[Federal Register Volume 68, Number 154 (Monday, August 11, 2003)]
[Rules and Regulations]
[Pages 47466-47468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20300]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 188-1188a; FRL-7542-3]


Approval and Promulgation of Implementation Plans; State of MO

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is announcing it is approving a revision to the Missouri 
State Implementation Plan (SIP) which establishes a state-wide air 
emissions banking and trading program. Approval of this revision will 
ensure consistency between the state and Federally-approved rules, and 
ensure Federal enforceability of the current state rules.

DATES: This direct final rule will be effective October 10, 2003, 
unless EPA receives adverse comments by September 10, 2003. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Comments may be submitted either by mail or electronically. 
Written comments should be submitted to Wayne Kaiser, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101. Electronic comments should be sent 
either to [email protected]. or to http://www.regulations.gov, which 
is an alternative method for submitting electronic comments to EPA. To 
submit comments, please follow the detailed instructions described in 
``What action is EPA taking'' in the SUPPLEMENTARY INFORMATION section.
    Copies of documents relative to this action are available for 
public inspection during normal business hours at the above-listed 
Region 7 location. 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, or by 
e-mail at [email protected].

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?

10 CSR 10-6.410 Emissions Banking and Trading

    In order to fulfill the requirements of Section 643.220 of the 
Revised Statutes of Missouri, the Missouri Department of Natural 
Resources (MDNR) proposed and adopted a new emissions banking and 
trading rule, 10 CSR 10-6.410. This rule became effective on April 30, 
2003.
    Banking and trading programs are a market-based approach to 
improving air quality. The basic unit for transactions in this program 
is the emission reduction credit (ERC), which is a certified, permanent 
emission reduction equal to one ton per year of a criteria pollutant or 
precursor. A facility generates ERCs by voluntarily emitting below 
applicable requirements. As this new, lower emission level is 
incorporated into the facility's operating permit, this reduction is 
permanent. These credits can be traded, sold, or banked for later use. 
Another facility can purchase these credits and use them to offset 
emissions from expansion of existing facilities or construction of new 
facilities. ERCs cannot be used to avoid New Source Review (NSR) 
applicability or requirements for technology-based standards such as 
lowest achievable emission rate, best available control technology or 
reasonably available control technology. Credits can also be purchased 
to be retired, thereby reducing potential emissions in an area.
    Missouri's emissions banking and trading program contains a number 
of measures to ensure that air quality is protected. First of all, ERCs 
must be real, properly quantified, permanent and surplus (not already 
relied upon or required by the SIP, a state or local law, ordinance or 
regulation, the Clean Air Act or other Federal law or regulation, an 
enforcement action, or a consent decree). Second, ERCs may only be used 
in the same maintenance area, nonattainment area or modeling domain in 
which they were generated. ERCs

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may be used to offset only emissions of the same criteria pollutant or 
precursor as were reduced to generate them. For example, volatile 
organic compound (VOC) reductions may only be used to offset VOC 
emissions. If credits are to be used in an area subject to an offset 
ratio, enough credits must be purchased to compensate for emissions 
plus the area's offset ratio. These credits are permanently retired. 
Also, the available emissions credits in an area are reduced by an 
annual three per cent (3%) from the pool of banked credits. Finally, 
nothing in the rule is intended to limit the authority of the Missouri 
Air Conservation Commission to terminate or limit a facility's 
authorization to emit.
    We note, in particular, that the new rule merely provides a 
mechanism for tracking ERCs. It does not in any way impact how ERCs may 
be used under rules such as Missouri's prevention of significant 
deterioration and nonattainment new source review programs (10 CSR 10-
6.410(3)(B)5).
    The management of the emissions banking and trading program will be 
handled by the Air Pollution Control Program (APCP) of the MDNR.

10 CSR 10-6.060 Construction Permits Required

    The offset and banking provisions of this rule were deleted since 
these provisions were incorporated into the new emissions banking and 
trading rule. Specifically, Appendix C, Offsets, and Appendix D, 
Banking, were deleted. Additionally, references to these appendices 
were deleted and references to the new banking and trading rule were 
added in sections (7)(B), (8)(C), and (8)(E). This revision became 
effective April 30, 2003.
    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 document, the revision meets the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations.

What Action Is EPA Taking?

    We are approving as an amendment to the Missouri SIP a revision to 
rule 10 CSR 10-6.060 and new rule 10 CSR 10-6.410, which were effective 
in the state on April 30, 2003.
    We are processing this action as a final action because the 
revisions make routine changes to the existing rules which are 
noncontroversial. Therefore, we do not anticipate any adverse comments. 
Please note that if EPA receives adverse comment on part of this rule 
and if that part can be severed from the remainder of the rule, EPA may 
adopt as final those parts of the rule that are not the subject of an 
adverse comment.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number, MO 188-1188a, in the subject line on the first 
page of your comment. Please ensure that your comments are submitted 
within the specified comment period. Comments received after the close 
of the comment period will be marked ``late.'' EPA is not required to 
consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    a. Electronic mail. Comments may be sent by e-mail to 
[email protected]. Please include identification number, MO 188-
1188a, in the subject line. EPA's e-mail system is not an ``anonymous 
access'' system. If you send an e-mail comment directly without going 
through Regulations.gov, EPA's e-mail system automatically captures 
your e-mail address. E-mail addresses that are automatically captured 
by EPA's e-mail system are included as part of the comment that is 
placed in the official public docket.
    b. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, click on ``To Search for Regulations,'' then 
select Environmental Protection Agency and use the ``go'' button. The 
list of current EPA actions available for comment will be listed. 
Please follow the online instructions for submitting comments. The 
system is an ``anonymous access'' system, which means EPA will not know 
your identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    2. By Mail. Written comments should be sent to the name and address 
listed in the ADDRESSES section of this document.

Statutory and Executive Order Reviews

    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,

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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. 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 October 10, 2003. 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, Nitrogen 
dioxide, Particulate matter, Ozone, Reporting and recordkeeping 
requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: July 31, 2003.
William 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 and adding a new entry for 10-6.410 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
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                                    Missouri Department of Natural Resources
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                                                  * * * * * * *
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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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                                                  * * * * * * *
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10-6.060.........................  Construction                4/30/03  August 11, 2003 and  Section 9,
                                    Permits Required.                    [FR page citation].  pertaining to
                                                                                              hazardous air
                                                                                              pollutants, is not
                                                                                              SIP approved.
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                                                  * * * * * * *
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10-6.410.........................  Emissions Banking           4/30/03  August 11, 2003 and
                                    and Trading.                         [FR page citation].
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                                                  * * * * * * *
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[FR Doc. 03-20300 Filed 8-8-03; 8:45 am]
BILLING CODE 6560-50-P