rationale for 
proceeding with the SIP calls and acting on state submissions before 
the national CE rule promulgation was explained in the preamble to the 
proposed and final CE rulemaking, referenced above.
    The reader should refer to the Response to Comments on the proposed 
approval of the Missouri rule for other issues raised by the commenters 
and our responses.

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 in the response to comments and in more 
detail in the technical support document which is part of this 
document, the revision meets the substantive SIP requirements of the 
CAA, including section 110 and implementing regulations. More 
information on the February 6, 1996, notice of direct final rulemaking 
is contained in the technical support document in the docket.

What Action Is EPA Taking?

    EPA is granting final approval to Missouri rule 10 CSR 10-6.280 for 
which approval was proposed in the Federal Register on February 6, 
1996.

II. Administrative Requirements

    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. 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 preexisting 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 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This 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 (64 FR 43255, August 10, 1999), because it 
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 rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is 
not economically significant.
    In reviewing SIP submissions, our 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), we have 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. As required by section 3 of Executive Order 12988 
(61 FR 4729, February 7, 1996), in issuing this rule, we have taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the Executive Order. 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. We will submit a report containing this rule and other 
required information to the United States Senate, the United States 
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 July 16, 2001. 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: April 26, 2001.
 William A. Spratlin,
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.

[[Page 27032]]

Subpart AA--Missouri

    2. In Sec. 52.1320(c) the table is amended under Chapter 6 by 
adding in numerical order the entry for ``10-6.280'' to read as 
follows:


Sec. 52.1320  Identification of plan.

* * * * *
    (c) * * *

                                       EPA--Approved Missouri Regulations
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                                                              State
    Missouri  citation                 Title                effective       EPA approval date       Explanation
                                                              date
----------------------------------------------------------------------------------------------------------------
                                    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
 
*                  *                  *                  *                  *                  *
                                                        *
10-6.280                   Compliance Monitoring Usage..     12/30/94              May 16, 2001
                                                                                    66 FR 27032
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 01-12356 Filed 5-15-01; 8:45 am]
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