[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]
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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.
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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
I. 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
A. State Budgets
B. CAMR State Plan
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Taking?
EPA is taking final action to approve Missouri's State Plan,
submitted on May
[[Page 3195]]
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.
II. 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.
III. 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.
IV. 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.
V. Analysis of Missouri's CAMR State Plan Submittal
A. 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.
B. 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
[[Page 3196]]
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.
VI. 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.
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\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.
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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]
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1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
[[Page 3197]]
Subpart AA--Missouri
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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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