[Federal Register Volume 77, Number 123 (Tuesday, June 26, 2012)]
[Rules and Regulations]
[Pages 38007-38011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15021]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2012-0153; FRL-9688-1]


Approval and Promulgation of Implementation Plans; State of 
Missouri: Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval of a revision to the 
State

[[Page 38008]]

Implementation Plan (SIP) for Missouri, submitted by the Missouri 
Department of Natural Resources on August 5, 2009, and supplemented on 
January 30, 2012, that addresses Regional Haze for the first 
implementation period. Specifically, these revisions address the 
requirements of the Clean Air Act (CAA or Act) and EPA's rules that 
required States to prevent any future and remedy any existing 
anthropogenic impairment of visibility in Class I Areas (national parks 
and wilderness areas) caused by emissions of air pollutants located 
over a wide geographic area (also known as the ``regional haze'' 
program). States are required to assure reasonable progress toward the 
national goal of achieving natural visibility conditions in Class I 
areas. EPA proposed to approve these revisions on February 28, 2012 (77 
FR 11958). In a separate rulemaking action, EPA finalized the limited 
disapproval of Missouri's regional haze SIP and imposed a Federal 
Implementation Plan (FIP) for Missouri on June 7, 2012. 77 FR 33642.

DATES: This rule will become effective July 26, 2012, except that the 
amendment to Sec.  52.1339 is effective August 6, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R07-OAR-2012-0153. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Air Planning and Development Branch, Air and Waste 
Management Division, U.S. Environmental Protection Agency, Region 7, 
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 for further information. The regional 
office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Chrissy Wolfersberger, Air Planning 
and Development Branch, U.S. Environmental Protection Agency, Region 7, 
901 North 5th Street, Kansas City, Kansas 66101; by telephone at (913) 
551-7864; or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On February 28, 2012 (77 FR 11958), EPA published a notice of 
proposed rulemaking (NPR) for the State of Missouri, proposing limited 
approval of Missouri's regional haze plan for the first implementation 
period (through 2018). A detailed explanation of the CAA's visibility 
requirements and the regional haze rule as it applies to Missouri was 
provided in the NPR and will not be restated here. EPA's rationale for 
proposing limited approval of the Missouri SIP was described in detail 
in the proposal, and is further described in this final rulemaking.

II. Public Comments and EPA Responses

    The publication of EPA's proposed rule on February 28, 2012, 
initiated a 30 day public comment period that ended on March 29, 2012. 
During the public comment period we received one set of written 
comments from Earthjustice on behalf of the Natural Resources Defense 
Council and Sierra Club (collectively, the ``Commenter'').\1\ We have 
summarized the comments and provided our responses below. A full copy 
of the comment letter is available in the docket for this rulemaking.
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    \1\ After the close of the public comment period, EPA received 
comments in support of the proposed rule from the U.S. Forest 
Service. A copy of the comment letter is available in the docket for 
this rulemaking.
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    Comment 1: The Commenter asserts that EPA does not have the 
authority under the CAA to issue a limited approval and concurrent 
limited disapproval of Missouri's regional haze SIP. The Commenter 
contends that section 110(k) of the Act only allows EPA to fully 
approve, partially approve, and partially disapprove, conditionally 
approve, or fully disapprove a SIP. The Commenter contends that 
regional haze SIPs are not like other SIP submissions and must be 
``submitted as a whole'' and therefore, EPA cannot grant limited 
approval to a state SIP while proposing to issue a partial FIP. The 
Commenter also contends that EPA is required to determine whether the 
submittal ``meets all applicable requirements'' of section 110 (k) and 
does not allow EPA to approve the submittal on the grounds that it 
strengthens the Missouri SIP. The Commenter cites to several Federal 
appellate court decisions to support its contention that 110(k) of the 
Act limits EPA to ``a conditional approval, a partial approval and 
disapproval, or a full approval.''
    Response 1: The cases cited by the Commenter in support of its 
contentions did not involve challenges to a limited approval approach 
and therefore are not applicable here. As discussed in the September 7, 
1992, EPA memorandum cited in the notice of proposed rulemaking,\2\ 
although section 110(k) of the CAA may not expressly provide authority 
for limited approvals, the plain language of section 301(a) does 
provide ``gap-filling'' authority authorizing the Agency to ``prescribe 
such regulations as are necessary to carry out'' EPA's CAA functions. 
EPA may rely on section 301(a) in conjunction with the Agency's SIP 
approval authority in section 110(k)(3) to issue limited approvals 
where it has determined that a submittal strengthens a given state SIP 
and that the provisions meeting the applicable requirements of the Act 
are not separable from the provisions that do not meet the Act's 
requirements. EPA has adopted the limited approval approach numerous 
times in SIP actions across the nation over the last twenty years. 
Limited approval and limited disapproval actions are appropriate here 
because EPA has determined that Missouri's SIP revisions addressing 
regional haze, as a whole, strengthen the State's SIP and because the 
provisions in the SIP revisions are not separable.
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    \2\ Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (``1992 Calcagni Memorandum'') located at 
http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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    Moreover, adopting the Commenter's position would ignore section 
301 and violate the ``fundamental canon of statutory construction that 
the words of a statute must be read in their context and with a view to 
their place in the overall statutory scheme, * * *. A court must 
therefore interpret the statute `as a symmetrical and coherent 
regulatory scheme,' * * * and `fit, if possible, all parts into an 
harmonious whole.' '' FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 
120, 133 (2000) (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 
803, 809 (1989), Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and 
FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959).
    The Commenter's claim that regional haze SIPs are somehow different 
from other SIPs is unfounded and not

[[Page 38009]]

supported by the case law cited or the CAA. Notably, the Commenter 
cites no authority for its contention that regional haze SIPs must be 
``submitted as whole.'' In any event, today's action combined with the 
``Transport Rule Better than BART'' FIP 77 FR 33642 address all 
applicable requirements for Missouri with respect to the regional haze 
requirements of the Act.
    Comment 2: The Commenter states that EPA must partially disapprove 
Missouri's regional haze SIP submittal because it relied on the Clean 
Air Interstate Rule (CAIR). The Commenter cites to the proposed 
Kentucky SIP to show that Missouri's long-term strategy, reasonable 
progress goals (RPGs) and decision to exempt electric generating units 
(EGUs) from Best Available Retrofit Technology (BART) should be 
disapproved due to the deficiencies identified in CAIR by the court and 
the impact of the Transport Rule on CAIR.
    Response 2: This comment is based on the incorrect premise that 
through this rulemaking EPA is exempting Missouri sources from BART 
requirements. In 2008, the DC Circuit remanded CAIR back to the Agency 
because the court believed that CAIR was inconsistent with the 
requirements of the CAA. Although CAIR may not remain in effect 
indefinitely, it is currently in force, and the State's reliance on 
CAIR was fully consistent with EPA's regulations at the time that 
Missouri developed its regional haze SIP. As explained in the February 
28, 2011, rulemaking (77 FR 11958), EPA is taking a limited approval 
action because the revisions as a whole strengthen the SIP and because 
the action is consistent with the court's intention to keep CAIR 
temporarily in place. The limited approval results in an approval of 
the entire regional haze submission and all of its elements, preserving 
the visibility benefits offered by the SIP until CAIR is replaced by 
the Transport Rule. EPA recently demonstrated that the Transport Rule 
is better than BART. 77 FR 33642. EPA took a limited disapproval action 
because the Agency cannot fully approve regional haze SIP revisions 
that rely on CAIR for emissions reductions measures for the reasons 
discussed in Section III of the February 28, 2011, proposed rulemaking. 
77 FR 11958. See also 77 FR 33642. EPA's response to Comment 1, above, 
explains the Agency's authority to take limited approval and limited 
disapproval actions under the CAA.
    EPA disagrees with the Commenter's request for a partial 
disapproval of the SIP. Because the SIP provisions relying on CAIR, 
including the long term strategy (LTS) do not meet the applicable 
regional haze requirements and are not separable from the provisions 
that meet the applicable requirements of the Act, a partial disapproval 
would prevent any of the SIP's air quality benefits from being realized 
until EPA promulgated a FIP or approved a revised SIP to addresses the 
deficiencies. Furthermore, the two-year clock to promulgate a FIP to 
remedy the deficiencies is triggered by the limited disapproval just as 
it would be triggered by a partial disapproval. On December 30, 2011, 
EPA proposed to find that the trading programs in the Transport Rule 
would achieve greater reasonable progress towards the national goal 
than would BART in the states in which the Transport Rule applies. See 
76 FR 82219. Based on this proposed finding, EPA also proposed a FIP 
for Missouri in that action that would substitute participation in the 
trading programs under the Transport Rule for participation in CAIR for 
the purposes of satisfying regional haze requirements and would remedy 
the CAIR-related deficiencies discussed above. EPA finalized this 
action on June 7, 2012. 77 FR 33642. See also EPA's response to 
comments on the Transport Better than BART rulemaking. 77 FR 33642.
    Comment 3: The Commenter identifies its opposition to EPA's 
December 30, 2011, proposed rulemaking to find that the Transport Rule 
is better than BART and to ``use the Transport Rule as an alternative 
to BART'' for Missouri and other states subject to the Transport Rule. 
The Commenter incorporates by reference its comments on that December 
30, 2011, proposed rulemaking ``by reference'' and outlines several of 
those comments, including its arguments that the Transport Rule is not 
``better than BART'' and that EPA cannot rely on the Transport Rule as 
an ``alternative program to BART.''
    Response 3: In today's rule, EPA is taking final action on the 
limited approval of Missouri's regional haze SIP. The Commenter 
correctly recognizes that EPA did not propose to find that 
participation in the Transport Rule is an alternative to BART in this 
rulemaking. As noted above, EPA made this proposed finding in a 
separate action on December 30, 2011, and the Commenter is merely 
reiterating and incorporating its comments on that separate action. 
These comments are therefore not relevant to this rulemaking but have 
been addressed, as appropriate, by EPA in its final action on the 
December 30, 2011, proposed rule. 77 FR 33642.
    Comment 4: The Commenter states that EPA should disapprove 
Missouri's long-term strategy because Missouri's SIP is insufficient to 
address Missouri's visibility impact on Class I areas in other states, 
particularly the Wichita Mountains Class I area in Oklahoma (WIMO) and 
the Boundary Waters Class I area in Minnesota (BOWA). The Commenter 
states that Missouri's reliance on on-the-books requirements for EGUs, 
mobile sources, area sources, other point sources, and CAIR without 
requiring additional emissions reductions at various facilities is not 
sufficient to meet the requirements of the regional haze rule. The 
Commenter states that Missouri's analysis of impact of its sources on 
out-state Class I areas is not supported by modeling. Further, the 
Commenter states that Missouri's reliance on cost as the basis for not 
requiring controls is incorrect and Missouri should focus on whether it 
has done its share to reduce visibility impact in those Class I areas.
    Response 4: EPA disagrees with the Commenter that Missouri's long-
term strategy does not adequately address visibility impacts on Class I 
areas in other states, such as in WIMO in Oklahoma, and BOWA in 
Minnesota. Further, the Commenter provides no evidence that Missouri 
has not addressed its fair share of emission reductions.
    As described in the proposal, Missouri properly entered into the 
consultation process with both Oklahoma and Minnesota and provided 
sufficient evidence to demonstrate its long-term strategy includes all 
measures necessary to obtain its share of emission reductions as 
required by the regional haze rule.
    Missouri appropriately concluded additional controls on Missouri's 
sources are not reasonable due to the limited visibility improvement at 
WIMO. In a September 17, 2007, letter from Missouri to Oklahoma, 
Missouri responded to Oklahoma's conclusion that Missouri is reasonably 
anticipated to contribute to visibility impairment at WIMO. Missouri 
noted that, based on the PSAT analysis presented by Oklahoma, over half 
the elevated point-source impacts to WIMO are from sources in Oklahoma, 
Texas, and Louisiana, and most of the area source impacts are from 
Oklahoma and Texas sources. Missouri's analysis shows that its sources 
only account for about 2.5 percent and 2.75 percent visibility 
impairment at WIMO in 2002 and 2018, respectively based on the PSAT 
modeling. Additionally, Missouri questioned Oklahoma's use of one 
inverse megameter to determine the

[[Page 38010]]

contribution threshold. Missouri found that this low threshold, 
combined with Oklahoma's reliance upon a one metric test using 
Particulate Matter Source Apportionment Technology (PSAT), as opposed 
to multiple tests utilized for the Central Class I Areas for 
determining contribution, resulted in an analysis that was too narrow. 
As a result of this narrow analysis, Missouri was found to be 
contributing to WIMO while many other states were left out with no 
strong rationale in Oklahoma's analysis as to why these states were 
treated differently. Missouri also questioned how Oklahoma's analysis 
could conclude that Missouri sources were contributing to WIMO, which 
is located 200 to 250 miles from Missouri's western border, but 
Missouri's analysis showed that the emission reductions obtained by 
Missouri would address reasonable progress goals in nearby Central 
Class I areas in Missouri and Arkansas. Missouri's analysis and 
conclusions regarding Missouri source contributions to WIMO were 
reasonable.
    Further, EPA disagrees with the Commenter's assertion that Missouri 
inappropriately relied upon costs to rule out additional emission 
controls at Missouri sources. Missouri did not solely rely on 
estimation of costs, but instead considered the limited potential 
visibility improvements of additional controls based on the modeling in 
addition to consideration of cost. EPA also notes that Oklahoma did not 
respond to Missouri's September 17, 2007 letter with any additional 
analysis.
    Missouri also entered into a consultation process with Minnesota. 
Minnesota identified Missouri as a contributing state to the BOWA based 
on a Lake Michigan Air Directors Consortium (LADCO) trajectory 
analysis. Missouri relied upon PSAT modeling analysis to estimate the 
potential visibility benefit at BOWA if Missouri were to require 
additional emissions reductions from Missouri sources. Missouri relied 
upon the PSAT modeling analysis to demonstrate that the overwhelming 
majority of emissions impacts on BOWA are from Minnesota and 
neighboring states, with Missouri contributing less than 3 percent in 
2002 and 2018. Based on this modeling analysis, EPA believes Missouri 
appropriately concluded additional emission reductions from Missouri 
sources were not reasonable due to the likely limited visibility 
improvement at BOWA.
    We also used Missouri's reasonable further progress (RFP) analysis 
to provide further support to our determination of the adequacy of 
Missouri's long-term strategy. Missouri's four-factor analysis examined 
the effectiveness of additional emissions reductions from Missouri 
sources on visibility improvement in Missouri Class I areas and 
examined all anthropogenic source categories, including point, area, 
on-road and off-road mobile, with a focus on large point sources. 
Missouri's four-factor analysis supports EPA's conclusion that Missouri 
appropriately determined that the amount of visibility improvement from 
additional controls on point sources would not have a significant 
impact on Missouri Class I areas. EPA believes the same determination 
could be made regarding Missouri's impact on more distant Class I areas 
in other states. It is reasonable to conclude from Missouri's modeling 
and four-factor analysis that the increased distance from Missouri 
sources to the Oklahoma and Minnesota Class I areas would only decrease 
the previously demonstrated limited effectiveness of additional 
emission reductions from Missouri sources.
    Comment 5: The Commenter states that Missouri's proposed BART 
limits for the Holcim-Clarksville facility fail to satisfy the 
requirements of BART. The Commenter states that the sulfur dioxide 
(SO2) control option selected as BART for the facility is 
flawed and not approvable as BART for two reasons. First, the Commenter 
argues that the cost of the wet scrubber was inaccurately inflated. 
Second, the Commenter states that Missouri Department of Natural 
Resources (MDNR) assumed an incorrect removal efficiency for a dry 
scrubber. The Commenter also states that the nitrogen oxides 
(NOX) control option selected as BART for the Holcim-
Clarksville facility is flawed because EPA has ``concluded that BART is 
a combination of selective non-catalytic reduction (SNCR) and Low-
NOX burner'' for a Holcim facility located in Montana.
    Response 5: In a letter dated November 20, 2010, Holcim requested 
that the State terminate the operating permit for the emission units at 
the source that are subject to BART because it curtailed operations at 
Holcim-Clarksville so that the facility will no longer manufacture 
Portland cement or burn hazardous fuel. The curtailment of operations 
conforms to the State Consent Agreement (Appendix S), which EPA is 
approving into the SIP in today's action. In its June 23, 2011, 
response to Holcim's request, MDNR revised Holcim's Title V permit to 
be a Basic State Operating permit; removed the BART-eligible emission 
units from the permit, which thereby prohibits Holcim from operating 
those units; and limited emissions of any visibility impairing 
pollutant to less than 100 tons per year. A copy of MDNR's letter is in 
the docket for this rulemaking.
    Moreover, MDNR has stated in its letter, and EPA agrees, that 
Holcim must continue to meet all applicable federal and state 
regulations and if conditions change, new standards are promulgated, or 
if Holcim intends to add or re-start any equipment, a new operating 
and/or construction permit may be necessary. By choosing to shutdown in 
accordance with the Consent Agreement, Holcim will not operate the 
BART-eligible units at the Clarksville facility, therefore, EPA does 
not need to address the Commenter's issues regarding the BART limits 
for the facility.

III. Final Action

    EPA is finalizing a limited approval of the State of Missouri's 
Regional Haze SIP, submitted on August 5, 2009, with supplemental 
information provided on January 30, 2012, as meeting some of the 
applicable regional haze requirements set forth in section 169A and 
169B of the Act and in the Federal regulations codified at 40 CFR 
51.300-308, and the requirements of 40 CFR part 51, subpart F and 
appendix V.

IV. Statutory and Executive Order Requirements

    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 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 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);

[[Page 38011]]

     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).
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

    Dated: June 7, 2012.
Karl Brooks,
Regional Administrator, Region 7.

    40 CFR part 52 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:
0
a. The table in paragraph (d) is amended by adding a new entry (26) in 
numerical order; and
0
b. The table in paragraph (e) is amended by adding a new entry (57) in 
numerical order.
    The additions read as follows:


Sec.  52.1320  Identification of plan.

* * * * *
    (d) EPA-approved State source-specific permits and orders.

                            EPA-Approved Missouri Source-Specific Permits and Orders
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                                    Order/permit     State effective
          Name of source                 No.               date          EPA approval date       Explanation
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                                                  * * * * * * *
(26) Holcim......................  ..............  April 19, 2009.....  June 26, 2012,       Sec.   52.1339(c);
                                                                         [Insert Federal      Limited Approval.
                                                                         Register citation].
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     (e) EPA approved nonregulatory provisions and quasi-regulatory 
measures.

                               EPA-Approved Missouri Nonregulatory Sip Provisions
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                                      Applicable
    Name of nonregulatory SIP        geographic or      State submittal    EPA approval date      Explanation
            provision             nonattainment area         date
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                                                  * * * * * * *
(57) Regional Haze Plan for the   Statewide.........  8/5/09,             6/26/12, [Insert    Sec.   52.1339(c);
 first implementation period.                          supplemented 1/30/  Federal Register    Limited Approval.
                                                       12.                 citation].
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0
3. Section 52.1339 is amended by revising paragraph (c) to read as 
follows:


Sec.  52.1339  Visibility protection.

* * * * *
    (c) Regional Haze. The requirements of section 169A of the Clean 
Air Act are not met because the regional haze plan submitted by 
Missouri on August 5, 2009, and supplemented on January 30, 2012, does 
not include fully approvable measures for meeting the requirements of 
40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of 
NOX and SO2 from electric generating units. EPA 
has given limited approval and limited disapproval to the plan 
provisions addressing these requirements.

[FR Doc. 2012-15021 Filed 6-25-12; 8:45 am]
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