```

[Federal Register Volume 76, Number 209 (Friday, October 28, 2011)]
[Proposed Rules]
[Pages 66882-66886]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27987]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2011-0825, FRL-9484-4]

Approval and Promulgation of State Implementation Plans; 
Missouri: Prevention of Significant Deterioration; Greenhouse Gas 
Tailoring Rule; New Source Review Reform

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Missouri State 
Implementation Plan (SIP) relating to regulation of Greenhouse Gases 
(GHGs) under Missouri's Prevention of Significant Deterioration (PSD) 
program, and to two New Source Review (NSR) revisions. The GHG-related 
SIP revisions incorporate the GHG emission thresholds established in 
EPA's ``PSD and Title V Greenhouse Gas Tailoring Final Rule,'' which 
EPA issued by notice dated June 3, 2010. These revisions were submitted 
by the Missouri Department of Natural Resources (MDNR) to EPA in a 
letter dated August 8, 2011. The NSR revisions are to the Construction 
Permits Required Rule and the Emissions Banking and Trading Rule and 
are intended to address changes to the Federal NSR regulations, which 
were promulgated by EPA on December 31, 2002. These revisions were 
submitted by MDNR to EPA in a letter dated November 30, 2009. EPA is 
proposing to approve the GHG and NSR revisions because the Agency has 
made the preliminary determination that these SIP revisions, already 
adopted by Missouri as final effective rules, are in accordance with 
the Clean Air Act (CAA or Act) and EPA regulations regarding PSD 
permitting for GHGs and NSR.

DATES: Comments must be received on or before November 28, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2011-0825, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: gonzalez.larry@epa.gov.
    3. Fax: (913) 551-7844.
    4. Mail: Air Planning and Development Branch, Air and Waste 
Management Division, U.S. Environmental Protection Agency, Region 7, 
901 North 5th Street, Kansas City, Kansas 66101.
    5. Hand Delivery or Courier: Mr. Larry Gonzalez, Air Planning and 
Development Branch, Air and Waste Management Division, U.S. 
Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas 
City, Kansas 66101. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8 a.m. to 4:30 
p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2011-0825. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through http://www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Planning and Development 
Branch, Air and Waste Management Division, U.S. Environmental 
Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 
66101. EPA requests that if at all possible, you contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the GHG 
portion of the Missouri SIP, contact Mr. Larry Gonzalez, Air Planning 
and Development Branch, Air and Waste Management Division, U.S. 
Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas 
City, Kansas 66101. Mr. Gonzalez's telephone number is (913) 551-7041; 
email address: gonzalez.larry@epa.gov. For information regarding the 
NSR Reform portion of the Missouri SIP, contact Ms. Amy Bhesania, Air 
Planning and Development Branch, Air and Waste Management Division, 
U.S. Environmental Protection Agency,

[[Page 66883]]

Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Ms. 
Bhesania's telephone number is (913) 551-7147; email address: 
bhesania.amy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' refer to EPA.

Table of Contents

I. What GHG-related action is EPA proposing in today's notice?
II. What is the background for the GHG-related PSD SIP approval 
proposed by EPA in today's notice?
III. What is EPA's analysis of Missouri's proposed GHG-related SIP 
revision?
IV. GHG-Related Proposed Action
V. What NSR-related action is EPA proposing in today's notice?
VI. Why is EPA proposing this NSR-related action?
VII. What is EPA's analysis of Missouri's proposed NSR Reform-
related SIP revisions?
VIII. NSR-Related Proposed Action
IX. Statutory and Executive Order Reviews

I. What GHG-related action is EPA proposing in today's notice?

    In a letter dated August 8, 2011, MDNR submitted a request to EPA 
to approve revisions to the State's SIP and Title V program to 
incorporate recent rule amendments adopted by the Missouri Air 
Conservation Commission. These adopted rules became effective in the 
Missouri Code of State Regulations on August 30, 2011. These amendments 
establish thresholds for GHG emissions in Missouri's PSD and Title V 
regulations at the same emissions thresholds and in the same time-
frames as those specified by EPA in the ``PSD and Title V Greenhouse 
Gas Tailoring; Final Rule'' (75 FR 31514), hereafter referred to as the 
``Tailoring Rule,'' ensuring that smaller GHG sources emitting less 
than these thresholds will not be subject to permitting requirements 
for GHGs that they emit. The amendments to the SIP clarify the 
applicable thresholds in the Missouri SIP, address the flaw discussed 
in the ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in 
State Implementation Plans Final Rule,'' 75 FR 82536 (December 30, 
2010) (the ``PSD SIP Narrowing Rule''), and incorporate state rule 
changes adopted at the state level into the Federally approved SIP. In 
today's notice, pursuant to section 110 of the CAA, EPA is proposing to 
approve these revisions into the Missouri SIP.\1\
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    \1\ EPA intends to address Missouri's request to approve 
revisions to the Title V program relating to GHGs in a subsequent 
rulemaking.
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II. What is the background for the GHG-related PSD SIP approval 
proposed by EPA in today's notice?

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for today's proposed actions. More detailed 
discussion of the background is found in the preambles for those 
actions. In particular, the background is contained in what we called 
the PSD SIP Narrowing Rule,\2\ and in the preambles to the actions 
cited therein.
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    \2\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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A. GHG-Related Actions

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's proposed action on 
the Missouri SIP. Four of these actions include, as they are commonly 
called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\3\ the ``Johnson 
Memo Reconsideration,'' \4\ the ``Light-Duty Vehicle Rule,'' \5\ and 
the ``Tailoring Rule.'' Taken together and in conjunction with the CAA, 
these actions established regulatory requirements for GHGs emitted from 
new motor vehicles and new motor vehicle engines; determined that such 
regulations, when they took effect on January 2, 2011, subjected GHGs 
emitted from stationary sources to PSD requirements; and limited the 
applicability of PSD requirements to GHG sources on a phased-in basis. 
EPA took this last action in the Tailoring Rule, which, more 
specifically, established appropriate GHG emission thresholds for 
determining the applicability of PSD requirements to GHG-emitting 
sources.
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    \3\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \4\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
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    PSD is implemented through the SIP system. In December 2010, EPA 
promulgated several rules to implement the new GHG PSD SIP program. 
Recognizing that some states had approved SIP PSD programs that did not 
apply PSD to GHGs, EPA issued a SIP Call and, for some of these states, 
a Federal Implementation Plan (FIP).\6\ Recognizing that other states 
had approved SIP PSD programs that do apply PSD to GHGs, but that do so 
for sources that emit as little as 100 or 250 tpy of GHG, and that do 
not limit PSD applicability to GHGs to the higher thresholds in the 
Tailoring Rule, EPA issued the PSD SIP Narrowing Rule. Under that rule, 
EPA withdrew its approval of the affected SIPs to the extent those SIPs 
covered GHG-emitting sources below the Tailoring Rule thresholds. EPA 
based its action primarily on the ``error correction'' provisions of 
CAA section 110(k)(6).
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    \6\ Specifically, by action dated December 13, 2010, EPA 
finalized a ``SIP Call'' that would require those states with SIPs 
that have approved PSD programs but do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. ``Action 
To Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (December 13, 2010). EPA made findings of failure to submit in 
some states which were unable to submit the required SIP revision by 
their deadlines, and finalized FIPs for such states. See, e.g. 
``Action To Ensure Authority To Issue Permits Under the Prevention 
of Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Failure To Submit State Implementation Plan 
Revisions Required for Greenhouse Gases,'' 75 FR 81874 (December 29, 
2010); ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan,'' 75 FR 82246 
(December 30, 2010). Because Missouri's SIP already authorizes 
Missouri to regulate GHGs once GHGs became subject to PSD 
requirements on January 2, 2011, Missouri is not subject to the SIP 
Call or FIP.
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B. Missouri's Actions

    On July 27, 2010, Missouri submitted a letter to EPA, in accordance 
with a request to all states from EPA in the proposed Tailoring Rule, 
with confirmation that the State of Missouri has the authority to 
regulate GHGs in its PSD program. The letter also confirmed Missouri's 
intent to amend its air quality rules for the PSD program for GHGs to 
match the thresholds set in the Tailoring Rule. See the docket for this 
proposed rulemaking for a copy of Missouri's letter.
    In the PSD SIP Narrowing Rule, published on December 30, 2010, EPA 
withdrew its approval of Missouri's SIP (among other SIPs) to the 
extent that the SIP applies PSD permitting requirements to GHG 
emissions from sources emitting at levels below those set in the 
Tailoring Rule.\7\ As a result, Missouri's current approved SIP 
provides the State with authority to regulate GHGs, but only at and 
above

[[Page 66884]]

the Tailoring Rule thresholds; and requires new and modified sources to 
receive a Federal PSD permit based on GHG emissions only if they emit 
or have potential to emit at or above the Tailoring Rule thresholds.
---------------------------------------------------------------------------

    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
---------------------------------------------------------------------------

    The basis for this proposed SIP revision is that limiting PSD 
applicability to GHG sources with the higher thresholds in the 
Tailoring Rule is consistent with the SIP provisions that require 
assurances of adequate resources, and thereby addresses the flaw in the 
SIP that led to the PSD SIP Narrowing Rule. Specifically, CAA section 
110(a)(2)(E) includes as a requirement for SIP approval that states 
provide ``necessary assurances that the State * * * will have adequate 
personnel [and] funding * * * to carry out such [SIP].'' In the 
Tailoring Rule, EPA established higher thresholds for PSD applicability 
to GHG-emitting sources, in part, because the states generally did not 
have adequate resources to apply PSD to GHG-emitting sources below the 
Tailoring Rule thresholds,\8\ and no state, including Missouri, 
asserted that it did have adequate resources to do so.\9\ In the PSD 
SIP Narrowing Rule, EPA found that the affected states, including 
Missouri, had a flaw in their SIP at the time they submitted their PSD 
programs, which was that the applicability of the PSD programs was 
potentially broader than the resources available to them under their 
SIP.\10\ Accordingly, for each affected state, including Missouri, EPA 
concluded that EPA's action in approving the SIP was in error, under 
CAA section 110(k)(6), and EPA rescinded its approval to the extent the 
PSD program applies to GHG-emitting sources below the Tailoring Rule 
thresholds.\11\ EPA recommended that states adopt a SIP revision to 
incorporate the Tailoring Rule thresholds, thereby (i) Assuring that 
under state law, only sources at or above the Tailoring Rule thresholds 
would be subject to PSD; and (ii) avoiding confusion under the 
Federally approved SIP by clarifying that the SIP applies only to 
sources at or above the Tailoring Rule thresholds.\12\
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    \8\ Tailoring Rule, 75 FR at 31517.
    \9\ PSD SIP Narrowing Rule, 75 FR at 82540.
    \10\ Id. at 82542.
    \11\ Id. at 82544.
    \12\ Id. at 82540.
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III. What is EPA's analysis of Missouri's proposed GHG-related SIP 
revision?

    In a letter dated August 8, 2011, MDNR submitted a revision of its 
regulations to EPA for processing and approval into the SIP. This SIP 
revision puts in place the GHG emission thresholds for PSD 
applicability set forth in EPA's Tailoring Rule. EPA's approval of 
Missouri's GHG-related SIP revision will incorporate the revisions of 
the Missouri regulations into the Federally-approved SIP. Doing so will 
clarify the applicable thresholds in the Missouri SIP.
    The State of Missouri's August 8, 2011, proposed SIP revision 
establishes thresholds for determining which stationary sources and 
modification projects become subject to permitting requirements for GHG 
emissions under Missouri's PSD program. Specifically, Missouri's August 
8, 2011, proposed SIP revision includes changes--which are already 
effective--to Missouri's Code of State Regulations (CSR), revising rule 
10 CSR 10-6.060(8)(A) to incorporate by reference all of the revisions 
to the Federal PSD rules at 40 CFR 52.21 published in the Tailoring 
Rule.\13\ These revisions specifically define the term ``subject to 
regulation'' for the PSD program and define ``greenhouse gases (GHGs)'' 
and ``tpy CO2 equivalent emissions (CO2e).'' 
Additionally, these revisions specify the methodology for calculating 
an emissions increase for GHGs, the applicable thresholds for GHG 
emissions subject to PSD, and the schedule for when the applicability 
thresholds take effect. See 75 FR at 31606-07.
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    \13\ The revised rule states that all of the subsections of 40 
CFR 52.21, other than subsections (a), (q), (s), and (u), 
promulgated as of July 1, 2009, including the revision published at 
75 FR 31606-07 (effective August 2, 2010), are incorporated by 
reference into 10 CSR 10-6.060(8)(A).
---------------------------------------------------------------------------

    Missouri is currently a SIP-approved State for the PSD program, and 
has previously incorporated some elements of EPA's 2002 NSR reform 
revisions for PSD into its SIP. See 71 FR 36486 (June 27, 2006).\14\ In 
that rulemaking, at the State's request, EPA did not act on the 
portions of Missouri's rule which reflected the vacated and remanded 
provisions in EPA's NSR reform rule.\15\ The changes to Missouri's PSD 
program regulations are substantively the same as the Federal 
provisions amended in EPA's Tailoring Rule. As part of its review of 
Missouri's submittal, EPA performed a line-by-line review of Missouri's 
proposed revision and has preliminarily determined that it is 
consistent with the Tailoring Rule.\16\
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    \14\ In sections V through VIII. of this proposed rulemaking, 
EPA is proposing to approve several of Missouri's other revisions to 
its rules for incorporation into the Missouri SIP.
    \15\ These portions included provisions relating to pollution 
control projects, the ``clean unit'' exemption, and the 
recordkeeping requirements for certain sources using the ``actual to 
projected actual'' test for applicability of PSD (the ``reasonable 
possibility'' provision in section 52.21(r)(6)). See, 71 FR 36487 
for a more detailed discussion of EPA's approval of Missouri's NSR 
reform rule relating to PSD. We are not acting on those provisions, 
including the recordkeeping aspect of the ``reasonable possibility'' 
provision, in today's action. (See, section VI. of this preamble for 
a more detailed discussion of the vacated and remanded provisions.) 
We are also not acting on Missouri's rule incorporating EPA's 2007 
revision of the definition of ``chemical processing plants'' (the 
``Ethanol Rule,'' 72 FR 24060 (May 1, 2007)) or EPA's 2008 
``fugitive emissions rule'', 73 FR 77882 (December 19, 2008).
    \16\ EPA also notes that Missouri's incorporation by reference 
of EPA's PSD rule includes revisions by EPA made in 2005 (70 FR 
71612, November 29, 2005) and 2008 (73 FR 28321, May 16, 2008). We 
are proposing to approve those updates to the PSD rule in 
conjunction with the proposal regarding Missouri's incorporation of 
the Tailoring Rule provisions discussed in this notice.
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IV. GHG-Related Proposed Action

    Pursuant to section 110 of the CAA, EPA is proposing to approve 
Missouri's August 8, 2011 revisions to the Missouri SIP, relating to 
PSD requirements for GHG-emitting sources. Specifically, Missouri's 
August 8, 2011, proposed SIP revision establishes appropriate emissions 
thresholds for determining PSD applicability to new and modified GHG-
emitting sources in accordance with EPA's Tailoring Rule. EPA has made 
the preliminary determination that this SIP revision is approvable 
because it is in accordance with the CAA and EPA regulations regarding 
PSD permitting for GHGs.
    If EPA approves Missouri's changes to its air quality regulations 
to incorporate appropriate thresholds for GHG permitting applicability 
into Missouri's SIP, then section 52.1323(n) of 40 CFR part 52, as 
included in EPA's PSD SIP Narrowing Rule--which codifies EPA's limiting 
its approval of Missouri's PSD SIP to not cover the applicability of 
PSD to GHG-emitting sources below the Tailoring Rule thresholds--is no 
longer necessary. In today's proposed action, EPA is also proposing to 
amend section 52.1323(n) of 40 CFR part 52 to remove this unnecessary 
regulatory language.

V. What NSR-related action is EPA proposing in today's notice?

    In this rulemaking, we are also proposing to approve MDNR's request 
to include as a revision to Missouri's SIP, amendments to rule 10 CSR 
10-6.060 ``Construction Permit Required'' and 10 CSR 10-6.410 
``Emission Banking and Trading.'' These rules were adopted by the 
Missouri Air Conservation Commission on March 26, 2009, and became 
effective under state law on July 30, 2009. The rules were submitted to 
EPA for inclusion into the Missouri SIP in a letter dated November 30, 
2009. The submission included comments on the rules made during the 
State's

[[Page 66885]]

adoption process and the State's response to comments. Missouri 
submitted these revisions to adopt EPA's revisions to the Federal NSR 
program. Pursuant to section 110 of the CAA, EPA is now proposing to 
approve these SIP revisions with several exceptions. First, in today's 
proposed rulemaking, EPA is not taking action on Missouri's submittal 
of changes to the applicability of the PSD program to exclude ethanol 
production facilities from the definition of ``chemical processing 
plants'' (the ``Ethanol Rule'').\17\ EPA intends to address this 
revision in a separate rulemaking. Second, because Missouri has not 
adopted EPA's ``Fugitive Emissions Rule'' (73 FR 77882, Dec. 19, 2008), 
as it relates to NSR in nonattainment areas, today's action also does 
not address the Fugitive Emissions Rule.\18\ We are presently 
soliciting comments on this proposed action. Final rulemaking will 
occur after consideration of any comments.
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    \17\ See letter from James L. Kavanaugh, Director, MDNR, to EPA, 
April 10, 2008.
    \18\ The November 30, 2009 submittal from MDNR also proposed 
revisions to 10 CSR 10-6.350 ``Emission Limitations and Emissions 
Trading of Oxides of Nitrogen'' and 10 CSR 10-6.360 ``Control of 
NOX Emissions from Electric Generating Units and Non-
Electric Generating Boilers.'' In a letter dated April 20, 2011, 
Missouri withdrew this submission of revisions to these two rules, 
and therefore today's action does not include them.
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VI. Why is EPA proposing this NSR-related action?

    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, 
regarding the CAA's PSD and Nonattainment NSR programs (``Prevention of 
Significant Deterioration (PSD) and Nonattainment New Source Review 
(NSR); Baseline Emissions Determination, Actual-to-Future-Actual 
Methodology, Plantwide Applicability Limitations, Clean Units, 
Pollution Control Projects''). On November 7, 2003 (68 FR 63021), EPA 
published a notice of final action on the reconsideration of the 
December 31, 2002, final rule changes. In that November 7, 2003, final 
action, EPA added the definition of ``replacement unit,'' and clarified 
an issue regarding PALs. The December 31, 2002, and the November 7, 
2003, final actions are collectively referred to as the ``2002 NSR 
Reform Rules.''
    In brief, the 2002 NSR Reform Rules made changes to five areas of 
the NSR programs (concerning both PSD and nonattainment NSR).\19\ The 
2002 Rules: (1) Provide a new method for determining baseline actual 
emissions; (2) adopt an actual-to-projected-actual methodology for 
determining whether a major modification has occurred; (3) allow major 
stationary sources to comply with plantwide applicability limits (PALs) 
to avoid having a significant emissions increase that triggers the 
requirements of the major NSR program; (4) provide a new applicability 
provision for emissions units that are designated clean units; and (5) 
exclude pollution control projects (PCPs) from the definition of 
``physical change or change in the method of operation.''
---------------------------------------------------------------------------

    \19\ For more background information about the 2002 NSR Reform 
rules, see 67 FR 80186.
---------------------------------------------------------------------------

    After the 2002 NSR Reform Rules were finalized and effective, 
industry, state, and environmental petitioners challenged numerous 
aspects of the 2002 NSR Reform Rules, along with portions of EPA's 1980 
NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005, the United 
States Court of Appeals for the District of Columbia Circuit (DC 
Circuit Court) issued a decision on the challenges to the 2002 NSR 
Reform Rules. New York v. United States, 413 F.3d 3 (DC Cir. 2005). In 
summary, the DC Circuit Court vacated portions of the rules pertaining 
to clean units and PCPs, remanded a portion of the rules regarding 
recordkeeping, e.g. 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let 
stand the other provisions included as part of the 2002 NSR Reform 
Rules.
    On February 25, 2005, Missouri submitted a request to include EPA's 
2002 NSR Reform Rules in attainment and unclassifiable areas in to the 
SIP, and EPA approved these revisions through a final rule published on 
June 27, 2006 (71 FR 36486).\20\
---------------------------------------------------------------------------

    \20\ As stated in section III. above, EPA did not act on the 
portions of Missouri's rule which related to the vacated and 
remanded provisions of the EPA rule.
---------------------------------------------------------------------------

VII. What is EPA's analysis of Missouri's proposed NSR reform-related 
SIP revisions?

    Missouri's SIP submittals consist of several amendments to rule 10 
CSR 10-6.060 and one amendment to 10 CSR 10-6.410 that became State-
effective on July 30, 2009. Copies of the Missouri revised NSR rules 
can be obtained from the Docket, as discussed in the ADDRESSES section 
above. A discussion of the specific changes to Missouri's rules 
comprising the proposed SIP revision follows.
    The amendments to 10 CSR 10-6.060 implement EPA's 2002 New Source 
Review Reform rules in nonattainment areas. These rule amendments 
create consistency between the attainment and nonattainment area 
permitting programs in Missouri in three areas: Baseline emissions 
determinations, actual-to-projected actual emissions calculation 
methodology, and PALs. The amendment to 10 CSR 10-6.410 will remove a 
reference to Clean Unit projects. As discussed previously, these 
provisions were vacated by the DC Circuit Court of Appeals in the New 
York case in 2005.
    EPA's evaluation of Missouri's NSR Reform-related SIP submittal 
included a line-by-line comparison of the proposed revisions with the 
Federal requirements. As a general matter, state agencies may meet the 
requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with 
different but equivalent regulations.
    After evaluation of Missouri's proposed SIP revision, EPA has 
determined that the revised rule language at 10 CSR 10-6.060(7) 
(Nonattainment Area Permits) is substantially similar to the language 
in the equivalent Federal regulation (i.e., 40 CFR 51.165). It also 
employs incorporation by reference to the applicable Federal 
regulations whenever practical in order to ensure consistency and 
clarity and to facilitate future required updates to this rule. 
Furthermore, EPA has previously determined in a Supplemental 
Environmental Analysis that the implementation of the Federal NSR 
Reform rules will be environmentally beneficial. See 68 FR 44620 (July 
30, 2003). EPA has no reason to believe that the environmental impacts 
of Missouri's proposed SIP revision will be substantially different 
from those discussed in the Supplemental Environmental Analysis. 
Therefore, Missouri's revisions do not make Missouri's NSR program less 
stringent than the current Federally-approved SIP. Accordingly, EPA 
believes that these changes are consistent with the requirements of CAA 
sections 110(l) and 193, and are consistent with the Federal program 
requirements for the preparation, adoption and submittal of 
implementation plans for NSR set forth at 40 CFR 51.165, and are 
therefore approvable.

VIII. NSR-Related Proposed Action

    EPA is proposing to approve Missouri's changes to its regulations 
10 CSR 10-6.060 and 10 CSR 10-6.410, as submitted by Missouri on 
November 30, 2009, for inclusion in the Missouri SIP. EPA has made the 
preliminary determination that this SIP revision is approvable because 
it is in accordance with the CAA and EPA regulations

[[Page 66886]]

implementing the NSR program, including NSR Reform.

IX. 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), 7661a(d); 40 CFR 52.02(a); 40 
CFR 70.1(c). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this proposed action merely approves the State's law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by the State's law. For that reason, 
the proposed approvals of Missouri's revision to its SIP:
     Are not ``significant regulatory actions'' under the terms 
of Executive Order 12866 (58 FR 51735, October 4, 1993) and are 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP program is not approved to apply in Indian country 
located in the State, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, and Reporting and recordkeeping 
requirements.

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

    Dated: October 20, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-27987 Filed 10-27-11; 8:45 am]
BILLING CODE 6560-50-P
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