[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43156-43159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17740]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2011-0215; FRL-9435-9]


Approval and Promulgation of Air Quality Implementation Plan; 
Missouri; Final Disapproval of Interstate Transport State 
Implementation Plan Revision for the 2006 24-Hour PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to our authority under the Clean Air Act (CAA or 
Act), the Environmental Protection Agency (EPA) is taking final action 
to disapprove the portion of the ``Infrastructure'' State 
Implementation Plan (SIP) (CAA section 110(a)(1) and (2)) submittal 
from the State of Missouri intended to address the CAA section relating 
to the ``interstate transport'' requirements for the 2006 24-hour fine 
particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS) that prohibit a state from significantly contributing to 
nonattainment or interfering with maintenance of the NAAQS in any other 
state. This final action to disapprove the ``interstate transport'' 
portion of the Missouri SIP submittal received by EPA on December 28, 
2009, only relates to those provisions and does not address the other 
portions of Missouri's December 28, 2009, submission. The rationale for 
this action and additional detail on this disapproval were described in 
EPA's proposed rulemaking published in the Federal Register on March 
18, 2011. The effect of this action will be the promulgation of a 
Federal Implementation Plan (FIP) for Missouri no later than two years 
from the date of disapproval. EPA's proposed Transport Rule, when 
final, is the FIP that EPA intends to implement for Missouri.

DATES: Effective Date: This rule is effective on August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2011-0215. All documents in the docket are listed on 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information 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 U.S. Environmental Protection Agency, Region 7, in the Air Planning 
and Development Branch, of the Air and Waste Management Division, 901 
North 5th Street, Kansas City, Kansas 66101. EPA requests that, if at 
all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The interested 
persons wanting to examine these documents should make an appointment 
with the office at least 24 hours in advance. The Regional Office 
official hours of business are Monday through Friday, 8 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Elizabeth Kramer, Environmental 
Scientist, 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].

Judicial Review

    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 19, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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).)

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. These sections provide 
additional information on this final action:

I. Background
II. Final Action
III. Administrative Requirements

I. Background

    On March 18, 2011 (76 FR 14835), EPA proposed to disapprove a 
portion of the ``Infrastructure'' SIP (CAA 110(a)(1) and (2)) submittal 
from the State of Missouri relating to the interstate transport element 
of infrastructure (CAA section 110(a)(2)(D)(i)(I)). EPA received no 
comments on the proposed disapproval. For additional detail on EPA's 
rationale this final action, see the proposed rulemaking.
    Section 110(a)(2) of the CAA lists the thirteen required elements 
that ``infrastructure'' SIPs must address, as applicable, including 
section 110(a)(2)(D)(i), which pertains to interstate transport of 
certain emissions. These ``good neighbor'' provisions require each 
state to submit a SIP that prohibits emissions which adversely affect 
another state in the ways contemplated in the statute. The section 
110(a)(2)(D)(i), portion of Missouri's SIP must prevent sources in the 
State from emitting pollutants in amounts which will: (I) Contribute 
significantly to nonattainment of the NAAQS in other states and 
interfere with maintenance of the NAAQS in other states and (II) 
interfere with provisions to prevent significant deterioration of air 
quality in other states or interfere with efforts to protect visibility 
in other states.
    On December 28, 2009, EPA received a SIP revision from the State of 
Missouri intended to address the requirements of section 110(a)(2) 
including the requirements of section 110(a)(2)(D)(i) for the 2006 24-
hour PM2.5 NAAQS. In this final rulemaking, EPA is

[[Page 43157]]

disapproving only the 110(a)(2)(D)(i)(I) portion of the submittal that 
pertains to prohibiting sources in Missouri from emitting pollutants 
that significantly contribute to nonattainment or interfere with 
maintenance of the 2006 24-hour PM2.5 NAAQS in other states. 
The elements on which we are taking action today are severable portions 
of the submittal. EPA intends to address the additional portions of the 
submittal in a subsequent action.
    The requirements of section 110(a)(2)(D)(i)(I), as well as EPA's 
analysis of the State's submission, are explained in detail in the 
proposal. In summary, EPA proposed to disapprove the Missouri submittal 
because: (1) It described a number of rules Missouri had adopted to 
reduce PM2.5 precursors (sulfur dioxide and nitrogen 
oxides), but did not include any analysis to show that these measures 
would prohibit the interstate impacts described in section 
110(a)(2)(D)(i)(I); and (2) it relied on the Clean Air Interstate Rule 
provisions in the Missouri SIP, even though those provisions do not 
address impacts on the 2006 PM2.5 standards. We also noted 
that Missouri's conclusion with respect to these interstate impact 
provisions was inconsistent with the preliminary modeling for EPA's 
proposed Transport Rule (see 75 FR 45210, August 2, 2010). The reader 
should refer to the March 18, 2011 proposed rulemaking (76 FR at 14837-
8) for a detailed explanation of EPA's rationale for this 
determination. In addition, EPA has now completed the modeling for the 
final Transport Rule and, as indicated by the technical support 
documents (TSDs) for this action, Missouri in fact significantly 
contributes to downwind nonattainment in another state and interferes 
with maintenance of the 2006 24-hour PM2.5 NAAQS in another 
state. Please see the TSDs for the final modeling and contribution 
analysis as they relate to this action.

II. Final Action

    EPA is taking final action to disapprove a portion of the 
submission from the State of Missouri intended to demonstrate that 
Missouri has adequately addressed the elements of CAA section 
110(a)(2)(D)(i)(I) that require Missouri's SIP to include adequate 
provisions to prohibit air pollutant emissions from sources within the 
State from significantly contributing to nonattainment in or 
interference with maintenance of the 2006 24-hour PM2.5 
NAAQS in any other state. EPA has determined that the Missouri 
submission does not contain adequate provisions to prohibit air 
pollutant emissions from within the State that significantly contribute 
to nonattainment in or interference with maintenance of the 2006 24-
hour PM2.5 NAAQS in other downwind states. As noted in the 
Background above, the final modeling for EPA's Transport Rule indicates 
that Missouri in fact significantly contributes to downwind 
nonattainment in another state and interferes with maintenance of the 
2006 24-hour PM2.5 NAAQS in another state.
    Any remaining elements of the submittal, including language to 
address other CAA section 110(a)(2) elements, including section 
110(a)(2)(D)(i)(II) regarding interference with measures required in 
the applicable SIP for another state designed to prevent significant 
deterioration of air quality and protect visibility, are not addressed 
in this action. EPA is disapproving only the provisions which relate to 
the section 110(a)(2)(D)(i)(I) portion of the submittal. EPA will act 
on those other provisions in a subsequent action.
    Also, under section 179(a) of the CAA, final disapproval of a 
submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. 
7501-7515), or is required in response to a finding of substantial 
inadequacy as described in section 7410(k)(5) (SIP Call), starts a 
sanctions clock. The provisions in the submittal that we are 
disapproving were not submitted to meet either of those requirements. 
Therefore, no sanctions are triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the state corrects 
the deficiency, and the Administrator approves the plan or plan 
revision before the Administrator promulgates such FIP.
    EPA's final Transport Rule and related FIP, if finalized in the 
manner proposed, may address these interstate transport requirements of 
CAA section 110(a)(2)(D)(i)(I) for the State of Missouri for the 2006 
24-hour PM2.5 NAAQS.

III. Administrative Requirements

    Under the CAA, 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 act on state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law.

Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, 
because this SIP disapproval under section 110 of the CAA will not in-
and-of itself create any new information collection burdens but simply 
disapproves certain State requirements for inclusion into the SIP. 
Burden is defined at 5 CFR 1320.3(b).

Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. This rule does not impose 
any requirements or create impacts on small entities. This SIP 
disapproval under section 110 of the CAA will not in-and-of itself 
create any new requirements but simply disapproves certain State 
requirements for inclusion into the SIP. Accordingly, it affords no 
opportunity for EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (e.g., higher offset requirements) may or will flow from

[[Page 43158]]

this disapproval does not mean that EPA either can or must conduct a 
regulatory flexibility analysis for this action. Therefore, this action 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local, or tribal governments or the private sector. EPA 
has determined that the disapproval action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This action disapproves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    This action does not have federalism implications. It will 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. This action merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Today's final disapproval does 
not have federalism implications. Thus, Executive Order 13132 does not 
apply to this action.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is disapproving would not 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. Thus, Executive Order 
13175 does not apply to this action.

Executive Order 13045, Protection of Children From Environmental Health 
Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under Section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This SIP disapproval under section 110 of the CAA will not in-
and-of itself create any new regulations but simply disapproves certain 
state requirements for inclusion into the SIP.

Executive Order 13211, Actions That Significantly Affect Energy Supply, 
Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. EPA believes that this action 
is not subject to requirements of section 12(d) of NTTAA because 
application of those requirements would be inconsistent with the CAA.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the CAA. 
Accordingly, this action merely disapproves certain State requirements 
for inclusion into the SIP under section 110 of the CAA and will not 
in-and-of itself create any new requirements. Accordingly, it 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.

Congressional Review

    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 action 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).

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, Incorporation by 
reference, Intergovernmental relations, Particulate matter.


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    Dated: June 28, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-17740 Filed 7-19-11; 8:45 am]
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