87 FR 175 pgs. 55739-55743 - Air Plan Approval; MO; Restriction of Visible Air Contaminant Emissions
Type: PRORULEVolume: 87Number: 175Pages: 55739 - 55743
Pages: 55739, 55740, 55741, 55742, 55743Docket number: [EPA-R07-OAR-2022-0746; FRL-10184-01-R7]
FR document: [FR Doc. 2022-19622 Filed 9-9-22; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2022-0746; FRL-10184-01-R7]
Air Plan Approval; MO; Restriction of Visible Air Contaminant Emissions
AGENCY:
Environmental Protection Agency (EPA).
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ACTION:
Proposed rule.
SUMMARY:
The Environmental Protection Agency (EPA) is proposing approval of revisions to the Missouri State Implementation Plan (SIP) received on November 29, 2016, and March 7, 2019. The revision was submitted by Missouri in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, for a provision in the Missouri SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. In the submissions, Missouri requests to revise a regulation related to restriction of emissions of visible air contaminants. The revisions to the rule include: removing a statement from the compliance and performance testing provisions that does not meet Clean Air Act requirements, adding exemptions for emission units regulated by stricter federal and state regulations or that do not have the capability of exceeding the emission limits of the rule, adding an alternative test method and making other administrative changes. Approval of these revisions will ensure consistency between state and federally approved rules.
DATES:
Comments must be received on or before October 12, 2022.
ADDRESSES:
You may send comments, identified by Docket ID No. EPA-R07-OAR-2022-0746 to www.regulations.gov. Follow the online instructions for submitting comments.
Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received will be posted without change to www.regulations.gov including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the "Written Comments" heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT:
Ashley Keas, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7629; email address: keas.ashley@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document "we," "us," and "our" refer to the EPA.
Table of Contents
I. Written Comments
II. Background
III. What is being addressed in this document?
IV. Have the requirements for approval of a SIP revision been met?
V. What action is the EPA proposing to take?
VI. Environmental Justice Considerations
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. Written Comments
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2022-0746, at www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets.
II. Background
On February 22, 2013, the EPA issued a Federal Register notice of proposed rulemaking outlining EPA's policy at the time with respect to SIP provisions related to periods of startup, shutdown and malfunction (SSM). EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the Clean Air Act (CAA) with regard to excess emission events. 1 For each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5).
Footnotes:
1 ?State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized "State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction," (80 FR 33839, June 12, 2015), hereafter referred to as the "2015 SSM SIP Action." The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. The 2015 SSM SIP Action identified specific provisions of this Missouri rule, 10 Code of State Regulation (CSR) 10-6.220, Restriction of Emissions of Visible Air Contaminants as being substantially inadequate to meet CAA requirements. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements. 2 Importantly, the 2020 Memorandum stated that it "did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act." Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to Missouri in 2015. The 2020 Memorandum did, however, indicate EPA's intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.
Footnotes:
2 ?October 9, 2020, memorandum "Inclusion of Provisions Governing Periods of Startup, Shutdown, and Malfunctions in State Implementation Plans," from Andrew R. Wheeler, Administrator.
[top] On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum). 3 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This
Footnotes:
3 ?September 30, 2021, memorandum "Withdrawal of the October 9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions in State Implementation Plans and Implementation of the Prior Policy," from Janet McCabe, Deputy Administrator.
4 ?80 FR 33985.
With regard to the Missouri SIP, in the 2015 SSM SIP Action, EPA determined that a provision of 10 Code of State Regulations (CSR) 10-6.220 Restriction of Emissions of Visible Air Contaminants was substantially inadequate to meet CAA requirements (80 FR 33840, 33969). Specifically, 10-6.220(3)(c) provided: "Visible emissions over the limitations shown in subsection (3)(B) of this rule are in violation of this rule unless the director determines that the excess emissions do not warrant enforcement action based on data submitted under 10 CSR 10-6.050 Start-Up, Shutdown and Malfunction Conditions." The rationale underlying EPA's determination that the provision was substantially inadequate to meet CAA requirements, and therefore to issue a SIP call to Missouri to remedy the provision, is fully detailed in the 2015 SSM SIP Action and the accompanying proposals. Specifically, EPA agreed with petitioners on the basis that this provision could be read to allow for exemptions from the otherwise applicable SIP emission limitations through a state official's unilateral exercise of discretionary authority that is insufficiently bounded and includes no additional public process at the state or federal level. In summary, EPA agreed with petitioners that this provision would allow the state director to circumvent EPA authority and/or citizen suit authority to enforce the emissions limitations, which is inconsistent with the CAA and EPA's policy outlined in the 2015 SSM SIP Action.
Missouri submitted a SIP revision on November 29, 2016, in response to the SIP call issued in the 2015 SSM SIP Action. In its submission, Missouri requests that EPA revise the Missouri SIP by removing the provision 10-6.220(3)(c) from the SIP, thereby correcting the deficiency identified in the 2015 SSM SIP Action and addressing the SIP Call for Missouri.
III. What is being addressed in this document?
The EPA is proposing to approve Missouri's revisions to 10 CSR 10-6.220, Restriction of Emissions of Visible Air Contaminants, in the Missouri SIP. The EPA received two SIP revision submissions related to this state rule from the Missouri Department of Natural Resources (MoDNR) on November 29, 2016, and March 7, 2019. The full text of these changes as well as EPA's analysis of the changes can be found in the technical support document (TSD), which is included in the docket for this action.
In its November 29, 2016, submission, MoDNR requested to remove the provision that was identified by EPA as being substantially inadequate to meet CAA requirements in EPA's 2015 SSM SIP Action. EPA is proposing to determine that removal of this provision is consistent with EPA's policy outlined in the 2015 SSM SIP Action and sufficiently addresses the deficiencies identified by the 2015 SSM SIP Call.
In addition to the removal of the identified SSM deficiency, MoDNR, in both the 2016 and 2019 submissions, also requested revisions related to opacity monitoring requirements and exemptions from the opacity limits and recordkeeping and reporting requirements of 10 CSR 10-6.220 for certain source types. Specifically, MoDNR exempted specific, limited, emission units regulated by stricter federal and state regulations. MoDNR also provided an exemption for certain emission units that do not have the capability of exceeding the emission limits of the rule. One example of an added exemption is for units regulated under 40 CFR 63 subpart UUUUU- Mercury and Air Toxics Standards, that demonstrate compliance with a particulate matter continuous emission monitoring system (CEMS) as the limits in this federal rule are more stringent than the opacity limits contained in the state rule. The newly added exemptions for sources that already comply with more stringent state or federal requirements will remove the duplicative monitoring and reporting requirements associated with the less stringent requirements of the state opacity rule.
Missouri provided a demonstration pursuant to CAA section 110(l) to ensure the rule revisions, including the added exemptions, do not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. EPA reviewed MoDNR's section 110(l) demonstration which explains the sources that will be newly exempt from the opacity limits of this state rule remain subject to more stringent federal or state regulations that apply on a continuous basis. For this reason, the emissions change associated with the rule revisions is expected to be relatively small if any. Additionally, the opacity limits contained in this rule, and more specifically for the units being exempted from the limits of this state rule, are not relied upon for attainment or maintenance purposes.
Opacity is often used as an indicator of the degree of particulate matter emissions. All PM 2.5 monitors in the state are measuring compliance with the annual and 24-hour PM 2.5 standards and all counties in Missouri are designated as unclassifiable/attainment for both the 2012 annual and 2006 24-hour PM 2.5 NAAQS. Further, the sources are not exempt from all opacity requirements and, in fact, are subject to the more stringent requirements found in the applicable federal rules. The expected change in emissions associated with these rule revisions is relatively small if any and therefore would not interfere with attainment or maintenance of the NAAQS.
Further, EPA is proposing to approve removal of the prior deficient exemption for excess emissions during periods of SSM from this rule. EPA believes that any emission limit or requirement relied upon as being more stringent to exempt a source from this rule must apply continuously, that is without any exemptions for periods of SSM, to be more stringent than the limits contained in this rule.
MoDNR also provided information to support the exemption for emission units burning certain fuels that are not capable of exceeding the opacity limits contained in the rule by estimating maximum emissions based on EPA emissions factors for each fuel type. EPA reviewed MoDNR's demonstration and proposes to agree that this added exemption would result in a relatively small emissions change if any and therefore would not interfere with attainment or maintenance of the NAAQS.
[top] Based on EPA's review of Missouri's section 110(l) demonstration and our analysis of these changes as fully described in the TSD in the docket for this proposed rule, the expected change in emissions associated with these rule revisions is relatively small if any and therefore EPA proposes to find the revisions will not interfere with attainment or maintenance of the
MoDNR also added an alternative test method and made other administrative wording changes such as adding rule specific definitions. EPA proposes to find these edits do not adversely impact the stringency of the SIP and are consistent with CAA requirements. Therefore, EPA proposes to approve these revisions as further detailed in the TSD.
IV. Have the requirements for approval of a SIP revision been met?
The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on the November 29, 2016, SIP revision from June 1, 2016, to August 4, 2016, and held a public hearing on July 28, 2016. During the public comment period, the State received seven comments from five sources, consisting primarily of supportive or clarifying comments from industry groups. The State addresses the comments in its submittal included in the docket for this proposal. The State provided public notice on the March 7, 2019, SIP revision from August 1, 2018, to October 4, 2018, and held a public hearing on September 27, 2018. During the public comment period, the State received nine comments, seven of which were from EPA. The State addresses the comments in its submittal. Further discussion of the state responses to comments received is included in the TSD and the state submittal documents in the docket. In addition, as explained above and in the TSD, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
V. What action is the EPA proposing to take?
The EPA proposes to approve the revisions to 10 CSR 10-6.220 as requested by Missouri in submissions dated November 29, 2016 and March 7, 2019. We are soliciting comments on this proposed action. We are soliciting comments solely on the proposed revisions to the rule and not on the existing text that is approved into Missouri's SIP. Final rulemaking will occur after consideration of any comments.
VI. Environmental Justice Considerations
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address "disproportionately high and adverse human health or environmental effects" of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." The EPA further defines the term fair treatment to mean that "no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies."
The state did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. While EPA did not perform an area-specific EJ analysis for purposes of this action, due to the nature of the action being taken here, i.e. to remove an exemption for excess emissions during periods of SSM and add exemptions for sources subject to equivalent or more stringent limits, as explained in this preamble and the technical support document in this docket, this action is expected to have a neutral to positive impact on air quality. Because consideration of EJ is not required as part of this action, there is no information in the record inconsistent with the stated goals of E.O 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.
This action approves revisions to a Missouri state rule concerning visible emissions. As explained in the preamble and technical support document, the emissions change associated with the revisions requested by Missouri is expected to be small if any. Therefore, we expect that this action will not interfere with attainment or maintenance of the NAAQS, reasonable further progress, or other CAA requirements. For these reasons, this action is not expected to have a disproportionately high or adverse human health or environmental effects on a particular group of people.
VII. Incorporation by Reference
In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Missouri Regulations discussed in Section III of this preamble and as set forth below in the proposed amendments to 40 CFR part 52. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).
VIII. Statutory and Executive Order Reviews
Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );
• 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);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
[top] • Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this
• This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The basis for this determination is contained in Section VI of this action, "Environmental Justice Concerns."
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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: September 6, 2022.
Meghan A. McCollister,
Regional Administrator, Region 7.
For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:
PART 52-APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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, the table in paragraph (c) is amended by revising the entry for "10-6.220" to read as follows:
§?52.1320 Identification of plan.
(c) * * *
| Missouri citation | Title | State effective date | EPA approval date | Explanation |
|---|---|---|---|---|
| Missouri Department of Natural Resources | ||||
| * * * * * * * | ||||
| Chapter 6-Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri | ||||
| * * * * * * * | ||||
| 10-6.220 | Restriction of Emission of Visible Air Contaminants | 3/30/2019 | [Date of publication of the final rule in the Federal Register ], [Federal Register citation of the final rule] | Subsection (1)(I) referring to the open burning rule, 10 CSR 10-6.045, is not SIP approved. |
| * * * * * * * | ||||
[FR Doc. 2022-19622 Filed 9-9-22; 8:45 am]
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