

[Federal Register: March 22, 2006 (Volume 71, Number 55)]
[Proposed Rules]               
[Page 14439-14442]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr06-33]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2005-MO-0005; FRL-8048-3]

 
Approval and Promulgation of Implementation Plans and Operating 
Permits Program; State of Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing four actions in response to Missouri's 
request to revise the State Implementation Plan (SIP) and Part 70 
Operating Permit program to include two new rules and three revised 
rules. Missouri requested approval of portions of rules adopted on June 
26, 2003. Because of the state's request for approval of portions of 
the rules, EPA is not proposing action on all of the state-adopted 
rules. All of the rules pertain to Missouri's air permits program. EPA 
is proposing to approve revisions to Definitions and Common Reference 
Tables in the SIP and Part 70 Operating Permit program. EPA is 
proposing to conditionally approve the Construction Permits By Rule. 
EPA is proposing to approve a SIP revision for changes to the 
Construction Permits Required rule and to conditionally approve 
portions of the Construction Permits Required rule, which reference the 
Construction Permits By Rule. EPA is proposing SIP approval of a new 
rule, Construction Permit Exemptions.

DATES: Comments must be received on or before April 21, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2005-MO-0005, by one of the following methods:
    1. http://www.regulations.gov:e Follow the on-line instructions for 

submitting comments.
    2. E-mail: algoe-eakin.amy@epa.gov.
    3. Mail: Amy Algoe-Eakin, Environmental Protection Agency, Air 
Planning and Development Branch, 901 North 5th Street, Kansas City, 
Kansas 66101.
    4. Hand Delivery or Courier. Deliver your comments to: Amy Algoe-
Eakin, Environmental Protection Agency, Air Planning and Development 
Branch, 901 North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2005-MO-0005. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket. 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, e.g., 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 
in http://www.regulations.gov or in hard copy at the Environmental 

Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas. EPA requests that you contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. 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: Amy Algoe-Eakin at (913) 551-7942 or 
by e-mail at algoe-eakin.amy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval or disapproval of a state regulation mean 
to me?
What is the Part 70 operating permits program?
What is the Federal approval process for an operating permits 
program?
What is being addressed in this document?
Have the requirements for approval of a SIP revision and a Part 70 
revision been met?
What action is EPA proposing?

What is a SIP?

    Section 110 of the Clean Air Act (CAA or Act) requires states to 
develop air pollution regulations and control strategies to ensure that 
state air quality meets the national ambient air quality standards 
(NAAQS) established by EPA. These ambient standards are established 
under section 109 of the CAA, and they currently address six criteria 
pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide.
    Each state must submit these regulations and control strategies to 
us for approval and incorporation into the Federally-enforceable SIP.
    Each Federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

What is the Federal approval process for a SIP?

    In order for state regulations to be incorporated into the 
Federally-enforceable SIP, states must formally adopt the regulations 
and control strategies consistent with state and Federal requirements. 
This process generally includes a public notice, public hearing, public 
comment period, and a formal adoption by a state-authorized rulemaking 
body.
    Once a state rule, regulation, or control strategy is adopted, the 
state submits it to us for inclusion into the SIP. We must provide 
public notice and seek additional public comment regarding the proposed 
Federal action on the state submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
us.

[[Page 14440]]

    All state regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated into the Federally-
approved SIP. Records of such SIP actions are maintained in the Code of 
Federal Regulations (CFR) at title 40, part 52, entitled ``Approval and 
Promulgation of Implementation Plans.'' The actual state regulations 
which are approved are not reproduced in their entirety in the CFR 
outright but are ``incorporated by reference,'' which means that we 
have approved a given state regulation with a specific effective date.

What does Federal approval or disapproval of a state regulation mean to 
me?

    Enforcement of the state regulation before and after it is 
incorporated into the Federally-approved SIP is primarily a state 
responsibility. However, after the regulation is Federally approved, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA. If a state regulation is disapproved, it is not 
incorporated into the Federally-approved SIP and is not enforceable by 
EPA or by citizens under section 304. In the case of a revision to a 
Federally-approved state regulation, disapproval of the revision means 
that the underlying state regulation prior to the state's revision 
remains as the Federally enforceable requirement.

What is the part 70 operating permits program?

    The CAA amendments of 1990 require all states to develop operating 
permits programs that meet certain federal criteria. In implementing 
this program, the states are to require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. One purpose of the part 70 operating permits program is 
to improve enforcement by issuing each source a single permit that 
consolidates all of the applicable CAA requirements into a Federally-
enforceable document. By consolidating all of the applicable 
requirements for a facility into one document, the source, the public, 
and the permitting authorities can more easily determine what CAA 
requirements apply and how compliance with those requirements is 
determined.
    Sources required to obtain an operating permit under this program 
include ``major'' source of air pollution and certain other sources 
specified in the CAA or in our implementing regulations. For example, 
all source regulated under the acid rain program, regardless of size, 
must obtain permits. Examples of major sources include those that emit 
100 tons per year or more of volatile organic compounds, carbon 
monoxide, lead, sulfur dioxide, nitrogen dioxide or PM10 ; those that 
emit 10 per year of any single hazardous air pollutant (HAP) 
(specifically listed under the CAA); or those that emit 25 tons per 
year or more of a combination of HAPs.
    Revisions to the state and local agencies operating permits program 
are also subject to public notice, comment and our approval.

What is the Federal approval process for an operating permits program?

    In order for state regulations to be incorporated into the 
Federally enforceable Part 70 operating permits program, states must 
formally adopt regulations consistent with state and Federal 
requirements. This process generally includes a public notice, public 
hearing, pubic comment period, and formal adoption by a state-
authorized rulemaking body.
    Once a state rule, regulation, or control strategy is adopted, the 
state submits it to us for inclusion into the approved operating 
permits program. We must provide public notice and seek additional 
public comment regarding the proposed Federal action on the state 
submission. If adverse comments are received, they must be addressed 
prior to any final Federal action by us.
    All state regulations and supporting information approved by EPA 
under section 502 of the CAA are incorporated into the Federally-
approved operating permits program. Records of such actions are 
maintained in the CFR at Title 40, part 70, appendix A, entitled, 
``Approval Status of State and Local Operating Permits Programs.''

What is being addressed in this document?

    On July 14, 2004, Missouri requested that EPA revise the SIP to 
include two new rules and three revised rules and revise the Part 70 
program to include revisions to two rules. All of these rules pertain 
to Missouri's air permit program and will assist in effective 
management of Missouri's air permitting program and provide clarity to 
several confusing elements of the program. These rules were adopted by 
the Missouri Air Conservation Commission on June 26, 2003, and became 
effective under state law on October 30, 2003. When Missouri submitted 
these rules to EPA, Missouri included the comments made on the rules 
during the state's adoption process, the state's response to comments, 
and other information necessary to meet EPA's completeness criteria. 
For additional information on the completeness criteria, the reader 
should refer to 40 CFR part 51, appendix V.
    EPA is proposing four actions in response to this request.
    The first action we are proposing is to approve the Missouri 
Department of Natural Resources' (MDNR) request to include, as a 
revision to Missouri's SIP and Part 70 Operating Permit program, 
amendments to rule 10 CSR 10-6.020, Definitions and Common Reference 
Tables. This proposed approval would incorporate changes in definitions 
of ``cold cleaner,'' ``nonattainment area,'' ``opacity,'' ``portable 
equipment installation,'' ``significant,'' and ``visible emissions.'' 
These changes are minor and are consistent with EPA requirements.
    The second action we are proposing is to approve and conditionally 
approve revisions to the Construction Permits Required rule, 10 CSR 10-
6.060. These changes clarify and correct rule applicability sections 
for consistency with Federal regulations. The parts of rule 10 CSR 10-
6.060 that are proposed for conditional approval are the references to 
10 CSR 10-6.062, Construction Permits By Rule, which is being proposed 
for conditional approval in its entirety, as discussed later in this 
proposal.
    The third action we are proposing is to approve certain sections of 
a new Missouri rule, Construction Permit Exemptions, 10 CSR 10-6.061. 
This rule lists specific categories of construction or modification 
projects which are not required to obtain permits to construct under 
the Construction Permits Required rule, 10 CSR 10-6.060. Many of the 
exemptions previously listed in the Construction Permits Required rule 
had been previously approved by EPA. For those exemptions which were 
not previously listed in the Construction Permit Required rule or were 
not intuitively de minimis, EPA Region 7 requested a demonstration that 
these exemptions do not impact attainment or maintenance of the 
National Ambient Air Quality Standards (NAAQS). Missouri submitted this 
demonstration with the June 14, 2004, SIP submittal. EPA believes that 
this demonstration satisfactorily illustrates that the construction 
permit exemptions proposed for approval in this action will not 
interfere with attainment of the NAAQS.
    However, one exemption included in the June 2003 state rulemaking 
is not included in today's proposal. In an October 25, 2005, request 
from the Director of Missouri's Air Pollution

[[Page 14441]]

Control Program to the EPA Region 7 Regional Administrator, Missouri 
withdrew subparagraph (3)(A)2.D, of 10 CSR 10-6.061 from the SIP 
submission. This exemption is for ``Livestock markets and livestock 
operations'' constructed on or before November 30, 2003. EPA proposes 
to approve the exemptions in 10 CSR 10-6.061, which do not include the 
livestock exemption found in subparagraph (3)(A)2.D per Missouri's 
request. EPA also proposes to approve the renumbering of the exemptions 
previously approved into the SIP, which Missouri has moved from 10 CSR 
10-6.060 to 10 CSR 10-6.061. This latter proposal involves an 
administrative change and does not substantively reopen EPA's approval 
of the exemptions previously contained in 10 CSR 10-6.060.
    The fourth action we are proposing is to conditionally approve the 
Construction Permits By Rule, 10 CSR 10-6.062. This is a new rule that 
creates a process by which sources can be exempted from the 
Construction Permits Required rule, because the rule establishes 
conditions under which specific sources can construct and operate. It 
also establishes notification requirements and standard review fees. 
The rule authorizes sources to construct and operate upon submission of 
notice to MDNR.
    We are proposing conditional approval of rule 10 CSR 10.6-062. This 
proposed conditional approval does not include paragraph (3)(B)4., 
which is a permit by rule for livestock operations. In an October 25, 
2005, request from the Director of MDNR's Air Pollution Control Program 
to EPA Region 7 Regional Administrator, Missouri withdrew the paragraph 
for EPA approval. EPA anticipates that Missouri will revise and submit 
new rules relating to livestock operations in the near future.
    EPA proposes a conditional approval because this rule, as adopted 
by the Missouri Air Conservation Commission on June 26, 2003, does not 
expressly include a mechanism for pre-construction review of 
applications received from the facilities that want to operate under 
this rule. Section 110(a)(2)(C) of the CAA requires that each SIP 
include a program to regulate construction and modification of sources 
to ensure that the NAAQS are achieved. EPA's implementing regulation 
provides that the plan must include procedures, ``by which the state * 
* * will prevent such construction or modification'' where the source 
or modification would violate a control strategy or interfere with 
attainment or maintenance of the NAAQS (see 40 CFR 51.160(b)). Because 
Missouri's Construction Permits By Rule appears to authorize 
construction to begin before any air quality review occurs, and the 
rule only provides for revocation of a permit after the source begins 
construction or operation, EPA believes that Missouri's preconstruction 
permit program is deficient with respect to sources which may qualify 
for the Permit By Rule. With respect to these sources, the rule does 
not clearly authorize Missouri to prevent construction or modification 
before construction or modification begins.
    In order to rectify these deficiencies, the Missouri Air 
Conservation Commission (MACC) adopted a resolution on December 8, 
2005, which is intended to clarify that Missouri, in administering this 
rule, will require a preconstruction review period before sources may 
begin construction and will amend the Construction Permits by Rule to 
expressly include a preconstruction review period. The MACC also 
directed the Missouri Department of Natural Resources' Air Pollution 
Control Program to complete revisions to this rule within twelve months 
of the December 2005 resolution. During the interim period required to 
promulgate an effective rule, the program is directed to conduct a 
maximum seven day review period procedure for permit by rule 
notifications submitted in accordance with Missouri rule 10 CSR 10-
6.062, Construction Permits by Rule.
    Because the MACC resolution serves to clarify the preconstruction 
review, which is an issue of significant concern to EPA, we propose to 
conditionally approve into the SIP Missouri rule 10 CSR 10-6.062, 
Construction Permits by Rule. Section 110(k)(4) of the Clean Air Act 
states that EPA may conditionally approve a plan based on a commitment 
from the state to adopt specific enforceable measures within one year 
from the date of approval. If the state fails to meet its commitment 
within the one-year period, the approval is treated as a disapproval. 
As such, this rule is proposed for approval with the condition that 
Missouri must revise the Construction Permits By Rule to incorporate a 
preconstruction review period and submit this revised rule for 
inclusion into the SIP to EPA within one year of the date EPA finalizes 
this action.
    Finally, Missouri's submittal includes revisions to Missouri's 
Operating Permits Rule in 10 CSR 10-6.065. These revisions relate to 
Missouri's operating permit program for minor sources which are not 
subject to the state's Title V program for major sources (and other 
specified source categories) and are not seeking limits to avoid any 
major source requirements. The rule revisions for rule 10 CSR 10-6.065 
relate solely to the state's basic operating permit program that are 
not included in Missouri's approved Part 70 Operating Permits program 
or SIP. Therefore, we are not acting on these revisions.

Have the requirements for approval of a SIP revision and a Part 70 
revision been met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. In 
addition, as explained above and in more detail in the Technical 
Support Document (TSD) that is part of this rule, except as noted with 
respect to the permits by rule provision discussed above, the revisions 
meet the substantive SIP requirements of the CAA, including section 110 
and implementing regulations. Finally, the submittal met the 
substantive requirements of Part 70 of the 1990 CAA Amendments and 40 
CFR part 70.

What action is EPA proposing?

    EPA is proposing four actions:
    (1) EPA is proposing to approve, as an amendment to the Missouri 
SIP and Part 70 program, revisions to Definitions and Common Reference 
Tables, Missouri Rule 10 CSR 10-6.020.
    (2) EPA is proposing to approve, as an amendment to the Missouri 
SIP, revisions to the Construction Permits Required, Missouri Rule 10 
CSR 10.060. We are proposing to conditionally approve portions of the 
Construction Permits Required rule, which reference the Construction 
Permits by Rule, 10 CSR 10-6.062.
    (3) EPA is proposing approval into the SIP of a new rule, 
Construction Permit Exemptions, 10 CSR 10-6.061, except for the 
livestock markets and livestock operations exemption found in this 
rule, which was withdrawn in an October 25, 2005, request from the 
state of Missouri.
    (4) EPA is proposing to conditionally approve, as an amendment to 
the Missouri SIP, the Construction Permits By Rule, 10 CSR 10-6.062, 
except for the livestock markets and livestock operations exemption 
found in this rule, which was withdrawn in an October 25, 2005, request 
from the state of Missouri.
    We are soliciting comments on these proposed actions. Final 
rulemaking will occur after consideration of any comments.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed

[[Page 14442]]

action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed action will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it 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).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This action also does not 
have Federalism implications because it does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This proposed rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

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.

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Operating permits, Reporting and 
recordkeeping requirements.

    Dated: March 13, 2006.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. E6-4146 Filed 3-21-06; 8:45 am]

BILLING CODE 6560-50-P
