

[Federal Register: September 27, 2007 (Volume 72, Number 187)]
[Proposed Rules]
[Page 54872-54875]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se07-22]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R07-OAR-2007-0943; FRL-8473-9]


Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Missouri; Clean Air Mercury Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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[[Page 54873]]

SUMMARY: EPA is proposing to approve the State Plan submitted by
Missouri on May 18, 2007, and revisions submitted on September 6, 2007.
The plan addresses the requirements of EPA's Clean Air Mercury Rule
(CAMR), promulgated on May 18, 2005, and subsequently revised on June
9, 2006. EPA is proposing to determine that the submitted State Plan
fully meets the CAMR requirements for Missouri.
    CAMR requires States to regulate emissions of mercury (Hg) from
large coal-fired electric generating units (EGUs). CAMR establishes
State budgets for annual EGU Hg emissions and requires States to submit
State Plans to ensure that annual EGU Hg emissions will not exceed the
applicable State budget. States have the flexibility to choose which
control measures to adopt to achieve the budgets, including
participating in the EPA-administered CAMR cap-and-trade program. In
the State Plan that EPA is proposing to approve Missouri would meet
CAMR requirements by participating in the EPA trading program.

DATES: Comments must be received on or before October 29, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2007-0943, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for

submitting comments.
    2. E-mail: jay.michael@epa.gov.
    3. Mail: Michael Jay, 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: Michael Jay,
Environmental Protection Agency, 901 North 5th Street, Kansas City,
Kansas 66101. Such deliveries are only accepted during the Regional
Office's normal hours of operation. The Regional Office's official
hours of business are Monday through Friday, 8 a.m. to 4:30 p.m.,
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2007-0943. 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 through http://www.regulations.gov
 or e-mail, information that you consider to be CBI

or otherwise protected. 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 and any form of encryption and should 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, 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 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 66101. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8 a.m. to 4:30 p.m.,
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Jay at (913) 551-7460 or by e-
mail at jay.michael@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Proposing To Take?
II. What Is the Regulatory History of CAMR?
III. What Are the General Requirements of CAMR State Plans?
IV. How Can States Comply With CAMR?
V. Analysis of Missouri's CAMR State Plan Submittal
    A. State Budgets
    B. CAMR State Plan
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing To Take?

    EPA is proposing to approve the State Plan submitted by Missouri on
May 18, 2007, and revisions submitted on September 6, 2007. In its
State Plan, Missouri would meet CAMR by requiring certain coal-fired
EGUs to participate in the EPA-administered cap-and-trade program
addressing Hg emissions. EPA is proposing to determine that the State
Plan meets the applicable requirements of CAMR.

II. What Is the Regulatory History of CAMR?

    CAMR was published by EPA on May 18, 2005 (70 FR 28606, ``Standards
of Performance for New and Existing Stationary Sources: Electric
Utility Steam Generating Units; Final Rule''). In this rule, acting
pursuant to its authority under section 111(d) of the Clean Air Act
(CAA), 42 U.S.C. 7411(d), EPA required that all States and the District
of Columbia (all of which are referred to herein as States) meet
Statewide annual budgets limiting Hg emissions from coal-fired EGUs (as
defined in 40 CFR 60.24(h)(8)) under CAA section 111(d). EPA required
all States to submit State Plans with control measures that ensure that
total, annual Hg emissions from the coal-fired EGUs located in the
respective States do not exceed the applicable statewide annual EGU
mercury budget. Under CAMR, States may implement and enforce these
reduction requirements by participating in the EPA-administered cap-
and-trade program or by adopting any other effective and enforceable
control measures.
    CAA section 111(d) requires States, and along with CAA section
301(d) and the Tribal Air Rule (40 CFR part 49) allows Tribes granted
treatment as States (TAS), to submit State Plans to EPA that implement
and enforce the standards of performance. CAMR explains what must be
included in State Plans to address the requirements of CAA section
111(d). The State Plans were due to EPA by November 17, 2006. Under 40
CFR 60.27(b), the Administrator will approve or disapprove the State
Plans.

III. What Are the General Requirements of CAMR State Plans?

    CAMR establishes Statewide annual EGU Hg emission budgets and is to
be implemented in two phases. The first phase of reductions starts in
2010 and continues through 2017. The second phase of reductions starts
in 2018 and continues thereafter. CAMR requires States to implement the
budgets by

[[Page 54874]]

either: (1) Requiring coal-fired EGUs to participate in the EPA-
administered cap-and-trade program; or (2) adopting other coal-fired
EGU control measures of the respective State's choosing and
demonstrating that such control measures will result in compliance with
the applicable State annual EGU Hg budget.
    Each State Plan must require coal-fired EGUs to comply with the
monitoring, recordkeeping, and reporting provisions of 40 CFR part 75
concerning Hg mass emissions. Each State Plan must also show that the
State has the legal authority to adopt emission standards and
compliance schedules necessary for attainment and maintenance of the
State's annual EGU Hg budget and to require the owners and operators of
coal-fired EGUs in the State to meet the monitoring, recordkeeping, and
reporting requirements of 40 CFR part 75.

IV. How Can States Comply With CAMR?

    Each State Plan must impose control requirements that the State
demonstrates will limit Statewide annual Hg emissions from new and
existing coal-fired EGUs to the amount of the State's applicable annual
EGU Hg budget. States have the flexibility to choose the type of EGU
control measures they will use to meet the requirements of CAMR. EPA
anticipates that many States will choose to meet the CAMR requirements
by selecting an option that requires EGUs to participate in the EPA-
administered CAMR cap-and-trade program. EPA also anticipates that many
States may chose to control Statewide annual Hg emissions for new and
existing coal-fired EGUs through an alternative mechanism other than
the EPA-administered CAMR cap-and-trade program. Each State that
chooses an alternative mechanism must include with its plan a
demonstration that the State Plan will ensure that the State will meet
its assigned State annual EGU Hg emission budget.
    A State submitting a State Plan that requires coal-fired EGUs to
participate in the EPA-administered CAMR cap-and-trade program may
either adopt regulations that are substantively identical to the EPA
model Hg trading rule (40 CFR part 60, subpart HHHH) or incorporate by
reference the model rule. CAMR provides that States may only make
limited changes to the model rule if the States want to participate in
the EPA-administered trading program. A State Plan may change the model
rule only by altering the allowance allocation provisions to provide
for State-specific allocation of Hg allowances using a methodology
chosen by the State. A State's alternative allowance allocation
provisions must meet certain allocation timing requirements and must
ensure that total allocations for each calendar year will not exceed
the State's annual EGU Hg budget for that year.

V. Analysis of Missouri's CAMR State Plan Submittal

A. State Budgets

    In this action, EPA is proposing to approve Missouri's State Plan
that adopts the annual EGU Hg budgets established for the State in
CAMR, i.e., 1.393 tons for EGU Hg emissions in 2010-2017 and 0.55 tons
for EGU Hg emissions in 2018 and thereafter. Missouri's State Plan sets
these budgets as the total amount of allowances available for
allocation for each year under the EPA-administered CAMR cap-and-trade
program.

B. CAMR State Plan

    The Missouri State Plan requires coal-fired EGUs to participate in
the EPA-administered CAMR cap-and-trade program. The State Plan
incorporates by reference the EPA model Hg trading rule but has adopted
an alternative allowance allocation methodology. Under the Hg allowance
allocation methodology in the model rule, Hg allowances are allocated
to units that have operated for 5 years, based on heat input data from
a 3-year period that are adjusted for coal rank by using coal factors
of 3.0 for the lignite combusted by the unit, 1.25 for the
subbituminous combusted by the unit, and 1 for other coal ranks
combusted by the unit. The model rule also provides a new unit set-
aside from which units without 5 years of operation are allocated
allowances based on the units' prior year emissions.
    States may establish in their State Plan submissions a different Hg
allowance allocation methodology that will be used to allocate
allowances to sources in the States if certain requirements are met
concerning the timing of submission of units' allocations to the
Administrator for recordation and the total amount of allowances
allocated for each control period. In adopting alternative Hg allowance
allocation methodologies, States have flexibility with regard to:
    1. The cost to recipients of the allowances, which may be
distributed for free or auctioned;
    2. The frequency of allocations;
    3. The basis for allocating allowances, which may be distributed,
for example, based on historical heat input or electric and thermal
output; and
    4. The use of allowance set-asides and, if used, their size.
    In Missouri's alternative allowance methodology, Missouri has
chosen to distribute Hg allowances directly based upon Table I in 10
CFR 10-6.368. The table permanently allocates to designated units the
entirety of Missouri's mercury allowances for both phases of the
program. Accordingly, Missouri has not provided allowances for the
establishment of set-aside accounts.
    Missouri's State Plan requires coal-fired EGUs to comply with the
monitoring, record keeping, and reporting provisions of 40 CFR part 75
concerning Hg mass emissions. Missouri's State Plan also demonstrates
that the State has the legal authority to adopt emission standards and
compliance schedules necessary for attainment and maintenance of the
State's annual EGU Hg budget and to require the owners and operators of
coal-fired EGUs in the State to meet the monitoring, record keeping,
and reporting requirements of 40 CFR part 75. Missouri cites Section
643.050 and 643.055 of the Missouri Air Conservation Law, as containing
the legal authority for the Missouri Air Conservation Commission to
adopt the State's rule that allows for Missouri's participation in the
nationwide cap and trade program.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 action
merely proposes to approve State law as meeting Federal requirements
and would impose no additional requirements beyond those imposed by
State law. Accordingly, the Administrator certifies that this proposed
rule would 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 action proposes to approve pre-existing
requirements under State law and would 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).

[[Page 54875]]

    This proposal also does not have Tribal implications because it
would 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 proposed action also does not have Federalism implications
because it would 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. It 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 proposes to approve a
State rule implementing a Federal standard.
    Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' requires
Federal agencies to consider the impact of programs, policies, and
activities on minority populations and low-income populations. EPA
guidance \1\ states that EPA is to assess whether minority or low-
income populations face risk or a rate of exposure to hazards that is
significant and that ``appreciably exceed[s] or is likely to
appreciably exceed the risk or rate to the general population or to the
appropriate comparison group.'' (EPA, 1998) Because this rule merely
proposes to approve a state rule implementing the Federal standard
established by CAMR, EPA lacks the discretionary authority to modify
today's regulatory decision on the basis of environmental justice
considerations. However, EPA has already considered the impact of CAMR,
including this Federal standard, on minority and low-income
populations. In the context of EPA's CAMR published in the Federal
Register on May 18, 2005, in accordance with Executive Order 12898, the
Agency has considered whether CAMR may have disproportionate negative
impacts on minority or low income populations and determined it would
not.
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    \1\ U.S. Environmental Protection Agency, 1998. Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA
Compliance Analyses. Office of Federal Activities, Washington, DC,
April, 1998.
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    In reviewing State Plan 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 Plan for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a State Plan
submission, to use VCS in place of a State Plan 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 would
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 in Part 62

    Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Mercury, Reporting and
recordkeeping.

    Dated: September 19, 2007.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E7-19120 Filed 9-26-07; 8:45 am]

BILLING CODE 6560-50-P
