[Federal Register Volume 71, Number 123 (Tuesday, June 27, 2006)]
[Rules and Regulations]
[Pages 36486-36489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5713]


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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

[[Page 36487]]

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 (913) 551-7942, 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 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

[[Page 36488]]

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

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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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