Proposed Rule2022-19622
Air Plan Approval; MO; Restriction of Visible Air Contaminant Emissions
Primary source
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Published
September 12, 2022
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 175 (Monday, September 12, 2022)</title>
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[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Proposed Rules]
[Pages 55739-55743]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19622]
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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).
[[Page 55740]]
ACTION: Proposed rule.
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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 <a href="http://www.regulations.gov">www.regulations.gov</a>. 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="/cdn-cgi/l/email-protection#33585652401d52405b5f564a735643521d545c45"><span class="__cf_email__" data-cfemail="03686662702d62706b6f667a436673622d646c75">[email protected]</span></a>.
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 <a href="http://www.regulations.gov">www.regulations.gov</a>. Once submitted, comments cannot be edited
or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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
<a href="http://www.epa.gov/dockets/commenting-epa-dockets">www.epa.gov/dockets/commenting-epa-dockets</a>.
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).
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\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).
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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.
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\2\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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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
[[Page 55741]]
policy approach is intended to ensure that all communities and
populations, including overburdened communities, receive the full
health and environmental protections provided by the CAA.\4\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
agency takes action on SIP submissions, including this SIP submittal
provided in response to the 2015 SIP call.
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\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.
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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<INF>2.5</INF> monitors in the state are
measuring compliance with the annual and 24-hour PM<INF>2.5</INF>
standards and all counties in Missouri are designated as
unclassifiable/attainment for both the 2012 annual and 2006 24-hour
PM<INF>2.5</INF> 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.
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
[[Page 55742]]
NAAQS or other CAA requirements consistent with CAA Section 110(l).
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 <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).
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:
<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
[[Page 55743]]
rulemaking does not involve technical standards; and
<bullet> 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
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 for ``10-6.220'' to read as follows:
Sec. 52.1320 Identification of plan.
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(c) * * *
EPA-Approved Missouri Regulations
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State
Missouri citation Title effective date EPA approval date Explanation
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Missouri Department of Natural Resources
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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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* * * * * * *
10-6.220......................... Restriction of 3/30/2019 [Date of Subsection (1)(I)
Emission of publication of the referring to the
Visible Air final rule in the open burning rule,
Contaminants. Federal Register], 10 CSR 10-6.045,
[Federal Register is not SIP
citation of the approved.
final rule].
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[FR Doc. 2022-19622 Filed 9-9-22; 8:45 am]
BILLING CODE 6560-50-P
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