Federal Register / Vol. 78, No. 120 / Friday, June 21, 2013 / Rules and Regulations 37457 

This action is necessary and intended to 

ensure safety of life on the navigable 

waters immediately prior to, during, and 

immediately after fireworks displays. 

During enforcement, the Coast Guard 

will enforce restrictions upon, and 

control movement of, vessels in the 

safety zone. No person or vessel may 

enter the safety zone while it is being 

enforced without permission of the 

Captain of the Port, Lake Michigan. 

DATES: The regulations in 33 CFR 

165.935 will be enforced at the times 

specified in the SUPPLEMENTARY

INFORMATION section that follows. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or email MST1 Joseph McCollum, 

Prevention Department, Coast Guard 

Sector Lake Michigan, Milwaukee, WI at 

(414) 747–7148, email 

joseph.p.mccollum@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the safety zone listed 

in 33 CFR 165.935, Safety Zone, 

Milwaukee Harbor, Milwaukee, WI, at 

the following times for the following 

events: 

(1) Polish Fest fireworks display on 

June 15, 2013, from 10:15 p.m. until 

11:00 p.m.; 

(2) Summerfest fireworks display on 

June 26, 2013, and July 3, 2013, from 

9:15 p.m. until 10:30 p.m.; 

(3) Festa Italiana fireworks display on 

each day of July 19, 20, and 21, 2013, 

from 10:15 p.m. until 11:15 p.m.; 

(4) German Fest fireworks display on 

July 26 and 27, 2013, from 10:15 p.m. 

until 11:15 p.m.; 

(5) Irish Fest fireworks display on 

August 18, 2013, from 10:15 p.m. until 

11:15 p.m.; 

(6) Indian Summer fireworks display 

on September 6 and 7, 2013, from 9:15 

p.m. until 10:30 p.m. 

All vessels must obtain permission 

from the Captain of the Port, Lake 

Michigan, or his on-scene representative 

to enter, move within, or exit the safety 

zone. Vessels and persons granted 

permission to enter the safety zone shall 

obey all lawful orders or directions of 

the Captain of the Port, Lake Michigan, 

or his on-scene representative. 

This notice is issued under authority 

of 33 CFR 165.935 Safety Zone, 

Milwaukee Harbor, Milwaukee, WI and 

5 U.S.C. 552(a). In addition to this 

notice in the Federal Register, the Coast 

Guard will provide the maritime 

community with advance notification of 

the enforcement period via broadcast 

Notice to Mariners or Local Notice to 

Mariners. The Captain of the Port, Lake 

Michigan, or his on-scene representative 

may be contacted via VHF Channel 16. 

Dated: June 11, 2013. 

M.W. Sibley, 

Captain, U.S. Coast Guard, Captain of the 

Port, Lake Michigan. 

[FR Doc. 2013–14801 Filed 6–20–13; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2013–0208; FRL–9825–7] 

Approval and Promulgation of 

Implementation Plans; State of 

Missouri; Infrastructure SIP 

Requirements for the 1997 and 2006 

Fine Particulate Matter National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

four Missouri State Implementation 

Plan (SIP) submissions. EPA is 

approving portions of two SIP 

submissions addressing the applicable 

infrastructure requirements of the Clean 

Air Act (CAA) for the 1997 and 2006 

National Ambient Air Quality Standards 

(NAAQS) for fine particulate matter 

(PM2.5). These infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. EPA is 

also taking final action to approve two 

additional SIP submissions from 

Missouri, one addressing the Prevention 

of Significant Deterioration (PSD) 

program in Missouri, and another 

addressing the requirements applicable 

to any board or body which approves 

permits or enforcement orders of the 

CAA, both of which support 

requirements associated with 

infrastructure SIPs. The rationale for 

this action is explained in this notice 

and in more detail in the notice of 

proposed rulemaking for this action, 

which was published on April 10, 2013. 

DATES: This rule will be effective July 

22, 2013. 

ADDRESSES: EPA has established docket 

number EPA–R07–OAR–2013–0208 for 

this action. 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, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically at http:// 

www.regulations.gov or in hard copy at 

U.S. Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, Kansas 66219 from 8:00 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Bhesania, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, KS 66219; telephone number: 

(913) 551–7147; fax number: (913) 551– 

7065; email address: 

bhesania.amy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer 

to EPA. This section provides additional 

information by addressing the 

following: 

I. Background and Purpose 

II. EPA’s Responses to Comments 

III. Summary of EPA Final Action 

IV. Statutory and Executive Order Review 

I. Background and Purpose 

On April 10, 2013, EPA proposed to 

approve four Missouri SIP submissions 

(78 FR 21281). EPA received the first 

submission on February 27, 2007, 

addressing the infrastructure SIP 

requirements relating to the 1997 PM2.5

NAAQS. EPA received the second 

submission on December 28, 2009, 

addressing the infrastructure SIP 

requirements relating to the 2006 PM2.5

NAAQS. As originally detailed in the 

proposed rulemaking, EPA had 

previously approved section 

110(a)(2)(D)(i)(I) and (II)—Interstate and 

international transport requirements of 

Missouri’s February 27, 2007, SIP 

submission for the 1997 PM2.5 NAAQS 

(72 FR 25975, May 8, 2007); and EPA 

disapproved section 110(a)(2)(D)(i)(I)— 

Interstate and international transport 

requirements of Missouri’s December 

28, 2009, SIP submission for the 2006 

PM2.5 NAAQS (76 FR 43156, July 20, 

2011). Therefore, in the April 10, 2013, 

proposed action, we did not propose to 

act on those portions since they have 

already been acted upon by EPA. With 

this final action, we will have acted on 

both the February 27, 2007, and the 

December 28, 2009, submissions in their 

entirety, excluding those provisions that 

are not within the scope of today’s 

rulemaking as identified in section IV of 

the April 10, 2013, proposed action for 


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1Approval and Promulgation of Implementation 

Plans and Operating Permits Program, State of 

Missouri (78 FR 19602). 

both the 1997 and 2006 PM2.5

infrastructure SIP submissions. 

The third submission was received by 

EPA on September 5, 2012. This 

submission revises Missouri’s rule in 

Title 10, Division 10, Chapter 6.060 of 

the Code of State Regulations (CSR) (10 

CSR 10–6.060) ‘‘Construction Permits 

Required’’ to implement certain 

elements of the ‘‘Prevention of 

Significant Deterioration (PSD) for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC)’’ rule (75 FR 64864, October 20, 

2010). On March 19, 2013, Missouri 

amended and clarified its submission so 

that it no longer included specific 

provisions affected by the January 22, 

2013, U.S. Court of Appeals for the 

District of Columbia court decision 

which vacated and remanded the 

provisions concerning implementation 

of the PM2.5 SILs and vacated the 

provisions adding the PM2.5 SMC that 

were promulgated as part of the October 

20, 2010, PM2.5 PSD Rule (Sierra Club 

v. EPA, No. 10–1413 (filed December 17, 

2010)). In addition, this rule amendment 

defers the application of PSD permitting 

requirements to carbon dioxide 

emissions from bioenergy and other 

biogenic stationary sources. 

EPA received the fourth submission 

on August 8, 2012. This submission 

addresses the conflict of interest 

provisions in section 128 of the CAA as 

it relates to element E of the 

infrastructure SIP. 

In summary, EPA is taking final 

action today to approve these four SIP 

submissions from Missouri. The first 

two submissions addressed the 

requirements of CAA sections 110 (a)(1) 

and (2) as applicable to the 1997 and 

2006 NAAQS for PM2.5. With this final 

action, we will have acted on both the 

1997 and 2006 submissions in their 

entirety excluding those provisions that 

are not within the scope of the 

rulemaking. EPA is also taking final 

action to approve two additional SIP 

submissions from Missouri, one 

addressing the Prevention of Significant 

Deterioration (PSD) program in Missouri 

as it relates to PM2.5, unless otherwise 

noted in EPA’s proposed action on April 

10, 2013 (78 FR 21281), and another SIP 

revision addressing the requirements of 

section 128 of the CAA, both of which 

support the requirements associated 

with infrastructure SIPs. 

In today’s action, EPA also 

acknowledges an administrative error in 

our April 10, 2013 proposal. Under 

section V, within EPA’s analysis of the 

state’s submittal for element E related to 

infrastructure SIP requirements, we 

referenced that both sections 643.040.2 

and 105.450 were a part of the ‘‘Air 

Conservation’’ chapter of the Missouri 

Revised Statutes. Through today’s 

action, EPA acknowledges that section 

105.450 is not a part of the ‘‘Air 

Conservation’’ chapter, but instead is a 

part of the ‘‘Public Officers and 

Employees—Miscellaneous Provisions’’ 

chapter of the Missouri Revised 

Statutes. No changes were made based 

on this correction. 

We also note that within the April 10, 

2013, proposed rulemaking, we relied 

upon a separate direct final action from 

April 2, 2013,1 to demonstrate that 

Missouri met all the requirements of 

element C of the infrastructure SIP (78 

FR at 21286). EPA received no 

comments on this direct final action, 

and therefore this SIP revision became 

effective on June 3, 2013. 

II. EPA’s Responses to Comments 

The public comment period on EPA’s 

proposed rule opened April 10, 2013, 

the date of its publication in the Federal 

Register, and closed on May 10, 2013. 

During this period, EPA received three 

comment letters: One from a citizen 

received April 18, 2013; one from the 

Sierra Club and Earthjustice received 

May 10, 2013 (hereinafter ‘‘Sierra 

Club’’); and one from the National Parks 

Conservation Association received May 

10, 2013 (hereinafter ‘‘NPCA’’). All three 

letters are available in the docket to 

today’s final rule. The citizen comment 

was made in support of EPA’s action, 

and we appreciate the support for this 

rulemaking. No changes were made to 

this final action based on this comment. 

The remaining two letters contained 

some similar comments, and therefore 

we have grouped those similar 

comments into single comments and 

responses where appropriate. 

Comment 1: The Sierra Club contends 

that Missouri’s infrastructure SIP 

submissions for the 1997 and 2006 

PM2.5 NAAQS do not meet the 

requirements of section 110(a)(2)(A). 

First, the commenter suggests that the 

SIP submissions are deficient because 

the state relies ‘‘on general, existing 

statutory and regulatory authority in 

lieu of developing specific new 

requirements tailored to ensure that the 

1997 and 2006 PM2.5 NAAQS is 

maintained and enforced.’’ Second, the 

Commenter suggests that certain 

existing provisions in Missouri’s SIP 

and relied upon in the SIP submissions 

may be insufficiently specific to be 

enforceable emissions limits. In support 

of the latter concern, the Commenter 

cites the court decision in McEvoy v. IEI 

Barge Services, 622 F.3d 671 (7th Cir. 

2010) for the proposition that ‘‘some 

(but not all) courts have suggested that 

only an emissions limitation that 

specifically ‘limits the quantity, rate, or 

concentration of emissions,’ can be an 

‘enforceable emission limitation’’’ under 

the CAA. The implication of this 

comment is that only an emissions 

limitation that is sufficiently specific 

could meet the legal requirements of 

section 110(a)(2)(A) for purposes of 

enforcement, and thus for purposes of 

an infrastructure SIP submission as 

well. 

Response 1: EPA disagrees with the 

Sierra Club’s contention that Missouri’s 

infrastructure SIP submissions are not 

approvable with respect to section 

110(a)(2)(A) because they do not contain 

‘‘new requirements’’ for the 1997 and 

2006 PM2.5 NAAQS. Similarly, EPA 

disagrees with the Commenter’s view 

that the existing provisions of the 

Missouri SIP are not enforceable 

emissions limitations for purposes of 

the 1997 and 2006 PM2.5 NAAQS. 

With respect to the concerns about the 

reliance on general, existing statutory 

and regulatory authority to meet the 

requirements of section 110(a)(2)(A) in 

lieu of developing specific new 

requirements, the Sierra Club is 

incorrect with respect to the scope of 

what is germane to an action on an 

infrastructure SIP. This rulemaking 

pertains to EPA’s action on 

infrastructure SIP submissions, which 

must only establish that the state’s SIP 

meets the general structural 

requirements described in section 

110(a)(2)(A) for the NAAQS at issue. 

That section states that each 

implementation plan submitted by a 

State under the CAA shall include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements of this Act. In 

the context of an infrastructure SIP 

submission, states may establish that 

they have sufficient SIP provisions for 

this purpose through existing SIP 

provisions, through newly submitted 

SIP provisions, or through a 

combination of the two. 

The Commenter seems to believe that 

in the context of an infrastructure SIP 

submission, section 110(a)(2)(A) 

explicitly requires that a state adopt all 

possible new enforceable emission 

limits, control measures and other 


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Federal Register / Vol. 78, No. 120 / Friday, June 21, 2013 / Rules and Regulations 37459 

means developed specifically for 

attaining and maintaining the new 

NAAQS within the state. EPA does not 

believe that this is a reasonable 

interpretation of the provision with 

respect to infrastructure SIP 

submissions. Rather, EPA believes that 

different requirements for SIPs become 

due at different times depending on the 

precise applicable requirements in the 

CAA. For example, SIP submissions that 

may contain new emissions limitations 

for purposes of attaining and 

maintaining the NAAQS are required 

pursuant to CAA section 172(b), as part 

of an attainment demonstration for areas 

designated as nonattainment for the 

NAAQS. The timing of such an 

attainment demonstration would be 

after promulgation of a NAAQS, after 

completion of designations, and after 

development of the applicable 

nonattainment plans, i.e., long after the 

time when section 110(a)(1) requires an 

infrastructure SIP submission. 

The Sierra Club comment suggests 

that EPA should disapprove a state’s 

infrastructure SIP submission if the state 

has not already developed all the 

substantive emissions limitations that 

may ultimately be required for all 

purposes, such as attainment and 

maintenance of the NAAQS as part of an 

attainment plan for a designated 

nonattainment area. Instead, for 

purposes of section 110(a)(2)(A), and for 

purposes of an infrastructure SIP 

submission, EPA believes the proper 

inquiry is whether the state has met the 

basic structural SIP requirements 

appropriate at the point in time EPA is 

acting upon it. EPA does not interpret 

section 110(a)(2)(A) to require states in 

an infrastructure SIP submission to have 

developed and submitted the full range 

of emissions limits that may ultimately 

be necessary for purposes of attainment 

and maintenance of the NAAQS within 

the state. As explained in the proposal, 

EPA has concluded that Missouri has 

adequately established that it has met 

basic requirements for implementation, 

maintenance, and enforcement of the 

1997 and 2006 PM2.5 NAAQS through 

the existing SIP provisions identified in 

the proposal. 

With respect to the Sierra Club’s 

concerns about Missouri’s use of ‘‘broad 

provisions’’ in its SIP to address the 

requirements of section 110(a)(2)(A), 

EPA has reviewed Missouri’s statutes 

and regulations in light of the McEvoy 

court decision noted by the Commenter. 

EPA acknowledges the Commenter’s 

concern that SIP provisions must 

contain sufficient specificity, so that the 

regulated community, regulators, and 

members of the public can clearly 

ascertain what is required of sources, 

and so that enforcement can occur in 

the event of violations. EPA believes 

that the Court’s decision in McEvoy is 

limited to the specific facts and 

circumstances of that case, but 

nevertheless reflects what may happen 

in an enforcement proceeding if a given 

SIP provision is ultimately deemed 

insufficiently specific to be enforceable. 

However, based on a review of the 

provisions at issue, we conclude that 

Missouri has sufficiently specific 

statutory and regulatory provisions in 

place to meet the requirements of 

section 110(a)(2)(A) for purposes of an 

infrastructure SIP submission. 

As we noted in the proposed 

rulemaking and as Sierra Club 

acknowledges, RsMO section 

643.050.1(1)(b) gives the Missouri Air 

Conservation Commission the authority 

to adopt, promulgate, amend and repeal 

rules and regulations that establish 

‘‘maximum quantities of air 

contaminants that may be emitted from 

any air contaminant source.’’ Pursuant 

to that authority, Missouri has adopted 

ambient air quality standards at 10 CSR 

10–6.010 that mirror the 1997 PM2.5

annual and 2006 PM2.5 24-hour NAAQS, 

along with the NAAQS for other criteria 

pollutants such as sulfur dioxide, 

carbon monoxide, ozone, lead and 

nitrogen dioxide. The regulations at 10 

CSR 10–6.020(3)(A) provide specific 

emissions limits for PM2.5 and other 

pollutants. See also 10 CSR 10– 

6.060(11) (providing maximum 

allowable increases of particulate matter 

in Class I, Class II, and Class III areas in 

Missouri). 

The regulations at 10 CSR 10–6.030(5) 

provide specific requirements for 

sampling the concentration of 

particulate matter emissions from 

sources; these requirements specifically 

incorporate by reference the test 

methods contained in 40 CFR part 60, 

appendix A and 40 CFR part 51, 

appendix M. Furthermore, the 

regulations at 10 CSR 10–6.040(4) 

provide reference methods for 

determining the concentration of 

particulate matter necessary for the 

enforcement of air pollution control 

regulations throughout Missouri. These 

regulations incorporate by reference the 

standards found at 40 CFR part 50. 

EPA also notes that the Missouri air 

pollution control regulations contain 

specific requirements concerning the 

control of particulate matter. See, e.g., 

10 CSR 10–6.170 (Restriction of 

Particulate Matter to the Ambient Air 

Beyond the Premises of Origin); 10 CSR 

10–6.400 (Restriction of Emission of 

Particulate Matter From Industrial 

Processes); 10 CSR 10–6.405 (Restriction 

of Particulate Matter Emissions From 

Fuel Burning Equipment Used for 

Indirect Heating). 

Furthermore, Missouri’s regulations 

require that operating permits issued to 

sources contain specific ‘‘emissions 

limitations or standards applicable to 

the installation’’ and ‘‘operational 

requirements or limitations as necessary 

to assure compliance with all applicable 

requirements.’’ 10 CSR 10–6.065(6)(C)1. 

Thus, in addition to the emission 

limitations applicable to sources 

through the generally applicable 

provisions of the SIP, sources that are 

required to obtain permits will have 

additional legally enforceable 

requirements to meet specific emission 

limitations, control measures, or other 

restrictions as appropriate. 

Coupled with the enforcement 

authority provided by Missouri’s 

statutes and regulations, which provides 

MDNR the authority to issue 

compliance orders or assess 

administrative penalties for violations of 

any emissions limitations of the SIP, 

EPA continues to believe that Missouri 

has sufficient authority to address the 

requirements of section 110(a)(2)(A) for 

the 1997 and 2006 PM2.5 NAAQS. 

Comment 2: The Sierra Club and 

NPCA commented that emission 

reductions from the Clean Air Interstate 

Rule (CAIR) are not permanent and 

enforceable and therefore EPA cannot 

rely on CAIR to satisfy the requirements 

of CAA section 110(a)(2)(D)(i)(II)—prong 

4. Sierra Club argued that in light of the 

remand of the rule by the D.C. Circuit 

Court of Appeals in North Carolina v. 

EPA, 550 F.3d 1176 (D.C. Cir. 2008), 

CAIR is neither permanent nor 

enforceable. Sierra Club also states that 

EPA has acknowledged in other Federal 

Register notices that CAIR was 

remanded without vacatur, was only 

temporary and could not be relied on as 

permanent and enforceable emission 

reductions for SIP approval purposes. 

Sierra Club also states that the Court’s 

decision in EME Homer City Generation, 

L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) 

does not extend the life of CAIR and 

does not make CAIR a permanent and 

enforceable measure on which the state 

or EPA can rely. Therefore, the 

commenters state that EPA should 

disapprove this sub-element of 

Missouri’s SIP. 

Response 2: EPA agrees that all 

control measures in a SIP must be 

enforceable based on the requirements 

of CAA section 110(a)(2)(A). EPA 

disagrees, however, that CAIR is not 

enforceable at this time, given the scope 

of the court’s order in EME Homer City 

and the issuance of the mandate in that 

case. 


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2On March 29, 2013, EPA and other parties filed 

petitions seeking Supreme Court review of the D.C. 

Circuit decision. 

3On August 21, 2012, the D.C. Circuit issued an 

opinion to vacate CSAPR and keep CAIR in place 

pending promulgation of a valid replacement rule. 

However, the court also ordered the Clerk to 

withhold issuance of the mandate until seven days 

after disposition of any timely petition for rehearing 

or rehearing en banc. All petitions for rehearing 

were denied on January 24, 2013, and the mandate 

was issued by the D.C. Circuit on February 4, 2013. 

As noted above, EPA and other parties subsequently 

filed petitions seeking Supreme Court review of the 

D.C. Circuit decision. 

On May 12, 2005, EPA published 

CAIR, which requires significant 

reductions in emissions of SO2 and NOX

from electric generating units (EGUs) to 

limit the interstate transport of these 

pollutants and the ozone and fine 

particulate matter they form secondarily 

in the atmosphere (76 FR 70093). The 

D.C. Circuit initially vacated CAIR, 

North Carolina v. EPA, 531 F.3d 896 

(D.C. Cir. 2008), but ultimately 

remanded the rule to EPA without 

vacatur to preserve the environmental 

benefits provided by CAIR, North 

Carolina v. EPA, 550 F.3d 1176, 1178 

(D.C. Cir. 2008). In response to the 

Court’s decision, EPA issued the Cross 

State Air Pollution Rule (CSAPR) to 

address the interstate transport of NOX

and SO2 in the eastern United States (76 

FR 48208, August 8, 2011). On August 

21, 2012, the D.C. Circuit issued a 

decision vacating CSAPR, EME Homer 

City Generation v. EPA, 696 F.3d 7.2 In 

that decision, it also ordered EPA to 

continue administering CAIR, ‘‘pending 

. . . development of a valid 

replacement rule’’ (Id. at 38). 

The direction from the D.C. Circuit in 

EME Homer City ensures that the 

reductions associated with CAIR will be 

enforceable and in place for a number 

of years. EPA has been ordered by the 

court to develop a new rule and the 

opinion makes clear that after 

promulgating the new rule, EPA must 

provide states an opportunity to draft 

and submit SIPs to implement that rule. 

CAIR thus will remain in force until 

EPA has promulgated a final rule 

through a notice-and-comment 

rulemaking process, states have had an 

opportunity to draft and submit SIPs, 

EPA has reviewed the SIPs to determine 

if they can be approved, and EPA has 

taken action on the SIPs, including 

promulgating a Federal Implementation 

Plan (FIP) if appropriate. In the 

meantime, neither the State nor EPA has 

taken any final action to remove the 

CAIR requirements from the Missouri 

SIP. These SIP provisions remain in 

place and are Federally enforceable. 

Further, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the D.C. Circuit emphasized that 

the consequences of vacating CAIR 

‘‘might be more severe now in light of 

the reliance interests accumulated over 

the intervening four years’’ (EME Homer 

City, 696 F.3d at 38). The accumulated 

reliance interests include the interests of 

the states who reasonably assumed they 

could rely on reductions associated with 

CAIR to meet the requirements of the 

Regional Haze Rule and, in turn, the 

requirements of Prong 4 of section 110 

(a)(2)(D)(i)(II). 

The proposed and final EPA actions 

cited by the Commenter as support for 

its argument that EPA has considered 

CAIR to be temporary all pre-date the 

vacatur of CSAPR and were based on 

EPA’s expectation that CSAPR would be 

the replacement for CAIR, and thus 

CAIR would end soon.3 At the time of 

these actions, CAIR was reasonably 

expected to sunset by operation of law 

in a fairly short timeframe. That 

background assumption no longer 

applies. Based on the vacatur of CSAPR 

and the Court’s related decision to keep 

CAIR in place, EPA believes that it is 

appropriate at this time to rely on CAIR 

emission reductions as permanent and 

enforceable SIP measures while a valid 

replacement rule is developed and until 

implementation plans complying with 

any such new rule are submitted by the 

States and acted upon by EPA or until 

the EME Homer City case is resolved in 

a way that provides different direction 

regarding CAIR and CSAPR. 

EPA is taking final action to approve 

the infrastructure SIP submission with 

respect to prong 4 because Missouri’s 

regional haze SIP, to which EPA has 

given limited approval in combination 

with its SIP provisions to implement 

CAIR, adequately prevents sources in 

Missouri from interfering with measures 

adopted by other states to protect 

visibility during the first planning 

period. While EPA is not at this time 

proposing to change the June 7, 2012, or 

June 26, 2012, limited disapproval and 

limited approval of Missouri’s regional 

haze SIP, EPA expects to propose 

appropriate action regarding this SIP, if 

necessary, upon final resolution of the 

EME Homer City litigation. A more 

detailed rationale to support EPA’s 

approval of prong 4 for Missouri’s 1997 

and 2006 PM2.5 infrastructure 

submission can be found in EPA’s 

proposed rulemaking for today’s final 

action (78 FR 21281). 

Comment 3: The NPCA commented 

that EPA cannot approve portions of the 

Missouri infrastructure SIP submissions 

addressing the requirements of CAA 

section 110(a)(2)(D)(i)(II) with respect to 

visibility because these submittals rely 

on CAIR, and CAIR cannot meet the 

BART or reasonable progress 

requirements of the visibility program. 

NPCA argues that to meet the 

requirements of the visibility prong of 

section 110(a)(2)(D)(i)(II), EPA must 

direct Missouri to develop an 

implementation plan that meets the 

BART and reasonable progress 

requirements of the regional haze rule. 

In particular, NPCA raised a number of 

legal arguments in support of its 

position that section 169A of the CAA 

requires source-specific BART 

determinations for power plants and 

does not allow states to adopt 

alternative programs, such as CAIR, in 

lieu of these source-specific 

requirements. The NPCA also stated that 

CAIR cannot be used to shield sources 

from review under the CAA’s reasonable 

progress requirements. NPCA 

commented that in the absence of a 

source-specific review to determine 

reasonable progress measures, it is not 

possible to determine whether CAIR 

will fulfill the reasonable progress 

requirements, assuming it could 

overcome the lack of enforceability of 

the program. 

Response 3: The visibility prong of 

section 110(a)(2)(D)(II) of the CAA 

requires SIPs to ‘‘contain adequate 

provisions . . . prohibiting . . . any 

source . . . within the state from 

emitting any air pollutant in amounts 

which will . . . interfere with measures 

required to be included in the 

applicable implementation plan for any 

other State under part C of this 

subchapter . . . to protect visibility.’’ 

We interpret this provision of section 

110 of the CAA as requiring states to 

include in their SIPs measures to 

prohibit emissions that would interfere 

with the reasonable progress goals set to 

protect Class I areas in other states. This 

is consistent with the requirements in 

the regional haze program which 

explicitly require each state to address 

its share of the emission reductions 

needed to meet the reasonable progress 

goals for surrounding Class I areas (40 

CFR 51.308(d)(3)(i); see also 77 FR 

11958, 11962, February 28, 2012). Given 

this explicit requirement in the regional 

haze rule, states may satisfy the 

visibility prong of section 

110(a)(2)(D)(II) through an EPAapproved regional haze SIP. EPA issued 

a limited approval of Missouri’s regional 

haze plan on June 26, 2012, having 

determined, among other things, that 

the SIP submittal provided sufficient 

evidence to demonstrate that its longterm strategy includes all measures 

necessary to obtain its share of emission 

reductions needed to address the 


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Federal Register / Vol. 78, No. 120 / Friday, June 21, 2013 / Rules and Regulations 37461 

impacts of Missouri’s emissions sources 

on Class I areas in other states (77 FR 

38007, 38009). 

In its comments, however, NPCA 

argues that important elements of 

Missouri’s approved regional haze SIP 

do not meet the requirements of section 

169A of the CAA. EPA disagrees with 

the Commenter that the CAA does not 

allow states to rely on an alternative 

program such as CAIR in lieu of sourcespecific BART. EPA’s regulations 

allowing states to adopt alternatives to 

BART that provide for greater 

reasonable progress, and the Agency’s 

determination that states may rely on 

CAIR to meet the BART requirements, 

have been upheld by the D.C. Circuit, 

Utility Air Regulatory Group v. EPA, 471 

F.3d 1333 (D.C. Cir. 2006) as meeting 

the requirements of the CAA. We also 

note that the regional haze regulations 

do not require a source-specific analysis 

of controls for reasonable progress. Even 

assuming, however, that the Missouri 

regional haze SIP improperly relied on 

CAIR to meet the BART and reasonable 

progress requirements, the NPCA has 

not shown that the State’s plan does not 

comply with section 110(a)(2)(D)(i). 

III. Summary of Final Action 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Missouri’s SIP, EPA believes that 

Missouri has the infrastructure to 

address all applicable required elements 

of sections 110(a)(1) and(2) (except 

otherwise noted) to ensure that the 1997 

and 2006 PM2.5 NAAQS are 

implemented in the state. Therefore, 

EPA is taking final action to approve 

Missouri’s infrastructure SIP 

submissions for the 1997 and 2006 

NAAQS for PM2.5 for the following 

section 110(a)(2) elements and subelements: (A), (B), (C), (D)(i)(II) (prongs 

3 and 4), (D)(ii), (E), (F), (G), (H), (J), (K), 

(L), and (M). In addition, EPA is 

approving two SIP submissions, one 

addressing the Prevention of Significant 

Deterioration (PSD) program in Missouri 

as it relates to PM2.5, and another SIP 

revision addressing the requirements of 

section 128 of the CAA, both of which 

support the requirements associated 

with infrastructure SIPs. 

IV. Statutory and Executive Order 

Review 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is 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 

• Does 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 rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP 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. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 20, 2013. 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, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: June 10, 2013. 

Mark Hague, 

Acting Regional Administrator, Region 7. 

Chapter I, title 40 of the Code of 

Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart AA—Missouri 

■ 2. In § 52.1320: 

■ a. The table in paragraph (c) is 

amended by adding a new Chapter 1 

heading in numerical order, adding a 

new entry 10–1.020 (1) and (2), and 

revising the entry for 10–6.060. 

■ b. The table in paragraph (e) is 

amended by adding new entries (58), 

(59) and (60) in numerical order at the 

end of the table. 

The additions read as follows: 

§ 52.1320 Identification of plan. 

* * * * * 

(c) * * * 


TKELLEY on DSK3SPTVN1PROD with RULES
37462 Federal Register / Vol. 78, No. 120 / Friday, June 21, 2013 / Rules and Regulations 

EPA-APPROVED MISSOURI REGULATIONS

Missouri citation Title State effective date EPA approval date Explanation 

Missouri Department of Natural Resources 

Chapter 1—Organization 

10–1.020 (1) and (2) ...... Commission Voting and 

Meeting Procedures.

7/30/1998 6/21/2013 [INSERT 

Federal Register 

PAGE NUMBER 

WHERE THE DOCUMENT BEGINS].

*******

Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of 

Missouri 

*******

10–6.060 ........................ Construction Permits 

Required.

9/30/2012 6/21/2013 [INSERT 

Federal Register 

PAGE NUMBER 

WHERE THE DOCUMENT BEGINS].

Provisions of the 2010 PM2.5 PSD—Increments, 

SILs and SMCs rule (75 FR 64865, October 

20, 2010) relating to SILs and SMCs that were 

affected by the January 22, 2013 U.S. Court 

of Appeals decision are not SIP approved. 

Provisions of the 2002 NSR reform rule relating 

to the Clean Unit Exemption, Pollution Control 

Projects, and exemption from recordkeeping 

provisions for certain sources using the actualto-projected-actual emissions projections test 

are not SIP approved. 

In addition, we have not approved 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). 

Although exemptions previously listed in 10 CSR 

10–6.060 have been transferred to 10 CSR 

10–6.061, the Federally-approved SIP continues to include the following exemption, 

‘‘Livestock and livestock handling systems 

from which the only potential contaminant is 

odorous gas.’’ 

Section 9, pertaining to hazardous air pollutants, 

is not SIP approved. 

* * * * * * * 

* * * * * § 52.1320 Identification of plan. 

* * * * * 

(e)* * * 

EPA-APPROVED MISSOURI NONREGULATORY SIP PROVISIONS

Name of non-regulatory SIP revision 

Applicable geographic or nonattainment area 

State submittal 

date EPA approval date Explanation 

*******

(58) Section 110(a)(2) Infrastructure Requirements for the 1997 PM2.5 NAAQS.Statewide .......... 2/27/2007 6/21/2013 [INSERT CITATION OF PUBLICATION].This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(i)(II) 

prongs 3 and 4, (D)(ii), (E), (F), 

(G), (H), (J), (K), (L), and (M). 

(59) Section 110(a)(2) Infrastructure Requirements for the 2006 PM2.5 NAAQS.Statewide .......... 12/28/2009 6/21/2013 [INSERT CITATION OF PUBLICATION].This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(i)(II) 

prongs 3 and 4, (D)(ii), (E), (F), 

(G), (H), (J), (K), (L), and (M). 


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Federal Register / Vol. 78, No. 120 / Friday, June 21, 2013 / Rules and Regulations 37463 

EPA-APPROVED MISSOURI NONREGULATORY SIP PROVISIONS—Continued 

Name of non-regulatory SIP revision 

Applicable geographic or nonattainment area 

State submittal 

date EPA approval date Explanation 

(60) Section 128 Declaration: Missouri Air 

Conservation Commission Representation 

and Conflicts of Interest Provisions; Missouri Revised Statutes (RSMo) RSMo 

105.450, RSMo 105.452, RSMo 105.454, 

RSMo 105.462, RSMo 105.463, RSMo 

105.466, RSMo 105.472, and RSMo 

643.040.2.

Statewide .......... 8/08/2012 6/21/2013 [INSERT CITATION OF PUBLICATION].

[FR Doc. 2013–14755 Filed 6–20–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 141 

[EPA–HQ–OW–2013–0300; FRL–9818–2] 

Expedited Approval of Alternative Test 

Procedures for the Analysis of 

Contaminants Under the Safe Drinking 

Water Act; Analysis and Sampling 

Procedures 

Correction 

In rule document 2013–12729, 

appearing on pages 32558–32574 in the 

issue of Friday, May 31, 2013, make the 

following correction: 

PART 141—[CORRECTED] 

Beginning on page 32570, with the 

table entitled ‘‘ALTERNATIVE 

TESTING METHODS FOR 

CONTAMINANTS LISTED AT 40 CFR 

141.25(A)’’, the tables are corrected to 

read as set forth below: 

ALTERNATIVE TESTING METHODS FOR CONTAMINANTS LISTED AT 40 CFR 141.25(a) 

Contaminant Methodology SM 21st Edition 1 SM 22nd 

Edition 28 ASTM 4

Naturally Occurring: 

Gross alpha and beta .................. Evaporation ..................................................... 7110 B ................ 7110 B ................

Gross alpha ................................. Coprecipitation ................................................ 7110 C ................ 7110 C ................

Radium 226 ................................. Radon emanation ............................................ 7500–Ra C .......... 7500–Ra C .......... D3454–05 

Radiochemical ................................................. 7500–Ra B .......... 7500–Ra B .......... D2460–07 

Radium 228 ................................. Radiochemical ................................................. 7500–Ra D .......... 7500–Ra D ..........

Uranium ....................................... Radiochemical ................................................. 7500–U B ............ 7500–U B ............

ICP–MS ........................................................... 3125 .................... ............................. D5673–05, 10 

Alpha spectrometry ......................................... 7500–U C ............ 7500–U C ............ D3972–09 

Laser Phosphorimetry ..................................... ............................. ............................. D5174–07 

Alpha Liquid Scintillation Spectrometry .......... ............................. ............................. D6239–09 

Man-Made: 

Radioactive Cesium .................... Radiochemical ................................................. 7500–Cs B .......... 7500–Cs B ..........

Gamma Ray Spectrometry ............................. 7120 .................... 7120 .................... D3649–06 

Radioactive Iodine ....................... Radiochemical ................................................. 7500–I B ............. 7500–I B ............. D3649–06 

7500–I C ............. 7500–I C .............

7500–I D ............. 7500–I D .............

Gamma Ray Spectrometry ............................. 7120 .................... 7120 .................... D4785–08 

Radioactive Strontium 89, 90 ...... Radiochemical ................................................. 7500–Sr B ........... 7500–Sr B ...........

Tritium .......................................... Liquid Scintillation ........................................... 7500–3H B .......... 7500–3H B .......... D4107–08 

Gamma Emitters ......................... Gamma Ray Spectrometry ............................. 7120 .................... 7120 .................... D3649–06 

7500–Cs B .......... 7500–Cs B .......... D4785–08 

7500–I B ............. 7500–I B .............

ALTERNATIVE TESTING METHODS FOR CONTAMINANTS LISTED AT 40 CFR 141.74(a)(1) 

Organism Methodology SM 21st Edition 1 SM 22nd 

Edition 28 Other 

Total Coliform .............................. Total Coliform Fermentation Technique ......... 9221 A, B, C ....... 9221 A, B, C .......

Total Coliform Membrane Filter Technique .... 9222 A, B, C.

ONPG–MUG Test ........................................... 9223 .................... 9223 B ................

Fecal Coliforms ........................... Fecal Coliform Procedure ............................... 9221 E ................ 9221 E ................

Fecal Coliform Filter Procedure ...................... 9222 D ................ 9222 D ................

Heterotrophic bacteria ................. Pour Plate Method .......................................... 9215 B ................ 9215 B ................

Turbidity ....................................... Nephelometric Method .................................... 2130 B ................ 2130 B ................


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