[Federal Register Volume 85, Number 163 (Friday, August 21, 2020)]
[Rules and Regulations]
[Pages 51663-51666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16440]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2020-0014; FRL-10012-93-Region 7]


Air Plan Approval; Missouri; Control of Emissions From Production 
of Pesticides and Herbicides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a revision to the State Implementation Plan (SIP) for 
its rule related to control of emissions from production of pesticides 
and herbicides in the Kansas City area. This final action will amend 
the SIP to remove certain provisions from the rule, consolidate 
requirements, include incorporations by reference and revise 
restrictive language. The EPA's approval of these rule revisions is 
being done in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This final rule is effective on September 21, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R07-OAR-2020-0014. All documents in the docket are 
listed on the https://www.regulations.gov website. 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, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional information.

FOR FURTHER INFORMATION CONTACT: Will Stone, Environmental Protection 
Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7714; 
email address: [email protected].

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

Table of Contents

I. What is being addressed in this document?
II. Have the requirements for approval of a SIP revision been met?
III. The EPA's Response to Comments
IV. What action is the EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. What is being addressed in this document?

    The EPA is approving revisions to 10 Code of State Regulation (CSR) 
10-2.320, Control of Emissions from Production of Pesticides and 
Herbicides in the Missouri SIP. Missouri made several revisions to the 
rule. These revisions are described in detail in the technical support 
document (TSD) included in the docket for this action. The EPA is 
finalizing this action because the revisions to these rules meet the 
applicable requirements of the Clean Air Act.

[[Page 51664]]

II. Have the requirements for approval of a SIP revision been met?

    The State submission has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submission also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. The 
State provided public notice on this SIP revision from August 1, 2018 
to September 30, 2018 and received fourteen comments on the two rules. 
Missouri responded to all comments. As stated in the TSD for this 
action, the revision meets the substantive SIP requirements of the CAA, 
including section 110 and implementing regulations.

III. The EPA's Response to Comments

    The public comment period on the EPA's proposed rule was open from 
February 4, 2020 through March 5, 2020. During this period, EPA 
received several comments from two commenters.

Comments From Center for Biological Diversity and Center for 
Environmental Health

    Comment: The Center for Biological Diversity and Center for 
Environmental Health made several comments in their comment letter 
related to language that had been previously approved into the SIP when 
it was approved in 1989. See 54 FR 10322 (March 13, 1989) and 54 FR 
46232 (November 2, 1989). The commenters raise the following issues: 
(1) The sources covered by the rule; (2) the sufficiency of the 
monitoring and recordkeeping provisions; and (3) the legal sufficiency 
of language related to the director's review of records kept by subject 
sources.
    Response: EPA appreciates the comments on the proposal, but they 
are not germane to the SIP revision at issue in this action. As 
described in detail in the TSD to this rulemaking, the revisions to 
this rule are administrative in nature and do not change the purpose or 
substance of the preexisting state rule in the SIP. The TSD, included 
in the docket for this rulemaking, detail the revisions the state made 
to the prior version of the rule using strikeout, bold and red 
lettering. These minor changes include, for example, moving previously 
approved language into a new section (revisions to section (3) and 
(4)); renumbering paragraphs (revisions to sections (4) and (5)); and 
other minor wording changes (revisions to section (1)). EPA's TSD 
analysis focused only on these wording changes and did not evaluate the 
unchanged portions of the preexisting state rule. The state made no 
substantive changes e.g., applicability, emission limit changes, etc., 
to the rule already approved in the state's SIP.
    The EPA did not intend to solicit comments on the portions of the 
rule that the state did not change in this rulemaking. The NPRM did not 
request comment on the portions of the rule that were unchanged. 
Further, EPA's comments during the state's rulemaking process that led 
to this SIP revision focused only on the administrative and minor 
changes made to the rule, not on the substantive requirements 
previously approved into the SIP. See EPA-R07-OAR-2020-0014, State 
Submittal, p. 19.\1\ Thus, the agency's comments on the state's draft 
SIP submission reflect that the agency was not evaluating the state 
rule for any purposes other than the minor revisions the state intended 
to make.
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    \1\ Although EPA's comments on the rulemaking included a comment 
related to MDNR's requirement to comply with the requirements of CAA 
sections 110 and 193, 42 U.S.C. 7410 and 7515; as demonstrated by 
the EPA's comment letter, those comments applied generally to all 
SIP revisions made by MDNR. Further, because this rule did not have 
substantive changes to the requirements previously SIP-approved in 
1989, MDNR was not required to make a demonstration under section 
110 or 193 because there would be no emissions increases related to 
the changes in the rulemaking.
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    As demonstrated by the language in both the TSD and the notice of 
proposed rulemaking, the agency was not evaluating, and did not intend 
to evaluate, this SIP revision for substantive purposes. This action 
merely approves the state's editorial and renumbering changes to the 
existing, approved SIP provision.
    The agency first approved the provision into the Missouri SIP in 
1989. 54 FR 10322 (March 13, 1989). The state subsequently amended the 
rule, which EPA approved. 59 FR 43480 (Aug. 24, 1994) (correction 
document 60 FR 16806 April 3, 1995). Courts have indicated that 
actions, such as the action taken on this rule, do not reopen issues on 
which the agency was not seeking comment. Sierra Club v. EPA, 551 F.3d 
1019, 1024 (D.C. Cir. 2008) (citing Am. Iron & Steel Inst. v. EPA, 886 
F.2d 390, 397 (D.C. Cir. 1989)) (``Under the reopening doctrine, the 
time for seeking review starts anew where the agency reopens an issue 
by holding out the unchanged section as a proposed regulation, offering 
an explanation for its language, soliciting comments on its substance, 
and responding to the comments in promulgating the regulation in its 
final form.''); Appalachian Power v. EPA, 251 F.3d 1026 (D.C. Cir. 
2004).\2\ The issues raised by the commenter address the wording and 
substance of the state rule approved by the agency in 1989. 
Accordingly, any challenge to the 1989 approval would be governed the 
timing requirements in Clean Air Act section 301, 42 U.S.C. 7601.
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    \2\ ARTBA v. EPA, 588 F.3d 1109 at 1114 (rewriting a rule in 
plain language does not reopen); Kennecott Utah Copper Corp. v. U.S. 
Dept. of the Interior, 88 F.3d 1191 at 1220 (no reopener where 
agency ``merely re-worded the provision'' with ``no meaningful 
difference''); Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 920 
(D.C. Cir. 1998) (dictum) (no reopener where agency action ``merely 
republished an existing rule''); cf. also Pub. Citizen v. Nuclear 
Regulatory Com., 901 F.2d 147, 150 (D.C. Cir. 1990) (``where an 
agency's actions show that it has not merely republished an existing 
rule in order to propose minor changes to it, but has reconsidered 
the rule and decided to keep it in effect, challenges to the rule 
are in order'').
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    Further, EPA notes that the rule now covers only one source, that 
existed when 10 CSR 10-2.320 was first approved, in an area that is 
currently attaining all of the NAAQS, including ozone. This rule will 
continue to apply to this source and any new sources will be subject to 
the appropriate permitting requirements of the Clean Air Act and the 
Missouri State Implementation Plan.
    The commenters focus entirely on portions of the rule that were not 
changed by this rulemaking, but instead were approved into the SIP by 
the agency in 1989 and 1995. As discussed above, the agency did not 
reopen these provisions for comment. Therefore, EPA is finalizing this 
SIP revision.

Anonymous Commenter

    Comment: The commenter stated that EPA should not approve this SIP 
revision unless Missouri addresses all the comments and makes all the 
changes EPA requested in its comments on the rule.
    Response: During Missouri's public comment process, EPA submitted 
comments on the state's proposed revisions to a number of existing SIP 
provisions. EPA submitted some general comments applicable to the 
state's revisions to all of the state rules at issue, not all of which 
were applicable to the revisions to 10 CSR 10-2.320 at issue in this 
action. EPA submitted three comments to the state that were specific to 
the rule revisions addressed in this action. These specific comments by 
EPA were related to clarity and references in the rulemaking and 
Missouri made those revisions. EPA has determined that the state's 
submission has met the requirements of the Clean Air Act.

IV. What action is the EPA taking?

    The EPA is taking final action to amend 10 CSR 10-2.320 Control of 
Emissions from Production of Pesticides and Herbicides, which applies 
in the Kansas City area.

[[Page 51665]]

V. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the 
Missouri Regulations described in the amendments to 40 CFR part 52 set 
forth below. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 7 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).
    Therefore, these materials have been approved by the EPA for 
inclusion in the State Implementation Plan, have been incorporated by 
reference by EPA into that plan, are fully federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of the EPA's approval, and will be incorporated by reference 
in the next update to the SIP compilation.\3\
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    \3\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews

    Under the Clean Air Act 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 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 the National Technology 
Transfer and Advancement Act (NTTA) because this rulemaking does not 
involve technical standards; 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    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 Clean Air Act CAA, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 20, 2020. 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, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: July 24, 2020.
James Gulliford,
Regional Administrator, Region 7.
    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as set forth below:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, the table in paragraph (c) is amended by revising 
the entry ``10-2.320'' to read as follows:


Sec.  52.1320  Identification of plan.

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    (c) * * *

                                        EPA-Approved Missouri Regulations
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                                                           State
    Missouri citation                Title            effective date    EPA approval date        Explanation
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                                    Missouri Department of Natural Resources
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  Chapter 2--Air Quality Standards and Air Pollution Control Regulations for the Kansas City Metropolitan Area
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                                                  * * * * * * *
10-2.320................  Control of Emissions from          1/30/19  8/21/20, [insert
                           Production of Pesticides                    Federal Register
                           and Herbicides.                             citation].
 
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[FR Doc. 2020-16440 Filed 8-20-20; 8:45 am]
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