Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Missouri; Clean Air Mercury Rule,

[Federal Register: January 17, 2008 (Volume 73, Number 12)]

[Rules and Regulations]

[Page 3194-3197]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr17ja08-6]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R07-OAR-2007-0943; FRL-8517-7]

Approval and Promulgation of State Plans for Designated Facilities and Pollutants; Missouri; Clean Air Mercury Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to approve the State Plan submitted by Missouri on May 18, 2007, and revisions submitted on September 6, 2007. The plan addresses the requirements of EPA's Clean Air Mercury Rule (CAMR), promulgated on May 18, 2005, and subsequently revised on June 9, 2006. EPA has determined that the submitted State Plan fully meets the CAMR requirements for Missouri.

CAMR requires States to regulate emissions of mercury (Hg) from large coal-fired electric generating units (EGUs). CAMR establishes State budgets for annual EGU Hg emissions and requires States to submit State Plans to ensure that annual EGU Hg emissions will not exceed the applicable State budget. States have the flexibility to choose which control measures to adopt to achieve the budgets, including participating in the EPA-administered CAMR cap-and-trade program. In the State Plan that EPA is approving today, Missouri has met the CAMR requirements by electing to participate in the EPA trading program.

DATES: This rule is effective on February 19, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2007-0943. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index,

some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Environmental

Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 excluding Federal 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: Michael Jay at (913) 551-7460 or by e- mail at jay.michael@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What Action Is EPA Taking? II. What Is the Regulatory History of CAMR? III. What Are the General Requirements of CAMR State Plans? IV. How Can States Comply With CAMR? V. Analysis of Missouri's CAMR State Plan Submittal

   1. State Budgets

   2. CAMR State Plan VI. Statutory and Executive Order Reviews

1. What Action Is EPA Taking?

   EPA is taking final action to approve Missouri's State Plan, submitted on May

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   18, 2007, and revisions submitted on September 6, 2007. In its State Plan, Missouri has met CAMR by requiring certain coal-fired EGUs to participate in the EPA-administered cap-and-trade program addressing Hg emissions. EPA proposed to approve Missouri's request to amend the State's Plan on September 27, 2007 (72 FR 54872). No comments were received. EPA is finalizing the approval as proposed based on the rationale stated in the proposal and in this final action.

2. What Is the Regulatory History of CAMR?

   CAMR was published by EPA on May 18, 2005 (70 FR 28606, ``Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Final Rule''). In this rule, acting pursuant to its authority under section 111(d) of the Clean Air Act (CAA), 42 U.S.C. 7411(d), EPA required that all States and the District of Columbia (all of which are referred to herein as States) meet Statewide annual budgets limiting Hg emissions from coal-fired EGUs (as defined in 40 CFR 60.24(h)(8)) under CAA section 111(d). EPA required all States to submit State Plans with control measures that ensure that total, annual Hg emissions from the coal-fired EGUs located in the respective States do not exceed the applicable statewide annual EGU mercury budget. Under CAMR, States may implement and enforce these reduction requirements by participating in the EPA-administered cap- and-trade program or by adopting any other effective and enforceable control measures.

   CAA section 111(d) requires States, and along with CAA section 301(d) and the Tribal Air Rule (40 CFR part 49) allows Tribes granted treatment as States (TAS), to submit State Plans to EPA that implement and enforce the standards of performance. CAMR explains what must be included in State Plans to address the requirements of CAA section 111(d). The State Plans were due to EPA by November 17, 2006. Under 40 CFR 60.27(b), the Administrator will approve or disapprove the State Plans.

3. What Are the General Requirements of CAMR State Plans?

   CAMR establishes Statewide annual EGU Hg emission budgets and is to be implemented in two phases. The first phase of reductions starts in 2010 and continues through 2017. The second phase of reductions starts in 2018 and continues thereafter. CAMR requires States to implement the budgets by either: (1) Requiring coal-fired EGUs to participate in the EPA-administered cap-and-trade program; or (2) adopting other coal- fired EGU control measures of the respective State's choosing and demonstrating that such control measures will result in compliance with the applicable State annual EGU Hg budget.

   Each State Plan must require coal-fired EGUs to comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR part 75 concerning Hg mass emissions. Each State Plan must also show that the State has the legal authority to adopt emission standards and compliance schedules necessary for attainment and maintenance of the State's annual EGU Hg budget and to require the owners and operators of coal-fired EGUs in the State to meet the monitoring, recordkeeping, and reporting requirements of 40 CFR part 75.

4. How Can States Comply With CAMR?

   Each State Plan must impose control requirements that the State demonstrates will limit Statewide annual Hg emissions from new and existing coal-fired EGUs to the amount of the State's applicable annual EGU Hg budget. States have the flexibility to choose the type of EGU control measures they will use to meet the requirements of CAMR. EPA anticipates that many States will choose to meet the CAMR requirements by selecting an option that requires EGUs to participate in the EPA- administered CAMR cap-and-trade program. EPA also anticipates that many States may choose to control Statewide annual Hg emissions for new and existing coal-fired EGUs through an alternative mechanism other than the EPA-administered CAMR cap-and-trade program. Each State that chooses an alternative mechanism must include with its plan a demonstration that the State Plan will ensure that the State will meet its assigned State annual EGU Hg emission budget.

   A State submitting a State Plan that requires coal-fired EGUs to participate in the EPA-administered CAMR cap-and-trade program may either adopt regulations that are substantively identical to the EPA model Hg trading rule (40 CFR part 60, subpart HHHH) or incorporate by reference the model rule. CAMR provides that States may only make limited changes from the model rule if the States want to participate in the EPA-administered trading program. A State Plan may deviate from the model rule only by altering the allowance allocation provisions to provide for State-specific allocation of Hg allowances using a methodology chosen by the State. A State's alternative allowance allocation provisions must meet certain allocation timing requirements and must ensure that total allocations for each calendar year will not exceed the State's annual EGU Hg budget for that year.

5. Analysis of Missouri's CAMR State Plan Submittal

   1. State Budgets

      In this action, EPA is taking final action to approve Missouri's State Plan that adopts the annual EGU Hg budgets established for the State in CAMR, i.e., 1.393 tons for EGU Hg emissions in 2010-2017 and 0.55 tons for EGU Hg emissions in 2018 and thereafter. Missouri's State Plan sets these budgets as the total amount of allowances available for allocation for each year under the EPA-administered CAMR cap-and-trade program.

   2. CAMR State Plan

      The Missouri State Plan requires coal-fired EGUs to participate in the EPA-administered CAMR cap-and-trade program. The State Plan incorporates by reference the EPA model Hg trading rule but has adopted an alternative allowance allocation methodology. States may establish in their State Plan submissions a different Hg allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative Hg allowance allocation methodologies, States have flexibility with regard to:

      1. The cost to recipients of the allowances, which may be distributed for free or auctioned;

      2. The frequency of allocations;

      3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and

      4. The use of allowance set-asides and, if used, their size.

      In Missouri's alternative allowance methodology, Missouri has chosen to distribute Hg allowances directly based upon Table I in 10 CSR 10-6.368. The table permanently allocates to designated units the entirety of Missouri's mercury allowances for both phases of the program. Accordingly, Missouri has not provided allowances for the establishment of set-aside accounts.

      Missouri's State Plan requires coal-fired EGUs to comply with the

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      monitoring, recordkeeping, and reporting provisions of 40 CFR part 75 concerning Hg mass emissions. Missouri's State Plan also demonstrates that the State has the legal authority to adopt emission standards and compliance schedules necessary for attainment and maintenance of the State's annual EGU Hg budget and to require the owners and operators of coal-fired EGUs in the State to meet the monitoring, recordkeeping, and reporting requirements of 40 CFR part 75. Missouri cites Section 643.050 and 643.055 of the Missouri Air Conservation Law, as containing the legal authority for the Missouri Air Conservation Commission to adopt the State's rule that allows for Missouri's participation in the nationwide cap-and-trade program.

      EPA's review of Missouri's State Plan has found that it meets the requirements of CAMR. As a result, EPA is taking final action to approve Missouri's State Plan.

6. Statutory and Executive Order Reviews

   Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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).

   This action also does not have Tribal implications because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

   This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard. It does not alter the relationship or the distribution of power and responsibilities established in the CAA. This action also is not subject to Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it approves a State rule implementing a Federal standard.

   Executive Order 12898, ``Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,'' requires Federal agencies to consider the impact of programs, policies, and activities on minority populations and low-income populations. EPA guidance \1\ states that EPA is to assess whether minority or low- income populations face risk or a rate of exposure to hazards that is significant and that ``appreciably exceed[s] or is likely to appreciably exceed the risk or rate to the general population or to the appropriate comparison group.'' (EPA, 1998) Because this rule merely approves a state rule implementing the Federal standard established by CAMR, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations. However, EPA has already considered the impact of CAMR, including this Federal standard, on minority and low-income populations. In the context of EPA's CAMR published in the Federal Register on May 18, 2005, in accordance with Executive Order 12898, the Agency has considered whether CAMR may have disproportionate negative impacts on minority or low income populations and determined it would not.

   \1\ U.S. Environmental Protection Agency, 1998. Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses. Office of Federal Activities, Washington, DC, April, 1998.

   In reviewing State Plan submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State Plan for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State Plan submission, to use VCS in place of a State Plan submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

   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 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 March 17, 2008. 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 in Part 62

   Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Mercury, Reporting and recordkeeping requirements.

   Dated: January 8, 2008. John B. Askew, Regional Administrator, Region 7.

   0 Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

   PART 62--[AMENDED]

   0 1. The authority citation for part 62 continues to read as follows:

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

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   Subpart AA--Missouri

   0 2. Subpart AA is amended by adding an undesignated center heading and Sec. 62.6362 to read as follows:

   Mercury Emissions From Coal-Fired Electric Steam Generating Units

   Sec. 62.6362 Identification of Plan.

   (a) Identification of plan. Section 111(d) plan and associated State regulation 10 CSR 10-6.368, Control of Mercury Emissions From Electric Generating Units, as adopted in Missouri's Code of State Regulations on April 30, 2007.

   (b) Identification of sources. The plan applies to all new and existing mercury budget units meeting the applicability requirements in Missouri's State rule 10 CSR 10-6.368.

   (c) Effective date. The effective date for the portion of the plan applicable to mercury budget units as described in Missouri State rule 10 CSR 10-6.368 is February 19, 2008.

   [FR Doc. E8-807 Filed 1-16-08; 8:45 am]

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