[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Rules and Regulations]
[Pages 37752-37754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13314]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2022-0329; FRL-9699-02-R7]


Air Plan Approval; Missouri; Start-Up, Shutdown and Malfunction 
Conditions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the State Implementation Plan (SIP) for 
the State of Missouri. This final action will amend the SIP to 
incorporate revisions to a state regulation related to the reporting of 
start-up, shutdown, and malfunction (SSM) events in Missouri. The 
revisions to this rule include adding incorporations by reference to 
other state rules, including definitions specific to the rule and 
making administrative wording changes. These revisions meet the 
requirements of the Clean Air Act, do not impact the stringency of the 
SIP or air quality. Approval of these revisions will ensure consistency 
between state and federally approved rules.

DATES: This final rule is effective on July 25, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R07-OAR-2022-0329. 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: Allie Donohue, Environmental 
Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 
Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-
7986; 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 Responses 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 taking final action to approve Missouri's revisions to 
10 Code of State Regulation (CSR) 10-6.050, Start-Up, Shutdown, and 
Malfunction Conditions, which relate to reporting of SSM events in the 
Missouri SIP. On April 7, 2022, the EPA published a notice of proposed 
rulemaking (NPRM) which proposed to approve the SIP revision as 
submitted by Missouri on February 11, 2020 (87 FR 20367). The EPA 
received two comments from one commenter during the public comment 
period. The EPA's summary of those comments and our responses is 
contained in Section III of this document.
    As described in section IX.H.3 of the February 2013 Federal 
Register document in which EPA analyzed specific SSM SIP provisions and 
explained how each one either did or did not comply with the Clean Air 
Act (CAA), EPA reviewed the Missouri rule at issue in this action 
because it was included in a Sierra Club petition.\1\ Sierra Club 
argued that this Missouri provision gave state personnel authority to 
determine where enforcement action should be taken based on information 
a source submits about excess emissions resulting from a malfunction, 
start-up or shutdown. In EPA's final action, EPA denied the petition on 
this provision and affirmatively found the provision to be consistent 
with the 2015 policy ``on the basis that the provision is on its face 
clearly applicable only to Missouri state enforcement personnel and 
that the provision thus could not reasonably be read by a court to 
foreclose enforcement by the EPA or through a citizen suit where 
Missouri state personnel elect to exercise enforcement discretion.'' As 
a result, Missouri rule, 10 Code of State Regulation (CSR) 10-6.050, 
Start-Up, Shutdown, and Malfunction Conditions, was not included in the 
2015 SSM SIP Call. Because the Missouri submittal does not 
substantively alter this rule, EPA's previous conclusions relating to 
this provision's compliance with EPA's SSM policy remain unchanged. 
Further background information for this action can be found in Section 
III of EPA's NPRM.
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    \1\ Petition to Find Inadequate and Correct Several State 
Implementation Plans under Section 110 of the Clean Air Act Due to 
Startup, Shutdown, Malfunction, and/or Maintenance Provisions (June 
30, 2011).
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    These provisions in the SIP require the reporting of SSM events to 
the Missouri Department of Natural Resources (MoDNR). Specifically, the 
provisions set the time by which such notification must occur, define 
what constitutes an SSM event, and establish the required contents of 
the written report including but not limited to measures taken to 
mitigate the extent and duration of the excess emissions, measures 
taken to remedy the situation which caused the excess emissions and the 
measures taken or planned to prevent the recurrence of these 
situations.
    The EPA received the MoDNR's SIP revision submission on February 
11, 2020. The EPA's full analysis of the revisions can be found in the 
technical support document (TSD) included in this docket.
    In 10 CSR 10-6.050 Section (2) Definitions, the state incorporated 
definitions for ``excess emissions'' into subsection (A), 
``malfunction'' into subsection (B), ``shutdown'' into subsection (C), 
and start-up into subsection (D). The definitions in the revision are 
the same as the definitions in the SIP approved 10 CSR 10-6.020. The 
revisions to Section (2) Definitions also move language about 
definitions not included in 10 CSR 10-6.050 into subsection (E). 
Because the language was already SIP-approved, and because the 
definitions relate to requirements related to informational reporting 
on SSM events, EPA finds that these revisions do not affect the 
stringency of the SIP. The rule revisions also include minor word 
changes, which are administrative in nature and do not affect the 
stringency of the SIP.
    EPA finds that approving these revisions into the Missouri SIP is 
consistent with EPA's policy as further described in EPA's NPRM.

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 June 3, 2019 to 
July 3, 2019 and received 6 comments. Five comments were from industry 
groups and one comment was from EPA. The industry comments all related 
to reporting excess emissions as soon as possible. Ultimately, the 
State opted not to include additional language to this effect and 
maintained that notification

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must occur within two days. The EPA comment letter indicated that EPA 
did not have comments on the rule changes. Therefore, the state 
adequately addressed each comment. In addition, as explained above and 
in more detail in the NPRM and technical support document (TSD) which 
is part of this document, the revision meets the substantive SIP 
requirements of the CAA, including section 110 and implementing 
regulations.

III. The EPA's Responses to Comments

    On April 7, 2022, the EPA published a NPRM which proposed to 
approve the SIP revision as submitted by Missouri on February 11, 2020 
(87 FR 20367). The public comment period on the EPA's proposed rule 
opened April 7, 2022 and closed on May 9, 2022. During this period, EPA 
received two comments from one commenter.
    Comment 1: The commenter stated that the EPA did not call for a 
revision of 10 CSR 10-6.050 in the EPA's June 12, 2015 final rule 
titled ``State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction,'' (80 FR 33839, June 12, 2015). The commenter 
stated that EPA found that the provision clearly applies only to 
Missouri state enforcement at the time of rulemaking. The commenter 
agreed the provision should apply only to state enforcement but 
believes the provision could be clarified to reduce any chance that it 
would interfere with citizen or EPA enforcement.
    Response 1: EPA agrees that if a state chooses to maintain state 
provisions related to SSM events, such provisions should be clear that 
they do not limit federal enforcement or citizen suit authority in 
order to be consistent with Clean Air Act requirements. Missouri's 
revisions to this rule which EPA proposed to approve in the NPRM were 
limited to largely administrative changes, such as removing unnecessary 
words and adding in rule-specific definitions. Missouri did not request 
revisions to the remainder of the SIP-approved rule text; therefore the 
unchanged portions of the rule text were not at issue in this action. 
For these reasons, the comment on the clarity of this rule language 
with respect to federal enforcement or citizen suit authority is 
outside the scope of this action.
    Further, as the commenter acknowledges, EPA previously found the 
provision in this action to not limit federal enforcement or citizen 
suit authority and therefore did not find it to be substantially 
inadequate to meet CAA requirements for the purposes of the 2015 SSM 
SIP Call. This prior EPA determination was open to notice and comment 
through EPA's 2015 SSM SIP Action, so commenters had a full opportunity 
to weigh in on this issue previously. As made clear in the proposal and 
restated here, EPA is not reopening the determination made in the 2015 
SSM SIP Action in this rulemaking.
    Comment 2: The commenter stated that the EPA determined a provision 
in Missouri's Restriction of Emission of Visible Air Contaminants rule, 
10 CSR 10-6.220(3)(C), was substantially inadequate to meet CAA 
requirements in the 2015 SSM SIP Call setting a deadline for the state 
to respond to the SIP Call of November 22, 2016. The commenter further 
stated that the SIP-called 10 CSR 10-6.220(3)(C) remains in effect 
because EPA has not yet acted on Missouri's responsive November 2016 
submittal. The commenter urges EPA to address this unlawful loophole 
that is years overdue.
    Response 2: EPA acknowledges this comment, though it does not raise 
any issue adverse to this current rulemaking. This comment is related 
to a different state rule and submission in front of the Agency for 
action. Therefore, this comment is outside the scope of this action. 
Although outside the scope of the present rulemaking, EPA notes that 
consistent with CAA section 113(g), the EPA recently published a 
proposed consent decree including a deadline by which EPA must finalize 
action on Missouri's 2016 submission responding to EPA's 2015 SSM SIP 
Call (87 FR 21118, Case No. 21-cs-6956). EPA anticipates taking 
expeditious action on Missouri's 2016 responsive submittal but no later 
than the date which will be set by the final consent decree when 
entered by the Court.

IV. What action is the EPA taking?

    The EPA is taking final action to amend the Missouri SIP to 
incorporate revisions to state rule 10 CSR 10-6.050, Start-Up, 
Shutdown, and Malfunction Conditions, related to reporting of SSM 
events, in the Missouri SIP as submitted to EPA on February 11, 2020. 
On April 7, 2022, the EPA published a NPRM proposing to approve 
Missouri's February 11, 2020, SIP revision submittal (87 FR 20367). The 
EPA sought public comment on the NPRM and received two comments from 
one commenter. The EPA's responses to comments received is included in 
Section IV of this document. The EPA is taking final action after 
consideration of the comments. Approval of these revisions will ensure 
consistency between State and federally approved rules. As described in 
the NPRM and the TSD, the EPA has determined that these changes meet 
the requirements of the CAA and will not adversely impact air quality 
or the stringency of the SIP.

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 rule 10 CSR 10-6.050 described in Section I of this preamble 
and set forth below in the amendments to 40 CFR part 52. 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.\2\
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    \2\ 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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

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     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).
     This action is subject to the Congressional Review Act, 
and the EPA will submit a rule report to each House of the Congress and 
to the Comptroller General of the United States. 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 23, 2022. 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: June 15, 2022.
Meghan A. McCollister,
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 ``10-6.050'' 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 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
                                      Regulations for the State of Missouri
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                                                  * * * * * * *
10-6.050..................  Start-Up, Shutdown,         1/30/2020   6/24/2022 [insert
                             and Malfunction                        Federal Register
                             Conditions.                            citation].
 
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[FR Doc. 2022-13314 Filed 6-23-22; 8:45 am]
BILLING CODE 6560-50-P