[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Proposed Rules]
[Pages 55739-55743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19622]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2022-0746; FRL-10184-01-R7]


Air Plan Approval; MO; Restriction of Visible Air Contaminant 
Emissions

AGENCY: Environmental Protection Agency (EPA).

[[Page 55740]]


ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 
approval of revisions to the Missouri State Implementation Plan (SIP) 
received on November 29, 2016, and March 7, 2019. The revision was 
submitted by Missouri in response to a finding of substantial 
inadequacy and SIP call published on June 12, 2015, for a provision in 
the Missouri SIP related to excess emissions during startup, shutdown, 
and malfunction (SSM) events. In the submissions, Missouri requests to 
revise a regulation related to restriction of emissions of visible air 
contaminants. The revisions to the rule include: removing a statement 
from the compliance and performance testing provisions that does not 
meet Clean Air Act requirements, adding exemptions for emission units 
regulated by stricter federal and state regulations or that do not have 
the capability of exceeding the emission limits of the rule, adding an 
alternative test method and making other administrative changes. 
Approval of these revisions will ensure consistency between state and 
federally approved rules.

DATES: Comments must be received on or before October 12, 2022.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R07-
OAR-2022-0746 to www.regulations.gov. Follow the online instructions 
for submitting comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received will be posted without 
change to www.regulations.gov including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Written Comments'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Ashley Keas, Environmental Protection 
Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7629; 
email address: [email protected].

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

Table of Contents

I. Written Comments
II. Background
III. What is being addressed in this document?
IV. Have the requirements for approval of a SIP revision been met?
V. What action is the EPA proposing to take?
VI. Environmental Justice Considerations
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews

I. Written Comments

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2022-
0746, at www.regulations.gov. Once submitted, comments cannot be edited 
or removed from Regulations.gov. The EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit 
www.epa.gov/dockets/commenting-epa-dockets.

II. Background

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of startup, shutdown and malfunction 
(SSM). EPA analyzed specific SSM SIP provisions and explained how each 
one either did or did not comply with the Clean Air Act (CAA) with 
regard to excess emission events.\1\ For each SIP provision that EPA 
determined to be inconsistent with the CAA, EPA proposed to find that 
the existing SIP provision was substantially inadequate to meet CAA 
requirements and thus proposed to issue a SIP call under CAA section 
110(k)(5).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``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), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. The 2015 SSM SIP Action identified specific 
provisions of this Missouri rule, 10 Code of State Regulation (CSR) 10-
6.220, Restriction of Emissions of Visible Air Contaminants as being 
substantially inadequate to meet CAA requirements. EPA established an 
18-month deadline by which the affected states had to submit such SIP 
revisions. States were required to submit corrective revisions to their 
SIPs in response to the SIP calls by November 22, 2016.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Missouri in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
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    \2\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This

[[Page 55741]]

policy approach is intended to ensure that all communities and 
populations, including overburdened communities, receive the full 
health and environmental protections provided by the CAA.\4\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
agency takes action on SIP submissions, including this SIP submittal 
provided in response to the 2015 SIP call.
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    \3\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ 80 FR 33985.
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    With regard to the Missouri SIP, in the 2015 SSM SIP Action, EPA 
determined that a provision of 10 Code of State Regulations (CSR) 10-
6.220 Restriction of Emissions of Visible Air Contaminants was 
substantially inadequate to meet CAA requirements (80 FR 33840, 33969). 
Specifically, 10-6.220(3)(c) provided: ``Visible emissions over the 
limitations shown in subsection (3)(B) of this rule are in violation of 
this rule unless the director determines that the excess emissions do 
not warrant enforcement action based on data submitted under 10 CSR 10-
6.050 Start-Up, Shutdown and Malfunction Conditions.'' The rationale 
underlying EPA's determination that the provision was substantially 
inadequate to meet CAA requirements, and therefore to issue a SIP call 
to Missouri to remedy the provision, is fully detailed in the 2015 SSM 
SIP Action and the accompanying proposals. Specifically, EPA agreed 
with petitioners on the basis that this provision could be read to 
allow for exemptions from the otherwise applicable SIP emission 
limitations through a state official's unilateral exercise of 
discretionary authority that is insufficiently bounded and includes no 
additional public process at the state or federal level. In summary, 
EPA agreed with petitioners that this provision would allow the state 
director to circumvent EPA authority and/or citizen suit authority to 
enforce the emissions limitations, which is inconsistent with the CAA 
and EPA's policy outlined in the 2015 SSM SIP Action.
    Missouri submitted a SIP revision on November 29, 2016, in response 
to the SIP call issued in the 2015 SSM SIP Action. In its submission, 
Missouri requests that EPA revise the Missouri SIP by removing the 
provision 10-6.220(3)(c) from the SIP, thereby correcting the 
deficiency identified in the 2015 SSM SIP Action and addressing the SIP 
Call for Missouri.

III. What is being addressed in this document?

    The EPA is proposing to approve Missouri's revisions to 10 CSR 10-
6.220, Restriction of Emissions of Visible Air Contaminants, in the 
Missouri SIP. The EPA received two SIP revision submissions related to 
this state rule from the Missouri Department of Natural Resources 
(MoDNR) on November 29, 2016, and March 7, 2019. The full text of these 
changes as well as EPA's analysis of the changes can be found in the 
technical support document (TSD), which is included in the docket for 
this action.
    In its November 29, 2016, submission, MoDNR requested to remove the 
provision that was identified by EPA as being substantially inadequate 
to meet CAA requirements in EPA's 2015 SSM SIP Action. EPA is proposing 
to determine that removal of this provision is consistent with EPA's 
policy outlined in the 2015 SSM SIP Action and sufficiently addresses 
the deficiencies identified by the 2015 SSM SIP Call.
    In addition to the removal of the identified SSM deficiency, MoDNR, 
in both the 2016 and 2019 submissions, also requested revisions related 
to opacity monitoring requirements and exemptions from the opacity 
limits and recordkeeping and reporting requirements of 10 CSR 10-6.220 
for certain source types. Specifically, MoDNR exempted specific, 
limited, emission units regulated by stricter federal and state 
regulations. MoDNR also provided an exemption for certain emission 
units that do not have the capability of exceeding the emission limits 
of the rule. One example of an added exemption is for units regulated 
under 40 CFR 63 subpart UUUUU--Mercury and Air Toxics Standards, that 
demonstrate compliance with a particulate matter continuous emission 
monitoring system (CEMS) as the limits in this federal rule are more 
stringent than the opacity limits contained in the state rule. The 
newly added exemptions for sources that already comply with more 
stringent state or federal requirements will remove the duplicative 
monitoring and reporting requirements associated with the less 
stringent requirements of the state opacity rule.
    Missouri provided a demonstration pursuant to CAA section 110(l) to 
ensure the rule revisions, including the added exemptions, do not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
Act. EPA reviewed MoDNR's section 110(l) demonstration which explains 
the sources that will be newly exempt from the opacity limits of this 
state rule remain subject to more stringent federal or state 
regulations that apply on a continuous basis. For this reason, the 
emissions change associated with the rule revisions is expected to be 
relatively small if any. Additionally, the opacity limits contained in 
this rule, and more specifically for the units being exempted from the 
limits of this state rule, are not relied upon for attainment or 
maintenance purposes.
    Opacity is often used as an indicator of the degree of particulate 
matter emissions. All PM2.5 monitors in the state are 
measuring compliance with the annual and 24-hour PM2.5 
standards and all counties in Missouri are designated as 
unclassifiable/attainment for both the 2012 annual and 2006 24-hour 
PM2.5 NAAQS. Further, the sources are not exempt from all 
opacity requirements and, in fact, are subject to the more stringent 
requirements found in the applicable federal rules. The expected change 
in emissions associated with these rule revisions is relatively small 
if any and therefore would not interfere with attainment or maintenance 
of the NAAQS.
    Further, EPA is proposing to approve removal of the prior deficient 
exemption for excess emissions during periods of SSM from this rule. 
EPA believes that any emission limit or requirement relied upon as 
being more stringent to exempt a source from this rule must apply 
continuously, that is without any exemptions for periods of SSM, to be 
more stringent than the limits contained in this rule.
    MoDNR also provided information to support the exemption for 
emission units burning certain fuels that are not capable of exceeding 
the opacity limits contained in the rule by estimating maximum 
emissions based on EPA emissions factors for each fuel type. EPA 
reviewed MoDNR's demonstration and proposes to agree that this added 
exemption would result in a relatively small emissions change if any 
and therefore would not interfere with attainment or maintenance of the 
NAAQS.
    Based on EPA's review of Missouri's section 110(l) demonstration 
and our analysis of these changes as fully described in the TSD in the 
docket for this proposed rule, the expected change in emissions 
associated with these rule revisions is relatively small if any and 
therefore EPA proposes to find the revisions will not interfere with 
attainment or maintenance of the

[[Page 55742]]

NAAQS or other CAA requirements consistent with CAA Section 110(l).
    MoDNR also added an alternative test method and made other 
administrative wording changes such as adding rule specific 
definitions. EPA proposes to find these edits do not adversely impact 
the stringency of the SIP and are consistent with CAA requirements. 
Therefore, EPA proposes to approve these revisions as further detailed 
in the TSD.

IV. 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 the November 29, 2016, SIP revision 
from June 1, 2016, to August 4, 2016, and held a public hearing on July 
28, 2016. During the public comment period, the State received seven 
comments from five sources, consisting primarily of supportive or 
clarifying comments from industry groups. The State addresses the 
comments in its submittal included in the docket for this proposal. The 
State provided public notice on the March 7, 2019, SIP revision from 
August 1, 2018, to October 4, 2018, and held a public hearing on 
September 27, 2018. During the public comment period, the State 
received nine comments, seven of which were from EPA. The State 
addresses the comments in its submittal. Further discussion of the 
state responses to comments received is included in the TSD and the 
state submittal documents in the docket. In addition, as explained 
above and in the TSD, the revision meets the substantive SIP 
requirements of the CAA, including section 110 and implementing 
regulations.

V. What action is the EPA proposing to take?

    The EPA proposes to approve the revisions to 10 CSR 10-6.220 as 
requested by Missouri in submissions dated November 29, 2016 and March 
7, 2019. We are soliciting comments on this proposed action. We are 
soliciting comments solely on the proposed revisions to the rule and 
not on the existing text that is approved into Missouri's SIP. Final 
rulemaking will occur after consideration of any comments.

VI. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The state did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. While EPA 
did not perform an area-specific EJ analysis for purposes of this 
action, due to the nature of the action being taken here, i.e. to 
remove an exemption for excess emissions during periods of SSM and add 
exemptions for sources subject to equivalent or more stringent limits, 
as explained in this preamble and the technical support document in 
this docket, this action is expected to have a neutral to positive 
impact on air quality. Because consideration of EJ is not required as 
part of this action, there is no information in the record inconsistent 
with the stated goals of E.O 12898 of achieving environmental justice 
for people of color, low-income populations, and indigenous peoples.
    This action approves revisions to a Missouri state rule concerning 
visible emissions. As explained in the preamble and technical support 
document, the emissions change associated with the revisions requested 
by Missouri is expected to be small if any. Therefore, we expect that 
this action will not interfere with attainment or maintenance of the 
NAAQS, reasonable further progress, or other CAA requirements. For 
these reasons, this action is not expected to have a disproportionately 
high or adverse human health or environmental effects on a particular 
group of people.

VII. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the Missouri Regulations discussed in Section 
III of this preamble and as set forth below in the proposed 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).

VIII. 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, 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

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rulemaking does not involve technical standards; and
     This action does not have disproportionately high and 
adverse human health or environmental effects on minority populations, 
low-income populations and/or indigenous peoples, as specified in 
Executive Order 12898 (59 FR 7629, February 16, 1994). The basis for 
this determination is contained in Section VI of this action, 
``Environmental Justice Concerns.''
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where 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).

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: September 6, 2022.
Meghan A. McCollister,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, the EPA proposes to amend 
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 for ``10-6.220'' to read as follows:


Sec.  52.1320   Identification of plan.

* * * * *
    (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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                                                  * * * * * * *
10-6.220.........................  Restriction of            3/30/2019  [Date of             Subsection (1)(I)
                                    Emission of                          publication of the   referring to the
                                    Visible Air                          final rule in the    open burning rule,
                                    Contaminants.                        Federal Register],   10 CSR 10-6.045,
                                                                         [Federal Register    is not SIP
                                                                         citation of the      approved.
                                                                         final rule].
 
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[FR Doc. 2022-19622 Filed 9-9-22; 8:45 am]
BILLING CODE 6560-50-P