

[Federal Register: April 14, 2006 (Volume 71, Number 72)]
[Proposed Rules]               
[Page 19467-19470]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ap06-16]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2006-0287; FRL-8158-6]

 
Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
submission by the state of Missouri which revises the Construction 
Permits Required rule, and we are taking no action on the revisions 
made to the Emissions Banking and Trading rule. We propose to approve 
most of the revisions to the Construction Permits Required rule because 
the revisions incorporate, by reference, the Federal New Source Review 
reforms, published in the Federal Register on December 31, 2002. In a 
February 28, 2006, letter from the Missouri Department of Natural 
Resources, Missouri requested EPA not act on certain rule references. 
Specifically, Missouri requested EPA not act on references to Clean 
Unit Exemptions, Pollution Control Projects, and the record keeping 
provisions for the actual-to-projected-actual emissions projections. 
Missouri requests no action on these provisions because of the June 24, 
2005, United States Court of Appeals for the District of Columbia 
Circuit's decision, which vacated the Clean Unit Exemption and 
Pollution Control Project provisions and remanded back to EPA the 
recordkeeping provisions for the actual-to-projected-actual emissions 
projections standard for when a source must keep certain project 
related records.

DATES: Comments must be received on or before May 15, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2006-0287, by one of the following methods:
    1. http://www.regulations.gov: 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-
2006-0287. 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 the Federal Approval Process for a SIP?
What Is Being Addressed in This Document?
What Is the Background for EPA's New Source Review (NSR) Reform 
Rule?
What Is Missouri's NSR Reform Rule and What Action Has Missouri 
Requested on the Rule?
What Is EPA's Proposed Action on Missouri's Definition of ``Baseline 
Area''?
Have the Requirements for Approval of a SIP Revision Been Met?
What Action Is EPA Proposing?

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.
    All state regulations and supporting information approved by EPA 
under section 110 of the Clean Air Act (CAA or Act) 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

[[Page 19468]]

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 Is Being Addressed in This Document?

    We are proposing to approve the Missouri Department of Natural 
Resources' (MDNR) request to include, as a revision to Missouri's SIP, 
amendments to rule 10 CSR 10-6.060, Construction Permits Required, and 
we are not acting on the revisions to 10 CSR 10-6.410, Emissions 
Banking and Trading rule. These rules were adopted by the Missouri Air 
Conservation Commission on August 26, 2004, and became effective under 
state law on December 30, 2004. The rules were submitted to EPA on 
February 25, 2005, and the submission included comments on the rules 
made 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 completeness criteria, the 
reader should refer to 40 CFR part 51, appendix V.

What Is the Background for EPA's New Source Review (NSR) Reform Rule?

    The 2002 NSR Reform rules are part of EPA's implementation of Parts 
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I 
of the CAA, 42 U.S.C. 7470-7492, is the Prevention of Significant 
Deterioration (PSD) program, which applies in areas that meet the 
National Ambient Air Quality Standards (NAAQS), also known as, 
``attainment areas'' and in areas for which there is insufficient 
information to determine whether the area meets the NAAQS, also known 
as, ``unclassifiable'' areas. Part D of Title I of the CAA, 42 U.S.C. 
7501-7515, is the nonattainment New Source Review (NNSR) program, which 
applies in areas that are not in attainment of the NAAQS, also known 
as, ``nonattainment areas.'' Collectively, the PSD and NNSR programs 
are referred to as the ``New Source Review'' or NSR programs. EPA 
regulations implementing these programs are contained in 40 CFR 51.165, 
51.166, 52.21 52.24 and part 51, appendix S. The Missouri rules which 
are the subject of this proposal address the Part C requirements for 
attainment and unclassifiable areas.
    The CAA NSR programs are preconstruction review and permitting 
programs applicable to new and modified stationary sources of air 
pollutants regulated under the CAA. The NSR programs of the CAA include 
a combination of air quality planning and air pollution control 
technology program requirements. Briefly, section 109 of the CAA, 42 
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public 
health and secondary NAAQS to protect public welfare. Once EPA sets 
those standards, states must develop, adopt, and submit to EPA for 
approval, an SIP that contains emissions limitations and other control 
measures to attain and maintain the NAAQS. Each SIP is required to 
contain a preconstruction review program for the construction and 
modification of any stationary source of air pollution to assure that 
the NAAQS are achieved and maintained; to protect areas of clean air; 
to protect air quality related values (such as visibility) in national 
parks and other areas; to assure that appropriate emissions controls 
are applied, to maximize opportunities for economic development 
consistent with the preservation of clean air resources; and to ensure 
that any decision to increase air pollution is made only after full 
public consideration of the consequences of the decisions.
    The 2002 NSR Reform rules made changes to five areas of the NSR 
programs. In summary, the 2002 rules: (1) Provide a new method for 
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major 
modification has occurred; (3) allow major stationary sources to comply 
with plantwide applicability limits (PALs) to avoid having a 
significant emission increase that triggers the requirements of the 
major NSR program; (4) provide a new applicability provision for 
emissions units that are designated clean units; and (5) exclude 
pollution control projects (PCPs) from the definition of physical 
change or change in the method of operation.
    After the 2002 NSR Reform rules were finalized and effective, 
various petitioners challenged numerous aspects of the 2002 NSR Reform 
rules, along with portions of EPA's 1980 NSR rules (45 FR 5276 August 
7, 1980). On June 24, 2005, the District of Columbia Court of Appeals 
issued a decision on the challenges to the 2002 NSR Reform Rules. New 
York v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court 
of Appeals for the District of Columbia vacated portions of the rules 
pertaining to clean units and pollution control projects, remanded a 
portion of the rules regarding exemption from recordkeeping, e.g., 40 
CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let stand the other 
provisions included as part of the 2002 NSR Reform rules. EPA has not 
yet responded to the Court's remand regarding recordkeeping provisions.

What Is Missouri's NSR Reform Rule and What Action Has Missouri 
Requested on the Rule?

    In this action, we propose approval of revisions to Missouri rule, 
10 CSR 10-6.060, Construction Permits Required, into the SIP. This rule 
incorporates by reference the Federal PSD program in 40 CFR 52.21, 
including the 2002 NSR Reform rules described above.
    In relevant parts, the Missouri rule excludes the public 
participation requirements in Sec.  52.21(q), in favor of the Missouri 
public participation process, previously approved in the SIP, in 10 CSR 
10-6.060 section (12)(B). The Missouri rule retains a number of tables 
and appendices which apply to the State's minor NSR program as well as 
the PSD program. These include provisions on innovative control 
technologies (Appendix E), exclusion from increment consumption 
(Appendix G), and air quality models (Appendix F). To the extent that 
these provisions or similar provisions are addressed by Sec.  52.21, 
the provisions of Sec.  52.21 supersede the state provisions for 
purposes of the PSD program. Other provisions, such as the permit fee 
provisions in Appendix (A) of 10 CSR 10-6.060, which are not addressed 
by Sec.  52.21, remain in effect.
    Missouri's rule was adopted prior to the New York decision 
described above so it included the vacated and remanded provisions of 
EPA's rule. However, Missouri requested in a February 28, 2006, letter 
that EPA not act on the PCP, Clean Unit Exemption provisions, and the 
reasonable possibility provision in the recordkeeping provisions for 
the actual-to-projected-actual emissions projections applicability 
test. Missouri has also clarified that they commit to following EPA's 
definition of `replacement unit' and will follow EPA's clarification of 
how baseline emissions for PALs will be calculated (these 
clarifications to the EPA's rules were promulgated after the 
incorporation by reference date in the Missouri rule). When Missouri 
updates the Construction Permits Required rule, 10 CSR 10-6.060, 
Missouri commits to incorporating EPA's definition of replacement unit 
by reference and will include EPA's clarification of how baseline 
emissions for PALs are to be calculated.
    We are taking no action on these provisions and on revisions to 
rule 10 CSR 6.410, Emissions Banking and Trading, because the only 
revision to this rule was a change to prevent

[[Page 19469]]

sources from generating Early Reduction Credits from Pollution Control 
Projects (PCPs) that take advantage of the PCP exclusion provisions in 
EPA's NSR Reform rules. Since the PCP exclusion was vacated and we are 
not acting on it, as it relates to Missouri rule 10 CSR 10-6.060, we 
are not acting upon the revision to Missouri rule 10 CSR 10-6.410.
    The remaining rule revisions being proposed are approvable because 
Missouri incorporated the December 31, 2002, New Source Review reform 
regulation found in 40 CFR 52.21 by reference. We also note that 
Missouri clarified section (9)(C)1 of the Construction Permits Required 
rule. Section 9 outlines Hazardous Air Pollutant permit requirements 
which are exempt from hazardous air pollutant permit requirements 
unless they are listed on the source category list established in 
accordance with section 112(c) of the CAA. We are taking no action on 
including revisions to Section 9, because Section 9 addresses hazardous 
air pollutants under Section 112 and is not presently in the SIP.

What Is EPA's Proposed Action on Missouri's Definition of ``Baseline 
Area''?

    Missouri's initial NSR reform submission, which largely 
incorporates 40 CFR 52.21 by reference, retained the state's own 
definition of ``baseline area'' for purposes of section (1)(A)1. 
Additionally, Missouri requested in the February 28, 2006, letter that 
we approve the Construction Permits Required rule and retain Missouri's 
definition of baseline area in section (1)(A)1. Missouri acknowledges 
that the current Construction Permits Required rule does not contain 
the statement, ``designated as attainment or classifiable under section 
107(d)(1)(D) or (E) of the Act consistent with the Federal definition 
of ``baseline area.'' We had previously approved this definition of 
baseline area with the specification that Missouri redesignate the 
areas of significant impact as the baseline area (proposed rule, 47 FR 
7696, and final rule, 47 FR 26833). Missouri must make area-specific 
designation requests and EPA must approve the redesignation of the area 
before Missouri could establish new baseline areas under its rule. 
Missouri commits to revising the ``baseline area'' definition to 
clarify it will redesignate the areas of significant impact as baseline 
areas according to section 107(d)(1)(D) or (E) of the CAA. Missouri 
will submit these redesignations to EPA for formal approval before the 
new baseline area can be used for PSD permitting purposes. While 
Missouri works to revise the rule, Missouri commits to implementing the 
baseline area definition consistent with all Federal regulations and 
will ensure that the air quality increment analysis for permit 
applications complies with all Federal and state requirements.

Have the Requirements for Approval of an SIP 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 below and in more detail in the technical 
support document that is part of this document, EPA believes that the 
revisions meet the substantive SIP requirements of the CAA, including 
section 110 and implementing regulations.

What Action Is EPA Proposing?

    We propose to approve revisions to Missouri rule, 10 CSR 10-6.060, 
Construction Permits Required. Per Missouri's request, we are taking no 
action on Clean Unit Exemptions, Pollution Control Projects, and the 
record keeping provisions for the actual-to-projected-actual emissions 
projections. We are not acting on revisions to Missouri rule 10 CSR 10-
6.410, Emissions Banking and Trading, because the only revision made to 
the rule involves Pollution Control Projects.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 the 
proposed approvals in this proposed rule 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.). The proposed partial 
disapproval will not affect any existing state requirements applicable 
to small entities. Federal disapproval of the state submittal does not 
affect its state-enforceability. Moreover, EPA's partial disapproval of 
the submittal does not impose a new Federal requirement. Therefore, the 
Administrator certifies that this proposed disapproval action does not 
have a significant 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 SIP 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 an SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an SIP 
submission, to use VCS in place of an 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.).

[[Page 19470]]

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: April 7, 2006.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 06-3593 Filed 4-13-06; 8:45 am]

BILLING CODE 6560-50-P
