Rule2021-11244
Air Plan Approval; Missouri; Construction Permits By Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 2, 2021
Effective
July 2, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving selected revisions to a Missouri State rule in the State Implementation Plan (SIP) that establishes a process and standardized conditions under which certain types of sources can construct and operate in lieu of going through the State's formal construction permitting process. The EPA is approving rule revisions that include modifications to the operating conditions for crematories and animal incinerators, adjustments to sulfur limits on Number 2 diesel oil for consistency with Federal limits, removal of "restrictive" words, addition of definitions specific to the rule, and other minor edits. At this time, the agency is not acting on revisions that conflict with an EPA regulation related to disposal of pharmaceuticals collected in drug take-back programs. The EPA's approval of the State's other rule revisions is being done in accordance with the requirements of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 86 Issue 104 (Wednesday, June 2, 2021)</title>
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[Federal Register Volume 86, Number 104 (Wednesday, June 2, 2021)]
[Rules and Regulations]
[Pages 29517-29520]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11244]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[[EPA-R07-OAR-2019-0711; FRL-10024-22-Region 7]
Air Plan Approval; Missouri; Construction Permits By Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
selected revisions to a Missouri State rule in the State Implementation
Plan (SIP) that establishes a process and standardized conditions under
which certain types of sources can construct and operate in lieu of
going through the State's formal construction permitting process. The
EPA is approving rule revisions that include modifications to the
operating conditions for crematories and animal incinerators,
adjustments to sulfur limits on Number 2 diesel oil for consistency
with Federal limits, removal of ``restrictive'' words, addition of
definitions specific to the rule, and other minor edits. At this time,
the agency is not acting on revisions that conflict with an EPA
regulation related to disposal of pharmaceuticals collected in drug
take-back programs. The EPA's approval of the State's other rule
revisions is being done in accordance with the requirements of the
Clean Air Act (CAA).
DATES: This final rule is effective on July 2, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R07-OAR-2019-0711. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, i.e.,
confidential business information (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 through <a href="https://www.regulations.gov">https://www.regulations.gov</a> or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional information.
FOR FURTHER INFORMATION CONTACT: Wendy Vit, Environmental Protection
Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at (913) 551-7697, or by email at
<a href="/cdn-cgi/l/email-protection#c3b5aab7edb4a6ada7ba83a6b3a2eda4acb5"><span class="__cf_email__" data-cfemail="66100f1248110308021f2603160748010910">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA. This section provides additional information
by addressing the following:
Table of Contents
I. What is being addressed in this action?
II. Have the requirements for approval of the SIP revision been met?
III. The EPA's Response to Comments
IV. What action is the EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What is being addressed in this action?
The EPA is taking final action to approve selected revisions to 10
Code of State Regulations (CSR) 10-6.062 in the Missouri SIP. The
revised State rule was submitted by the State of Missouri on March 7,
2019 and became effective on March 30, 2019. The submission requested
revisions to the SIP that include: (1) Expanding the materials that
crematories and animal incinerators are allowed to burn from 100% human
and animal remains to 90% human and animal remains with up to 10%
illegal and waste pharmaceutical drugs, (2) modifying operating
conditions for crematories and animal incinerators, (3) adjusting
sulfur limits on Number 2 diesel oil for consistency with Federal
limits, (4) removing ``restrictive'' words, (5) adding definitions
specific to the rule, and (6) making other minor edits. The EPA is
finalizing this action because certain revisions to this State rule
meet the applicable requirements of the Clean Air Act. EPA is not
acting on the State rule revisions that would allow crematories and
animal incinerators to burn up to 10% by weight of illegal and waste
pharmaceuticals.
[[Page 29518]]
II. Have the requirements for approval of the SIP revision been met?
The State's 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 of the revisions from August 1, 2018, to
October 4, 2018, and held a public hearing on September 27, 2018. The
State received and addressed four comments from three sources,
including the EPA. In addition, as explained in the proposal (85 FR
3304, January 21, 2020) and in more detail in the EPA's technical
support document (TSD), which is part of this docket, the revision
meets the substantive SIP requirements of the CAA, including section
110 and the implementing regulations.
III. The EPA's Responses to Comments
The public comment period on the EPA's proposed rule opened January
21, 2020, the date of its publication in the Federal Register, and
closed on February 20, 2020. During this period, the EPA received
comments from two commenters, which are addressed below.
Comment 1: One commenter submitted several comments regarding
revisions in 10 CSR 10-6.062 paragraph (3)(B)2. and subparagraph
(3)(B)2.A. that would expand the materials which crematories and animal
incinerators are allowed to burn from 100% human and animal remains to
90% human and animal remains with up to 10% illegal and waste
pharmaceutical drugs. The comments raise multiple approvability issues.
First, the commenter states the EPA failed to provide any analysis or
basis for its assertion that allowing crematories and animal
incinerators to burn up to 10% pharmaceuticals would not impact the
stringency of the SIP or air quality. Second, the commenter states the
EPA applied faulty logic in relying on the Commercial and Industrial
Solid Waste Incinerator (CISWI) rule's exemption for pathological waste
incinerators that burn 90% pathological waste. The commenter contends
that the 90% cutoff in the CISWI rule is not a 10% catch-all burn-what-
you-will provision, rather it is intended to distinguish those units
designed and used primarily for pathological material destruction from
other units. There is no CISWI rule provision that allows for the other
10% of the material to be illegal and waste pharmaceutical drugs.
Third, the commenter said the EPA's analysis fails to recognize that
incineration of pharmaceutical drugs may be subject to other federal
regulations under sections 112 or 129 of the Clean Air Act or the
Resource Conservation and Recovery Act (RCRA) depending on their
contents. Finally, the commenter states the EPA failed to analyze
whether allowing crematories and animal incinerators to burn
pharmaceuticals would increase hazardous air pollutant emissions to
such an extent that the source would exceed the major source threshold
and therefore not be eligible for the construction permit-by-rule per
10 CSR 10-6.062(1)(A).
Response to Comment 1: Because of the issues raised in these
comments, the EPA is not acting on the revised language that would
allow crematories and animal incinerators to burn up to 10% by weight
of illegal and waste pharmaceuticals. Missouri added these provisions
as a means of disposing materials collected from drug take-back events
and programs. However, the revisions in the State's rule conflict with
requirements related to drug take-back programs established by the
EPA's final regulation, Management Standards for Hazardous Waste
Pharmaceuticals and Amendment to the P075 Listing for Nicotine (84 FR
5816, February 22, 2019). Specifically, the requirements for drug take-
back programs codified at 40 CFR 266.506, list five types of permitted
combustors that must be used to destroy waste pharmaceuticals, and
crematoriums and animal incinerators are not included on the list for
this purpose. The EPA explains in the preamble of the final hazardous
waste pharmaceuticals rule that crematories and animal incinerators are
not allowed to be used for disposal of materials collected from drug
take-back programs because these units typically do not use air
pollution control devices to limit toxic air pollutants such as mercury
and dioxins and furans. In addition to the hazardous waste
pharmaceuticals rule, there may be other state and federal regulations
applicable to crematories and animal incinerators. Missouri has
represented to the EPA that it is in the process of revising 10 CSR 10-
6.062 to remove the problematic language allowing crematories and
animal incinerators to burn illegal and waste pharmaceutical drugs. As
evidence of Missouri's rulemaking to revise 10 CSR 10-6.062, the
rulemaking report summarizing the changes Missouri plans to make is
included in this docket.
Comment 2: The commenter states that Missouri's rule lacks
necessary enforceability provisions. For instance, the commenter states
that the rule is not clear whether the demonstration of 99.9%
combustion efficiency applies to sources that rely on manufacturer's
specifications, and it is incomplete because it does not specify what
pollutants must be demonstrated to meet the 99.9% combustion
efficiency. In addition, the commenter states that the compliance
provisions for stack tests and opacity limit requirements fail to
identify the appropriate test methods. The commenter says the rule also
lacks provisions that apply to owners that follow manufacturers
specifications. Finally, the commenter states that the recordkeeping
and reporting provisions are inadequate.
Response to Comment 2: To apply for a Missouri permit-by-rule, an
applicant completes an application. The application form contains the
conditions of operation, including methods of compliance. The applicant
signs the form to accept the conditions. This becomes the final permit
issued by the Missouri Department of Natural Resources.\1\ It is EPA's
understanding that Missouri is in the process of updating the
application form to reflect the changes made in this revision to the
State rule.
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\1\ Missouri's permit-by-rule application forms may be found
here <a href="https://dnr.mo.gov/forms/#AirPollution">https://dnr.mo.gov/forms/#AirPollution</a>.
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The revised rule language clearly specifies the following two
compliance demonstration options for crematories and animal
incinerators: (1) Operate in accordance with manufacturer's
specifications or (2) demonstrate a 99.9% combustion efficiency. Higher
combustion efficiencies minimize the products of incomplete combustion
and associated air pollutants.
The EPA reviewed a number of Missouri construction permits for
crematories and animal incinerators that have been issued through the
State's formal construction permitting process in accordance with the
SIP-approved rule, 10 CSR 10-6.060 Construction Permits Required. The
revised compliance options and enforceability provisions in 10 CSR 10-
6.062 for crematories and animal incinerators are consistent with the
language in the permits for these units that have been issued under 10
CSR 10-6.060.
The rule language regarding opacity and reporting and recordkeeping
requirements was not materially revised from the provisions in the
previously approved SIP. The EPA did not intend to solicit comments on
the rule requirements that the state did not materially change in this
rulemaking. The agency initially approved 10 CSR 10-6.062 in 2006 (71
FR 38997, July 11, 2006), and the opacity and reporting and
recordkeeping provisions have not
[[Page 29519]]
been revised since then. Courts have indicated that actions, such as
the action taken on this rule, do not reopen issues on which the agency
was not seeking comment. Sierra Club v. EPA, 551 F.3d 1019, 1024 (D.C.
Cir. 2008) (citing Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 397
(D.C. Cir. 1989)) (``Under the reopening doctrine, the time for seeking
review starts anew where the agency reopens an issue by holding out the
unchanged section as a proposed regulation, offering an explanation for
its language, soliciting comments on its substance, and responding to
the comments in promulgating the regulation in its final form.'');
Appalachian Power v. EPA, 251 F.3d 1026 (D.C. Cir. 2004).\2\ There are
no known issues with the enforcement of this rule. Therefore, the EPA
is finalizing this SIP revision.
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\2\ ARTBA v. EPA, 588 F.3d 1109 at 1114 (rewriting a rule in
plain language does not reopen); Kennecott Utah Copper Corp. v. U.S.
Dept. of the Interior, 88 F.3d 1191 at 1220 (no reopener where
agency ``merely re-worded the provision'' with ``no meaningful
difference''); Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 920
(D.C. Cir. 1998) (dictum) (no reopener where agency action ``merely
republished an existing rule''); cf. also Pub. Citizen v. Nuclear
Regulatory Com., 901 F.2d 147, 150 (D.C. Cir. 1990) (``where an
agency's actions show that it has not merely republished an existing
rule in order to propose minor changes to it, but has reconsidered
the rule and decided to keep it in effect, challenges to the rule
are in order'').
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Comment 3: The commenter stated that the EPA failed to provide a
basis for proposing to approve the addition of eleven (11) definitions
in section (2) of the rule. The commenter states it appears that the
EPA is assuming that previously approved definitions can be moved into
the rule. The commenter finds that it is unclear why the definition of
``incinerator'' was moved into this rule because it covers refuse
material and open burning. The commenter also states that the
definition of ``construction'' moved into this rule does not match the
definition of construction in the permitting rule that the owner/
operator seeks exemption from [10 CSR 10-6.060] and the reason for the
difference is not explained. Additionally, the commenter notes that the
definition of ``printing'' differs from the section that covers
printing operations (paragraph (3)(B)1.), which is more encompassing.
Finally, the commenter states the definition of ``closed container''
speaks to requirements regarding spilling and leaking the contents and
fails to require that the closed container prevents volatile organic
compound (VOC) fugitives.
Response to Comment 3: As explained in detail in the TSD, the
definitions inserted into 10 CSR 10-6.062 section (2) are the same
definitions included in the SIP-approved 10 CSR 10-6.020 Definitions
and Common Reference Tables, and therefore there is no change to the
stringency of the SIP. As explained above, the EPA did not intend to
solicit comments on the portions of the rule that the State did not
materially change in this rulemaking. Furthermore, the addition of
these general definitions in section (2) of the rule does not impact
any of the rule's conditions or requirements. The provisions in the
permit-by-rule for each source category covered by 10 CSR 10-6.062
contain greater specificity related to usage of the terms.
Comment 4: An anonymous commenter recommended that the revisions
not be approved. The commenter stated that instead more stringent
protections and regulations with penalties should be put in place to
better protect the environment and public.
Response to Comment 4: The permit-by-rule for each source category
in subsection (3)(B) of the rule includes enforcement provisions. In
addition, subsection (3)(C) includes provisions for revoking a permit-
by-rule and penalties for non-compliance, and section (4) includes
reporting and recordkeeping requirements. There are no known issues
with the enforcement of this rule. For the reasons stated above and in
the proposal, the EPA has determined that the rule revisions comply
with the requirements of the Clean Air Act.
IV. What action is the EPA taking?
The EPA is approving all revisions from the March 30, 2019, State
effective date version of 10 CSR 10-6.062 into the Missouri SIP, except
for revisions to paragraph (3)(B)2. and subparagraph (3)(B)2.A. We are
taking final action after consideration of the comments received from
two commenters on the notice of proposed rulemaking.
V. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the
Missouri Regulations described in the amendments to 40 CFR part 52 set
forth below. The EPA has made, and will continue to make, these
materials generally available through <a href="http://www.regulations.gov">www.regulations.gov</a> 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).
Therefore, these materials have been approved by the EPA for
inclusion in the State Implementation Plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of the EPA's approval, and will be incorporated by reference
in the next update to the SIP compilation.\3\
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\3\ 62 FR 27968, May 22, 1997.
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VI. Statutory and Executive Order Reviews
Under the 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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of the National Technology
Transfer and Advancement Act (NTTA) because this rulemaking does not
involve technical standards; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using
[[Page 29520]]
practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the 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).
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. The EPA will submit a report containing this action 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 August 2, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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 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: May 21, 2021.
Edward H. Chu,
Acting Regional Administrator, Region 7.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as set forth below:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart AA--Missouri
0
2. In Sec. 52.1320, the table in paragraph (c) is amended by revising
the entry ``10-6.062'' to read as follows:
Sec. 52.1320 Identification of plan.
(c) * * *
EPA-Approved Missouri Regulations
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State effective
Missouri citation Title date EPA approval date Explanation
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Missouri Department of Natural Resources
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* * * * * * *
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Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
Regulations for the State of Missouri
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* * * * * * *
10-6.062........................ Construction 3/30/2019......... 6/2/2021, [insert EPA is approving
Permits By Rule. Federal Register all revisions
citation]. from the 3/30/
2019 State
effective date
version of 10 CSR
10-6.062, except
for paragraph
(3)(B)2. and
subparagraph
(3)(B)2.A.
* * * * * * *
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[FR Doc. 2021-11244 Filed 6-1-21; 8:45 am]
BILLING CODE 6560-50-P
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