[Federal Register Volume 71, Number 132 (Tuesday, July 11, 2006)]
[Rules and Regulations]
[Pages 38997-39001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6092]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2005-MO-0005; FRL-8192-4]


Approval and Promulgation of Implementation Plans and Operating 
Permits Program; State of Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action on Missouri's request to 
incorporate two new rules and three revised rules into the State 
Implementation Plan (SIP) and Part 70 Operating Permit program. All of 
the rules pertain to Missouri's air permits program. Because of the 
state's request for approval of portions of the rules, EPA is not 
taking final action on all of the state-adopted rules. We are approving 
revisions to the Construction Permits Required rule and conditionally 
approving portions of the Construction Permits Required rule, which 
reference the Construction Permits by Rule. We are approving the 
Construction Permit Exemptions rule, except for the livestock markets 
and livestock operations exemption. We are conditionally approving the 
Construction Permits By Rule except for the livestock markets and 
livestock operations exemption.

EFFECTIVE DATE: This rule is effective on August 10, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2005-MO-0005. 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

[[Page 38998]]

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 hours of business are 
Monday through Friday, 8:00 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 a SIP?
What Is the Federal Approval Process for a SIP?
What Does Federal Approval of a State Regulation Mean to Me?
What Is the Part 70 Operating Permits Program?
What Is the Federal Approval Process for an Operating Permits 
Program?
What Is Being Addressed in This Document?
Have the Requirements for Approval of a SIP Revision and a Part 70 
Revision Been Met?
What action is EPA taking?

What Is a SIP?

    Section 110 of the Clean Air Act (CAA or Act) requires states to 
develop air pollution regulations and control strategies to ensure that 
state air quality meets the national ambient air quality standards 
(NAAQS) 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 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 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. If a state regulation is disapproved, it is not 
incorporated into the Federally-approved SIP and is not enforceable by 
EPA or by citizens under section 304. In the case of a revision to a 
Federally-approved state regulation, disapproval of the revision means 
that the underlying state regulation prior to the state's revision 
remains as the Federally enforceable requirement.

What Is the Part 70 Operating Permits Program?

    The CAA amendments of 1990 require all states to develop operating 
permits programs that meet certain Federal criteria. In implementing 
this program, the states are to require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. One purpose of the part 70 operating permits program is 
to improve enforcement by issuing each source a single permit that 
consolidates all of the applicable CAA requirements into a Federally-
enforceable document. By consolidating all of the applicable 
requirements for a facility into one document, the source, the public, 
and the permitting authorities can more easily determine what CAA 
requirements apply and how compliance with those requirements is 
determined.
    Sources required to obtain an operating permit under this program 
include ``major'' source of air pollution and certain other sources 
specified in the CAA or in our implementing regulations. For example, 
all source regulated under the acid rain program, regardless of size, 
must obtain permits. Examples of major sources include those that emit 
100 tons per year or more of volatile organic compounds, carbon 
monoxide, lead, sulfur dioxide, nitrogen dioxide or PM10; 
those that emit 10 per year of any single hazardous air pollutant (HAP) 
(specifically listed under the CAA); or those that emit 25 tons per 
year or more of a combination of HAPs.
    Revisions to the state and local agencies operating permits program 
are also subject to public notice, comment and our approval.

What Is the Federal Approval Process for an Operating Permits Program?

    In order for state regulations to be incorporated into the 
Federally enforceable part 70 operating permits program, states must 
formally adopt regulations consistent with state and Federal 
requirements. This process generally includes a public notice, public 
hearing, pubic comment period, and 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 approved operating 
permits program. 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 502 of the CAA are incorporated into the Federally-
approved operating permits program. Records of such actions are 
maintained in the CFR at Title 40, part 70, appendix A, entitled, 
``Approval Status of State and Local Operating Permits Programs.''

[[Page 38999]]

What Is Being Addressed in This Document?

    On July 14, 2004, Missouri requested that EPA revise the SIP to 
include two new rules and three revised rules and revise the Part 70 
program to include revisions to two rules. All of these rules pertain 
to Missouri's air permit program and will assist in effective 
management of Missouri's air permitting program and provide clarity to 
the program. These rules were adopted by the Missouri Air Conservation 
Commission on June 26, 2003, and became effective under state law on 
October 30, 2003. When Missouri submitted these rules to EPA, Missouri 
included the comments made on the rules during the state's adoption 
process, the state's response to comments, and other information 
necessary to meet EPA's completeness criteria. For additional 
information on the completeness criteria, the reader should refer to 40 
CFR part 51, appendix V.
    On March 22, 2006 (71 FR 14439), EPA published a proposed rule on 
MDNR's request to revise the SIP. No comments were received, and EPA is 
proceeding by taking final action in response to this request.
    We are approving MDNR's request to include, as a revision to 
Missouri's SIP and Part 70 Operating Permit program, amendments to rule 
10 CSR 10-6.020, Definitions and Common Reference Tables. We are 
approving and conditionally approving revisions to the Construction 
Permits Required rule, 10 CSR 10-6.060. The parts of rule 10 CSR 10-
6.060 that are being conditionally approved are the references to 10 
CSR 10-6.062, Construction Permits By Rule, which is being 
conditionally approved in its entirety, as discussed later in this 
document.
    We are also approving the Construction Permit Exemptions rule, 10 
CSR 10-6.061, except for subparagraph (3)(A)2.D, of 10 CSR 10-6.061 
which is an exemption for livestock markets and livestock operations 
constructed on or before November 30, 2003. We are not acting on this 
section because Missouri withdrew this section from its request in an 
October 25, 2005, letter from the Director of Missouri's Air Pollution 
Control Program to the EPA Region 7 Regional Administrator.
    We are also conditionally approving the Construction Permits By 
Rule, 10 CSR 10-6.062. This final conditional approval does not include 
paragraph (3)(B)4., which is a permit by rule for livestock operations. 
In an October 25, 2005, request from the Director of MDNR's Air 
Pollution Control Program to EPA Region 7 Regional Administrator, 
Missouri withdrew this section from its request for EPA approval. EPA 
is conditionally approving this rule because it does not expressly 
include a mechanism for pre-construction review of applications 
received from the facilities that want to operate under this rule. 
Section 110(a)(2)(C) of the CAA requires that each SIP include a 
program to regulate construction and modification of sources to ensure 
that the NAAQS are achieved. EPA's implementing regulation provides 
that the plan must include procedures, ``by which the state * * * will 
prevent such construction or modification'' where the source or 
modification would violate a control strategy or interfere with 
attainment or maintenance of the NAAQS (see 40 CFR 51.160(b)). Because 
Missouri's Construction Permits By Rule, as adopted on June 26, 2003, 
appears to authorize construction to begin before any air quality 
review occurs, and the rule only provides for revocation of a permit 
after the source begins construction or operation, EPA believes that 
Missouri's preconstruction permit program is deficient with respect to 
sources which may qualify for the Permit By Rule. With respect to these 
sources, the rule does not clearly authorize Missouri to prevent 
construction or modification before construction or modification 
begins.
    In order to rectify these deficiencies, the Missouri Air 
Conservation Commission (MACC) adopted a resolution on December 8, 
2005, which is intended to clarify that Missouri, in administering this 
rule, will require a preconstruction review period before sources may 
begin construction and will amend the Construction Permits by Rule to 
expressly include a preconstruction review period. The MACC also 
directed the Missouri Department of Natural Resources' Air Pollution 
Control Program to complete revisions to this rule within twelve months 
of the December 2005 resolution. During the interim period required to 
promulgate an effective rule, the program is directed to conduct a 
maximum seven day review period procedure for permit by rule 
notifications submitted in accordance with Missouri rule 10 CSR 10-
6.062, Construction Permits by Rule.
    Because the MACC resolution serves to clarify preconstruction 
review, which is an issue of significant concern to EPA, we are 
conditionally approving into the SIP Missouri rule 10 CSR 10-6.062, 
Construction Permits by Rule. Section 110(k)(4) of the CAA states that 
EPA may conditionally approve a plan based on a commitment from the 
state to adopt specific enforceable measures within one year from the 
date of approval. If the state fails to meet its commitment within the 
one-year period, the approval is treated as a disapproval. As such, 
this rule is being approved with the condition that Missouri must 
revise the Construction Permits By Rule to incorporate a 
preconstruction review period and submit this revised rule for 
inclusion into the SIP to EPA within one year of the date of this 
approval.
    Finally, Missouri's submittal includes revisions to Missouri's 
Operating Permits Rule in 10 CSR 10-6.065. The rule revisions for rule 
10 CSR 10-6.065 relate solely to the state's basic operating permit 
program that are not included in Missouri's approved Part 70 Operating 
Permits program or SIP. Therefore, we are not acting on these 
revisions.

Have the Requirements for Approval of a SIP Revision and a Part 70 
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 (TSD) that is part of this rule, except as noted with 
respect to the permits by rule provision discussed above, the revisions 
meet the substantive SIP requirements of the CAA, including section 110 
and implementing regulations. Finally, the submittal met the 
substantive requirements of Title V of the 1990 CAA Amendments and 40 
CFR part 70.

What Action Is EPA Taking?

    EPA is taking four actions:
    (1) EPA is approving revisions to the Definitions and Common 
Reference Tables rule in the SIP and Part 70 Operating Permit Program.
    (2) EPA is approving, as an amendment to the SIP, revisions to the 
Construction Permits Required rule and conditionally approving portions 
of the Construction Permits Required rule, which reference the 
Construction Permits by Rule.
    (3) EPA is approving into the SIP a new rule, Construction Permit 
Exemptions, except for the livestock markets and livestock operations 
exemption which was withdrawn in an October 25, 2005, request from the 
state of Missouri.
    (4) EPA is conditionally approving, as an amendment to the Missouri 
SIP, the Construction Permits By Rule except for the livestock markets 
and livestock operations exemption, which was

[[Page 39000]]

withdrawn in an October 25, 2005, request from the state of Missouri.

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 state 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 State submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a State 
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 September 11, 2006. 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, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: June 27, 2006.
James B. Gulliford,
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:
0
a. Revising the entries for 10-6.020 and 10-6.060.
0
b. Adding entries for 10-6.061 and 10-6.062.
    The revisions and additions read as follows:


Sec.  52.1320  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
                                                             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
 

[[Page 39001]]

 
                                                  * * * * * * *
10-6.020.........................  Definitions and          10/30/2003  07/11/06 [insert FR  ...................
                                    Common Reference                     page number where
                                    Tables.                              the document
                                                                         begins].
 
                                                  * * * * * * *
10-6.060.........................  Construction             10/30/2003  07/11/06 [insert FR  We are
                                    Permits Required.                    page number where    conditionally
                                                                         the document         approving
                                                                         begins].             references to 10
                                                                                              CSR 10-6.062
                                                                                              contained in the
                                                                                              last sentence of
                                                                                              Section (1)(B) and
                                                                                              all of section
                                                                                              (1)(D).
10-6.061.........................  Construction Permit      10/30/2003  07/11/06 [insert FR  Section (3)(A)2.D.
                                    Exemptions.                          page number where    is not included in
                                                                         the document         the SIP.
                                                                         begins].
10-6.062.........................  Construction             10/30/2003  07/11/06 [insert FR  We are
                                    Permits By Rule..                    page number where    conditionally
                                                                         the document         approving this
                                                                         begins].             rule except for
                                                                                              Section (3)(B)4.,
                                                                                              which is not
                                                                                              included in the
                                                                                              SIP.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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

Appendix A--[Amended]

0
2. Appendix A to part 70 is amended by adding paragraph (r) under 
Missouri to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Missouri

* * * * *
    (r) The Missouri Department of Natural Resources submitted 
revisions to Missouri rule 10 CSR 10-6.020, ``Definitions and Common 
Reference Tables,'' on June 30, 2004, approval effective August 10, 
2006.
* * * * *
[FR Doc. 06-6092 Filed 7-10-06; 8:45 am]
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