Rule2022-28139
Air Plan Disapproval; Missouri; Control of Sulfur Dioxide Emissions
Primary source
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Published
January 4, 2023
Effective
February 3, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to disapprove revisions to the Missouri State Implementation Plan (SIP) submitted by Missouri on March 7, 2019. In its submission, Missouri requested rescinding a regulation addressing sulfur compounds from the SIP and replacing it with a new regulation that establishes requirements for units emitting sulfur dioxide (SO<INF>2</INF>). The EPA is disapproving the SIP revision because the state has not demonstrated that the removal of SO<INF>2</INF> emission limits for the Evergy-Hawthorn (Hawthorn, formerly Kansas City Power & Light-Hawthorn) and Ameren Labadie (Labadie) power plants from the SIP would not interfere with National Ambient Air Quality Standard (NAAQS) attainment and reasonable further progress (RFP), or any other applicable requirement of the Clean Air Act (CAA). This disapproval action is being taken under the CAA to maintain the stringency of the SIP and preserve air quality.
Full Text
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<title>Federal Register, Volume 88 Issue 2 (Wednesday, January 4, 2023)</title>
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[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Rules and Regulations]
[Pages 291-297]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28139]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2022-0531; FRL-9976-02-R7]
Air Plan Disapproval; Missouri; Control of Sulfur Dioxide
Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to disapprove revisions to the Missouri State Implementation
Plan (SIP)
[[Page 292]]
submitted by Missouri on March 7, 2019. In its submission, Missouri
requested rescinding a regulation addressing sulfur compounds from the
SIP and replacing it with a new regulation that establishes
requirements for units emitting sulfur dioxide (SO<INF>2</INF>). The
EPA is disapproving the SIP revision because the state has not
demonstrated that the removal of SO<INF>2</INF> emission limits for the
Evergy-Hawthorn (Hawthorn, formerly Kansas City Power & Light-Hawthorn)
and Ameren Labadie (Labadie) power plants from the SIP would not
interfere with National Ambient Air Quality Standard (NAAQS) attainment
and reasonable further progress (RFP), or any other applicable
requirement of the Clean Air Act (CAA). This disapproval action is
being taken under the CAA to maintain the stringency of the SIP and
preserve air quality.
DATES: The final rule is effective on February 3, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R07-OAR-2022-0531. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 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; telephone number: (913) 551-7697;
email address: <a href="/cdn-cgi/l/email-protection#91e7f8e5bfe6f4fff5e8d1f4e1f0bff6fee7"><span class="__cf_email__" data-cfemail="601609144e17050e0419200510014e070f16">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA.
Table of Contents
I. What is being addressed in this document?
II. What is the EPA's analysis of the SIP revisions?
III. Have the requirements for approval of a SIP revision been met?
IV. The EPA's Responses to Comments
V. What action is the EPA taking?
VI. Statutory and Executive Order Reviews
I. What is being addressed in this document?
The EPA is disapproving a submission from Missouri requesting to
revise the SIP by removing 10 Code of State Regulations (CSR) 10-6.260
``Restriction of Emission of Sulfur Compounds'' and replacing it with a
new state regulation, 10 CSR 10-6.261 ``Control of Sulfur Dioxide
Emissions'' (effective date March 30, 2019). Missouri submitted its
request on March 7, 2019. 10 CSR 10-6.260 was originally approved into
the SIP at 40 CFR 52.1320(c) in 1998 (63 FR 45727, August 27, 1998) and
has been revised several times.\1\ 10 CSR 10-6.261 has not been
approved into the SIP. Missouri's analysis of the requested SIP
revisions can be found in the technical support document (TSD)
submitted to the EPA on May 4, 2022, which is included in this docket.
The EPA proposed to disapprove these SIP revisions on July 8, 2022 (87
FR 40759). A summary of the EPA's analysis of Missouri's requested SIP
revisions is in section II of this document, and additional detail can
be found in section II of the proposal.
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\1\ See 71 FR 12623 (March 13, 2006), 73 FR 35071 (June 20,
2008), and 78 FR 69995 (November 22, 2013).
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II. What is the EPA's analysis of the SIP revisions?
In order for the EPA to fully approve a SIP revision, the state
must demonstrate that the SIP revision meets the requirements of CAA
section 110(l), 42 U.S.C. 7410(l). Under CAA section 110(l), the EPA
may not approve a SIP revision that would interfere with any applicable
requirement concerning NAAQS attainment and RFP, or any other
applicable requirement of the CAA. The EPA interprets section 110(l)
such that states have two main options to make this noninterference
demonstration. First, a state could demonstrate that emission
reductions removed from the SIP are substituted with new control
measures that achieve equivalent or greater emission reductions/air
quality benefit. Thus, the SIP revision would not interfere with the
area's ability to continue to attain or maintain the affected NAAQS or
other CAA requirements. The EPA further interprets section 110(l) as
requiring such substitute measures to be quantifiable, permanent,
surplus, and enforceable.\2\ For section 110(l) purposes, ``permanent''
means the state cannot modify or remove the substitute measure without
EPA review and approval. Additionally, when a control measure that was
previously approved into the SIP is relied on as a substitute, the
emission reductions must be ``surplus,'' meaning they cannot otherwise
be relied on for attainment/maintenance or Rate of Progress/Reasonable
Further Progress requirements. Second, another option for the
noninterference demonstration is for a state to develop an air quality
analysis showing that, even without the control measure or with the
control measure in its modified form, the area (as well as interstate
and intrastate areas downwind) can continue to attain and maintain the
affected NAAQS. For this air quality analysis option, the state could
conduct air quality modeling or develop an attainment or maintenance
demonstration based on the EPA's most recent technical guidance.
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\2\ In addition, if a new substitute control measure is relied
on in a CAA section 110(l) noninterference demonstration, the new
substitute measure should be contemporaneous to the time the
emission reductions from the removed/modified measure cease
occurring. Because the substitute control measures discussed in this
action are existing measures, not new measures, whether or not they
are contemporaneous is not a consideration in this disapproval
action.
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Missouri's proposed SIP revisions would remove SO<INF>2</INF>
emission limits for the Hawthorn and Labadie power plants from the SIP.
The Hawthorn SO<INF>2</INF> emission limit is a 30-day rolling average
limit of 0.12 pounds/million British thermal units (lb/MMBtu) contained
in Table I of 10 CSR 10-6.260 in the SIP. The Labadie SO<INF>2</INF>
emission limit is a daily average of 4.8 lb/MMBtu found at 10 CSR 10-
6.260 (3)(B)3.A.(II) in the SIP. As discussed in detail in its TSD,
Missouri contends that there are substitute measures of comparable or
greater stringency to these SO<INF>2</INF> emission limits for Hawthorn
and Labadie, and therefore argues that removal of these limits from the
SIP would satisfy CAA section 110(l) requirements without the need for
an air quality analysis showing that removing the measures will not
interfere with NAAQS attainment or other applicable requirements.
We disagree with Missouri's analysis and rationale for removing the
Hawthorn and Labadie SO<INF>2</INF> emission limits from the SIP. The
substitute SO<INF>2</INF> emission limit for Hawthorn is an equivalent
SO<INF>2</INF> emission limit contained in a Prevention of Significant
Deterioration (PSD) permit. Although the Hawthorn PSD permit is
federally enforceable, it is not approved into the SIP and could be
later modified without requiring EPA approval, and therefore the
substitute measure is not considered permanent.
For Labadie, the substitute SO<INF>2</INF> emission limit is a
facility-wide SO<INF>2</INF> emission limit of 40,837 pounds per hour
(lb/hr) contained in a Consent Agreement that the EPA approved into the
SIP at 40 CFR 52.1320(d) as part of the maintenance plan for the
Jefferson County, Missouri nonattainment area
[[Page 293]]
when the area was redesignated to attainment for the 1-hour
SO<INF>2</INF> NAAQS (87 FR 4508, January 28, 2022). 10 CSR 10-6.261
does not include any of the limits contained in the Consent Agreement.
The proposal details our analysis showing that the 4.8 lb/MMBtu limit,
which applies to each of Labadie's four units individually, is more
stringent than the 40,847 lb/hr limit in the Consent Agreement under
certain operating scenarios. As an example, our analysis shows that
Labadie could exceed the 4.8 lb/MMBtu limit but still comply with the
Consent Agreement limit when a single unit is operating at 100% load.
Furthermore, because the SO<INF>2</INF> emission limit for Labadie
contained in the already SIP-approved Consent Agreement is being relied
upon for the purpose of maintaining the 1-hour SO<INF>2</INF> NAAQS in
the Jefferson County area, it cannot be considered surplus. In
addition, Missouri has not provided an air quality analysis
demonstrating their proposed SIP revisions related to the Labadie
SO<INF>2</INF> emission limits will not interfere with NAAQS attainment
or other applicable requirements.
III. Have the requirements for approval of a SIP revision been met?
As explained above, because the EPA's approval of Missouri's
requested SIP revisions would not be consistent with CAA section
110(l), we are disapproving the submission. However, the state
submission 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 entities, which included the EPA.
The state did not make changes to 10 CSR 10-6.261 as a result of
comments received prior to submitting to the EPA.
IV. The EPA's Responses to Comments
The public comment period on the EPA's proposed rule opened July 8,
2022, the date of its publication in the Federal Register, and closed
on August 8, 2022. During this period, the EPA received comments from
one commenter, the Missouri Department of Natural Resources (MoDNR),
which are addressed below.
Comment 1: The commenter states that the EPA's proposed action is
inconsistent with the plain text of CAA section 110(l). The commenter
argues that Missouri's SIP does not rely on either of the limits in
question for demonstrating attainment, maintenance, or RFP for any
NAAQS, and therefore, removal of the limits will not interfere with any
of these SIP requirements. The commenter contends that the EPA's
proposed disapproval injects new language into CAA section 110(l)
requiring states to prove a submitted SIP revision could never
interfere with attainment, RFP, or other applicable requirements. On
the contrary, according to the commenter, the plain text of the CAA
requires the EPA to prove the revision would interfere with applicable
CAA requirements. The commenter concludes that because the EPA made no
attempt to demonstrate the SIP revision would interfere with any of
these requirements, the EPA's basis for disapproval lacks a necessary
finding that interference would occur.
Response to Comment 1: States have primary responsibility for air
quality within their jurisdictions by submitting SIPs and SIP revisions
that specify the manner in which the NAAQS will be achieved and
maintained. 42 U.S.C. 7407(a); Concerned Citizens of Bridesburg v. EPA,
836 F.2d 777, 779 (3d Cir. 1987) (The ``states have the primary
authority for establishing a specific plan . . . for achieving and
maintaining acceptable levels of air pollutants in the atmosphere.'').
After the EPA promulgates the NAAQs, or a revision thereof, each state
must submit to the EPA a SIP for the ``implementation, maintenance, and
enforcement'' of the standard. 42 U.S.C. 7410(a)(1). The contents of
SIPs and the requirements they must fulfill with respect to each NAAQS
depend upon the designations and classifications of an area. States
must formally adopt SIPs or SIP revisions through state-level notice-
and-comment rulemaking. Id. Sec. 7410(a)(2).
The EPA's role is to review the SIP or SIP revision. The EPA
``shall'' approve the SIP or SIP revision if it meets the minimum
requirements of the CAA. Id. section 7410(k)(3); Train v. Nat. Res.
Def. Council, Inc., 21 U.S. 60, 79 (1975). The EPA cannot disapprove
state regulations that form a SIP or SIP revision because the EPA
decides that the regulations should be more stringent, as long as the
SIP meets the CAA requirements. See Union Elec Co. v. EPA, 427 U.S.
246, 265 (1976); Duquesne Light Co. v. EPA, 166 F.3d 609, 611, 613 (3d
Cir. 1999).
CAA section 110(l), 42 U.S.C. 7410(l), provides in relevant part,
that ``[t]he Administrator shall not approve a revision of a plan if
the revision would interfere with any applicable requirement concerning
attainment.'' The EPA has consistently interpreted CAA section 110(l)
as permitting approval of a SIP revision as long as ``emissions in the
air are not increased,'' thereby preserving ``status quo air quality.''
Ky. Res. Council, Inc. v. EPA, 467 F.3d. 986, 991, 996 (6th Cir. 2006);
see also Indiana v. EPA, 796 F.3d 803, 805 (7th Cir. 2015) (same); Ala.
Env't Council v. EPA, 711 F.3d 1277, 1292-93 (11th Cir. 2013) (same);
Galveston-Houston Ass'n for Smog Prevention v. EPA, 289 F. App'x 745,
754 (5th Cir. 2008) (same). CAA section 110(l) is an
``antibacksliding'' provision that does not impose substantive
obligations, but instead erects a ``high threshold for removing
controls from a SIP.'' S. Coast Air Quality Mgmt. Dist. v. EPA, 472
F.3d 882, 900 (D.C. Cir. 2006), decision clarified on denial of reh'g
on other grounds, 489 F.3d 1245 (D.C. Cir. 2007) (emphasis added); see
also Indiana, 796 F.3d at 806 (describing CAA section 110(l) as an
``antibacksliding'' provision).
The EPA implements this interpretation of CAA section 110(l) by
approving SIP revisions if they do not allow an increase of net
emissions. In doing so, ``the level of rigor needed for any CAA
[section 110(l)] demonstration will vary depending on the nature and
circumstances of the revision.'' \3\ Where the EPA anticipates that a
SIP revision may increase emissions, it typically requires that a state
either (1) submit an air quality analysis to demonstrate that the
revision would not interfere with any applicable requirement or (2)
substitute equivalent or greater emissions reductions in order to
preserve status quo air quality. See 86 FR 48908, September 1, 2021, at
48910 and 86 FR 60170, November 1, 2021, at 60172; see also Ky. Res.
Council, 467 F. 3d at 995 (denying petition challenging SIP revision
approval under CAA section 110(l) where the revision would not increase
net emissions).
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\3\ See Approval and Promulgation of Air Quality Implementation
Plans; Pennsylvania; Reasonably Available Control Technology
Determinations for Case-by-Case Sources Under the 1997 and 2008 8-
Hour Ozone National Ambient Air Quality Standards, Final Rule, 86 FR
48908, September 1, 2021, at 48910. Also see Air Plan Approval;
Pennsylvania; Reasonably Available Control Technology Determinations
for Case-by-Case Sources Under the 2008 8-Hour Ozone National
Ambient Air Quality Standards, Final Rule, 86 FR 60170, November 1,
2021, at 60172.
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As described in the proposal, the substitute SO<INF>2</INF>
emission limit for Hawthorn is contained in a PSD permit that is not
SIP-approved and therefore is not considered permanent. For Labadie,
the substitute SO<INF>2</INF> emission limit in the SIP-approved
Consent Agreement is less stringent in certain operating scenarios
[[Page 294]]
than the limit in 10 CSR 10-6.260 in the SIP and does not result in
surplus emission reductions. Because the substitute limit is less
stringent, Missouri would need to provide an air quality analysis
showing that removing the 4.8 lb/MMBtu limit from the SIP will not
interfere with any CAA requirement including but not limited to NAAQS
attainment, and of most relevance, the current 1-hour SO<INF>2</INF>
NAAQS, or alternatively provide substitute emissions reductions that
are equivalent or greater to protect air quality.
Comment 2: The commenter states that CAA section 110(l) requires
the EPA to make a finding that removal of the Hawthorn SO<INF>2</INF>
limit would result in an emission increase that would interfere with an
applicable CAA requirement. The commenter says the EPA cannot show that
removal of the Hawthorn limit from the rule would result in any
emissions increase and therefore the EPA lacks the basis for
disapproving the SIP due to its concerns about Hawthorn. The commenter
says Hawthorn's limit has not been changed in over 20 years since the
permit was issued, and there is no cause to believe this permit limit
would ever be relaxed. In addition, the commenter notes that Hawthorn's
permit was issued under SIP-approved state new source review (NSR)
rule, 10 CSR 10-6.060 ``Construction Permits Required,'' which
incorporates by reference federal PSD requirements. The commenter
further contends that removing an emission limit from a major source
like Hawthorn in a future permitting action would trigger the PSD
permit review process, in which case the facility would be subject to a
more recent New Source Performance Standard requirement for
SO<INF>2</INF>, as well as NAAQS impact and Best Available Control
Technology analyses, which would likely result in a SO<INF>2</INF>
limit that is equal to, if not more stringent than, the limit in the
SIP-approved rule.
Response to Comment 2: As stated in the proposal, the disapproval
is not based on an expectation that Hawthorn emissions would increase
if the limit were removed from the SIP. Rather, our rationale is based
on Missouri's reliance on a substitute measure that is not SIP-
approved.\4\ The equivalent SO<INF>2</INF> emission limit in Hawthorn's
federally enforceable PSD permit is not considered permanent because it
is not contained in the Missouri SIP and could be modified without
requiring EPA approval. While the EPA can provide comments on PSD
permits during the state's public notice period, Missouri can issue or
modify PSD permits that are not in the SIP without EPA approval
pursuant to SIP-approved NSR rule, 10 CSR 10-6.060, and the State's
federally approved permitting program. Because substitute emission
reduction measures must be not only enforceable but also permanent to
be used for 110(l) analysis purposes, it would be inconsistent with CAA
section 110(l) to approve the removal of a SIP-approved limit based on
a permit that is not SIP-approved.
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\4\ See CAA section 110(a)(2)(D) (``Each such [SIP] shall . . .
contain adequate provisions . . .''). See also CAA section
110(a)(2)(A); Committee for a Better Arvin v. EPA, 786 F.3d 1169,
1175-1176 (9th Cir. 2015) (holding that measures relied on by a
state to meet CAA requirements must be included in the SIP).
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Comment 3: The commenter states that 10 CSR 10-6.260 in the SIP
includes a footnote to Table I in 10 CSR 10-6.260 stating the emission
limit comes from the PSD permit and is implemented in accordance with
the terms of the permit. The commenter says it is unclear why EPA
allowed for all the enforceable requirements for implementation of the
limit in 10 CSR 10-6.260 to be dictated by the permit itself, but now
indicates it is not acceptable to rely on the permit conditions due to
their lack of permanence.
Response to Comment 3: In order for a source-specific permit limit
to be practically enforceable, the permit must specify (1) a
technically accurate limitation and the portions of the source subject
to the limitation; (2) the time period for the limitation (e.g.,
hourly, daily, monthly, annually); and (3) the method to determine
compliance including appropriate monitoring, record keeping and
reporting.\5\ Through regulations and policies, the EPA has long
interpreted the CAA to require monitoring, record keeping, reporting
and other compliance assurance measures in SIPs. As stated previously,
the substitute SO<INF>2</INF> emission limit for Hawthorn must be SIP-
approved to ensure that it cannot be removed or modified without EPA
approval. It follows that the associated monitoring, record keeping,
and reporting provisions that make the limit practically enforceable
must also be approved into the SIP, otherwise these enforceability
provisions could be modified without EPA approval.
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\5\ The EPA guidelines on ``practical enforceability''
considerations are contained in a January 25, 1995 memorandum from
the EPA's Office of Enforcement and Compliance Assurance (OECA)
entitled ``Guidance on Enforceability Requirements for Limiting
Potential to Emit through SIP and Sec. 112 Rules and General
Permits.''
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After carefully reviewing our previous actions pertaining to 10 CSR
10-6.260, we have discovered that monitoring, record keeping, and
reporting provisions associated with the Hawthorn SO<INF>2</INF> limit
that should have been included in the SIP were not in fact included.
However, this previous omission from the State's prior submissions does
not justify or allow for the subsequent removal of the numerical limit
and averaging period from the approved SIP. In light of the continued
omission from the SIP of monitoring, reporting and recordkeeping
provisions associated with Hawthorn's approved SO<INF>2</INF> emission
limit, the EPA is not taking final action on its proposed determination
that there is no deficiency in the SIP.
Comment 4: The commenter notes that in January of 2022, the EPA
redesignated the Jackson County, Missouri SO<INF>2</INF> nonattainment
area to attainment (87 FR 4812, January 31, 2022). The commenter
explains that a separate 24-hour average SO<INF>2</INF> limit for
Hawthorn from the same PSD permit was relied on in the modeling
demonstration for the Jackson County maintenance plan and
redesignation. Hawthorn's 24-hour SO<INF>2</INF> limit is also not SIP-
approved. The commenter questions why the EPA allowed the use of a non-
SIP approved permit limit in a maintenance demonstration (which
directly concerns attainment), but now indicates it is not acceptable
to remove a limit from the SIP when the equivalent limit exists in the
permit.
Response to Comment 4: To redesignate a nonattainment area to
attainment, CAA section 107(d)(3)(E)(iii) specifies that the air
quality improvement must be due to permanent and enforceable reductions
in emissions. The Jackson County redesignation to attainment for the 1-
hour SO<INF>2</INF> NAAQS was based on Missouri's demonstration that
the air quality improvement resulted from permanent and enforceable
emission reductions at the Vicinity Energy-Kansas City (Vicinity) steam
plant.\6\ The State's demonstration for the Jackson County
redesignation did not rely on SO<INF>2</INF> emission reductions at the
Hawthorn power plant.
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\6\ See 87 FR 4812, January 31, 2022. Vicinity switched from
burning coal to natural gas in its boilers. The fuel switch was made
permanent and enforceable via a Consent Agreement approved into the
SIP at 40 CFR 52.1320(d).
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Hawthorn is located approximately two kilometers outside of the
Jackson County nonattainment area boundary. In Missouri's modeling
demonstration supporting the redesignation, the state included Hawthorn
as a ``nearby source'' in accordance with Table 8-1 in
[[Page 295]]
40 CFR part 51, appendix W, which allows the source to be modeled at
its maximum allowable emission limit or federally enforceable permit
limit with adjustments based on actual operations. It was acceptable
for Missouri to model Hawthorn as a nearby source using a federally
enforceable PSD limit that was not SIP-approved rather than as a
``stationary point source subject to SIP emissions limit evaluation for
compliance with ambient standards'' under Appendix W Table 8-1 because
(1) Hawthorn was not relied on for the state's maintenance
demonstration that air quality improvements resulted from permanent and
enforceable SO<INF>2</INF> emission reductions, and (2) Hawthorn is
located outside of the former nonattainment area boundary.
Comment 5: The commenter provided a summary of Labadie's total
monthly SO<INF>2</INF> emissions allowed under the unit-specific 4.8
lb/MMBtu limit contained in 10 CSR 10-6.260 and the facility-wide
Consent Agreement limit of 40,837 lb/hr. Based on this summary, the
commenter concludes that the Consent Agreement limit reduces Labadie's
allowable facility-wide SO<INF>2</INF> emissions by 66 percent and is
therefore more stringent, making the older 4.8 lb/MMBtu limit obsolete.
The commenter further states that an air quality modeling analysis
comparing the stringencies of the two limits would show the Consent
Agreement limit is nearly three times more protective than the 4.8 lb/
MMBtu limit.
Response to Comment 5: As demonstrated in Missouri's modeling
analysis supporting the redesignation of Jefferson County to attainment
for the 1-hour SO<INF>2</INF> NAAQS, the Consent Agreement limit of
40,837 lb/hr was set at a level that addresses Labadie's contributions
to the Jefferson County SO<INF>2</INF> nonattainment area.\7\ However,
that analysis does not demonstrate that the Consent Agreement limit is
protective of the 1-hour SO<INF>2</INF> NAAQS in all locations,
including locations outside the Jefferson County area, nor does it
demonstrate that removal of the 4.8 lb/MMBtu limit would not interfere
with any applicable requirements consistent with an air quality
analysis under CAA section 110(l).
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\7\ Labadie is located approximately 36 kilometers outside of
the Jefferson County nonattainment area boundary to the northwest.
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As described previously, where the EPA anticipates that a SIP
revision may allow an increase in emissions, the EPA typically requires
that a state either substitute equivalent or greater emissions
reductions or submit an air quality analysis demonstrating that the
revision would not interfere with any applicable requirement. In this
case, to compare the stringencies of the two different SO<INF>2</INF>
emission limits (the Consent Agreement limit of 40,837 lb/hr versus 4.8
lb/MMBtu), the limits must first be converted so that they are in
equivalent units of measure (i.e., both limits expressed as either lb/
MMBtu or lb/hr) and apply to the same number of emission units (i.e.,
both limits expressed on either a facility-wide basis or an individual
unit basis). This analysis requires making assumptions about the number
of units that are operating, as well as the heat input rate and load of
the individual units in operation. As discussed in the proposal, there
are potential operating scenarios in which individual units at Labadie
could exceed an SO<INF>2</INF> rate of 4.8 lb/MMBtu while total
facility-wide SO<INF>2</INF> emissions remain in compliance with the
40,837 lb/hr limit. Examples include a single unit operating at 100%
load or two units operating at approximately 50% load, among other
scenarios. Because the SO<INF>2</INF> limit of 4.8 lb/MMBtu can be
shown to be exceeded in some situations, we conclude that the limit in
the Consent Agreement is not more stringent. For this reason, an air
quality analysis demonstrating that removal of the 4.8 lb/MMBtu limit
from the SIP would be protective of the 1-hour SO<INF>2</INF> NAAQS is
needed.
An air quality analysis for the requested SIP revisions may need to
take into account multiple operating scenarios because dispersion of
SO<INF>2</INF> emissions from one or two units at Labadie may be
different from four units with the same mass of SO<INF>2</INF>
emissions.\8\ As an example, one scenario could be based on a
concentrated SO<INF>2</INF> plume from a single stack consisting of
mass emissions totaling 40,847 lb/hr from one of Labadie's units
operating at an SO<INF>2</INF> rate at or above 4.8 lb/MMBtu. Other
potential operating scenarios may also need to be included in the air
quality analysis (e.g., two of Labadie's units operating at 50% load
emitting from two separate stacks or from the dual flue stack) in order
to demonstrate that the removal of the 4.8 lb/MMBtu limit is protective
of the 1-hour SO<INF>2</INF> NAAQS in all areas. An air quality
modeling demonstration comparing the stringencies of the two limits, as
suggested in the comment, is not sufficient for CAA section 110(l)
purposes.
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\8\ Labadie units 1 and 2 are each routed to separate,
individual stacks. Labadie units 3 and 4 are vented through two
flues contained in a single stack.
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Comment 6: The commenter notes that the EPA's basis for stating the
Consent Agreement limit is not always more stringent than the older 4.8
lb/MMBtu limit is based on a scenario where only one unit at the
facility is operating during a day. The commenter states that while
this is technically true, if the facility were to take advantage of the
facility-wide Consent Agreement limit in this way, it would prevent the
operation of any of the other three units that day. The commenter
states that conversely, the 4.8 lb/MMBtu limit does not prevent
additional units from operating if one of the units hits the maximum
allowable rate. The commenter concludes that even under the EPA's
hypothetical scenario, the Consent Agreement limit is still more
stringent and more protective than the 4.8 lb/MMBtu limit.
Response to Comment 6: As discussed above, our analysis based on
multiple potential operating scenarios shows that the 4.8 lb/MMBtu
limit is more stringent than the Consent Agreement limit in some cases.
Consistent with CAA section 110(l), in order to support removal of the
4.8 lb/MMBtu limit from the SIP, Missouri would need to provide an air
quality analysis showing that the 1-hour SO<INF>2</INF> NAAQS would be
protected in all areas under these operating scenarios if the 4.8 lb/
MMBtu limit were removed from the SIP. Alternatively, Missouri could
demonstrate that the various operating scenarios assumed for Labadie
are prohibited by permanent and enforceable measures to be included in
the SIP.
Comment 7: The commenter analyzed daily and hourly emissions data
from the EPA's Clean Air Markets Division (CAMD) database and concluded
there was not a single day in the last five years when only one unit at
Labadie was operating. Based on this analysis, the commenter states
there were only 55 days over this period where the facility operated
two units, which shows how unlikely EPA's assumed scenario is in
reality.
Response to Comment 7: The commenter's analysis of operations at
Labadie focuses on recent data from CAMD, which does not necessarily
reflect how the Labadie plant will be operated in the future. For
instance, Ameren Missouri's Integrated Resource Plan, filed in 2020 and
updated in 2021 and 2022, states that two of the four units currently
operating at Labadie are anticipated to be retired by the end of
[[Page 296]]
2036.\9\ It is plausible that with only two remaining coal units in
operation at Labadie, situations where only a single unit is operating
on a given day may occur more frequently in the future. Without an air
quality analysis showing that the 1-hour SO<INF>2</INF> NAAQS would be
protected in all areas in this and potentially other operating
scenarios as discussed above, we cannot approve removal of the 4.8 lb/
MMBtu limit from the SIP.
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\9\ See <a href="https://www.ameren.com/missouri/company/environment-and-sustainability/integrated-resource-plan">https://www.ameren.com/missouri/company/environment-and-sustainability/integrated-resource-plan</a>.
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Comment 8: The commenter provided an analysis of the highest daily
average SO<INF>2</INF> emission rate in lb/MMBtu for each of the
Labadie boilers during the past five years. Based on this analysis, the
commenter concluded that the highest daily average SO<INF>2</INF>
emission rate of any of the four boilers during the past five years is
0.78 lb/MMBtu, which is 16 percent of the 4.8 lb/MMBtu limit. The
commenter contends that this shows the 4.8 lb/MMBtu limit is not a
controlling limit, as there is not a single day in the past five years
where the facility did not operate with at least an 80 percent
compliance margin with this limit.
Response to Comment 8: We agree that Labadie's boilers have
operated at actual SO<INF>2</INF> lb/MMBtu rates well below the 4.8 lb/
MMBtu limit in recent years based on CAMD data. However, there is no
permanent and enforceable limit or requirement in place to prevent a
switch to a higher sulfur coal at Labadie, which potentially allows
individual units to emit an SO<INF>2</INF> rate as high as 4.8 lb/MMBtu
or more.
Comment 9: The commenter noted that because 10 CSR 10-6.261 is a
state enforceable rule, while 10 CSR 10-6.260 remains federally
enforceable until it is removed from the SIP, operating permits issued
by the state must include conditions from both of these regulations for
facilities meeting the applicability criteria. For this reason,
according to the commenter, the state's air permitting staff must spend
time explaining why both rules must be evaluated for permitting
purposes, a common question that arises with nearly every permit
application. The commenter concludes that this disapproval action
extends the time required for issuing operating permits and takes away
time that permit authors could be spending on priority initiatives such
as eliminating the permit backlog.
Response to Comment 9: As discussed in greater detail above, the
EPA is disapproving Missouri's SIP submission because the state has not
demonstrated that the removal of SO<INF>2</INF> emission limits for the
Hawthorn and Labadie power plants from the SIP would not interfere with
NAAQS attainment, RFP, or any other applicable requirement of the CAA
as required under CAA section 110(l). This comment is beyond the scope
of this disapproval action.
V. What action is the EPA taking?
The EPA is disapproving a SIP submission from Missouri that would
rescind 10 CSR 10-6.260 ``Restriction of Emission of Sulfur Compounds''
and replace it with 10 CSR 10-6.261 ``Control of Sulfur Dioxide
Emissions.'' By disapproving these revisions, 10 CSR 10-6.260 will be
retained in the SIP, along with the already SIP-approved Consent
Agreement. The EPA has determined that Missouri's proposed SIP
revisions do not meet the requirements of the Clean Air Act because the
revisions would remove permanent and enforceable emission limits,
thereby relaxing the stringency of the SIP. Furthermore, Missouri has
not shown that the proposed SIP revision related to removal of the
Labadie 4.8 lb/MMBtu limit would not have an adverse impact on air
quality.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of part D, title I of the CAA (CAA
sections 171-193) or is required in response to a finding of
substantial inadequacy as described in CAA section 110(k)(5) (SIP Call)
starts a sanctions clock. The Missouri SIP submission being disapproved
was not submitted to meet either of these requirements. Therefore, this
disapproval will not trigger mandatory sanctions under CAA section 179.
In addition, CAA section 110(c)(1) provides that EPA must promulgate a
Federal Implementation Plan (FIP) within two years after either finding
that a State has failed to make a required submission or disapproving a
SIP submission in whole or in part, unless EPA approves a SIP revision
correcting the deficiencies within that two-year period. With respect
to the disapproval of Missouri's SIP submission, in our proposed action
we concluded that any FIP obligation resulting from this disapproval
would be satisfied by finalization of our proposed determination that
there is no deficiency in the SIP to correct.\10\ We are not taking
final action on making that determination, however. Specifically,
although the previously approved SO<INF>2</INF> emission limits
discussed in this rulemaking will remain in the SIP and remain
federally enforceable, as discussed above we have discovered that
monitoring, recordkeeping and reporting requirements associated with
the SO<INF>2</INF> limit for Hawthorn were not previously approved into
the SIP. This omission precludes our finalizing the proposed
determination that there is no deficiency in the SIP to correct, and
consequently does not eliminate the EPA's duty to promulgate a FIP
within two years after disapproving the current SIP submission unless
the EPA approves a SIP revision correcting the deficiencies within that
two-year period. If the EPA were to take such an action, it would be
done through a separate rulemaking process, including a notice of
proposed rulemaking with the opportunity for the public to review and
comment.
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\10\ The EPA's obligation under CAA section 110(c)(1) to issue a
FIP following a SIP disapproval is not limited to ``required'' plan
submissions. However, the EPA can avoid promulgating a FIP if the
Agency finds that there is no ``deficiency'' in the SIP for a FIP to
correct. Association of Irritated Residents vs. United States
Environmental Protection Agency, 632 F.3d 584 (9th Cir. 2011).
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VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action merely disapproves a SIP submission as not meeting the CAA.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will 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
[[Page 297]]
responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it merely disapproves a SIP submission as
not meeting the CAA.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This action merely disapproves a SIP
submission as not meeting the CAA.
K. Congressional Review Act
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
L. CAA Section 307(b)(1)
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 March 6, 2023. 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, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: December 20, 2022.
Meghan A. McCollister,
Regional Administrator, Region 7.
[FR Doc. 2022-28139 Filed 1-3-23; 8:45 am]
BILLING CODE 6560-50-P
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