[Federal Register Volume 67, Number 57 (Monday, March 25, 2002)]
[Rules and Regulations]
[Pages 13573-13575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7094]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 114-1114b; FRL-7162-9]


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 as an amendment to the Missouri State 
Implementation Plan (SIP) a revision to the Missouri construction 
permit rule. EPA is also responding to comments received during the 
public comment period. This revision will strengthen the SIP with 
respect to attainment and maintenance of established air quality 
standards, ensure consistency between the state and Federally-approved 
rules, and ensure Federal enforceability of the state's air program 
rule revisions pursuant to section 110 of the Clean Air Act.

EFFECTIVE DATE: This rule is effective on April 24, 2002.

FOR FURTHER INFORMATION CONTACT: Wayne Kaiser at (913) 551-7603.

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 a 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?
    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 
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 us for inclusion into the SIP. We 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 
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, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA.

What Is Being Addressed in This Document?

Background

    On April 6, 2001, we published a proposal and a direct final 
Federal Register document to approve Missouri rule 10 CSR 10-6.060, 
Construction Permits Required, as a revision to the Missouri State 
Implementation Plan (SIP). Among other revisions, this submission 
established minimum emission cutoffs for the state's minor new source 
review (NSR) program. In general, Missouri did not previously have 
exemptions to its minor NSR program based on emission levels. The 
revisions, in relevant part, exempt sources with emission levels below 
0.5 pounds per hour or 876 pounds per year of a regulated pollutant 
from the minor source permitting program. Because adverse comments were 
submitted on our approval of the rule, the direct final rule was 
withdrawn on June 1, 2001 (66 FR 29705).
    Two comment letters were received--one from the Associated 
Industries of Missouri (AIM) and one from the Regulatory Environmental 
Group For Missouri (REGFORM). The REGFORM comments were received two 
days after the close of the comment period, but since its comments were 
similar to those submitted by AIM, they will also be addressed here.

Response to Comments

    Comment 1: The AIM comment was general in nature and pertained to 
the portion of the rule relating to the emission levels below which 
permit review for new construction or modification is not required. AIM 
stated that this issue had been the subject of discussion of a work 
group involving industry, citizen groups and the Missouri Department of 
Natural Resources (MDNR), which led up to the revision of the rule, and 
the work group is again meeting and the ``insignificant levels'' issue 
is again being reviewed. Since the rule may be revised again, AIM 
believes it is inappropriate to incorporate the rule in the SIP at this 
time. The comments from REGFORM also concerned the ``insignificant 
levels.'' REGFORM commented that the aforementioned work group was 
again meeting and that we should not approve this revision, but instead 
wait until a new rule is promulgated after the work group has completed 
its deliberations.
    Response to Comment 1: The CAA contains two limitations relating to 
EPA action on SIP submittals which are relevant to the comment. First, 
section 110(k)(2) provides, in part, that EPA must act on a SIP 
submission within 12 months after EPA determines that the SIP 
submission is ``complete.'' Second, section 110(k)(3) provides that we 
must approve a SIP revision which meets the requirements of the CAA.

[[Page 13574]]

    Because of the 12-month deadline for EPA action, we would be unable 
to merely defer action on the submission until the work group reaches 
consensus on rule changes, and MDNR makes rule changes (MDNR rulemaking 
process generally takes about one year; MDNR has not begun that process 
yet and has made no decision to begin the rulemaking process), even if 
we had a justification for deferring action pending that process. We 
also note that deferring action would leave in place the current rule, 
which contains no exemptions based on emission levels, leaving sources 
subject to a more stringent rule than the revised rule which we are 
approving into the SIP.
    Although the commenters did not suggest that EPA disapprove the 
rule, we note that disapproval would be the alternative available to 
EPA under section 110 (k)(2), and that the commenters have not provided 
any basis for EPA to disapprove the revision. The commenters state that 
it is inappropriate to approve the revision now, since it may be 
revised in the future. However, SIP revisions are always subject to 
future changes, and the CAA provides no basis for us to disapprove a 
rule merely because it might be changed later. For the reasons stated 
in the proposal and this final rule, we have determined that the SIP 
revision meets the requirements of the CAA, and we are approving it 
under section 110 (k)(3). If MDNR makes further revisions to the rule 
and submits the revisions to EPA, we will evaluate the revisions and 
determine whether to incorporate the revisions into the SIP through 
future rulemaking.
    Comment 2: REGFORM also specifically expressed concern about the 
insignificant level of 0.5 pounds per hour, below which a source is not 
subject to the rule requirements. REGFORM asserts that establishing a 
threshold in pounds per hour considerably restricts permit applicants' 
ability to qualify for an exemption, even if the source is meeting the 
yearly limit.
    Response to Comment 2: EPA recognizes that a per hour emission rate 
may be more restrictive than a daily or annual rate. However, there is 
nothing which restricts the state from setting an hourly limit. The 
state decided that the 0.5 hourly exemption level was appropriate and 
considered comments on the 0.5 hourly exemption during its public 
comment period. (The state's response to comments is contained in the 
July 29, 1999, Missouri Air Conservation Commission Briefing Document.) 
The state concluded that a short-term applicability limit was needed to 
ensure protection of short-term air quality standards. The commenter 
did not provide any information indicating that the state's choice of a 
short-term limit is inconsistent with the CAA. Therefore, EPA concludes 
that it cannot disapprove or defer action on this provision merely 
because it may be more restrictive than the annual applicability 
limits.
    Summary: The comments submitted fail to provide sufficient 
technical or statutory reasons to not fully approve the revised rule in 
the Missouri SIP. We therefore are taking final action to approve this 
rule revision as an amendment to the Missouri SIP.

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 in the April 6, 2001, Federal Register notice 
and in more detail in the technical support document which is part of 
this docket, the revision meets the substantive SIP requirements of the 
CAA, including section 110 and implementing regulations.

What Action Is EPA Taking?

    We are taking final action to approve this rule as a revision to 
the Missouri SIP.

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves 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 ``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 rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register.

[[Page 13575]]

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 May 24, 2002. 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, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: March 14, 2002.
James B. Gulliford,
Regional Administrator, Region 7.
    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart AA--Missouri

    2. In 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.

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    (c) * * *

                                                            EPA-Approved Missouri Regulations
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                                                                    State
          Missouri citation                    Title           effective date     EPA approval date                        Explanation
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                                                        Missouri Department of Natural Resources
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     Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
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10-6.060............................  Construction Permits           11/30/99  03/25/02 and FR cite...  Section 9, pertaining to hazardous air
                                       Required.                                                         pollutants, is not part of the SIP.
 
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[FR Doc. 02-7094 Filed 3-22-02; 8:45 am]
BILLING CODE 6560-50-P