Air Plan Approval; Missouri; Construction Permits By Rule, 29517-29520 [2021-11244]
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Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Rules and Regulations
List of Subjects in 40 CFR Part 30
relationship between the National
Government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
Environmental protection,
Administrative practice and procedure,
Reporting and recordkeeping
requirements.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive order. This action is not
subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action is
not subject to Executive Order 12898 (59
FR 7629, February 16, 1994) because it
does not establish an environmental
health or safety standard.
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K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
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For the reasons set forth in the
preamble and under the authority of the
court order in Environmental Defense
Fund et al. v. EPA, No. 21–cv–00003 (D.
Mon. Feb. 1, 2021) (EDF v. EPA), the
EPA removes and reserves 40 CFR part
30.
■
[FR Doc. 2021–11317 Filed 5–28–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[[EPA–R07–OAR–2019–0711; FRL–10024–
22–Region 7]
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This action is not a ‘‘significant
energy action’’ within the meaning of
Executive Order 13211. It is not likely
to have a significant adverse effect on
the supply, distribution or use of
energy, and it has not otherwise been
designated as a significant energy action
by the Administrator of the Office of
Information and Regulatory Affairs
(OIRA).
17:10 Jun 01, 2021
PART 30—[REMOVED AND
RESERVED]
Air Plan Approval; Missouri;
Construction Permits By Rule
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
VerDate Sep<11>2014
Michael S. Regan,
Administrator.
The Environmental Protection
Agency (EPA) is approving selected
revisions to a Missouri State rule in the
State Implementation Plan (SIP) that
establishes a process and standardized
conditions under which certain types of
sources can construct and operate in
lieu of going through the State’s formal
construction permitting process. The
EPA is approving rule revisions that
include modifications to the operating
conditions for crematories and animal
incinerators, adjustments to sulfur
limits on Number 2 diesel oil for
consistency with Federal limits,
removal of ‘‘restrictive’’ words, addition
of definitions specific to the rule, and
other minor edits. At this time, the
agency is not acting on revisions that
conflict with an EPA regulation related
to disposal of pharmaceuticals collected
in drug take-back programs. The EPA’s
approval of the State’s other rule
revisions is being done in accordance
with the requirements of the Clean Air
Act (CAA).
DATES: This final rule is effective on July
2, 2021.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2019–0711. All
documents in the docket are listed on
SUMMARY:
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29517
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, i.e., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional information.
FOR FURTHER INFORMATION CONTACT:
Wendy Vit, Environmental Protection
Agency, Region 7 Office, Air Quality
Planning Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at
(913) 551–7697, or by email at
vit.wendy@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA. This section
provides additional information by
addressing the following:
Table of Contents
I. What is being addressed in this action?
II. Have the requirements for approval of the
SIP revision been met?
III. The EPA’s Response to Comments
IV. What action is the EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What is being addressed in this
action?
The EPA is taking final action to
approve selected revisions to 10 Code of
State Regulations (CSR) 10–6.062 in the
Missouri SIP. The revised State rule was
submitted by the State of Missouri on
March 7, 2019 and became effective on
March 30, 2019. The submission
requested revisions to the SIP that
include: (1) Expanding the materials
that crematories and animal incinerators
are allowed to burn from 100% human
and animal remains to 90% human and
animal remains with up to 10% illegal
and waste pharmaceutical drugs, (2)
modifying operating conditions for
crematories and animal incinerators, (3)
adjusting sulfur limits on Number 2
diesel oil for consistency with Federal
limits, (4) removing ‘‘restrictive’’ words,
(5) adding definitions specific to the
rule, and (6) making other minor edits.
The EPA is finalizing this action
because certain revisions to this State
rule meet the applicable requirements of
the Clean Air Act. EPA is not acting on
the State rule revisions that would allow
crematories and animal incinerators to
burn up to 10% by weight of illegal and
waste pharmaceuticals.
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II. Have the requirements for approval
of the SIP revision been met?
The State’s submission has met the
public notice requirements for SIP
submissions in accordance with 40 CFR
51.102. The submission also satisfied
the completeness criteria of 40 CFR part
51, appendix V. The State provided
public notice of the revisions from
August 1, 2018, to October 4, 2018, and
held a public hearing on September 27,
2018. The State received and addressed
four comments from three sources,
including the EPA. In addition, as
explained in the proposal (85 FR 3304,
January 21, 2020) and in more detail in
the EPA’s technical support document
(TSD), which is part of this docket, the
revision meets the substantive SIP
requirements of the CAA, including
section 110 and the implementing
regulations.
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III. The EPA’s Responses to Comments
The public comment period on the
EPA’s proposed rule opened January 21,
2020, the date of its publication in the
Federal Register, and closed on
February 20, 2020. During this period,
the EPA received comments from two
commenters, which are addressed
below.
Comment 1: One commenter
submitted several comments regarding
revisions in 10 CSR 10–6.062 paragraph
(3)(B)2. and subparagraph (3)(B)2.A. that
would expand the materials which
crematories and animal incinerators are
allowed to burn from 100% human and
animal remains to 90% human and
animal remains with up to 10% illegal
and waste pharmaceutical drugs. The
comments raise multiple approvability
issues. First, the commenter states the
EPA failed to provide any analysis or
basis for its assertion that allowing
crematories and animal incinerators to
burn up to 10% pharmaceuticals would
not impact the stringency of the SIP or
air quality. Second, the commenter
states the EPA applied faulty logic in
relying on the Commercial and
Industrial Solid Waste Incinerator
(CISWI) rule’s exemption for
pathological waste incinerators that
burn 90% pathological waste. The
commenter contends that the 90%
cutoff in the CISWI rule is not a 10%
catch-all burn-what-you-will provision,
rather it is intended to distinguish those
units designed and used primarily for
pathological material destruction from
other units. There is no CISWI rule
provision that allows for the other 10%
of the material to be illegal and waste
pharmaceutical drugs. Third, the
commenter said the EPA’s analysis fails
to recognize that incineration of
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pharmaceutical drugs may be subject to
other federal regulations under sections
112 or 129 of the Clean Air Act or the
Resource Conservation and Recovery
Act (RCRA) depending on their
contents. Finally, the commenter states
the EPA failed to analyze whether
allowing crematories and animal
incinerators to burn pharmaceuticals
would increase hazardous air pollutant
emissions to such an extent that the
source would exceed the major source
threshold and therefore not be eligible
for the construction permit-by-rule per
10 CSR 10–6.062(1)(A).
Response to Comment 1: Because of
the issues raised in these comments, the
EPA is not acting on the revised
language that would allow crematories
and animal incinerators to burn up to
10% by weight of illegal and waste
pharmaceuticals. Missouri added these
provisions as a means of disposing
materials collected from drug take-back
events and programs. However, the
revisions in the State’s rule conflict with
requirements related to drug take-back
programs established by the EPA’s final
regulation, Management Standards for
Hazardous Waste Pharmaceuticals and
Amendment to the P075 Listing for
Nicotine (84 FR 5816, February 22,
2019). Specifically, the requirements for
drug take-back programs codified at 40
CFR 266.506, list five types of permitted
combustors that must be used to destroy
waste pharmaceuticals, and
crematoriums and animal incinerators
are not included on the list for this
purpose. The EPA explains in the
preamble of the final hazardous waste
pharmaceuticals rule that crematories
and animal incinerators are not allowed
to be used for disposal of materials
collected from drug take-back programs
because these units typically do not use
air pollution control devices to limit
toxic air pollutants such as mercury and
dioxins and furans. In addition to the
hazardous waste pharmaceuticals rule,
there may be other state and federal
regulations applicable to crematories
and animal incinerators. Missouri has
represented to the EPA that it is in the
process of revising 10 CSR 10–6.062 to
remove the problematic language
allowing crematories and animal
incinerators to burn illegal and waste
pharmaceutical drugs. As evidence of
Missouri’s rulemaking to revise 10 CSR
10–6.062, the rulemaking report
summarizing the changes Missouri
plans to make is included in this docket.
Comment 2: The commenter states
that Missouri’s rule lacks necessary
enforceability provisions. For instance,
the commenter states that the rule is not
clear whether the demonstration of
99.9% combustion efficiency applies to
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sources that rely on manufacturer’s
specifications, and it is incomplete
because it does not specify what
pollutants must be demonstrated to
meet the 99.9% combustion efficiency.
In addition, the commenter states that
the compliance provisions for stack tests
and opacity limit requirements fail to
identify the appropriate test methods.
The commenter says the rule also lacks
provisions that apply to owners that
follow manufacturers specifications.
Finally, the commenter states that the
recordkeeping and reporting provisions
are inadequate.
Response to Comment 2: To apply for
a Missouri permit-by-rule, an applicant
completes an application. The
application form contains the
conditions of operation, including
methods of compliance. The applicant
signs the form to accept the conditions.
This becomes the final permit issued by
the Missouri Department of Natural
Resources.1 It is EPA’s understanding
that Missouri is in the process of
updating the application form to reflect
the changes made in this revision to the
State rule.
The revised rule language clearly
specifies the following two compliance
demonstration options for crematories
and animal incinerators: (1) Operate in
accordance with manufacturer’s
specifications or (2) demonstrate a
99.9% combustion efficiency. Higher
combustion efficiencies minimize the
products of incomplete combustion and
associated air pollutants.
The EPA reviewed a number of
Missouri construction permits for
crematories and animal incinerators that
have been issued through the State’s
formal construction permitting process
in accordance with the SIP-approved
rule, 10 CSR 10–6.060 Construction
Permits Required. The revised
compliance options and enforceability
provisions in 10 CSR 10–6.062 for
crematories and animal incinerators are
consistent with the language in the
permits for these units that have been
issued under 10 CSR 10–6.060.
The rule language regarding opacity
and reporting and recordkeeping
requirements was not materially revised
from the provisions in the previously
approved SIP. The EPA did not intend
to solicit comments on the rule
requirements that the state did not
materially change in this rulemaking.
The agency initially approved 10 CSR
10–6.062 in 2006 (71 FR 38997, July 11,
2006), and the opacity and reporting
and recordkeeping provisions have not
1 Missouri’s permit-by-rule application forms may
be found here https://dnr.mo.gov/forms/
#AirPollution.
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been revised since then. Courts have
indicated that actions, such as the
action taken on this rule, do not reopen
issues on which the agency was not
seeking comment. Sierra Club v. EPA,
551 F.3d 1019, 1024 (D.C. Cir. 2008)
(citing Am. Iron & Steel Inst. v. EPA,
886 F.2d 390, 397 (D.C. Cir. 1989))
(‘‘Under the reopening doctrine, the
time for seeking review starts anew
where the agency reopens an issue by
holding out the unchanged section as a
proposed regulation, offering an
explanation for its language, soliciting
comments on its substance, and
responding to the comments in
promulgating the regulation in its final
form.’’); Appalachian Power v. EPA, 251
F.3d 1026 (D.C. Cir. 2004).2 There are no
known issues with the enforcement of
this rule. Therefore, the EPA is
finalizing this SIP revision.
Comment 3: The commenter stated
that the EPA failed to provide a basis for
proposing to approve the addition of
eleven (11) definitions in section (2) of
the rule. The commenter states it
appears that the EPA is assuming that
previously approved definitions can be
moved into the rule. The commenter
finds that it is unclear why the
definition of ‘‘incinerator’’ was moved
into this rule because it covers refuse
material and open burning. The
commenter also states that the
definition of ‘‘construction’’ moved into
this rule does not match the definition
of construction in the permitting rule
that the owner/operator seeks
exemption from [10 CSR 10–6.060] and
the reason for the difference is not
explained. Additionally, the commenter
notes that the definition of ‘‘printing’’
differs from the section that covers
printing operations (paragraph (3)(B)1.),
which is more encompassing. Finally,
the commenter states the definition of
‘‘closed container’’ speaks to
requirements regarding spilling and
leaking the contents and fails to require
that the closed container prevents
volatile organic compound (VOC)
fugitives.
Response to Comment 3: As explained
in detail in the TSD, the definitions
inserted into 10 CSR 10–6.062 section
2 ARTBA v. EPA, 588 F.3d 1109 at 1114 (rewriting
a rule in plain language does not reopen); Kennecott
Utah Copper Corp. v. U.S. Dept. of the Interior, 88
F.3d 1191 at 1220 (no reopener where agency
‘‘merely re-worded the provision’’ with ‘‘no
meaningful difference’’); Columbia Falls Aluminum
Co. v. EPA, 139 F.3d 914, 920 (D.C. Cir. 1998)
(dictum) (no reopener where agency action ‘‘merely
republished an existing rule’’); cf. also Pub. Citizen
v. Nuclear Regulatory Com., 901 F.2d 147, 150 (D.C.
Cir. 1990) (‘‘where an agency’s actions show that it
has not merely republished an existing rule in order
to propose minor changes to it, but has
reconsidered the rule and decided to keep it in
effect, challenges to the rule are in order’’).
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(2) are the same definitions included in
the SIP-approved 10 CSR 10–6.020
Definitions and Common Reference
Tables, and therefore there is no change
to the stringency of the SIP. As
explained above, the EPA did not intend
to solicit comments on the portions of
the rule that the State did not materially
change in this rulemaking. Furthermore,
the addition of these general definitions
in section (2) of the rule does not impact
any of the rule’s conditions or
requirements. The provisions in the
permit-by-rule for each source category
covered by 10 CSR 10–6.062 contain
greater specificity related to usage of the
terms.
Comment 4: An anonymous
commenter recommended that the
revisions not be approved. The
commenter stated that instead more
stringent protections and regulations
with penalties should be put in place to
better protect the environment and
public.
Response to Comment 4: The permitby-rule for each source category in
subsection (3)(B) of the rule includes
enforcement provisions. In addition,
subsection (3)(C) includes provisions for
revoking a permit-by-rule and penalties
for non-compliance, and section (4)
includes reporting and recordkeeping
requirements. There are no known
issues with the enforcement of this rule.
For the reasons stated above and in the
proposal, the EPA has determined that
the rule revisions comply with the
requirements of the Clean Air Act.
IV. What action is the EPA taking?
The EPA is approving all revisions
from the March 30, 2019, State effective
date version of 10 CSR 10–6.062 into the
Missouri SIP, except for revisions to
paragraph (3)(B)2. and subparagraph
(3)(B)2.A. We are taking final action
after consideration of the comments
received from two commenters on the
notice of proposed rulemaking.
V. Incorporation by Reference
In this document, the EPA is
finalizing regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is finalizing the
incorporation by reference of the
Missouri Regulations described in the
amendments to 40 CFR part 52 set forth
below. The EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 7 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
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29519
Therefore, these materials have been
approved by the EPA for inclusion in
the State Implementation Plan, have
been incorporated by reference by EPA
into that plan, are fully federally
enforceable under sections 110 and 113
of the CAA as of the effective date of the
final rulemaking of the EPA’s approval,
and will be incorporated by reference in
the next update to the SIP compilation.3
VI. 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); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
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 Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• 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 the
National Technology Transfer and
Advancement Act (NTTA) because this
rulemaking does not involve technical
standards; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
3 62
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FR 27968, May 22, 1997.
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practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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. The 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 2, 2021. 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, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: May 21, 2021.
Edward H. Chu,
Acting Regional Administrator, Region 7.
For the reasons stated in the
preamble, the EPA amends 40 CFR part
52 as set forth below:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
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, the table in paragraph
(c) is amended by revising the entry
‘‘10–6.062’’ to read as follows:
■
§ 52.1320
Identification of plan.
(c) * * *
EPA-APPROVED MISSOURI REGULATIONS
Missouri
citation
State
effective
date
Title
EPA approval date
Explanation
Missouri Department of Natural Resources
*
*
*
*
*
*
*
Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of
Missouri
*
10–6.062 ........................
*
*
Construction Permits By
Rule.
*
*
*
*
*
*
*
3/30/2019 ......................
*
*
[FR Doc. 2021–11244 Filed 6–1–21; 8:45 am]
*
*
*
6/2/2021, [insert FedEPA is approving all revisions from
eral Register citation].
the 3/30/2019 State effective date
version of 10 CSR 10–6.062, except for paragraph (3)(B)2. and
subparagraph (3)(B)2.A.
*
*
ENVIRONMENTAL PROTECTION
AGENCY
BILLING CODE 6560–50–P
40 CFR Part 52
[EPA–R01–OAR–2021–0006; FRL–10024–
50–Region 1]
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Air Plan Approval; Maine; Removal of
Reliance on Reformulated Gasoline in
the Southern Counties of Maine
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
SUMMARY:
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17:10 Jun 01, 2021
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*
*
Implementation Plan (SIP) revision
submitted by the State of Maine. This
revision incorporates Maine’s statute
repealing the State’s requirement for the
sale of federal reformulated gasoline
(RFG) in York, Cumberland, Sagadahoc,
Androscoggin, Kennebec, Knox and
Lincoln Counties (hereinafter referred to
as the ‘‘southern Maine counties’’) into
the Maine SIP. The intended effect of
this action is to approve the SIP revision
and approve, but not incorporate into
the SIP, the corresponding
noninterference demonstration. At this
time, EPA is not removing the
requirement for the sale of federal RFG
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]]>Agencies
[Federal Register Volume 86, Number 104 (Wednesday, June 2, 2021)]
[Rules and Regulations]
[Pages 29517-29520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11244]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[[EPA-R07-OAR-2019-0711; FRL-10024-22-Region 7]
Air Plan Approval; Missouri; Construction Permits By Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
selected revisions to a Missouri State rule in the State Implementation
Plan (SIP) that establishes a process and standardized conditions under
which certain types of sources can construct and operate in lieu of
going through the State's formal construction permitting process. The
EPA is approving rule revisions that include modifications to the
operating conditions for crematories and animal incinerators,
adjustments to sulfur limits on Number 2 diesel oil for consistency
with Federal limits, removal of ``restrictive'' words, addition of
definitions specific to the rule, and other minor edits. At this time,
the agency is not acting on revisions that conflict with an EPA
regulation related to disposal of pharmaceuticals collected in drug
take-back programs. The EPA's approval of the State's other rule
revisions is being done in accordance with the requirements of the
Clean Air Act (CAA).
DATES: This final rule is effective on July 2, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R07-OAR-2019-0711. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional information.
FOR FURTHER INFORMATION CONTACT: Wendy Vit, Environmental Protection
Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at (913) 551-7697, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA. This section provides additional information
by addressing the following:
Table of Contents
I. What is being addressed in this action?
II. Have the requirements for approval of the SIP revision been met?
III. The EPA's Response to Comments
IV. What action is the EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What is being addressed in this action?
The EPA is taking final action to approve selected revisions to 10
Code of State Regulations (CSR) 10-6.062 in the Missouri SIP. The
revised State rule was submitted by the State of Missouri on March 7,
2019 and became effective on March 30, 2019. The submission requested
revisions to the SIP that include: (1) Expanding the materials that
crematories and animal incinerators are allowed to burn from 100% human
and animal remains to 90% human and animal remains with up to 10%
illegal and waste pharmaceutical drugs, (2) modifying operating
conditions for crematories and animal incinerators, (3) adjusting
sulfur limits on Number 2 diesel oil for consistency with Federal
limits, (4) removing ``restrictive'' words, (5) adding definitions
specific to the rule, and (6) making other minor edits. The EPA is
finalizing this action because certain revisions to this State rule
meet the applicable requirements of the Clean Air Act. EPA is not
acting on the State rule revisions that would allow crematories and
animal incinerators to burn up to 10% by weight of illegal and waste
pharmaceuticals.
[[Page 29518]]
II. Have the requirements for approval of the SIP revision been met?
The State's submission has met the public notice requirements for
SIP submissions in accordance with 40 CFR 51.102. The submission also
satisfied the completeness criteria of 40 CFR part 51, appendix V. The
State provided public notice of the revisions from August 1, 2018, to
October 4, 2018, and held a public hearing on September 27, 2018. The
State received and addressed four comments from three sources,
including the EPA. In addition, as explained in the proposal (85 FR
3304, January 21, 2020) and in more detail in the EPA's technical
support document (TSD), which is part of this docket, the revision
meets the substantive SIP requirements of the CAA, including section
110 and the implementing regulations.
III. The EPA's Responses to Comments
The public comment period on the EPA's proposed rule opened January
21, 2020, the date of its publication in the Federal Register, and
closed on February 20, 2020. During this period, the EPA received
comments from two commenters, which are addressed below.
Comment 1: One commenter submitted several comments regarding
revisions in 10 CSR 10-6.062 paragraph (3)(B)2. and subparagraph
(3)(B)2.A. that would expand the materials which crematories and animal
incinerators are allowed to burn from 100% human and animal remains to
90% human and animal remains with up to 10% illegal and waste
pharmaceutical drugs. The comments raise multiple approvability issues.
First, the commenter states the EPA failed to provide any analysis or
basis for its assertion that allowing crematories and animal
incinerators to burn up to 10% pharmaceuticals would not impact the
stringency of the SIP or air quality. Second, the commenter states the
EPA applied faulty logic in relying on the Commercial and Industrial
Solid Waste Incinerator (CISWI) rule's exemption for pathological waste
incinerators that burn 90% pathological waste. The commenter contends
that the 90% cutoff in the CISWI rule is not a 10% catch-all burn-what-
you-will provision, rather it is intended to distinguish those units
designed and used primarily for pathological material destruction from
other units. There is no CISWI rule provision that allows for the other
10% of the material to be illegal and waste pharmaceutical drugs.
Third, the commenter said the EPA's analysis fails to recognize that
incineration of pharmaceutical drugs may be subject to other federal
regulations under sections 112 or 129 of the Clean Air Act or the
Resource Conservation and Recovery Act (RCRA) depending on their
contents. Finally, the commenter states the EPA failed to analyze
whether allowing crematories and animal incinerators to burn
pharmaceuticals would increase hazardous air pollutant emissions to
such an extent that the source would exceed the major source threshold
and therefore not be eligible for the construction permit-by-rule per
10 CSR 10-6.062(1)(A).
Response to Comment 1: Because of the issues raised in these
comments, the EPA is not acting on the revised language that would
allow crematories and animal incinerators to burn up to 10% by weight
of illegal and waste pharmaceuticals. Missouri added these provisions
as a means of disposing materials collected from drug take-back events
and programs. However, the revisions in the State's rule conflict with
requirements related to drug take-back programs established by the
EPA's final regulation, Management Standards for Hazardous Waste
Pharmaceuticals and Amendment to the P075 Listing for Nicotine (84 FR
5816, February 22, 2019). Specifically, the requirements for drug take-
back programs codified at 40 CFR 266.506, list five types of permitted
combustors that must be used to destroy waste pharmaceuticals, and
crematoriums and animal incinerators are not included on the list for
this purpose. The EPA explains in the preamble of the final hazardous
waste pharmaceuticals rule that crematories and animal incinerators are
not allowed to be used for disposal of materials collected from drug
take-back programs because these units typically do not use air
pollution control devices to limit toxic air pollutants such as mercury
and dioxins and furans. In addition to the hazardous waste
pharmaceuticals rule, there may be other state and federal regulations
applicable to crematories and animal incinerators. Missouri has
represented to the EPA that it is in the process of revising 10 CSR 10-
6.062 to remove the problematic language allowing crematories and
animal incinerators to burn illegal and waste pharmaceutical drugs. As
evidence of Missouri's rulemaking to revise 10 CSR 10-6.062, the
rulemaking report summarizing the changes Missouri plans to make is
included in this docket.
Comment 2: The commenter states that Missouri's rule lacks
necessary enforceability provisions. For instance, the commenter states
that the rule is not clear whether the demonstration of 99.9%
combustion efficiency applies to sources that rely on manufacturer's
specifications, and it is incomplete because it does not specify what
pollutants must be demonstrated to meet the 99.9% combustion
efficiency. In addition, the commenter states that the compliance
provisions for stack tests and opacity limit requirements fail to
identify the appropriate test methods. The commenter says the rule also
lacks provisions that apply to owners that follow manufacturers
specifications. Finally, the commenter states that the recordkeeping
and reporting provisions are inadequate.
Response to Comment 2: To apply for a Missouri permit-by-rule, an
applicant completes an application. The application form contains the
conditions of operation, including methods of compliance. The applicant
signs the form to accept the conditions. This becomes the final permit
issued by the Missouri Department of Natural Resources.\1\ It is EPA's
understanding that Missouri is in the process of updating the
application form to reflect the changes made in this revision to the
State rule.
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\1\ Missouri's permit-by-rule application forms may be found
here https://dnr.mo.gov/forms/#AirPollution.
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The revised rule language clearly specifies the following two
compliance demonstration options for crematories and animal
incinerators: (1) Operate in accordance with manufacturer's
specifications or (2) demonstrate a 99.9% combustion efficiency. Higher
combustion efficiencies minimize the products of incomplete combustion
and associated air pollutants.
The EPA reviewed a number of Missouri construction permits for
crematories and animal incinerators that have been issued through the
State's formal construction permitting process in accordance with the
SIP-approved rule, 10 CSR 10-6.060 Construction Permits Required. The
revised compliance options and enforceability provisions in 10 CSR 10-
6.062 for crematories and animal incinerators are consistent with the
language in the permits for these units that have been issued under 10
CSR 10-6.060.
The rule language regarding opacity and reporting and recordkeeping
requirements was not materially revised from the provisions in the
previously approved SIP. The EPA did not intend to solicit comments on
the rule requirements that the state did not materially change in this
rulemaking. The agency initially approved 10 CSR 10-6.062 in 2006 (71
FR 38997, July 11, 2006), and the opacity and reporting and
recordkeeping provisions have not
[[Page 29519]]
been revised since then. Courts have indicated that actions, such as
the action taken on this rule, do not reopen issues on which the agency
was not seeking comment. Sierra Club v. EPA, 551 F.3d 1019, 1024 (D.C.
Cir. 2008) (citing Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 397
(D.C. Cir. 1989)) (``Under the reopening doctrine, the time for seeking
review starts anew where the agency reopens an issue by holding out the
unchanged section as a proposed regulation, offering an explanation for
its language, soliciting comments on its substance, and responding to
the comments in promulgating the regulation in its final form.'');
Appalachian Power v. EPA, 251 F.3d 1026 (D.C. Cir. 2004).\2\ There are
no known issues with the enforcement of this rule. Therefore, the EPA
is finalizing this SIP revision.
---------------------------------------------------------------------------
\2\ ARTBA v. EPA, 588 F.3d 1109 at 1114 (rewriting a rule in
plain language does not reopen); Kennecott Utah Copper Corp. v. U.S.
Dept. of the Interior, 88 F.3d 1191 at 1220 (no reopener where
agency ``merely re-worded the provision'' with ``no meaningful
difference''); Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 920
(D.C. Cir. 1998) (dictum) (no reopener where agency action ``merely
republished an existing rule''); cf. also Pub. Citizen v. Nuclear
Regulatory Com., 901 F.2d 147, 150 (D.C. Cir. 1990) (``where an
agency's actions show that it has not merely republished an existing
rule in order to propose minor changes to it, but has reconsidered
the rule and decided to keep it in effect, challenges to the rule
are in order'').
---------------------------------------------------------------------------
Comment 3: The commenter stated that the EPA failed to provide a
basis for proposing to approve the addition of eleven (11) definitions
in section (2) of the rule. The commenter states it appears that the
EPA is assuming that previously approved definitions can be moved into
the rule. The commenter finds that it is unclear why the definition of
``incinerator'' was moved into this rule because it covers refuse
material and open burning. The commenter also states that the
definition of ``construction'' moved into this rule does not match the
definition of construction in the permitting rule that the owner/
operator seeks exemption from [10 CSR 10-6.060] and the reason for the
difference is not explained. Additionally, the commenter notes that the
definition of ``printing'' differs from the section that covers
printing operations (paragraph (3)(B)1.), which is more encompassing.
Finally, the commenter states the definition of ``closed container''
speaks to requirements regarding spilling and leaking the contents and
fails to require that the closed container prevents volatile organic
compound (VOC) fugitives.
Response to Comment 3: As explained in detail in the TSD, the
definitions inserted into 10 CSR 10-6.062 section (2) are the same
definitions included in the SIP-approved 10 CSR 10-6.020 Definitions
and Common Reference Tables, and therefore there is no change to the
stringency of the SIP. As explained above, the EPA did not intend to
solicit comments on the portions of the rule that the State did not
materially change in this rulemaking. Furthermore, the addition of
these general definitions in section (2) of the rule does not impact
any of the rule's conditions or requirements. The provisions in the
permit-by-rule for each source category covered by 10 CSR 10-6.062
contain greater specificity related to usage of the terms.
Comment 4: An anonymous commenter recommended that the revisions
not be approved. The commenter stated that instead more stringent
protections and regulations with penalties should be put in place to
better protect the environment and public.
Response to Comment 4: The permit-by-rule for each source category
in subsection (3)(B) of the rule includes enforcement provisions. In
addition, subsection (3)(C) includes provisions for revoking a permit-
by-rule and penalties for non-compliance, and section (4) includes
reporting and recordkeeping requirements. There are no known issues
with the enforcement of this rule. For the reasons stated above and in
the proposal, the EPA has determined that the rule revisions comply
with the requirements of the Clean Air Act.
IV. What action is the EPA taking?
The EPA is approving all revisions from the March 30, 2019, State
effective date version of 10 CSR 10-6.062 into the Missouri SIP, except
for revisions to paragraph (3)(B)2. and subparagraph (3)(B)2.A. We are
taking final action after consideration of the comments received from
two commenters on the notice of proposed rulemaking.
V. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the
Missouri Regulations described in the amendments to 40 CFR part 52 set
forth below. The EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and at the
EPA Region 7 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
Therefore, these materials have been approved by the EPA for
inclusion in the State Implementation Plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of the EPA's approval, and will be incorporated by reference
in the next update to the SIP compilation.\3\
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\3\ 62 FR 27968, May 22, 1997.
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VI. 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); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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 the National Technology
Transfer and Advancement Act (NTTA) because this rulemaking does not
involve technical standards; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using
[[Page 29520]]
practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
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. The 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 2, 2021. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: May 21, 2021.
Edward H. Chu,
Acting Regional Administrator, Region 7.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as set forth below:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart AA--Missouri
0
2. In Sec. 52.1320, the table in paragraph (c) is amended by revising
the entry ``10-6.062'' to read as follows:
Sec. 52.1320 Identification of plan.
(c) * * *
EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
State effective
Missouri citation Title date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
Missouri Department of Natural Resources
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
Regulations for the State of Missouri
----------------------------------------------------------------------------------------------------------------
* * * * * * *
10-6.062........................ Construction 3/30/2019......... 6/2/2021, [insert EPA is approving
Permits By Rule. Federal Register all revisions
citation]. from the 3/30/
2019 State
effective date
version of 10 CSR
10-6.062, except
for paragraph
(3)(B)2. and
subparagraph
(3)(B)2.A.
* * * * * * *
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* * * * *
[FR Doc. 2021-11244 Filed 6-1-21; 8:45 am]
BILLING CODE 6560-50-P
