[Federal Register Volume 86, Number 104 (Wednesday, June 2, 2021)]
[Rules and Regulations]
[Pages 29517-29520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11244]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[[EPA-R07-OAR-2019-0711; FRL-10024-22-Region 7]


Air Plan Approval; Missouri; Construction Permits By Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving 
selected revisions to a Missouri State rule in the State Implementation 
Plan (SIP) that establishes a process and standardized conditions under 
which certain types of sources can construct and operate in lieu of 
going through the State's formal construction permitting process. The 
EPA is approving rule revisions that include modifications to the 
operating conditions for crematories and animal incinerators, 
adjustments to sulfur limits on Number 2 diesel oil for consistency 
with Federal limits, removal of ``restrictive'' words, addition of 
definitions specific to the rule, and other minor edits. At this time, 
the agency is not acting on revisions that conflict with an EPA 
regulation related to disposal of pharmaceuticals collected in drug 
take-back programs. The EPA's approval of the State's other rule 
revisions is being done in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: This final rule is effective on July 2, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R07-OAR-2019-0711. 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., 
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 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: Wendy Vit, Environmental Protection 
Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219 at (913) 551-7697, or by email at 
[email protected].

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

Table of Contents

I. What is being addressed in this action?
II. Have the requirements for approval of the 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 action?

    The EPA is taking final action to approve selected revisions to 10 
Code of State Regulations (CSR) 10-6.062 in the Missouri SIP. The 
revised State rule was submitted by the State of Missouri on March 7, 
2019 and became effective on March 30, 2019. The submission requested 
revisions to the SIP that include: (1) Expanding the materials that 
crematories and animal incinerators are allowed to burn from 100% human 
and animal remains to 90% human and animal remains with up to 10% 
illegal and waste pharmaceutical drugs, (2) modifying operating 
conditions for crematories and animal incinerators, (3) adjusting 
sulfur limits on Number 2 diesel oil for consistency with Federal 
limits, (4) removing ``restrictive'' words, (5) adding definitions 
specific to the rule, and (6) making other minor edits. The EPA is 
finalizing this action because certain revisions to this State rule 
meet the applicable requirements of the Clean Air Act. EPA is not 
acting on the State rule revisions that would allow crematories and 
animal incinerators to burn up to 10% by weight of illegal and waste 
pharmaceuticals.

[[Page 29518]]

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

    The State's 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 of the revisions from August 1, 2018, to 
October 4, 2018, and held a public hearing on September 27, 2018. The 
State received and addressed four comments from three sources, 
including the EPA. In addition, as explained in the proposal (85 FR 
3304, January 21, 2020) and in more detail in the EPA's technical 
support document (TSD), which is part of this docket, the revision 
meets the substantive SIP requirements of the CAA, including section 
110 and the implementing regulations.

III. The EPA's Responses to Comments

    The public comment period on the EPA's proposed rule opened January 
21, 2020, the date of its publication in the Federal Register, and 
closed on February 20, 2020. During this period, the EPA received 
comments from two commenters, which are addressed below.
    Comment 1: One commenter submitted several comments regarding 
revisions in 10 CSR 10-6.062 paragraph (3)(B)2. and subparagraph 
(3)(B)2.A. that would expand the materials which crematories and animal 
incinerators are allowed to burn from 100% human and animal remains to 
90% human and animal remains with up to 10% illegal and waste 
pharmaceutical drugs. The comments raise multiple approvability issues. 
First, the commenter states the EPA failed to provide any analysis or 
basis for its assertion that allowing crematories and animal 
incinerators to burn up to 10% pharmaceuticals would not impact the 
stringency of the SIP or air quality. Second, the commenter states the 
EPA applied faulty logic in relying on the Commercial and Industrial 
Solid Waste Incinerator (CISWI) rule's exemption for pathological waste 
incinerators that burn 90% pathological waste. The commenter contends 
that the 90% cutoff in the CISWI rule is not a 10% catch-all burn-what-
you-will provision, rather it is intended to distinguish those units 
designed and used primarily for pathological material destruction from 
other units. There is no CISWI rule provision that allows for the other 
10% of the material to be illegal and waste pharmaceutical drugs. 
Third, the commenter said the EPA's analysis fails to recognize that 
incineration of pharmaceutical drugs may be subject to other federal 
regulations under sections 112 or 129 of the Clean Air Act or the 
Resource Conservation and Recovery Act (RCRA) depending on their 
contents. Finally, the commenter states the EPA failed to analyze 
whether allowing crematories and animal incinerators to burn 
pharmaceuticals would increase hazardous air pollutant emissions to 
such an extent that the source would exceed the major source threshold 
and therefore not be eligible for the construction permit-by-rule per 
10 CSR 10-6.062(1)(A).
    Response to Comment 1: Because of the issues raised in these 
comments, the EPA is not acting on the revised language that would 
allow crematories and animal incinerators to burn up to 10% by weight 
of illegal and waste pharmaceuticals. Missouri added these provisions 
as a means of disposing materials collected from drug take-back events 
and programs. However, the revisions in the State's rule conflict with 
requirements related to drug take-back programs established by the 
EPA's final regulation, Management Standards for Hazardous Waste 
Pharmaceuticals and Amendment to the P075 Listing for Nicotine (84 FR 
5816, February 22, 2019). Specifically, the requirements for drug take-
back programs codified at 40 CFR 266.506, list five types of permitted 
combustors that must be used to destroy waste pharmaceuticals, and 
crematoriums and animal incinerators are not included on the list for 
this purpose. The EPA explains in the preamble of the final hazardous 
waste pharmaceuticals rule that crematories and animal incinerators are 
not allowed to be used for disposal of materials collected from drug 
take-back programs because these units typically do not use air 
pollution control devices to limit toxic air pollutants such as mercury 
and dioxins and furans. In addition to the hazardous waste 
pharmaceuticals rule, there may be other state and federal regulations 
applicable to crematories and animal incinerators. Missouri has 
represented to the EPA that it is in the process of revising 10 CSR 10-
6.062 to remove the problematic language allowing crematories and 
animal incinerators to burn illegal and waste pharmaceutical drugs. As 
evidence of Missouri's rulemaking to revise 10 CSR 10-6.062, the 
rulemaking report summarizing the changes Missouri plans to make is 
included in this docket.
    Comment 2: The commenter states that Missouri's rule lacks 
necessary enforceability provisions. For instance, the commenter states 
that the rule is not clear whether the demonstration of 99.9% 
combustion efficiency applies to sources that rely on manufacturer's 
specifications, and it is incomplete because it does not specify what 
pollutants must be demonstrated to meet the 99.9% combustion 
efficiency. In addition, the commenter states that the compliance 
provisions for stack tests and opacity limit requirements fail to 
identify the appropriate test methods. The commenter says the rule also 
lacks provisions that apply to owners that follow manufacturers 
specifications. Finally, the commenter states that the recordkeeping 
and reporting provisions are inadequate.
    Response to Comment 2: To apply for a Missouri permit-by-rule, an 
applicant completes an application. The application form contains the 
conditions of operation, including methods of compliance. The applicant 
signs the form to accept the conditions. This becomes the final permit 
issued by the Missouri Department of Natural Resources.\1\ It is EPA's 
understanding that Missouri is in the process of updating the 
application form to reflect the changes made in this revision to the 
State rule.
---------------------------------------------------------------------------

    \1\ Missouri's permit-by-rule application forms may be found 
here https://dnr.mo.gov/forms/#AirPollution.
---------------------------------------------------------------------------

    The revised rule language clearly specifies the following two 
compliance demonstration options for crematories and animal 
incinerators: (1) Operate in accordance with manufacturer's 
specifications or (2) demonstrate a 99.9% combustion efficiency. Higher 
combustion efficiencies minimize the products of incomplete combustion 
and associated air pollutants.
    The EPA reviewed a number of Missouri construction permits for 
crematories and animal incinerators that have been issued through the 
State's formal construction permitting process in accordance with the 
SIP-approved rule, 10 CSR 10-6.060 Construction Permits Required. The 
revised compliance options and enforceability provisions in 10 CSR 10-
6.062 for crematories and animal incinerators are consistent with the 
language in the permits for these units that have been issued under 10 
CSR 10-6.060.
    The rule language regarding opacity and reporting and recordkeeping 
requirements was not materially revised from the provisions in the 
previously approved SIP. The EPA did not intend to solicit comments on 
the rule requirements that the state did not materially change in this 
rulemaking. The agency initially approved 10 CSR 10-6.062 in 2006 (71 
FR 38997, July 11, 2006), and the opacity and reporting and 
recordkeeping provisions have not

[[Page 29519]]

been revised since then. 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\ There are 
no known issues with the enforcement of this rule. Therefore, the EPA 
is finalizing this SIP revision.
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    Comment 3: The commenter stated that the EPA failed to provide a 
basis for proposing to approve the addition of eleven (11) definitions 
in section (2) of the rule. The commenter states it appears that the 
EPA is assuming that previously approved definitions can be moved into 
the rule. The commenter finds that it is unclear why the definition of 
``incinerator'' was moved into this rule because it covers refuse 
material and open burning. The commenter also states that the 
definition of ``construction'' moved into this rule does not match the 
definition of construction in the permitting rule that the owner/
operator seeks exemption from [10 CSR 10-6.060] and the reason for the 
difference is not explained. Additionally, the commenter notes that the 
definition of ``printing'' differs from the section that covers 
printing operations (paragraph (3)(B)1.), which is more encompassing. 
Finally, the commenter states the definition of ``closed container'' 
speaks to requirements regarding spilling and leaking the contents and 
fails to require that the closed container prevents volatile organic 
compound (VOC) fugitives.
    Response to Comment 3: As explained in detail in the TSD, the 
definitions inserted into 10 CSR 10-6.062 section (2) are the same 
definitions included in the SIP-approved 10 CSR 10-6.020 Definitions 
and Common Reference Tables, and therefore there is no change to the 
stringency of the SIP. As explained above, the EPA did not intend to 
solicit comments on the portions of the rule that the State did not 
materially change in this rulemaking. Furthermore, the addition of 
these general definitions in section (2) of the rule does not impact 
any of the rule's conditions or requirements. The provisions in the 
permit-by-rule for each source category covered by 10 CSR 10-6.062 
contain greater specificity related to usage of the terms.
    Comment 4: An anonymous commenter recommended that the revisions 
not be approved. The commenter stated that instead more stringent 
protections and regulations with penalties should be put in place to 
better protect the environment and public.
    Response to Comment 4: The permit-by-rule for each source category 
in subsection (3)(B) of the rule includes enforcement provisions. In 
addition, subsection (3)(C) includes provisions for revoking a permit-
by-rule and penalties for non-compliance, and section (4) includes 
reporting and recordkeeping requirements. There are no known issues 
with the enforcement of this rule. For the reasons stated above and in 
the proposal, the EPA has determined that the rule revisions comply 
with the requirements of the Clean Air Act.

IV. What action is the EPA taking?

    The EPA is approving all revisions from the March 30, 2019, State 
effective date version of 10 CSR 10-6.062 into the Missouri SIP, except 
for revisions to paragraph (3)(B)2. and subparagraph (3)(B)2.A. We are 
taking final action after consideration of the comments received from 
two commenters on the notice of proposed rulemaking.

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\
---------------------------------------------------------------------------

    \3\ 62 FR 27968, May 22, 1997.
---------------------------------------------------------------------------

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the 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);
     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

[[Page 29520]]

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. The 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 2, 2021. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 21, 2021.
Edward H. Chu,
Acting 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 ``10-6.062'' to read as follows:


Sec.  52.1320  Identification of plan.

    (c) * * *

                                        EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
                                                       State  effective
       Missouri  citation                Title               date          EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
                                    Missouri Department of Natural Resources
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
    Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
                                      Regulations for the State of Missouri
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
10-6.062........................  Construction        3/30/2019.........  6/2/2021, [insert   EPA is approving
                                   Permits By Rule.                        Federal Register    all revisions
                                                                           citation].          from the 3/30/
                                                                                               2019 State
                                                                                               effective date
                                                                                               version of 10 CSR
                                                                                               10-6.062, except
                                                                                               for paragraph
                                                                                               (3)(B)2. and
                                                                                               subparagraph
                                                                                               (3)(B)2.A.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2021-11244 Filed 6-1-21; 8:45 am]
BILLING CODE 6560-50-P