MEMORANDUM 
 
SUBJECT: 	Technical Support Document (TSD) for Approval of a Missouri State Implementation Plan Revision relating to Construction Permits By Rule
 
FROM: 		Steven Brown 
                  ARD/APPB/APS
 
TO: 			EPA-R07-OAR-2023-0214; MO-466
 
THROUGH:  	Amy Algoe-Eakin, Branch Supervisor 
                  ARD/APPB
                  
SUMMARY:  
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Missouri State Implementation Plan (SIP) received from the Missouri Department of Natural Resources (MoDNR) as a SIP revision submission on September 20, 2022.
  
The proposed revisions are to the existing rule, Title 10, Division 10 of the Code of State Regulations, (10 CSR) 10-6.210 Confidential Information. The purpose of this state regulation is to provide procedures and conditions for handling confidential Information.

The rule was originally SIP approved in 40 CFR § 52.1320(c) on February 29, 1996 (61 FR 7714). On November 29, 2016, Missouri submitted a revision to this rule followed by a withdrawal on April 28, 2020, because the EPA was not able to approve a portion of the rule language allowing regulated entities to identify specific emissions data as confidential business information. MoDNR revised 10 CSR 10-6.210 to remove the provision in the rule that allowed certain types of emissions data to be claimed as confidential business information. The revisions to 10 CSR 10-6.210 that MoDNR has requested the EPA to approve into the SIP consist of structural, formatting and minor administrative changes. As such, in accordance with Section 110(l) of the Clean Air Act, this proposed revision does not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA.

RULE REVISIONS: 
Below is EPA's description of the changes made to each rule section and the text of the revised rule. 
Revisions that are additions to MoDNR's existing approved SIP rule text are bold. Revisions that are deletions to the existing approved SIP rule text are stricken through. The rule text with changes is listed first and is followed by a summary of the EPA's review of the changes. 

10 CSR 10-6.210 Confidential Information

(1) Application Applicability. This rule shall apply to all
business information requested to be designated confidential by the
Missouri Air Conservation Commission. This rule shall not apply to
emission data included in the information that shall not be entitled to confidential treatment, as provided by section 643.050.4., RSMo. under Chapter 643, RSMo.

EPA Analysis:  The revisions to section (1) are administrative in nature and do not affect the stringency of the SIP. A description of each revision in this section is as follows:

Section (1) : The revision to section (1) removes the section title "Application" and replaces it with the title, "Applicability".  The revision also removes the language giving the Missouri Air Commission the authority to designate business information as confidential, and specifically retains the reference to Chapter 643, RSMO.

Rule continues-

(2) General. Any information submitted pursuant to this rule or
other rules of the Missouri Air Conservation Commission that contains or from which could be derived, confidential business information, shall be kept confidential by the commission and employees and agents of the Department of Natural Resources if a timely request for confidentiality is made by the person submitting the information.

EPA Analysis:  The revisions to section (2) are administrative in nature and do not affect the stringency of the SIP. A description of each revision in this section is as follows:

Section (2) : The revision to section (2) Removes the "General" section altogether and replaces it with the Definitions Section.  See the revisions below as section (3) now becomes section (2).

Rule continues-

(3)(2) Definitions.

(A) Definitions for key words used in this rule may be found in 10
CSR 10-6.020(2).

(B) Additional definitions specific to this rule are as follows:

1.(A) Confidential business information: Secret processes, secret methods of manufacture or production, trade secrets and other information possessed by a business that, under existing legal concepts, the business has a right to preserve as confidential, and to limit its use by not disclosing it to others in order that the business may obtain or retain business advantages it derives from its rights in the information; and

2.(B) Emission data -- 

A.1. The identity, amount, frequency, concentration or other
characteristics (related to air quality) of any air contaminant
which -- 

      (I)A. Has been emitted from an emission unit;

     (II)B. Results from any emission by the emissions unit;

   (III)C. Under an applicable standard or limitation, the emissions unit was authorized to emit; or

(IV)D. Is a combination of any of the parts (3)(B)2.A.(I),(II) or (III) (2)(B)1.A., B., or C. of this rule;

B. 2. The name, address (or description of the location) and the nature of the emissions unit necessary to identify the emission units including, a description of the device, equipment, or operation constituting the emissions unit; and

C. 3. The results of any emission testing or monitoring required to be reported under this rule or other rules of the commission.

(C) Definitions of certain terms specified in this rule, other than
those defined in this rule section, may be found in 10 CSR 10-
6.020.

EPA Analysis:  The revisions to section (3) are administrative in nature and do not affect the stringency of the SIP. A description of each revision in this section is as follows:

Section (3): The revision to section (3) changes to become section (2), "Definitions".

Section (3)(A): The language in Section (3)(A) and (3)(B) are removed. 

Section (3)(B)1.: Section (3)(B)1. now becomes (2)(A) with no language changes.

Section (3)(B)2.: Section (3)(B)2. now becomes (2)(B) with no language changes.

Section (3)(B)2.A.: Section (3)(B)2.A. now becomes (2)(B)1 with no language changes.

Section (3)(B)2.A.I.: Section (3)(B)2.A. now becomes (2)(B)1.A. with no language changes.

Section (3)(B)2.A.II.: Section (3)(B)2.A. now becomes (2)(B)1.B. with no language changes.

Section (3)(B)2.A.III.: Section (3)(B)2.A. now becomes (2)(B)1.C. with no language changes.

Section (3)(B)2.A.IV.: Section (3)(B)2.A. now becomes section (2)(B)1.D. This revision also removes the reference to (3)(B)2.A.(I), (II) or (III) and replaces it with, (2)(B)1.A, B., or C.

Section (3)(B)2.B.: Section (3)(B)2.B now becomes (2)(B)2. with no language changes.

Section (3)(B)2.C.: Section (3)(B)2.C now becomes (2)(B)3.

Section (2)(C) is a newly created subsection with added language referencing additional definitions.

Rule continues-

(4)(3) 	Procedures. General Provisions. Any information or records
submitted or obtained pursuant to Chapter 643, RSMo, is subject to
public disclosure unless a request for confidentiality is made by the person submitting the information or records and the request has been approved pursuant to the following procedures:

(A) Procedures.

(A)1.An owner or operator who wishes to claim confidentiality for any information submitted pursuant to this rule or other rules of the commission shall submit a claim of confidentiality within ten (10) working days following the time the information is submitted when the information is initially submitted. Failure to submit a claim of confidentiality within the required time shall result in a waiver of any claim to confidentiality when the information is initially submitted may result in public disclosure.

2. The claim of confidentiality shall be accompanied by a
  justification that the information is entitled to confidential
  treatment.

(B)3. When information claimed to be confidential is being
  submitted with a permit application, emissions report, or any
  other documentation containing information subject to public
  disclosure, a separate version that may be viewed by the
  public shall be provided by the owner or operator.

(C)4. Upon receipt of a timely claim of confidentiality, the director shall evaluate the claim and inform the owner or operator that the claim has been granted approved, or that a preliminary decision has been made to deny the claim in whole or in part. Until that time in which the claim is reviewed it shall be held in confidence.

(D) 5.The owner or operator shall have fifteen (15) working days from the receipt of the preliminary decision to deny the claim in which to submit further justification or comments to the director. The director shall inform the owner or operator of his/her final decision on whether the claim will be denied in whole or in part within ten (10) working days. If a claim of confidentiality is denied in the preliminary review, the owner or operator will have fifteen (15) days from the date of the denial letter to submit further justification or comments to the director for consideration in the final decision on confidentiality. The director shall inform the owner or operator of his/her final decision on whether the claim will be denied in whole or in part within ten (10) working days of receiving the owner or operator's further justification or comments.

(E)6.The owner or operator may appeal the director's final decision to deny a claim of confidentiality, in whole or part, to the administrative hearing commission pursuant to section 621.250, RSMo, and 10 CSR 10-1.030. to the commission from the director's final decision to deny a claim of confidentiality in whole or part by filing a notice of appeal with the staff director within twenty (20) working days after receipt of the director's final decision. Upon the timely filing of a notice of appeal, the confidentiality of the information shall be preserved until the entry of a final order by the commission.

(F)7.If the commission's final decision is to deny the claim of
  confidentiality, in whole or in part, the director shall treat
  the information as subject to public disclosure unless the owner
  or operator files a timely action for judicial review pursuant
  to section 536.110, RSMo. If a timely action for judicial review
  is filed, the confidentiality of the information shall be
  preserved until adjudication of the matter upon judicial review.

(G)8. A claim of confidentiality under this rule shall be granted if -- :

1. 		A. The owner or operator has asserted a business confidentiality claim that has not expired by its terms, been waived or been withdrawn;

2. 		B. The owner or operator has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information and that it intends to continue to take those measures;

3. 		C. The information is not, and has not been, reasonably
obtained without the owner's or operator's consent by other persons
(other than governmental bodies) by use of legitimate means (other than
discovery based on a showing of special needs in a judicial or quasi-judicial proceeding);

4. 		D. No statute specifically requires public disclosure of
the information;

5. 		E. The information is not emission data; and

6. 		F. The owner or operator has satisfactorily shown that
public disclosure of the information -- 

      A.(I) Is Public disclosure of the information is likely to cause substantial harm to the business' competitive position; or

      B.(II) The information was voluntarily submitted and if disclosed, the submitter would be reluctant to provide additional information to the director in the future. Information is voluntarily submitted if the facility has no statutory, regulatory, or contractual obligation to provide the information; or the director has no statutory, regulatory, or contractual authority to obtain the information under federal or state law; and Was voluntarily submitted and its disclosure would be likely to impair the director's ability to obtain necessary information in the future. Information is voluntarily submitted if the director has not statutory, regulatory or contractual authority to obtain some benefit or avoid some disadvantage under the Missouri Air Conservation Law and implementing rules (for example, information required to obtain a permit or other approval is submitted to obtain a benefit from the Missouri Air Conservation Commission).

EPA Analysis:  The revisions to section (4) are administrative in nature and do not affect the stringency of the SIP.  A description of each revision in this section is as follows:

Section (4) : The revision to section (4) changes the title name, "Procedures" to "General Provisions" and the section number changes to (3). Thus, section (4) "Procedures" now becomes section (3) "General Provisions". This revision also adds language after the title describing that any information or records submitted to the state is subject to public disclosure unless a request for confidentiality is submitted and approved pursuant to the procedures of the rule. It then lists those procedures (see the following revisions below in this subsection.

Section (4)(A): The revision to section (4)(A) adds the title called, "Procedures" and becomes section (3)(A) "Procedures" as the header for this section. Additionally, section (4)(A) is changed to (3)(A)1. and changes the language to remove a ten (10) day timeframe of submitting the claim of confidential information and adds an immediate timeframe of claiming confidentiality upon the initial submittal of information. This revision also separates the last paragraph and creates a numbered section "2." Which now becomes (3)(A)2.

Section (4)(B): Section (4)(B) now becomes (3)(A)2. with unchanged language. There is also new language added as section (3)(A)3. describing when information claimed to be confidential is being submitted with a permit application, emissions report, or any other documentation containing information subject to public disclosure, a separate version that may be viewed by the public shall be provided by the owner or operator.

Section (4)(C): Section (4)(C) now becomes (3)(A)4. In the first sentence, the word "timely" is removed and the word "granted" is replaced with the word "approved".

Section (4)(D): Section (4)(D) now becomes (3)(A)5. The revision also removes the language in this section and rewrites the paragraph explaining that if a claim of confidentiality is denied in the preliminary review, the owner or operator will have fifteen (15) days from the date of the denial letter to submit further justification or comments to the director for consideration in the final decision on confidentiality. The director shall inform the owner or operator of his/her final decision on whether the claim will be denied in whole or in part within ten (10) working days of receiving the owner or
operator's further justification or comments. 

Section (4)(E): Section (4)(E) now becomes (3)(A)6. The revision also removes language describing a (20) working day timeline for submitting an appeal and adds language stating that an owner or operator may appeal the director's final decision to deny a claim of confidentiality, in whole or part, to the administrative hearing commission pursuant to section 621.250, RSMo, and 10 CSR 10-1.030.

Section (4)(F): Section (4)(F) now becomes (3)(A)7. with no changes to language.

Section (4)(G): Section (4)(G) now becomes (3)(A)8. with no changes to language.

Section (4)(G)1.: Section (4)(G)1. now becomes (3)(A)8.A. with text changes to remove the words, "been waived" and add the word "been" directly before the word, "withdrawn". 

Section (4)(G)2.: Section (4)(G)2. now becomes (3)(A)8.B. with no changes to language.

Section (4)(G)3.: Section (4)(G)3. now becomes (3)(A)8.C. with no changes to language.

Section (4)(G)4.: Section (4)(G)4. now becomes (3)(A)8.D. with no changes to language.

Section (4)(G)5.: Section (4)(G)6. now becomes (3)(A)8.E. with no changes to language.

Section (4)(G)6.: Section (4)(G)6. now becomes (3)(A)8.F. with text changes to remove the words, "public disclosure of the information". The language, "public disclosure of the information" is moved to section (3)(A)8.F(I). 

Section (4)(G)6A.: Section (4)(G)6A. now becomes (3)(A)8.F(I) with text changes to remove the word, "Is" and adds the language, "Public disclosure of the information is...".

Section (4)(G)6B.: Section (4)(G)6B. now becomes (3)(A)8.F(II) with changes to the language explaining that information is voluntarily submitted if the facility has no statutory, regulatory, or contractual obligation to provide the information, or the director has no statutory, regulatory, or contractual authority to obtain the information under federal or state law.

Rule continues-

(5) (B) Conditions for Any Disclosure.

(A)1.Public Request request. Upon receipt of a request from a member of the public for release of any information submitted under a claim of confidentiality, and for which the claim has not been finally denied, the director shall inform both the person making the request and the owner or operator that the request for the information is denied or that a tentative decision has been made to release the information. A preliminary decision to release the information shall be treated in the same manner as a preliminary decision to deny a claim of confidentiality under subsections(4)(C)-(G) paragraphs (3)(A)4.-8. Of this rule.

(B)2.Confidential and Public Information public information. If the information submitted under a claim of confidentiality contains both information which is entitled to confidential treatment and emission data or other information not entitled to confidential treatment, the director may take reasonable steps to segregate that
 information entitled to confidential treatment from that subject to
 public disclosure. These steps may include, without limitation,
 photocopying for the public file only portions of the submitted
 information or applying techniques that would result in confidential information bring blacked out in the photocopying process. If information entitled to confidentiality cannot reasonably be separated from emission data information not entitled to confidentiality, all the information must be treated as subject to public disclosure.

(C)3.Public Release release. The director and his/her designees shall not release to the public, or place in the public file, any information for which a timely claim of confidentiality has been made until the procedures under subsections (4)(C)-(G) and (5)(A) paragraphs(3)(A)4.-8. of this rule have been observed.

(D)4.Disclosure to Local Agencies local agencies. Information submitted under a claim of confidentiality, and where the claim has not been finally denied, may be disclosed to local air pollution control agencies if -- 

1.A. The owner or operator is given prior notice fifteen (15) working days in which to obtain an order from a court of competent
jurisdiction restraining or enjoining the disclosure to the local
agency, and if no such order is obtained, or obtained and later
dissolved; or

2.B. The local agency has ordinances or regulations respecting the
treatment of confidential business information that is equivalent to this rule, the director provides notice to the owner or operator that the information is being disclosed to the local agency, and the director informs the local agency that the information is subject to a claim of confidentiality.

(E)5.Disclosure to Administrator administrator. Information submitted under a claim of confidentiality, and where the claim has not been finally denied, may be disclosed to the administrator provided the administrator agrees, pursuant to 40 CFR 2.215, that the information will be kept confidential.

(F)6.Subpoenas for Confidential Information confidential information. The director shall respond to subpoenas and discovery requests for information submitted under a claim of confidentiality, if the claim has not been finally denied, in a manner that is designed to preserve the claim of confidentiality until a confidentiality determination is made by a court or other tribunal of competent jurisdiction.

EPA Analysis:  The revisions to section (5) are administrative in nature and do not affect the stringency of the SIP.  A description of each revision in this section is as follows:

Section (5): Section (5) "Condition for Any Disclosure" now becomes section (3)(B) Conditions for Any Disclosure.
Section (5)(A): Section (5)(A) now becomes (3)(B)1. with text changes that remove the capitalization of the word "Request" to make the word lower case, "request". This revision also removes the reference from subsection (4)(C) through (G), and the reference to paragraph (3)(A)4. through 8.

Section (5)(B): Section (5)(B) now becomes (3)(B)2. with text changes to make the words "Public Information" lower case. Thus, changing it to, "public information". In the last sentence of the paragraph, the words, "emission data" are removed and the words, "information not entitled to confidentiality" are added.

Section (5)(C): Section (5)(C) now becomes (3)(B)3. with text changes that remove the capitalization of the word "Release" to make the word lower case, "release". This revision also removes the word, "timely" and removes the reference to "subsection (4)(C)  -  (G)" and replaces it with references to "paragraphs (3)(A) 4. - 8".

Section (5)(D): Section (5)(D) now becomes (3)(B)4. with text changes that remove the words "Local Agencies" and replaces them with the lower case, "local agencies".

Section (5)(D)1.: Section (5)(D)1. now becomes (3)(B)4.A. with no changes to language.

Section (5)(D)2.: Section (5)(D)2. now becomes (3)(B)4.B. with no changes to language.

Section (5)(E): Section (5)(E) now becomes (3)(B)5. with text changes that removes the word, "Administrator" and replaces it with the lower case "administrator".  This revision also removes the word "and" in the second sentence and adds the word "where".

Section (5)(F): Section (5)(F) now becomes (3)(B)6. with text changes in the first sentence that remove the words "Confidential Information" and replaces it with the lower case "confidential information.

Rule continues-

(4) Reporting and Record Keeping. (Not Applicable)

(5) Test Methods. (Not Applicable)
