Approval and Promulgation of Implementation Plans; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region VII Tracking No. MO-074-1074a; FRL-6512-2]

Approval and Promulgation of Implementation Plans; State of

Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is announcing a revision to the State Implementation Plan

(SIP) which incorporates portions of new Kansas City rules contained in

the Kansas City Air Pollution Control Ordinance in Sections 8-2 and 8-

5. These Sections pertain to the emission of particulate matter from

incinerators. This revision will concurrently remove incinerator SIP

provisions contained in Chapter 18 of the 1972 version of the Kansas

City Code. This action will unify the local, state, and Federal

requirements for Kansas City incinerators.

DATES: This direct final rule is effective on February 22, 2000 without

further notice, unless EPA receives adverse comment by January 21,

2000. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Wayne A. Kaiser at the

Environmental Protection Agency, Air Branch, 901 North 5th Street,

Kansas City, Kansas 66101.

Copies of the state submittals are available at the following

addresses for inspection during normal business hours: Environmental

Protection Agency, Air Planning and Development Branch, 901 North 5th

Street, Kansas City, Kansas 66101; and the Environmental Protection

Agency, Air and Radiation Docket and Information Center, Air Docket

(6102), 401 M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at the Environmental

Protection Agency at (913) 551-7603.

SUPPLEMENTARY INFORMATION:

Background

This section provides additional information by addressing the

following questions:

What is an SIP?

What is the Federal approval process for a SIP?

What does Federal approval of a state regulation mean to me?

What is being addressed in this action?

Have the requirements for approval of a SIP revision been met?

What action is EPA taking?

What Is a SIP?

Section 110 of the Clean Air Act (CAA) requires states to develop

air pollution regulations and control strategies to ensure that state

air quality meets the national ambient air quality standards

established by EPA. These ambient standards are established under

section 109 of the CAA, and they currently address six criteria

pollutants. These pollutants are: carbon monoxide, nitrogen dioxide,

ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to

EPA for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by

addressing air pollution at its point of origin. These SIPs can be

extensive, containing state regulations or other enforceable documents

and supporting information such as emission inventories, monitoring

networks, and modeling demonstrations.

What Is the Federal Approval Process for a SIP?

In order for state regulations to be incorporated into the

Federally enforceable SIP, states must formally adopt the regulations

and control strategies consistent with state and Federal requirements.

This process generally includes a public notice, public hearing, public

comment period, and a formal adoption by a state-authorized rulemaking

body.

Once a state rule, regulation, or control strategy is adopted, the

state submits it to EPA for inclusion into the SIP. EPA must provide

public notice and seek additional public comment regarding the proposed

Federal action on the state submission. If adverse comments are

received, they must be addressed prior to any final Federal action by

EPA.

All state regulations and supporting information approved by EPA

under section 110 of the CAA are incorporated into the Federally

approved SIP. Records of such SIP actions are maintained in the Code of

Federal

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Regulations (CFR) at Title 40, Part 52, entitled ``Approval and

Promulgations of Implementation Plans.'' The actual state regulations

which are approved are not reproduced in their entirety in the CFR

outright but are ``incorporated by reference,'' which means that EPA

has approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

Enforcement of the state regulation before and after it is

incorporated into the Federally approved SIP is primarily a state

responsibility. However, after the regulation is Federally approved,

EPA is authorized to take enforcement action against violators.

Citizens are also offered legal recourse to address violations as

described in the CAA.

What Is Being Addressed in This Action?

The Kansas City Air Pollution Control Code (KCAPCC) was originally

submitted to EPA for approval in 1972. The incinerator provisions which

were approved in 1972 are still in the Federally approved SIP today.

The SIP contains two different particulate matter requirements for

incinerators based on the capacity of the incinerator. Large capacity

incinerators (with a charging capacity equal to or greater than 4166

pounds per hour) are required to meet an emission limit of 0.1 grains

per dry standard cubic foot. Small capacity incinerators (with a

charging capacity less than 4166 pounds per hour) are required to meet

an emission limit of 0.2 grains per dry standard cubic foot.

The KCAPCC was amended in 1984; however, the SIP was not updated at

that time. Consequently, two separate versions of the Kansas City

incinerator regulations were in force at that time. The Kansas City

Health Department Environmental Program enforced the 1984 version while

EPA enforced the 1972 version in the SIP.

In 1996, the Air Pollution Control Code was again revised by the

Kansas City Health Department. This time, a more stringent version of

the incinerator rule was adopted which required incinerators of any

charging capacity to meet a 0.1 grains per dry standard cubic foot

particulate matter emission limit. Other limits were also included in

the 1996 rule for pollutants such as hydrogen chloride, mercury, and

dioxin and furans.

The Missouri Department of Natural Resources held a public hearing

before the Missouri Air Conservation Commission (MACC) on October 29,

1998, on the replacement of the 1972 KCAPCC requirements for

incinerators with the 1996 KCAPCC provisions which pertain to

incinerators. After considering comments on this issue, on December 10,

1998, the MACC approved the submission of certain provisions of Section

8-2, ``Definitions,'' which pertain to incinerators and certain

provisions of Section 8-5, ``Emission of particulate matter,''

pertaining to the emission of particulate matter from incinerators with

a request to amend the SIP to incorporate this submission. The MACC

also approved the submittal of a request to remove the 1972 Kansas City

incinerator requirements contained in KCAPCC Chapter 18, Sections

18.83, ``Definitions,'' and 18.91, ``Incinerators.''

Have the Requirements for Approval of a SIP Revision Been Met?

The state submittal has met the public notice requirements for SIP

submissions in accordance with 40 CFR 51.102. The submittal also

satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In

addition, as explained above and in more detail in the technical

support document which is part of this notice, the revision meets the

substantive SIP requirements of the CAA, including section 110 and

implementing regulations. The revision constitutes a slight increase in

the stringency of requirements which pertain to incinerators operating

in Kansas City, Missouri.

What Action Is EPA Taking?

EPA is processing this action as a direct final action to approve

the replacement of the 1972 KCAPCC incinerator provisions contained in

Chapter 18, Sections 18.83, and 18.91, with the incinerator particulate

matter provisions contained in the 1996 KCAPCC in Chapter 8, Sections

8-2, ``Definitions,'' and 8-5, ``Emission of particulate matter.''

Specifically, the following definitions are being approved from Section

8-2: Air contaminant, Ambient air, Building, Construction, Emission,

Fugitive emissions, Incinerator, Installation, Open burning, Owner,

Particulate matter, Refuse, Smoke, Source, Stack, Trade waste, and

Uncombined water. EPA is approving the following provisions of Section

8-5: ``Emission of Particulate Matter''; subsection 8-5(c)(1)b.,

``Emission of Particulate Matter, Incinerators--Test Schedule'';

subsection 8-5(c)(1)c., ``Emission of Particulate Matter,

Incinerators--Capacity''; subsection 8-5(c)(2)a., ``Emission of

Particulate Matter, Incinerators--Particulate and Opacity

Limitations''; subsection 8-5(c)(3)a., ``Emission of Particulate

Matter, Incinerators--Performance Testing, Representative Sample'';

subsection 8-5(c)(3)b., ``Emission of Particulate Matter,

Incinerators--Performance Testing, Procedure''; subsection 8-5(c)(3)c.,

``Emission of Particulate Matter, Incinerators--Performance Testing,

Compliance''; and subsection 8-5(c)(3)d., ``Emission of Particulate

Matter, Incinerators--Performance Testing, When Required.''

EPA's direct final approval of this submittal incorporates

incinerator provisions which are already in force under the authority

of the Kansas City Health Department. These revisions make routine

changes to the existing SIP rules to make them consistent with the

local agency rules. EPA views these revisions as noncontroversial.

Therefore, we do not anticipate any adverse comments.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial submittal and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective February 22,

2000 without further notice unless the Agency receives adverse comments

by January 21, 2000.

If EPA receives such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. EPA will not

institute a second comment period. Parties interested in commenting

should do so at this time. If no such comments are received, the public

is advised that this rule will be effective on February 22, 2000 and no

further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing

the Intergovernmental Partnership). Executive Order 13132 requires EPA

to develop an accountable process to

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ensure ``meaningful and timely input by state and local officials in

the development of regulatory policies that have federalism

implications.'' ``Policies that have federalism implications'' is

defined in the Executive Order to include regulations that have

``substantial direct effects on the states, on the relationship between

the national government and the states, or on the distribution of power

and responsibilities among the various levels of government.'' Under

Executive Order 13132, EPA may not issue a regulation that has

federalism implications, that imposes substantial direct compliance

costs, and that is not required by statute, unless the Federal

Government provides the funds necessary to pay the direct compliance

costs incurred by state and local governments, or EPA consults with

state and local officials early in the process of developing the

proposed regulation. EPA also may not issue a regulation that has

federalism implications and that preempts state law unless the Agency

consults with state and local officials early in the process of

developing the proposed regulation.

This final rule 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 responsibilities among the

various levels of government, as specified in Executive Order 13132.

Thus, the requirements of section 6 of the Executive Order do not apply

to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not

an economically significant regulatory action as defined by Executive

Order 12866, and it does not establish a further health or risk-based

standard because it approves state rules which implement a previously

promulgated health or safety-based standard.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

Government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to OMB, in a separately identified section of

the preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian tribes. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply to

this rule.

E. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to conduct a regulatory

flexibility analysis of any rule subject to notice and comment

rulemaking requirements, unless the agency certifies that the rule will

not have a significant economic impact on a substantial number of small

entities. Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. This final rule will

not have a significant impact on a substantial number of small entities

because SIP approvals under section 110 and Subchapter I, Part D of the

CAA do not create any new requirements, but simply approve requirements

that the state is already imposing. Therefore, I certify that this

action will not have a significant economic impact on a substantial

number of small entities. Moreover, due to the nature of the Federal-

state relationship under the CAA, preparation of flexibility analysis

would constitute Federal inquiry into the economic reasonableness of

state action. The CAA forbids EPA to base its actions concerning SIPs

on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66

(1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to state, local, or tribal governments in the aggregate,

or to the private sector, of $100 million or more. Under section 205,

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either state, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

preexisting requirements under state or local law, and imposes no new

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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 rule and other

required information to the United States Senate, the United States

House of Representatives, and the United States Comptroller General

prior to publication of the rule in the Federal Register. This rule is

not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States

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Court of Appeals for the appropriate circuit by February 22, 2000.

Filing a petition for reconsideration by the Administrator of this

final rule does not affect the finality of this rule 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 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

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

Dated: December 2, 1999.

William A. Spratlin,

Acting Regional Administrator, Region VII.

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 Sec. 52.1320 in paragraph (c), the table for ``Kansas City

Article III--Air Pollution'' is removed and to the table for ``Kansas

City Chapter 8--Air Quality 17'' is revised to read as follows:

Sec. 52.1320 Identification of plan.

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(c) EPA-approved regulations.

EPA-Approved Missouri Regulations

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State EPA

MISSOURI citation Title effective approval Explanations

date date

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Kansas City Chapter 8--Air Quality

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8-2...................... Definitions..... 12/10/98 12/22/99

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8-5...................... Emission of 12/10/98 12/22/99 Only subsections 8-5(c)(1)b, 8-5(c)(1)c,

Particulate 8-5(c)(2)a, 8-5(c)(3)a, 8-5(c)(3)b, 8-

Matter. 5(c)(3)c, 8-5(c)(3)d are approved in the

SIP.

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[FR Doc. 99-32860 Filed 12-21-99; 8:45 am]

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