[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Proposed Rules]
[Pages 17585-17592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7470]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2011-0309; FRL-9287-9]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP) submittal from the state of Missouri addressing the requirements 
of Clean Air Act (CAA) sections 110(a)(1) and (2) for the 1997 
revisions to the National Ambient Air Quality Standards (NAAQS) for 
ozone. Section 110(a)(1) requires that each state adopt and submit a 
SIP to support implementation of each new or revised NAAQS promulgated 
by the EPA and these SIPs are commonly referred to as 
``infrastructure'' SIPs. EPA believes that Missouri's infrastructure 
SIP adequately addresses the elements described in section 110(a)(2) 
and further described in the October 2, 2007, guidance for 
infrastructure SIPs issued by the EPA Office of Air Quality Planning 
and Standards. However, because EPA already approved the portion of 
Missouri's SIP submittal relating to the interstate transport 
infrastructure element, section 110(a)(2)(D)(i), this proposed 
rulemaking does not address the interstate transport element, nor does 
this proposal reopen any aspect of EPA's prior action on the interstate 
transport element. Furthermore, this action does not address 
infrastructure requirements with respect to the 1997 PM2.5 
NAAQS or the 2006 revisions to the NAAQS. Those requirements will be 
addressed in future rulemaking.

DATES: Comments must be received on or before April 29, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2011-0309 by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Mail: Ms. Elizabeth Kramer, Air Planning and Development Branch, 
U.S. Environmental Protection Agency, Region 7, Air and Waste 
Management Division, 901 North 5th Street, Kansas City, Kansas 66101.
    4. Hand Delivery or Courier: Deliver your comments to Ms. Elizabeth 
Kramer, Air Planning and Development Branch, U.S. Environmental 
Protection Agency, Region 7, Air and Waste Management Division, 901 
North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2011-0309. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and should be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 
66101, from 8 a.m. to 4:30 p.m., Monday through Friday,

[[Page 17586]]

excluding legal 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: Ms. Elizabeth Kramer, Air Planning and 
Development Branch U.S. Environmental Protection Agency, Region 7, 901 
North 5th Street, Kansas City, Kansas 66101; telephone number: (913) 
551-7186; fax number: (913) 551-7844; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we refer to EPA. This section provides 
additional information by addressing the following questions:

I. What is a section 110(a)(1) and (2) infrastructure SIP?
II. What elements are applicable under section 110(a)(1) and (2)?
III. What is EPA's evaluation of how the state addressed the 
relevant elements of section 110(a)(1) and (2)?
IV. What action is EPA proposing?
V. Statutory and Executive Order Reviews

I. What is a section 110(a)(1) and (2) infrastructure SIP?

    Section 110(a)(1) and (2) of the CAA require, in part, that states 
submit to EPA plans to implement, maintain and enforce each of the 
NAAQS promulgated by EPA. These provisions require states to address 
basic SIP requirements including, for example, adequate provisions for 
emission inventory development, monitoring, and modeling to assure 
attainment and maintenance of the applicable standards. By statute, 
SIPs meeting the requirements of section 110(a)(1) and (2) are to be 
submitted by states within three years after promulgation of a new or 
revised standard. These SIPs are commonly referred to as 
``infrastructure'' SIPs.

II. What elements are applicable under section 110(a)(1) and (2)?

    On October 2, 2007, EPA issued guidance to address infrastructure 
SIP elements required under section 110(a)(1) and (2) for the 1997 8-
hour ozone and PM2.5 NAAQS.\1\ EPA will address these 
elements below under the following headings: (A) Emission limits and 
other control measures; (B) Ambient air quality monitoring/data system; 
(C) Program for enforcement of control measures (PSD, New Source Review 
for nonattainment areas, and construction and modification of all 
stationary sources); (D) Interstate and international transport; (E) 
Adequate authority, resources, implementation, and oversight; (F) 
Stationary source monitoring system; (G) Emergency authority; (H) 
Future SIP revisions; (I) Nonattainment areas; \2\ (J) Consultation 
with government officials, public notification, prevention of 
significant deterioration (PSD), and visibility protection; \3\ (K) Air 
quality and modeling/data; (L) Permitting fees; and (M) Consultation/
participation by affected local entities.\4\
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    \1\ William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards. ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality 
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X, 
October 2, 2007.
    \2\ As discussed in further detail below, subsection 
110(a)(2)(I) is not applicable for the infrastructure SIP approval 
process and therefore EPA will take action on the requirements of 
part D attainment plans separately.
    \3\ As discussed in further detail below, subsection 
110(a)(2)(J), as it relates to visibility protection, is also not 
applicable for the infrastructure SIP approval process, and 
therefore EPA is not addressing it in today's proposed rulemaking.
    \4\ This action also does not address infrastructure 
requirements with respect to the 1997 PM2.5 NAAQS or the 
2006 revisions to the NAAQS. Those requirements will be addressed in 
future rulemaking.
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III. What is EPA's evaluation of how the state addressed the relevant 
elements of section 110(a)(1) and (2)?

    On July 18, 1997, EPA promulgated new 8-hour ozone and new fine 
particulate matter primary and secondary NAAQS. (62 FR 38894; 62 FR 
38711.) On February 27, 2007, EPA Region 7 received the state of 
Missouri's ozone and particulate matter infrastructure SIP submittal. 
The SIP submission was determined to be complete on March 27, 2007. EPA 
has reviewed the state's formal submission and the relevant statutory 
and regulatory authorities and provisions generally referenced in the 
submittal from Missouri.
    As described below, today's action only pertains to the 1997 ozone 
standard; it does not pertain to EPA's 1997 promulgation of the 
PM2.5 standards. In addition, it does not address issues 
relating to interstate transport under section 110(a)(2)(D)(i), which 
have already been addressed for the 1997 ozone and PM2.5 
NAAQS in prior rulemaking (72 FR 25975).
    Missouri's SIP submittal addresses the provisions of section 
110(a)(1) and (2) as described below. EPA believes that Missouri has 
the adequate infrastructure needed to address all applicable elements 
of section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS.
    (A) Emission limits and other control measures: Section 
110(a)(2)(A) requires SIPs to include enforceable emission limits and 
other control measures, means or techniques, schedules for compliance 
and other related matters as needed to implement, maintain and enforce 
each NAAQS.
    The state of Missouri's Air Conservation Law and Air Pollution 
Control Rules authorize the Missouri Department of Natural Resources 
(MDNR) to regulate air quality and implement air quality control 
regulations. Section 643.030 of the Missouri Revised Statutes (``Air 
Conservation Law'') authorizes the ``Air Conservation Commission of the 
State of Missouri'' (MACC) to control air pollution, which is defined 
in Section 643.020 to include air contaminants, which cause or 
contribute to injury to public health or welfare. Section 643.050 
authorizes the MACC to classify and identify air contaminants.
    State rule 10 Code of State Regulations (CSR) 10-6.010 (``Ambient 
Air Quality Standards'') adopts the 1997 ozone standards promulgated by 
EPA. EPA also notes that emissions from new and existing sources of 
both volatile organic compounds (VOCs) and nitrogen oxides 
(NOX)--which are known ozone precursors \5\--are also 
regulated (e.g., 10 CSR 10-2.360 relating to VOC emissions from bakery 
ovens in Kansas City, 10 CSR 10-5.510 relating to NOX 
emissions from various sources in the St. Louis area). In addition, 10 
CSR 10-6.040 incorporates by reference the relevant appendices in 40 
CFR part 50 for measuring and calculating the concentration of 
photochemical oxidants (ozone) in the atmosphere to determine whether 
the ozone standards have been met. Therefore, ozone is an air 
contaminant which may be regulated under Missouri law.
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    \5\ VOCs and NOX as precursors to ozone are also 
discussed in element (C).
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    Section 643.050 of the Air Conservation Law authorizes the MACC, 
among other things, to regulate the use of air contaminant sources and 
to establish emissions limitations for air contaminant sources. 
Missouri also establishes timetables for compliance in its rules, as 
appropriate. Appendix A of the state submittal contains a link to the 
Missouri Air Conservation Law and Appendix C contains a link to 
Missouri's Effective State Rules and Forms.
    EPA notes that 10 CSR 10-6.050 provides that sources may submit 
information relating to excess emissions during startup, shutdown or 
malfunction (SSM) events, but expressly provides that nothing in this 
rule limits the ability of MDNR or the MACC to

[[Page 17587]]

take appropriate enforcement action. In today's proposed rulemaking, 
EPA is not proposing to approve or disapprove any existing state 
provisions with regard to excess emissions during a SSM of operations 
at a facility. EPA believes that a number of states have SSM provisions 
that are contrary to the Clean Air Act and existing EPA guidance,\6\ 
and the Agency plans to address such state regulations in the future. 
In the meantime, EPA encourages any state having a deficient SSM 
provision to take steps to correct it as soon as possible.
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    \6\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation. ``State Implementation Plans (SIPs): Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown.'' Memorandum to EPA Air Division Directors, September 20, 
1999.
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    EPA also notes that the Air Conservation Law contains provisions at 
Sections 643.055 and 643.110, which give the MACC the authority, under 
certain circumstances, to grant variances from rules and regulations 
established pursuant to the Clean Air Act.\7\ Furthermore, the Missouri 
air regulations contain provisions which allow the Director of MDNR to 
exercise his or her discretion to approve alternatives to the Missouri 
regulations (see, e.g., 10 CSR 10-6.030(19), which allows for the use 
of an alternative sampling method). In this action, EPA is not 
proposing to approve or disapprove any existing state rules with regard 
to ``variance'' or ``Director's discretion'' provisions. EPA believes 
that a number of states have such provisions that are contrary to the 
Clean Air Act and existing EPA guidance,\8\ and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a ``variance'' or 
``Director's discretion'' provision that is contrary to the Clean Air 
Act and EPA guidance to take steps to correct the deficiency as soon as 
possible.
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    \7\ With respect to Missouri, we note that the EPA-approved SIP 
rules do not contain variance provisions. In any event, any 
variances issued by the MACC under its statutory authority must be 
approved by EPA as revisions to the SIP before they can alter any 
requirements of the approved SIP (see, 40 CFR 51.104(d)).
    \8\ J. Craig Potter, Assistant Administrator for Air and 
Radiation, Thomas L. Adams, Jr., Assistant Administrator for 
Enforcement and Compliance Monitoring, and Francis S. Blake, General 
Counsel, Office of General Counsel. ``Review of State Implementation 
Plans and Revisions for Enforceability and Legal Sufficiency.'' 
Memorandum, September 23, 1987. See also 52 FR 45109 (November 24, 
1987).
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    EPA believes that Missouri has statutory and regulatory authority 
to establish additional emissions limitations and other measures, as 
necessary to address attainment and maintenance of the ozone standards. 
Therefore, EPA believes that the Missouri SIP adequately addresses the 
requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.
    (B) Ambient air quality monitoring/data system: Section 
110(a)(2)(B) requires SIPs to include provisions to provide for 
establishment and operation of ambient air quality monitors, collection 
and analysis of ambient air quality data, and making these data 
available to EPA upon request.
    To address this element, section 643.050 of the Air Conservation 
Law provides the enabling authority necessary for Missouri to fulfill 
the requirements of section 110(a)(2)(B). The Air Pollution Control 
Program and Air Quality Analysis Section, within MDNR, implement these 
requirements. Along with their other duties, the monitoring program 
collects air monitoring data, quality assures the results, and reports 
the data.
    MDNR submits annual monitoring network plans to EPA for approval, 
including plans for its ozone monitoring network, as required by 40 CFR 
58.10.\9\ Prior to submission to EPA, Missouri makes the plans 
available for public review on MDNR's Web site. See http://dnr.mo.gov/env/apcp/monitoring/monitoringnetworkplan.pdf. MDNR also conducts five-
year monitoring network assessments, including the ozone monitoring 
network, as required by 40 CFR 58.10(d). On October 27, 2010, EPA 
approved Missouri's 2010 Ambient Air Quality Monitoring Plan and 
Missouri's Five-Year Air Monitoring Network Assessment. As mentioned 
previously under element (A), 10 CSR 10-6.040(4)(D) requires that 
ambient concentrations of ozone be measured in accordance with the 
applicable Federal regulations in 40 CFR Part 50, App. D, or equivalent 
methods as approved by EPA pursuant to 40 CFR Part 53. Missouri submits 
air quality data to EPA's Air Quality System (AQS) system quarterly, 
pursuant to the provisions of work plans developed in conjunction with 
EPA grants to the state.
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    \9\ See http://www.dnr.mo.gov/env/esp/aqm/critmap.htm, for a 
description of the monitoring network for all pollutants, including 
identification of locations for the ozone monitoring network.
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    Based on the foregoing, EPA believes that the Missouri SIP meets 
the requirements of section 110(a)(2)(B) for the 1997 8-hour ozone 
NAAQS.
    (C) Program for enforcement of control measures (PSD, New Source 
Review for nonattainment areas, and construction and modification of 
all stationary sources): Section 110(a)(2)(C) requires states to 
include the following elements in the SIP: (1) A program providing for 
enforcement of all SIP measures described in section 110(a)(2)(A); (2) 
a program for the regulation of the modification and construction of 
stationary sources as necessary to protect the applicable NAAQS; and 
(3) a permit program to meet the major source permitting requirements 
of the Act (including the program for areas designated as not attaining 
the NAAQS, and a program for the prevention of significant 
deterioration of air quality program in other areas). As discussed in 
further detail below, this infrastructure SIP rulemaking will not 
address the Missouri program for nonattainment area-related provisions, 
since these submittals are not applicable for the infrastructure SIP 
approval process.
    (1) With respect to enforcement of requirements of the SIP, the 
Missouri statutes provide authority for MDNR to enforce the 
requirements of the Air Conservation Law, and any regulations, permits, 
or final compliance orders issued under the provisions of that law. For 
example, Section 643.080 of the Air Conservation Law authorizes MDNR to 
issue compliance orders for violations of the Air Conservation Law, 
rules promulgated thereunder (which includes rules comprising the 
Missouri SIP), and conditions of permits (which includes permits under 
SIP-approved permitting programs). Section 643.085 authorizes MDNR to 
assess administrative penalties for violations of the statute, 
regulations, permit conditions, or administrative orders. Section 
643.151 authorizes the MACC to initiate civil actions for these 
violations, and to seek penalties and injunctive relief to prevent any 
further violation. Section 643.191 provides for criminal penalties for 
knowing violations of the statute, regulations or permit conditions, in 
addition to other acts described in that section.
    (2) Section 110(a)(2)(C) also requires that the SIP include 
measures to regulate construction and modification of stationary 
sources to protect the NAAQS. With respect to smaller sources 
(Missouri's major source permitting program is discussed in (3) below), 
Missouri has a program under rule 10 CSR 10-6.060 to review such 
sources to ensure, among other requirements, that new and modified 
sources will not interfere with NAAQS attainment. The state rule 
contains two general categories of sources subject to the minor source 
permitting program. The first category is ``de minimis'' sources 
(regulated at 10 CSR 10-6.060(5))--sources which are not exempt by 
virtue

[[Page 17588]]

of rule 10-6.061, permit exemptions, and emit below specified levels 
(e.g., 40 tons per year of VOCs). De minimis sources which emit above 
certain levels specified in rule 10-6.061 (e.g., 2.75 pounds per hour 
of NOx or VOCs, and, for VOCs that do not contain hazardous 
air pollutants, more than 4 tons per year) are required to do an 
ambient air quality analysis to show that they are not adversely 
impacting the NAAQS. MDNR may also require impact analyses for other 
sources (sources lower than these levels) that may be likely to 
adversely affect air quality. 10 CSR 10-6.060(5).
    Missouri also requires preconstruction permits for a second 
category of sources above the de minimis levels, but below the major 
source levels. Permits for these sources may only be issued after a 
determination, among other requirements, that the proposed source or 
modification would not interfere with attainment or maintenance of a 
NAAQS. 10 CSR 10-6.060(6).
    EPA has determined that Missouri's minor new source review (NSR) 
program adopted pursuant to section 110(a)(2)(C) of the Act regulates 
emissions of ozone and its precursors. EPA has also determined that 
certain provisions of the state's minor NSR program adopted pursuant to 
section 110(a)(2)(C) of the Act likely do not meet all the requirements 
found in EPA's regulations implementing that provision. See 40 CFR 
51.160-51.164. EPA previously approved Missouri's minor NSR program 
into the SIP, and at the time there was no objection to the provisions 
of this program. See 61 FR 7714 (February 29, 1996) (originally 
approved at 37 FR 10842 (May 31, 1972). Since then, the state and EPA 
have relied on the existing state minor NSR program to assure that new 
and modified sources not captured by the major NSR permitting programs 
do not interfere with attainment and maintenance of the NAAQS.
    In this action, EPA is proposing to approve Missouri's 
infrastructure SIP for ozone with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the state's existing minor NSR program itself to the extent 
that it is inconsistent with EPA's regulations governing this program. 
EPA believes that a number of states may have minor NSR provisions that 
are contrary to the existing EPA regulations for this program. EPA 
intends to work with states to reconcile state minor NSR programs with 
EPA's regulatory provisions for the program. The statutory requirements 
of section 110(a)(2)(C) provide for considerable flexibility in 
designing minor NSR programs, and EPA believes it may be time to 
revisit the regulatory requirements for this program to give the states 
an appropriate level of flexibility to design a program that meets 
their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    (3) Missouri also has a program approved by EPA as meeting the 
requirements of Part C, relating to prevention of significant 
deterioration of air quality. Missouri's implementing rule, 10 CSR 10-
6.060(8), incorporates the relevant portions of the Federal rule, 40 
CFR 52.21, by reference, including the relevant portions of EPA's ``NSR 
reform'' rule promulgated by EPA on December 31, 2002. In this action, 
EPA is not proposing to approve or disapprove any state rules with 
regard to NSR reform requirements. EPA will act on NSR reform 
submittals through a separate rulemaking process. For Missouri, we have 
previously approved the relevant portions of Missouri's NSR reform 
rules for attainment areas. See 71 FR 36486 (June 27, 2006).
    The Missouri SIP also contains a permitting program for major 
sources and modifications in nonattainment areas; however, this 
requirement is not addressed in this rulemaking (see discussion of the 
section 110(a)(2)(I) requirements for nonattainment areas, below).
    With respect to the PSD program, EPA notes that the Missouri SIP 
provides that ozone precursors (volatile organic compounds--VOC and 
nitrogen oxides--NOx) are regulated. For example, a source 
that is major for NOx is major for ozone under the state's 
prevention of significant deterioration of air quality program in rule 
10 CSR 10-6.060(8). In addition, rules 10 CSR 10-6.060(1)(A) and 10-
6.060(8)(A) incorporate 40 CFR 52.21(b)(50)(i)(a) by reference. The 
latter regulation specifically identifies volatile organic compounds 
and nitrogen oxides as precursors to ozone in all attainment and 
unclassifiable areas.
    Finally, with respect to the applicability of the Missouri PSD 
program to greenhouse gas (GHG) emissions, EPA notes that Missouri 
promulgated an emergency amendment to its rules effective January 3, 
2011, to ensure that it maintains full authority over its permitting 
program with respect to GHGs and avoids an overwhelming increase in the 
number of required permits and resulting burden on Missouri's 
permitting resources. See 36 Missouri Register 218-219 (January 18, 
2011). Although this emergency amendment expires on July 2, 2011, EPA 
understands that prior to that date, Missouri intends to take further 
regulatory action to more permanently address GHGs.\10\
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    \10\ Missouri proposed regulations, by notice dated February 15, 
2011, to adopt EPA's ``tailoring rule'' (75 FR 31514, June 3, 2010).
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    In the interim, on March 8, 2011, Missouri informed EPA that the 
infrastructure SIP for the 1997 ozone standard that it submitted on 
February 22, 2007 only covered the portion of Missouri's PSD program 
that remained approved after promulgation of EPA's GHG PSD ``Narrowing 
Rule'' (75 FR 82536, December 30, 2010).\11\ Therefore, EPA believes 
that it can approve the SIP submission as meeting the applicable 
infrastructure SIP requirements for the PSD requirements referenced in 
section 110(a)(2)(C).
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    \11\ The narrowing rule, in effect, narrowed EPA's approval of 
Missouri's PSD program for GHGs so that the approved SIP would only 
cover sources of GHGs consistent with the timing and thresholds 
specified by EPA in the tailoring rule referenced previously.
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    On the basis of the foregoing, EPA believes that the Missouri SIP 
and underlying statutory authority are adequate to meet the 
requirements of section 110(a)(2)(C) for the 1997 8-hour ozone NAAQS.
    (D) Interstate and international transport: Section 110(a)(2)(D)(i) 
requires SIPs to include provisions prohibiting any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment in, or interfering with maintenance by, another state 
with respect to the NAAQS, or from interfering with measures required 
in another state to prevent significant deterioration of air quality or 
to protect visibility.
    Missouri addressed the provisions of section 110(a)(2)(D)(i), as it 
relates to the 1997 ozone and PM standards, in the SIP submission 
received by EPA on February 27, 2007. EPA approved the portion of the 
Missouri SIP submittal relating to section 110(a)(2)(D)(i), on May 8, 
2007 (72 FR 25975). Therefore, the proposed action addressed in this 
notice does not include the interstate transport elements, nor does 
this rulemaking reopen any aspect of EPA's prior action on the 
transport elements for Missouri for the 1997 standards.
    Section 110(a)(2)(D)(ii) requires that the SIP insure compliance 
with the

[[Page 17589]]

applicable requirements of Sections 126 and 115, relating to interstate 
and international pollution abatement.
    Missouri sources have not been identified by EPA as having any 
interstate or international impacts under Section 126 or Section 115 in 
any pending actions relating to the 1997 ozone standards. Missouri 
sources have been identified in findings under 110(a)(2)(D)(i)(I), 
relating to interstate impacts, in the NOx SIP call (63 FR 
57355) and the Clean Air Interstate Rule (70 FR 25162),\12\ and 
Missouri has satisfactorily revised its SIP to respond to these 
findings.
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    \12\ EPA notes that subsequent to the promulgation of the Clean 
Air Interstate Rule, on December 23, 2008, the District of Columbia 
Circuit Court of Appeals remanded the rule back to EPA without 
vacatur. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. 2008). EPA 
has since proposed the Transport Rule (75 FR 45210) that would 
replace CAIR when final.
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    Section 126(a) of the Act requires new or modified sources to 
notify neighboring states of potential impacts from sources within the 
state. Missouri regulations require that affected states receive notice 
prior to the commencement of any construction or modification of a 
source. Rule 10 CSR 10-6.060(6) requires that the review of all PSD 
permit applications follow the procedures of 10 CSR 10-6.060(12)(A), 
Appendix A. Appendix A in turn requires that the permitting authority 
notify affected states once a draft permit goes out for public comment. 
10 CSR 10-6.060(12)(A)11.
    Based on the foregoing, EPA believes that Missouri has the adequate 
infrastructure needed to address section 110(a)(2)(D)(ii) for the 1997 
8-hour ozone NAAQS.
    (E) Adequate authority, resources, implementation, and oversight: 
Section 110(a)(2)(E) requires that SIPs provide for the following: (1) 
Necessary assurances that the state (and other entities within the 
state responsible for implementing the SIP) have adequate personnel, 
funding, and authority under state or local law to implement the SIP, 
and that there are no legal impediments to such implementation; (2) 
requirements that the state comply with the requirements relating to 
state boards, pursuant to section 128 of the Act; and (3) necessary 
assurances that the state has responsibility for implementation of any 
plan provision for which it relies on local governments or other 
entities to carry out that portion of the plan.
    (1) With respect to adequate authority, we have previously 
discussed Missouri's authority to implement the SIP for the 1997 ozone 
standards, primarily in the discussion of section 110(a)(2)(A). Neither 
Missouri nor EPA has identified any legal impediments to implementation 
of those standards.
    With respect to adequate resources, MDNR asserts that it has 
adequate personnel to implement the SIP. The SIP submittal for the 1997 
ozone standards describes the regulations governing the various 
functions of personnel within the Air Pollution Control Program, 
including the Technical Support (Air Quality Analysis), Air Quality 
Planning, Enforcement, and Permitting Sections of the program (10 CSR 
10-1.010(2)(D)).
    With respect to funding, the Air Conservation Law requires the MACC 
to establish an annual emissions fee for sources in order to fund the 
reasonable costs of the implementing various air pollution control 
programs. Section 643.079 of the Air Conservation Law provides for the 
deposit of the fees into various subaccounts (e.g., a subaccount for 
the Title V operating permit program used for Title V activities; a 
subaccount for non-Title V activities) for use in implementing the 
programs. The state uses funds in the non-Title V subaccounts, along 
with General Revenue funds and EPA grants under, for example, sections 
103 and 105 of the Act, to fund the programs. EPA conducts periodic 
program reviews to ensure that the state has adequate resources and 
funding to, among others, implement the SIP.
    (2) Conflict of interest provisions--Section 128.
    Section 110(a)(2)(E) also provides that the state must meet the 
requirements of Section 128, relating to representation on state boards 
and conflicts of interest by members of such boards. We note that this 
particular provision is not related to promulgation or revision of any 
NAAQS, and we have not determined that Missouri must show specifically 
that it meets this requirement with respect to the ozone infrastructure 
SIP for the 1997 standards. However, the following discussion shows how 
Missouri generally meets the requirements of Section 128.
    Section 128 requires that a SIP-implementing body which approves 
permits or enforcement orders under the Act must have at least a 
majority of members who represent the public interest and do not derive 
a ``significant portion'' of income from entities or individuals 
subject to permits and enforcement orders under the Act. In addition, 
Section 128 requires that members of such a body or the agency head 
with similar authorities adequately disclose any potential conflicts of 
interest.
    Section 643.040 of the Air Conservation Law generally tracks the 
language of section 128 of the Act, and requires that the Missouri Air 
Conservation Commission promulgate rules regarding conflict of 
interest. Rule 10 CSR 10-1.020 provides the specific process for 
disclosure of potential conflicts of interest prior to discussion of, 
or voting on, a rule, variance, appeal or order, and rules for voting 
when a member has been excluded from participation. The MACC also has 
an operations manual which directs members to comply with statutory 
requirements relating to conflict of interest, including Chapter 105 of 
the Missouri Revised Statutes, which contains more general prohibitions 
relating to conflict of interest.
    MDNR officials, including the Director, are also subject to the 
conflict of interest provisions in Chapter 105 of the Missouri Revised 
Statutes. Sections 105.452 and 105.454 contain prohibitions on actions 
which may result in a conflict of interest.
    (3) With respect to assurances that the state has responsibility to 
adequately implement the SIP when it authorizes local or other agencies 
to carry out portions of the plan, Section 643.190 designates the MDNR 
as the air pollution control agency ``for all purposes'' of the Clean 
Air Act. Although Section 643.140 authorizes the MACC to allow local 
governments such as cities or counties to carry out their own air 
pollution control programs, the MACC retains authority to carry out the 
provisions of Missouri's Air Conservation Law in local areas, 
notwithstanding any such authorization.
    The MDNR Air Program oversees the activities of the local agencies 
to ensure adequate implementation of the plan by the local agencies 
(Kansas City, City of St. Louis, St. Louis County, and Springfield-
Greene County). MDNR utilizes subgrants to the local agencies both to 
provide adequate funding, and as an oversight mechanism with respect to 
the local agencies. EPA conducts reviews of the local program 
activities in conjunction with its oversight of the state program.
    Based on the foregoing, EPA believes that Missouri has the adequate 
infrastructure needed to address section 110(a)(2)(E) for the 1997 8-
hour ozone NAAQS.
    (F) Stationary source monitoring system: Section 110(a)(2)(F) 
requires states to establish a system to monitor emissions from 
stationary sources and to submit periodic emission reports. That 
section also requires that the state

[[Page 17590]]

correlate the source reports with emission limitations or standards 
established under the Act and make reports available for public 
inspection.
    To address this element, Section 643.050.1(3)(a) of the Air 
Conservation Law authorizes the state to require persons engaged in 
operations which result in air pollution to monitor or test emissions 
and to file reports containing information relating to rate, period of 
emission and composition of effluent. Missouri rule 10 CSR 10-6.030 
incorporates various EPA reference methods for testing source 
emissions, including methods for NOX and VOCs. The Federal 
test methods are in 40 CFR Part 60, App. A.
    Missouri rule 10 CSR 10-6.110 also requires monitoring of emissions 
and filing of periodic reports on emissions, and Missouri makes this 
information available to the public. Missouri uses this information to 
track progress towards maintaining the NAAQS, developing control and 
maintenance strategies, identifying sources and general emission 
levels, and determining compliance with emission regulations and 
additional EPA requirements. Missouri rule 10 CSR 10-6.210, relating to 
treatment of confidential information, specifically excludes emissions 
data from confidential treatment. Under that rule emissions data 
includes information regarding monitoring results required to be 
reported by sources under Missouri's air pollution control rules. 
Finally, Section 643.192.2 of the Air Conservation Law requires that 
MDNR provide an annual report that summarizes annual changes in air 
quality.
    EPA believes that Missouri has the adequate infrastructure needed 
to address section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS.
    (G) Emergency authority: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health or welfare or the environment 
(comparable to the authorities provided in Section 303 of the Act), 
including contingency plans to implement the emergency authorities.
    Section 643.090 of the Air Conservation Law authorizes the MACC or 
the Director of MDNR to declare an emergency where the ambient air, due 
to meteorological conditions and a buildup of air contaminants, may 
present an ``emergency risk'' to public health, safety, or welfare. The 
MACC or Director may, with the written approval of the governor, by 
order prohibit, restrict or condition all sources of air contaminants 
contributing to the emergency condition, during such periods of time 
necessary to alleviate or lessen the effects of the emergency 
condition. The statute also enables MDNR to promulgate implementing 
regulations. Even in the absence of an emergency condition, Section 
643.090 also authorizes the Director to issue ``cease and desist'' 
orders to specific persons engaging in activities which involve a 
discharge of air contaminants, or a risk of air contamination, that 
presents a danger to public health or welfare.
    Missouri rule 10 CSR 10-6.130 (``Controlling Emissions During 
Episodes of High Air Pollution Potential'') includes action levels and 
contingency measures for ozone and other pollutants. This rule 
specifies the conditions that establish an air pollution alert, watch 
or emergency and the associated procedures and emissions reduction 
objectives for dealing with each. The rule establishes action levels 
for one-hour and eight-hour average concentrations. The action levels 
and associated contingency measures vary depending on the level of 
ozone concentrations in a particular area. This rule is contained in 
the Federally approved SIP.
    EPA believes that the Missouri SIP adequately addresses section 
110(a)(2)(G) for the 1997 8-hour ozone NAAQS.
    (H) Future SIP revisions: Section 110(a)(2)(H) requires states to 
have the authority to revise their SIPs in response to changes in the 
NAAQS, availability of improved methods for attaining the NAAQS, or in 
response to an EPA finding that the SIP is substantially inadequate to 
attain the NAAQS.
    In addition to Missouri's general enabling authority in Section 
643.050 of the Air Conservation Law, discussed previously, Section 
643.055 and rules 10 CSR 10-1.010(2)(B)9 and (D) grant MACC authority 
to promulgate rules, and establish standards and guidelines, to ensure 
that the state complies with the provisions of the Federal Clean Air 
Act. This includes authority to revise rules as necessary to respond to 
a revised NAAQS and to respond to EPA findings of substantial 
inadequacy (see, for example, 71 FR 46860, August 15, 2006, in which 
EPA approved Missouri rules promulgated in response to EPA's 
NOX SIP call for Missouri and other states).
    EPA believes that Missouri has the adequate authority to address 
section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.
    (I) Nonattainment areas: Section 110(a)(2)(I) requires that in the 
case of a plan or plan revision for areas designated as nonattainment 
areas, states must meet applicable requirements of Part D of the Act, 
relating to SIP requirements for designated nonattainment areas.
    The plan submitted by Missouri is a statewide ozone infrastructure 
SIP and was not intended by Missouri to meet its obligations for 
nonattainment areas. Missouri has one ozone nonattainment area (the St. 
Louis metropolitan area).
    EPA has not addressed Section 110(a)(2)(I) in its recent 
infrastructure SIP guidance because Part D SIPs are due on a different 
schedule than the infrastructure SIP submittal schedule. (See, e.g., 
the infrastructure SIP guidance for the revised lead standard, 73 FR 
67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for 
the revised NO2 standards, 75 FR 6523, n. 27, Feb. 9, 2010.) 
Therefore, this proposal does not address Section 110(a)(2)(I). EPA 
will take action on any Part D nonattainment plans through a separate 
rulemaking.
    (J) Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to 
meet the applicable requirements of the following CAA provisions: (1) 
section 121, relating to interagency consultation regarding certain CAA 
requirements; (2) section 127, relating to public notification of NAAQS 
exceedances and related issues; and (3) Part C of the Act, relating to 
prevention of significant deterioration of air quality and visibility 
protection.
    (1) With respect to interagency consultation, Section 643.050.3 of 
the Air Conservation Law requires the MACC to consult and cooperate 
with other Federal and state agencies, and with political subdivisions, 
for the purpose of implementing its air pollution control 
responsibilities. Missouri also has appropriate interagency 
consultation provisions in its preconstruction permit program. For 
instance, Missouri rule 10 CSR 10-6.060(12)(B) requires that when a 
permit goes out for public comment, the permitting authority must 
provide notice to local air pollution control agencies, the chief 
executive of the city and county where the installation or modification 
would be located, any comprehensive regional land use planning agency, 
any state air program permitting authority, and any Federal Land 
Manager whose lands may be affected by emissions from the installation 
or modification.
    (2) With respect to the requirements for public notification in 
Section 127, Missouri rule 10 CSR 10-6.130, discussed previously in 
connection with

[[Page 17591]]

the state's authority to address emergency episodes, contains 
provisions for public notification of elevated ozone and other air 
pollutant levels, and measures which can be taken by the public to 
reduce concentrations. In addition, information regarding air pollution 
and related issues, is provided on an MDNR website, http://www.dnr.mo.gov/pubs/index.html.
    (3) With respect to the applicable requirements of Part C, relating 
to prevention of significant deterioration of air quality and 
visibility protection, we previously noted in the discussion of section 
110(a)(2)(C) (relating to enforcement of control measures) how the 
Missouri SIP meets the PSD requirements, incorporating the Federal rule 
by reference. With respect to the visibility component of section 
110(a)(2)(J), we reiterate the statutory requirement providing, in 
relevant part, that each plan must meet the ``applicable requirements'' 
of Part C (of Title I of the Act) relating to visibility protection. We 
note that the other Part C requirements specified in Section 
110(a)(2)(J) (applicable requirements relating to prevention of 
significant deterioration of air quality), specifically relate to the 
1997 and 2006 NAAQS (as well as other pollutants regulated under the 
CAA), and a state must be able to implement those requirements with 
respect to a new or revised NAAQS when promulgated. In contrast to the 
PSD program, the visibility protection requirements are not directly 
related to the promulgation of, or revision to, a NAAQS. While the SIP 
must independently meet the visibility protection requirements of Part 
C by virtue of the specific SIP requirements in Sections 169A and 169B 
of the Act, EPA believes that the visibility protection requirements 
are not ``applicable requirements'' within the meaning of Section 
110(a)(2)(J) and that the infrastructure SIP is not required to be 
revised with respect to visibility protection merely due to 
promulgation of, or revision to, these 1997 ozone NAAQS.
    For the reasons stated above, EPA believes that Missouri has met 
the applicable requirements of Section 110(a)(2)(J) for the 1997 8-hour 
ozone NAAQS in the state.
    (K) Air quality and modeling/data: Section 110(a)(2)(K) requires 
that SIPs provide for performing air quality modeling, as prescribed by 
EPA, to predict effects on ambient air quality of emissions of any 
NAAQS pollutant, and for submission of such data to EPA upon request.
    Missouri has authority to conduct air quality modeling and report 
the results of such modeling to EPA. Section 643.050 of the Air 
Conservation Law provides Missouri with the general authority to 
develop a general comprehensive plan to prevent, abate, and control air 
pollution. EPA believes that this statutory authority, along with other 
authorities such as found in Section 643.055 discussed above, provides 
MDNR with authority to conduct modeling to address NAAQS issues. As an 
example of regulatory authority to perform modeling for purposes of 
determining NAAQS compliance, Missouri regulation 10 CSR 10-6.060, App. 
F requires the use of EPA-approved air quality models (e.g., those 
found in 40 CFR part 51, App. W) for construction permitting. Rule 10 
CSR 10-6.110 requires specified sources of air pollution to report 
emissions to MDNR, which among other purposes may be utilized in 
modeling analyses. These data are available to any member of the 
public, upon request. 10 CSR 10-6.110(3)(D).
    EPA believes that Missouri has the adequate infrastructure needed 
to address section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.
    (L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require 
each major stationary source to pay permitting fees to the permitting 
authority to cover the cost of reviewing, approving, implementing and 
enforcing a permit. That section provides that the fee requirement 
applies until a fee program established by the state pursuant to Title 
V of the Act, relating to operating permits, is approved by EPA.
    Section 643.079 of the Air Conservation Law provides authority for 
MDNR to collect permit fees, including Title V fees. Missouri's Title V 
program, including the fee program addressing the requirements of the 
Act and 40 CFR 70.9 relating to Title V fees, was approved by EPA in 
May 1997 (62 FR 26405, May 14, 1997). Therefore, EPA believes that the 
requirements of section 110(a)(2)(L) are met.
    (M) Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires SIPs to provide for consultation and 
participation by local political subdivisions affected by the SIP.
    Section 643.050.3(6) of the Air Conservation Law requires that the 
MACC encourage political subdivisions to handle air pollution control 
problems within their respective jurisdictions to the extent possible 
and practicable. Section 643.140 provides the mechanism for local 
political subdivisions to participate in plan development, while 
maintaining oversight of local programs within the MACC. The MDNR's Air 
Pollution Control Program has signed State and Local Agreements with 
the air agencies with St. Louis City, St. Louis County, Kansas City and 
Springfield/Greene County. In addition, the program participates in 
community meetings, consults with, and participates in, interagency 
consultation groups such as the Metropolitan Planning Organizations in 
both Kansas City and St. Louis. In Kansas City, MDNR works with the 
Mid-America Regional Council and in St. Louis, MDNR works with East-
West Gateway Coordinating Council of Governments.
    Therefore, EPA believes that Missouri has the adequate 
infrastructure needed to address Section 110(a)(2)(M) for the 1997 8-
hour ozone NAAQS.

IV. What action is EPA proposing?

    EPA proposes to approve the State Implementation Plan (SIP) 
submittal from the state of Missouri which addresses the requirements 
of Clean Air Act section 110 (a)(2) for the 1997 revisions to the 
National Ambient Air Quality Standards (NAAQS) for ozone. As described 
above, EPA believes that Missouri has the required infrastructure to 
address all elements of section 110(a)(2) to ensure that the revised 
ozone standards are implemented in the state.
    We are hereby soliciting comment on this proposed action. Final 
rulemaking will occur after consideration of any comments.

V. Statutory and Executive Order Review

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely approves state law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities

[[Page 17592]]

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

Statutory Authority

    The statutory authority for this action is provided by Section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone.

    Dated: March 23, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-7470 Filed 3-29-11; 8:45 am]
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