Approval and Promulgation of Implementation Plans; State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is announcing the partial approval and partial disapproval of revisions to the Restriction of Emission of Sulfur Compounds rule in the Missouri State Implementation Plan (SIP). This Missouri rule establishes general requirements for emissions of sulfur compounds from various source categories and establishes specific emissions requirements for certain named sources.

EPA is approving most of the revisions to the rule because the changes involve clarifications, updates, and other improvements to the current rule. This action does not include a portion of the rule that regulates ambient concentrations of sulfur compounds, because this provision is not in the current SIP, and EPA does not directly enforce Missouri's Air Quality Standards.

EPA is disapproving Missouri's request to include in the SIP a revision to two source-specific references because the state has not demonstrated that the revisions are protective of the short-term SO₂ National Ambient Air Quality Standard (NAAQS).

DATES:

This rule is effective on April 12, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2005-MO-0006. All documents in the docket are listed on the http://www.regulations.gov Web site. 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 through http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, KS. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m. excluding Federal holidays. 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 Being Addressed in This Document?

Have the Requirements for Approval of a SIP Revision Been Met?

What Action Is EPA Taking?

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 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.

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 Being Addressed in This Document?

We are taking final action to partially approve and partially disapprove Missouri Department of Natural Resources' (MDNR) request to include, as a revision to Missouri's SIP, amendments to rule 10 CSR 10-6.260, Restriction of Emission of Sulfur Compounds. We are also approving certain changes to this rule as an amendment to the 111(d) plan which will replace the current rule for sulfuric acid mist production. This rule was adopted by the Missouri Air Conservation Commission on February 3, 2004, and became effective under state law on May 30, 2004. This rule was submitted to EPA on June 14, 2004, and included comments on the rule during the state's adoption process, the state's response to comments and other information necessary to meet EPA's completeness criteria.

The revisions to Missouri rule, 10 CSR 10-6.260, Restriction of Emission of Sulfur Compounds, update the rule to correct inaccurate source information, provide an exemption for natural gas fueled combustion, and clarify the exemption for source categories subject to a new source performance standard to assure that such sources are subject to sulfur limits. Missouri also revised provisions relating to sulfuric acid mist production, previously approved by EPA under section 111(d). These provisions were renumbered but not otherwise changed. By renumbering the rule, Missouri will have given the 111(d) plan a new effective date that will be reflected in the description of the section 111(d) plan in 40 CFR part 62. EPA is approving revisions to Section (3)(A)1,2,3 and 4 into the 111(d) plan.

However, we are not acting on renumbered Section (3)(B), titled Restriction of Concentration of Sulfur Compounds in Ambient Air, as EPA does not directly enforce Missouri's air quality standards, and this section is not found in the approved SIP.

We are also partially disapproving revisions to Missouri rule, 10 CSR 10-6.260, Restriction of Emission of Sulfur Compounds. Revisions to Section (3), Table 1, regarding the emission rate for the Kansas City Power & Light's Hawthorn and Montrose Station facilities are not consistent with the requirements of the CAA. Section 110(a)(2)(A) of the CAA requires, in part, that the plan include emission limitations to meet the requirements of the Act, including the requirement in Section 110(a)(1) that the plan must be adequate to attain and maintain ambient air quality standards. In addition, 40 CFR 51.112 requires that the plan demonstrate that rules contained in the SIP are adequate to attain the ambient air quality standards. We believe that these requirements have not been met with respect to the Hawthorn and Montrose Station limits. We note that the Hawthorn unit is subject to a Federally-enforceable state permit which limits sulfur emissions to .12 pounds per million BTU heat input on a thirty-day rolling average basis. Although the facility must comply with this more stringent limit (and all other units listed in the rule must comply with more stringent limits established in permits), the SIP must reflect requirements that ensure attainment and maintenance of the NAAQS. The state rule, with respect to the Hawthorn and Montrose Station facilities, does not reflect such requirements.

We believe that the revisions, contained in Section (3), Table 1, regarding sulfur dioxide emission rates for these plants are not protective of the short-term sulfur dioxide NAAQS. Although the emission rates for both facilities have been lowered, the averaging time for the rates has been dramatically increased, from a three-hour average to an annual average. Missouri has not provided a demonstration, as required by the CAA and EPA regulations, that the standards, particularly, the three-hour and the twenty-four hour standards, can be protected by an annual emission limit.

Have the Requirements for Approval of a SIP Revision Been Met?

With respect to the portions of the submittal which EPA is approving, 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 that is part of this document and in the October 3, 2005, proposed rule, the approved portions of the revision meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

What Action Is EPA Taking?

We are taking final action to partially approve and partially disapprove portions of the Restriction of Emission of Sulfur Compounds rule into the Missouri State Implementation Plan (SIP). The approved and disapproved portions are described above. We are incorporating rule changes to subparagraph (3)(A)1,2,3, and 4, into Missouri's 111(d) plan. We are not acting on a portion of this rule that regulates ambient concentrations of sulfur compounds, because this provision is not in the current SIP, and EPA does not directly enforce Missouri's Air Quality Standards.

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 approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this 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 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 disapproval of the submittal does not impose a new Federal requirement. Therefore, the Administrator certifies that this 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 approves 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 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 approves and disapproves 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 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 a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP 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 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.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 12, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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 62

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Sulfur oxides
• Sulfuric acid plants
• Waste treatment and disposal

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart AA—Missouri

2. In § 52.1320(c) the table is amended under Chapter 6 by revising the entry for “10-6.260” to read as follows:

PART 62—[AMENDED]

1. The authority citation for part 62 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart AA—Missouri

2. Section 62.6350 is amended by adding paragraph (b)(4) to read as follows: