[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37457-37463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14755]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2013-0208; FRL-9825-7]


Approval and Promulgation of Implementation Plans; State of 
Missouri; Infrastructure SIP Requirements for the 1997 and 2006 Fine 
Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of four Missouri State 
Implementation Plan (SIP) submissions. EPA is approving portions of two 
SIP submissions addressing the applicable infrastructure requirements 
of the Clean Air Act (CAA) for the 1997 and 2006 National Ambient Air 
Quality Standards (NAAQS) for fine particulate matter 
(PM2.5). These infrastructure requirements are designed to 
ensure that the structural components of each state's air quality 
management program are adequate to meet the state's responsibilities 
under the CAA. EPA is also taking final action to approve two 
additional SIP submissions from Missouri, one addressing the Prevention 
of Significant Deterioration (PSD) program in Missouri, and another 
addressing the requirements applicable to any board or body which 
approves permits or enforcement orders of the CAA, both of which 
support requirements associated with infrastructure SIPs. The rationale 
for this action is explained in this notice and in more detail in the 
notice of proposed rulemaking for this action, which was published on 
April 10, 2013.

DATES: This rule will be effective July 22, 2013.

ADDRESSES: EPA has established docket number EPA-R07-OAR-2013-0208 for 
this action. 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 
at http://www.regulations.gov or in hard copy at U.S. Environmental 
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 
66219 from 8:00 a.m. to 4:30 p.m., Monday through Friday, 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. Amy Bhesania, Air Planning and 
Development Branch, U.S. Environmental Protection Agency, Region 7, 
11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-
7147; fax number: (913) 551-7065; email 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:

I. Background and Purpose
II. EPA's Responses to Comments
III. Summary of EPA Final Action
IV. Statutory and Executive Order Review

I. Background and Purpose

    On April 10, 2013, EPA proposed to approve four Missouri SIP 
submissions (78 FR 21281). EPA received the first submission on 
February 27, 2007, addressing the infrastructure SIP requirements 
relating to the 1997 PM2.5 NAAQS. EPA received the second 
submission on December 28, 2009, addressing the infrastructure SIP 
requirements relating to the 2006 PM2.5 NAAQS. As originally 
detailed in the proposed rulemaking, EPA had previously approved 
section 110(a)(2)(D)(i)(I) and (II)--Interstate and international 
transport requirements of Missouri's February 27, 2007, SIP submission 
for the 1997 PM2.5 NAAQS (72 FR 25975, May 8, 2007); and EPA 
disapproved section 110(a)(2)(D)(i)(I)--Interstate and international 
transport requirements of Missouri's December 28, 2009, SIP submission 
for the 2006 PM2.5 NAAQS (76 FR 43156, July 20, 2011). 
Therefore, in the April 10, 2013, proposed action, we did not propose 
to act on those portions since they have already been acted upon by 
EPA. With this final action, we will have acted on both the February 
27, 2007, and the December 28, 2009, submissions in their entirety, 
excluding those provisions that are not within the scope of today's 
rulemaking as identified in section IV of the April 10, 2013, proposed 
action for

[[Page 37458]]

both the 1997 and 2006 PM2.5 infrastructure SIP submissions.
    The third submission was received by EPA on September 5, 2012. This 
submission revises Missouri's rule in Title 10, Division 10, Chapter 
6.060 of the Code of State Regulations (CSR) (10 CSR 10-6.060) 
``Construction Permits Required'' to implement certain elements of the 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
rule (75 FR 64864, October 20, 2010). On March 19, 2013, Missouri 
amended and clarified its submission so that it no longer included 
specific provisions affected by the January 22, 2013, U.S. Court of 
Appeals for the District of Columbia court decision which vacated and 
remanded the provisions concerning implementation of the 
PM2.5 SILs and vacated the provisions adding the 
PM2.5 SMC that were promulgated as part of the October 20, 
2010, PM2.5 PSD Rule (Sierra Club v. EPA, No. 10-1413 (filed 
December 17, 2010)). In addition, this rule amendment defers the 
application of PSD permitting requirements to carbon dioxide emissions 
from bioenergy and other biogenic stationary sources.
    EPA received the fourth submission on August 8, 2012. This 
submission addresses the conflict of interest provisions in section 128 
of the CAA as it relates to element E of the infrastructure SIP.
    In summary, EPA is taking final action today to approve these four 
SIP submissions from Missouri. The first two submissions addressed the 
requirements of CAA sections 110 (a)(1) and (2) as applicable to the 
1997 and 2006 NAAQS for PM2.5. With this final action, we 
will have acted on both the 1997 and 2006 submissions in their entirety 
excluding those provisions that are not within the scope of the 
rulemaking. EPA is also taking final action to approve two additional 
SIP submissions from Missouri, one addressing the Prevention of 
Significant Deterioration (PSD) program in Missouri as it relates to 
PM2.5, unless otherwise noted in EPA's proposed action on 
April 10, 2013 (78 FR 21281), and another SIP revision addressing the 
requirements of section 128 of the CAA, both of which support the 
requirements associated with infrastructure SIPs.
    In today's action, EPA also acknowledges an administrative error in 
our April 10, 2013 proposal. Under section V, within EPA's analysis of 
the state's submittal for element E related to infrastructure SIP 
requirements, we referenced that both sections 643.040.2 and 105.450 
were a part of the ``Air Conservation'' chapter of the Missouri Revised 
Statutes. Through today's action, EPA acknowledges that section 105.450 
is not a part of the ``Air Conservation'' chapter, but instead is a 
part of the ``Public Officers and Employees--Miscellaneous Provisions'' 
chapter of the Missouri Revised Statutes. No changes were made based on 
this correction.
    We also note that within the April 10, 2013, proposed rulemaking, 
we relied upon a separate direct final action from April 2, 2013,\1\ to 
demonstrate that Missouri met all the requirements of element C of the 
infrastructure SIP (78 FR at 21286). EPA received no comments on this 
direct final action, and therefore this SIP revision became effective 
on June 3, 2013.
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    \1\ Approval and Promulgation of Implementation Plans and 
Operating Permits Program, State of Missouri (78 FR 19602).
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II. EPA's Responses to Comments

    The public comment period on EPA's proposed rule opened April 10, 
2013, the date of its publication in the Federal Register, and closed 
on May 10, 2013. During this period, EPA received three comment 
letters: One from a citizen received April 18, 2013; one from the 
Sierra Club and Earthjustice received May 10, 2013 (hereinafter 
``Sierra Club''); and one from the National Parks Conservation 
Association received May 10, 2013 (hereinafter ``NPCA''). All three 
letters are available in the docket to today's final rule. The citizen 
comment was made in support of EPA's action, and we appreciate the 
support for this rulemaking. No changes were made to this final action 
based on this comment. The remaining two letters contained some similar 
comments, and therefore we have grouped those similar comments into 
single comments and responses where appropriate.
    Comment 1: The Sierra Club contends that Missouri's infrastructure 
SIP submissions for the 1997 and 2006 PM2.5 NAAQS do not 
meet the requirements of section 110(a)(2)(A). First, the commenter 
suggests that the SIP submissions are deficient because the state 
relies ``on general, existing statutory and regulatory authority in 
lieu of developing specific new requirements tailored to ensure that 
the 1997 and 2006 PM2.5 NAAQS is maintained and enforced.'' 
Second, the Commenter suggests that certain existing provisions in 
Missouri's SIP and relied upon in the SIP submissions may be 
insufficiently specific to be enforceable emissions limits. In support 
of the latter concern, the Commenter cites the court decision in McEvoy 
v. IEI Barge Services, 622 F.3d 671 (7th Cir. 2010) for the proposition 
that ``some (but not all) courts have suggested that only an emissions 
limitation that specifically `limits the quantity, rate, or 
concentration of emissions,' can be an `enforceable emission 
limitation''' under the CAA. The implication of this comment is that 
only an emissions limitation that is sufficiently specific could meet 
the legal requirements of section 110(a)(2)(A) for purposes of 
enforcement, and thus for purposes of an infrastructure SIP submission 
as well.
    Response 1: EPA disagrees with the Sierra Club's contention that 
Missouri's infrastructure SIP submissions are not approvable with 
respect to section 110(a)(2)(A) because they do not contain ``new 
requirements'' for the 1997 and 2006 PM2.5 NAAQS. Similarly, 
EPA disagrees with the Commenter's view that the existing provisions of 
the Missouri SIP are not enforceable emissions limitations for purposes 
of the 1997 and 2006 PM2.5 NAAQS.
    With respect to the concerns about the reliance on general, 
existing statutory and regulatory authority to meet the requirements of 
section 110(a)(2)(A) in lieu of developing specific new requirements, 
the Sierra Club is incorrect with respect to the scope of what is 
germane to an action on an infrastructure SIP. This rulemaking pertains 
to EPA's action on infrastructure SIP submissions, which must only 
establish that the state's SIP meets the general structural 
requirements described in section 110(a)(2)(A) for the NAAQS at issue. 
That section states that each implementation plan submitted by a State 
under the CAA shall include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of this Act. In the 
context of an infrastructure SIP submission, states may establish that 
they have sufficient SIP provisions for this purpose through existing 
SIP provisions, through newly submitted SIP provisions, or through a 
combination of the two.
    The Commenter seems to believe that in the context of an 
infrastructure SIP submission, section 110(a)(2)(A) explicitly requires 
that a state adopt all possible new enforceable emission limits, 
control measures and other

[[Page 37459]]

means developed specifically for attaining and maintaining the new 
NAAQS within the state. EPA does not believe that this is a reasonable 
interpretation of the provision with respect to infrastructure SIP 
submissions. Rather, EPA believes that different requirements for SIPs 
become due at different times depending on the precise applicable 
requirements in the CAA. For example, SIP submissions that may contain 
new emissions limitations for purposes of attaining and maintaining the 
NAAQS are required pursuant to CAA section 172(b), as part of an 
attainment demonstration for areas designated as nonattainment for the 
NAAQS. The timing of such an attainment demonstration would be after 
promulgation of a NAAQS, after completion of designations, and after 
development of the applicable nonattainment plans, i.e., long after the 
time when section 110(a)(1) requires an infrastructure SIP submission.
    The Sierra Club comment suggests that EPA should disapprove a 
state's infrastructure SIP submission if the state has not already 
developed all the substantive emissions limitations that may ultimately 
be required for all purposes, such as attainment and maintenance of the 
NAAQS as part of an attainment plan for a designated nonattainment 
area. Instead, for purposes of section 110(a)(2)(A), and for purposes 
of an infrastructure SIP submission, EPA believes the proper inquiry is 
whether the state has met the basic structural SIP requirements 
appropriate at the point in time EPA is acting upon it. EPA does not 
interpret section 110(a)(2)(A) to require states in an infrastructure 
SIP submission to have developed and submitted the full range of 
emissions limits that may ultimately be necessary for purposes of 
attainment and maintenance of the NAAQS within the state. As explained 
in the proposal, EPA has concluded that Missouri has adequately 
established that it has met basic requirements for implementation, 
maintenance, and enforcement of the 1997 and 2006 PM2.5 
NAAQS through the existing SIP provisions identified in the proposal.
    With respect to the Sierra Club's concerns about Missouri's use of 
``broad provisions'' in its SIP to address the requirements of section 
110(a)(2)(A), EPA has reviewed Missouri's statutes and regulations in 
light of the McEvoy court decision noted by the Commenter. EPA 
acknowledges the Commenter's concern that SIP provisions must contain 
sufficient specificity, so that the regulated community, regulators, 
and members of the public can clearly ascertain what is required of 
sources, and so that enforcement can occur in the event of violations. 
EPA believes that the Court's decision in McEvoy is limited to the 
specific facts and circumstances of that case, but nevertheless 
reflects what may happen in an enforcement proceeding if a given SIP 
provision is ultimately deemed insufficiently specific to be 
enforceable. However, based on a review of the provisions at issue, we 
conclude that Missouri has sufficiently specific statutory and 
regulatory provisions in place to meet the requirements of section 
110(a)(2)(A) for purposes of an infrastructure SIP submission.
    As we noted in the proposed rulemaking and as Sierra Club 
acknowledges, RsMO section 643.050.1(1)(b) gives the Missouri Air 
Conservation Commission the authority to adopt, promulgate, amend and 
repeal rules and regulations that establish ``maximum quantities of air 
contaminants that may be emitted from any air contaminant source.'' 
Pursuant to that authority, Missouri has adopted ambient air quality 
standards at 10 CSR 10-6.010 that mirror the 1997 PM2.5 
annual and 2006 PM2.5 24-hour NAAQS, along with the NAAQS 
for other criteria pollutants such as sulfur dioxide, carbon monoxide, 
ozone, lead and nitrogen dioxide. The regulations at 10 CSR 10-
6.020(3)(A) provide specific emissions limits for PM2.5 and 
other pollutants. See also 10 CSR 10-6.060(11) (providing maximum 
allowable increases of particulate matter in Class I, Class II, and 
Class III areas in Missouri).
    The regulations at 10 CSR 10-6.030(5) provide specific requirements 
for sampling the concentration of particulate matter emissions from 
sources; these requirements specifically incorporate by reference the 
test methods contained in 40 CFR part 60, appendix A and 40 CFR part 
51, appendix M. Furthermore, the regulations at 10 CSR 10-6.040(4) 
provide reference methods for determining the concentration of 
particulate matter necessary for the enforcement of air pollution 
control regulations throughout Missouri. These regulations incorporate 
by reference the standards found at 40 CFR part 50.
    EPA also notes that the Missouri air pollution control regulations 
contain specific requirements concerning the control of particulate 
matter. See, e.g., 10 CSR 10-6.170 (Restriction of Particulate Matter 
to the Ambient Air Beyond the Premises of Origin); 10 CSR 10-6.400 
(Restriction of Emission of Particulate Matter From Industrial 
Processes); 10 CSR 10-6.405 (Restriction of Particulate Matter 
Emissions From Fuel Burning Equipment Used for Indirect Heating).
    Furthermore, Missouri's regulations require that operating permits 
issued to sources contain specific ``emissions limitations or standards 
applicable to the installation'' and ``operational requirements or 
limitations as necessary to assure compliance with all applicable 
requirements.'' 10 CSR 10-6.065(6)(C)1. Thus, in addition to the 
emission limitations applicable to sources through the generally 
applicable provisions of the SIP, sources that are required to obtain 
permits will have additional legally enforceable requirements to meet 
specific emission limitations, control measures, or other restrictions 
as appropriate.
    Coupled with the enforcement authority provided by Missouri's 
statutes and regulations, which provides MDNR the authority to issue 
compliance orders or assess administrative penalties for violations of 
any emissions limitations of the SIP, EPA continues to believe that 
Missouri has sufficient authority to address the requirements of 
section 110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS.
    Comment 2: The Sierra Club and NPCA commented that emission 
reductions from the Clean Air Interstate Rule (CAIR) are not permanent 
and enforceable and therefore EPA cannot rely on CAIR to satisfy the 
requirements of CAA section 110(a)(2)(D)(i)(II)--prong 4. Sierra Club 
argued that in light of the remand of the rule by the D.C. Circuit 
Court of Appeals in North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 
2008), CAIR is neither permanent nor enforceable. Sierra Club also 
states that EPA has acknowledged in other Federal Register notices that 
CAIR was remanded without vacatur, was only temporary and could not be 
relied on as permanent and enforceable emission reductions for SIP 
approval purposes. Sierra Club also states that the Court's decision in 
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) 
does not extend the life of CAIR and does not make CAIR a permanent and 
enforceable measure on which the state or EPA can rely. Therefore, the 
commenters state that EPA should disapprove this sub-element of 
Missouri's SIP.
    Response 2: EPA agrees that all control measures in a SIP must be 
enforceable based on the requirements of CAA section 110(a)(2)(A). EPA 
disagrees, however, that CAIR is not enforceable at this time, given 
the scope of the court's order in EME Homer City and the issuance of 
the mandate in that case.

[[Page 37460]]

    On May 12, 2005, EPA published CAIR, which requires significant 
reductions in emissions of SO2 and NOX from 
electric generating units (EGUs) to limit the interstate transport of 
these pollutants and the ozone and fine particulate matter they form 
secondarily in the atmosphere (76 FR 70093). The D.C. Circuit initially 
vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but 
ultimately remanded the rule to EPA without vacatur to preserve the 
environmental benefits provided by CAIR, North Carolina v. EPA, 550 
F.3d 1176, 1178 (D.C. Cir. 2008). In response to the Court's decision, 
EPA issued the Cross State Air Pollution Rule (CSAPR) to address the 
interstate transport of NOX and SO2 in the 
eastern United States (76 FR 48208, August 8, 2011). On August 21, 
2012, the D.C. Circuit issued a decision vacating CSAPR, EME Homer City 
Generation v. EPA, 696 F.3d 7.\2\ In that decision, it also ordered EPA 
to continue administering CAIR, ``pending . . . development of a valid 
replacement rule'' (Id. at 38).
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    \2\ On March 29, 2013, EPA and other parties filed petitions 
seeking Supreme Court review of the D.C. Circuit decision.
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    The direction from the D.C. Circuit in EME Homer City ensures that 
the reductions associated with CAIR will be enforceable and in place 
for a number of years. EPA has been ordered by the court to develop a 
new rule and the opinion makes clear that after promulgating the new 
rule, EPA must provide states an opportunity to draft and submit SIPs 
to implement that rule. CAIR thus will remain in force until EPA has 
promulgated a final rule through a notice-and-comment rulemaking 
process, states have had an opportunity to draft and submit SIPs, EPA 
has reviewed the SIPs to determine if they can be approved, and EPA has 
taken action on the SIPs, including promulgating a Federal 
Implementation Plan (FIP) if appropriate. In the meantime, neither the 
State nor EPA has taken any final action to remove the CAIR 
requirements from the Missouri SIP. These SIP provisions remain in 
place and are Federally enforceable.
    Further, in vacating CSAPR and requiring EPA to continue 
administering CAIR, the D.C. Circuit emphasized that the consequences 
of vacating CAIR ``might be more severe now in light of the reliance 
interests accumulated over the intervening four years'' (EME Homer 
City, 696 F.3d at 38). The accumulated reliance interests include the 
interests of the states who reasonably assumed they could rely on 
reductions associated with CAIR to meet the requirements of the 
Regional Haze Rule and, in turn, the requirements of Prong 4 of section 
110 (a)(2)(D)(i)(II).
    The proposed and final EPA actions cited by the Commenter as 
support for its argument that EPA has considered CAIR to be temporary 
all pre-date the vacatur of CSAPR and were based on EPA's expectation 
that CSAPR would be the replacement for CAIR, and thus CAIR would end 
soon.\3\ At the time of these actions, CAIR was reasonably expected to 
sunset by operation of law in a fairly short timeframe. That background 
assumption no longer applies. Based on the vacatur of CSAPR and the 
Court's related decision to keep CAIR in place, EPA believes that it is 
appropriate at this time to rely on CAIR emission reductions as 
permanent and enforceable SIP measures while a valid replacement rule 
is developed and until implementation plans complying with any such new 
rule are submitted by the States and acted upon by EPA or until the EME 
Homer City case is resolved in a way that provides different direction 
regarding CAIR and CSAPR.
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    \3\ On August 21, 2012, the D.C. Circuit issued an opinion to 
vacate CSAPR and keep CAIR in place pending promulgation of a valid 
replacement rule. However, the court also ordered the Clerk to 
withhold issuance of the mandate until seven days after disposition 
of any timely petition for rehearing or rehearing en banc. All 
petitions for rehearing were denied on January 24, 2013, and the 
mandate was issued by the D.C. Circuit on February 4, 2013. As noted 
above, EPA and other parties subsequently filed petitions seeking 
Supreme Court review of the D.C. Circuit decision.
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    EPA is taking final action to approve the infrastructure SIP 
submission with respect to prong 4 because Missouri's regional haze 
SIP, to which EPA has given limited approval in combination with its 
SIP provisions to implement CAIR, adequately prevents sources in 
Missouri from interfering with measures adopted by other states to 
protect visibility during the first planning period. While EPA is not 
at this time proposing to change the June 7, 2012, or June 26, 2012, 
limited disapproval and limited approval of Missouri's regional haze 
SIP, EPA expects to propose appropriate action regarding this SIP, if 
necessary, upon final resolution of the EME Homer City litigation. A 
more detailed rationale to support EPA's approval of prong 4 for 
Missouri's 1997 and 2006 PM2.5 infrastructure submission can 
be found in EPA's proposed rulemaking for today's final action (78 FR 
21281).
    Comment 3: The NPCA commented that EPA cannot approve portions of 
the Missouri infrastructure SIP submissions addressing the requirements 
of CAA section 110(a)(2)(D)(i)(II) with respect to visibility because 
these submittals rely on CAIR, and CAIR cannot meet the BART or 
reasonable progress requirements of the visibility program. NPCA argues 
that to meet the requirements of the visibility prong of section 
110(a)(2)(D)(i)(II), EPA must direct Missouri to develop an 
implementation plan that meets the BART and reasonable progress 
requirements of the regional haze rule. In particular, NPCA raised a 
number of legal arguments in support of its position that section 169A 
of the CAA requires source-specific BART determinations for power 
plants and does not allow states to adopt alternative programs, such as 
CAIR, in lieu of these source-specific requirements. The NPCA also 
stated that CAIR cannot be used to shield sources from review under the 
CAA's reasonable progress requirements. NPCA commented that in the 
absence of a source-specific review to determine reasonable progress 
measures, it is not possible to determine whether CAIR will fulfill the 
reasonable progress requirements, assuming it could overcome the lack 
of enforceability of the program.
    Response 3: The visibility prong of section 110(a)(2)(D)(II) of the 
CAA requires SIPs to ``contain adequate provisions . . . prohibiting . 
. . any source . . . within the state from emitting any air pollutant 
in amounts which will . . . interfere with measures required to be 
included in the applicable implementation plan for any other State 
under part C of this subchapter . . . to protect visibility.'' We 
interpret this provision of section 110 of the CAA as requiring states 
to include in their SIPs measures to prohibit emissions that would 
interfere with the reasonable progress goals set to protect Class I 
areas in other states. This is consistent with the requirements in the 
regional haze program which explicitly require each state to address 
its share of the emission reductions needed to meet the reasonable 
progress goals for surrounding Class I areas (40 CFR 51.308(d)(3)(i); 
see also 77 FR 11958, 11962, February 28, 2012). Given this explicit 
requirement in the regional haze rule, states may satisfy the 
visibility prong of section 110(a)(2)(D)(II) through an EPA-approved 
regional haze SIP. EPA issued a limited approval of Missouri's regional 
haze plan on June 26, 2012, having determined, among other things, that 
the SIP submittal provided sufficient evidence to demonstrate that its 
long-term strategy includes all measures necessary to obtain its share 
of emission reductions needed to address the

[[Page 37461]]

impacts of Missouri's emissions sources on Class I areas in other 
states (77 FR 38007, 38009).
    In its comments, however, NPCA argues that important elements of 
Missouri's approved regional haze SIP do not meet the requirements of 
section 169A of the CAA. EPA disagrees with the Commenter that the CAA 
does not allow states to rely on an alternative program such as CAIR in 
lieu of source-specific BART. EPA's regulations allowing states to 
adopt alternatives to BART that provide for greater reasonable 
progress, and the Agency's determination that states may rely on CAIR 
to meet the BART requirements, have been upheld by the D.C. Circuit, 
Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006) as 
meeting the requirements of the CAA. We also note that the regional 
haze regulations do not require a source-specific analysis of controls 
for reasonable progress. Even assuming, however, that the Missouri 
regional haze SIP improperly relied on CAIR to meet the BART and 
reasonable progress requirements, the NPCA has not shown that the 
State's plan does not comply with section 110(a)(2)(D)(i).

III. Summary of Final Action

    Based upon review of the State's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in those submissions 
or referenced in Missouri's SIP, EPA believes that Missouri has the 
infrastructure to address all applicable required elements of sections 
110(a)(1) and(2) (except otherwise noted) to ensure that the 1997 and 
2006 PM2.5 NAAQS are implemented in the state. Therefore, 
EPA is taking final action to approve Missouri's infrastructure SIP 
submissions for the 1997 and 2006 NAAQS for PM2.5 for the 
following section 110(a)(2) elements and sub-elements: (A), (B), (C), 
(D)(i)(II) (prongs 3 and 4), (D)(ii), (E), (F), (G), (H), (J), (K), 
(L), and (M). In addition, EPA is approving two SIP submissions, one 
addressing the Prevention of Significant Deterioration (PSD) program in 
Missouri as it relates to PM2.5, and another SIP revision 
addressing the requirements of section 128 of the CAA, both of which 
support the requirements associated with infrastructure SIPs.

IV. Statutory and Executive Order Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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);
     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.
    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).
    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 August 20, 2013. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: June 10, 2013.
Mark Hague,
Acting Regional Administrator, Region 7.
    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart AA--Missouri

0
2. In Sec.  52.1320:
0
a. The table in paragraph (c) is amended by adding a new Chapter 1 
heading in numerical order, adding a new entry 10-1.020 (1) and (2), 
and revising the entry for 10-6.060.
0
b. The table in paragraph (e) is amended by adding new entries (58), 
(59) and (60) in numerical order at the end of the table.
    The additions read as follows:


Sec.  52.1320  Identification of plan.

* * * * *
    (c) * * *

[[Page 37462]]



                                        EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
                                                          State
        Missouri citation                Title          effective    EPA approval date         Explanation
                                                           date
----------------------------------------------------------------------------------------------------------------
                                    Missouri Department of Natural Resources
                                             Chapter 1--Organization
----------------------------------------------------------------------------------------------------------------
10-1.020 (1) and (2)............  Commission Voting      7/30/1998  6/21/2013 [INSERT    .......................
                                   and Meeting                       Federal Register
                                   Procedures.                       PAGE NUMBER WHERE
                                                                     THE DOCUMENT
                                                                     BEGINS].
 
                                                  * * * * * * *
    Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
                                      Regulations for the State of Missouri
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
10-6.060........................  Construction           9/30/2012  6/21/2013 [INSERT    Provisions of the 2010
                                   Permits Required.                 Federal Register     PM2.5 PSD--Increments,
                                                                     PAGE NUMBER WHERE    SILs and SMCs rule (75
                                                                     THE DOCUMENT         FR 64865, October 20,
                                                                     BEGINS].             2010) relating to SILs
                                                                                          and SMCs that were
                                                                                          affected by the
                                                                                          January 22, 2013 U.S.
                                                                                          Court of Appeals
                                                                                          decision are not SIP
                                                                                          approved.
                                                                                         Provisions of the 2002
                                                                                          NSR reform rule
                                                                                          relating to the Clean
                                                                                          Unit Exemption,
                                                                                          Pollution Control
                                                                                          Projects, and
                                                                                          exemption from
                                                                                          recordkeeping
                                                                                          provisions for certain
                                                                                          sources using the
                                                                                          actual-to-projected-
                                                                                          actual emissions
                                                                                          projections test are
                                                                                          not SIP approved.
                                                                                         In addition, we have
                                                                                          not approved
                                                                                          Missouri's rule
                                                                                          incorporating EPA's
                                                                                          2007 revision of the
                                                                                          definition of
                                                                                          ``chemical processing
                                                                                          plants'' (the
                                                                                          ``Ethanol Rule,'' 72
                                                                                          FR 24060 (May 1, 2007)
                                                                                          or EPA's 2008
                                                                                          ``fugitive emissions
                                                                                          rule,'' 73 FR 77882
                                                                                          (December 19, 2008).
                                                                                         Although exemptions
                                                                                          previously listed in
                                                                                          10 CSR 10-6.060 have
                                                                                          been transferred to 10
                                                                                          CSR 10-6.061, the
                                                                                          Federally-approved SIP
                                                                                          continues to include
                                                                                          the following
                                                                                          exemption, ``Livestock
                                                                                          and livestock handling
                                                                                          systems from which the
                                                                                          only potential
                                                                                          contaminant is odorous
                                                                                          gas.''
                                                                                         Section 9, pertaining
                                                                                          to hazardous air
                                                                                          pollutants, is not SIP
                                                                                          approved.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  52.1320  Identification of plan.

* * * * *
    (e)* * *

                               EPA-Approved Missouri Nonregulatory SIP Provisions
----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP     Applicable geographic        State
            revision              or nonattainment area   submittal date   EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(58) Section 110(a)(2)           Statewide..............       2/27/2007  6/21/2013 [INSERT   This action
 Infrastructure Requirements                                               CITATION OF         addresses the
 for the 1997 PM2.5 NAAQS.                                                 PUBLICATION].       following CAA
                                                                                               elements:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(i)(II) prongs
                                                                                               3 and 4, (D)(ii),
                                                                                               (E), (F), (G),
                                                                                               (H), (J), (K),
                                                                                               (L), and (M).
(59) Section 110(a)(2)           Statewide..............      12/28/2009  6/21/2013 [INSERT   This action
 Infrastructure Requirements                                               CITATION OF         addresses the
 for the 2006 PM2.5 NAAQS.                                                 PUBLICATION].       following CAA
                                                                                               elements:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(i)(II) prongs
                                                                                               3 and 4, (D)(ii),
                                                                                               (E), (F), (G),
                                                                                               (H), (J), (K),
                                                                                               (L), and (M).

[[Page 37463]]

 
(60) Section 128 Declaration:    Statewide..............       8/08/2012  6/21/2013 [INSERT   ..................
 Missouri Air Conservation                                                 CITATION OF
 Commission Representation and                                             PUBLICATION].
 Conflicts of Interest
 Provisions; Missouri Revised
 Statutes (RSMo) RSMo 105.450,
 RSMo 105.452, RSMo 105.454,
 RSMo 105.462, RSMo 105.463,
 RSMo 105.466, RSMo 105.472,
 and RSMo 643.040.2.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2013-14755 Filed 6-20-13; 8:45 am]
BILLING CODE 6560-50-P