[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7711-7714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4565]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-29-1-7151a; FRL-5425-2]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This document takes final action to approve the State
Implementation Plans (SIP) submitted by the state of Missouri for the
purpose of fulfilling the requirements set forth in EPA's
Transportation Conformity rule. The SIPs were submitted by the state to
satisfy the Federal requirements in 40 CFR 51.396.
DATES: This action is effective April 29, 1996 unless by April 1, 1996
adverse or critical comments are received.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the:
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue,
Kansas City, Kansas 66101; and EPA Air & Radiation Docket and
Information Center, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Lisa V. Haugen at (913) 551-7877.
SUPPLEMENTARY INFORMATION:
I. Background
Section 176(c)(4) of the Clean Air Act, as amended (CAA), requires
the EPA to promulgate criteria and procedures for demonstrating and
ensuring conformity of Federal actions to an applicable implementation
plan developed pursuant to section 110 and part D of the CAA.
Conformity to an implementation plan is defined by the CAA as
conformity to an implementation plan's purpose of eliminating or
reducing the severity and number of violations of the National Ambient
Air Quality Standards, and achieving expeditious attainment of such
standards. On November 23, 1993, the EPA promulgated the final rule
(hereafter referred to as the Transportation Conformity rule), which
established the process by which the Federal Highway Administration
(FHWA), the Federal Transit Administration (FTA), and metropolitan
planning organizations (MPO) determine conformity of highway and
transit projects.
The Transportation Conformity rule also establishes the criteria
for EPA approval of SIPs. See 40 CFR Sec. 51.396. These criteria
provide that the state provisions must be at least as stringent as the
requirements specified in EPA's Transportation Conformity rule, and
that they can be more stringent only if they apply equally to
nonfederally funded transportation projects as well as those using
Federal funds (section 51.396(a)).
The St. Louis area was designated nonattainment for ozone and
carbon monoxide (CO) in 1978. On November 6, 1991, EPA promulgated a
rule which classified the St. Louis area as a moderate ozone
nonattainment area, and as an unclassified nonattainment area for CO.
Kansas City was redesignated to attainment for ozone, and a maintenance
plan was approved, in a June 23, 1992, Federal Register notice. Section
51.396 of the Transportation Conformity rule requires that states with
areas subject to the rule submit an SIP revision containing the
criteria and procedures for FHWA, FTA, MPOs, and other state or local
agencies to assess the conformity of transportation plans,
Transportation Improvement Programs (TIP), and projects to the
applicable SIP, within 12 months after November 23, 1993. As the rule
applies to all ozone and CO nonattainment and maintenance areas, SIP
revisions for the St. Louis and Kansas City areas, addressing the
requirements of the Transportation Conformity rule, became due on
November 24, 1994.
II. Review of State Submittal
On February 14, 1995, the state of Missouri submitted
Transportation Conformity SIP revisions for Kansas City and St. Louis.
The submission included an SIP revision for Kansas City along with
Missouri rule 10 CSR 10-2.390 (10-2.390), and an SIP revision,
including Missouri rule 10 CSR 10-5.480 (10-5.480), which applies to
St. Louis. Section 51.396 requires that, for the SIP revision to be
approvable by EPA, certain sections of the Transportation Conformity
rule be incorporated verbatim.
The state of Missouri chose to use the model Transportation
Conformity rule developed by the State and Territorial Air Pollution
Program Administrators (STAPPA)/Association of Local Air Pollution
Control Officials (ALAPCO). The STAPPA/ALAPCO model rule added
clarifying changes consistent with the intent of the Federal rule. For
instance, 10-5.480(10)(B) and 10-2.390(10)(B) include examples of the
types of planning assumptions which must be considered in making
conformity determinations. The examples are added to the language in
section 51.412 of the Federal rule, but do not change the section's
intent. The
[[Page 7712]]
STAPPA/ALAPCO rule also contains ``more stringent'' and ``lateral''
options which change the substance of the Federal rule. Provisions in
the STAPPA/ALAPCO rule which are more stringent than the Federal rule
are identified as ``Optional More Stringent Version,'' ``Optional More
Stringent Additional Provision,'' or ``Optional More Stringent and
Potentially Discriminatory Versions.'' Options which address subjects
not covered by the Federal Conformity rule, or which expand the
coverage of the Federal rule's requirements, are identified as
``Lateral Expansion Option'' in the STAPPA/ALAPCO rule. Missouri did
not adopt any of these options from the model rule. Therefore, except
as noted below, EPA finds that the Missouri submissions meet the
criteria set forth in section 51.396 of the Transportation Conformity
rule.
On February 8, 1995, EPA published an interim final rule entitled,
``Transportation Conformity Rule Amendments: Transition to the Control
Strategy Period.'' This interim final rule, which modified the language
in sections 51.448 and 93.128 of the Federal rule, was effective
immediately and applied until August 8, 1995. A proposed rule for these
language modifications was also published February 8, 1995, and a final
rule was published on August 7, 1995. Missouri rules 10 CSR 10-
5.480(22) and 10-2.390(20) reflect the Federal rule requirements before
the publication of the interim final rule. Specifically, the Missouri
rule provides that conformity will lapse 12 months from the date of an
EPA finding of specific SIP deficiencies. Therefore, EPA is approving
the state's Transportation Conformity SIP revisions with the exception
of the aforementioned portions of the Missouri rules. Section 93.128 of
the Federal Transportation Conformity rule, as amended on August 7,
1995, will remain in effect until the state of Missouri submits an SIP
revision which incorporates the changes in the Federal rule. Section
93.128, as amended, states that a conformity lapse resulting from a
finding of certain SIP deficiencies is delayed until CAA section 179(b)
highway sanctions for these deficiencies are applied.
On August 29, 1995, EPA published an interim final rulemaking
amending the November 24, 1993, final Transportation Conformity rule to
remove the statutory reference relating to exempting certain areas from
certain NOX provisions of the Transportation Conformity rule.
Specifically, the interim final rule removed the reference to NOX
waivers under Sec. 182(f) to ensure that the waivers had to be approved
as part of the implementation plan revision process discussed in
Sec. 182(b) of the CAA, in order to exempt areas from the requirement
to make conformity determinations for NOX. Missouri rules 10 CSR
10-2.390 and 10 CSR 10-5.480 specifically reference waivers approved
under Sec. 182(f) as the statutory authority which would relieve areas
from the NOX conformity requirements. In a letter dated December
7, 1995, from David Shorr, Director, Missouri Department of Natural
Resources to Dennis Grams, Regional Administrator, EPA, the state of
Missouri confirms its understanding that, should EPA approve an
NOX waiver under Sec. 182(f), this waiver does not relieve the
state from the NOX conformity requirements in the Transportation
Conformity rule. The letter further states that Missouri intends to
implement its rule in a manner consistent with EPA's interim final
rule, so that the conformity requirements will continue to apply until
any NOX waiver request has undergone a public hearing, has been
submitted to EPA, and has been subsequently approved as an SIP
revision.
On November 14, 1995, the EPA promulgated a final rule which
amended certain provisions of the Federal Transportation Conformity
rule. These changes include allowing any transportation control measure
from an approved SIP to proceed during a conformity lapse; aligning the
date of conformity lapses with the date of application of the CAA
highway sanctions for any failure to submit or submission of an
incomplete control strategy SIP; extension of the grace period before
which areas must determine conformity to a submitted control strategy
SIP; establishment of a grace period before which transportation plan
and program conformity must be determined in newly designated
nonattainment areas; and a correction of the nitrogen oxides provisions
of the Transportation Conformity rule so they are consistent with the
CAA and previous commitments made by EPA. As the state adopted and
submitted its Transportation Conformity rules prior to the publication
of the November 14, 1995, rule amendments, and a Transportation
Conformity SIP revision consistent with these amendments must be
submitted to EPA by 12 months from November 14, 1995, EPA believes it
is reasonable to approve the state's submittal. EPA expects Missouri to
amend its conformity rules consistent with the November 1995 rule
amendments and submit the amendments to EPA for approval by November
1996.
The Missouri SIP revisions, including 10-2.390 and 10-5.480, were
adopted by the Missouri Air Conservation Commission, after proper
notice and public hearing, on January 12, 1995, and became effective on
May 28, 1995. These rules apply in all nonattainment and maintenance
areas for transportation-related criteria pollutants for which the area
is designated nonattainment, or has a maintenance plan as required by
sections 51.394 and 93.102 of the Transportation Conformity rule.
Because the Missouri rules meet the substantive requirements of
EPA's Transportation Conformity rule, EPA has determined that these
submissions meet the requirements for an approvable Transportation
Conformity SIP.
III. Specific Language Changes
The Missouri Transportation Conformity rules include changes which
clarify the text of the Federal rule, as explained below. Other changes
reflect guidance issued by EPA in the Preamble of the final
Transportation Conformity rule.
A. The preamble to the November 1993 Transportation Conformity rule
states that there must be consistency between the SIP and the
conformity analysis regarding modeling parameters such as temperature,
season, etc. This regulatory requirement is incorrectly stated only in
sections 51.452(b)(5) and 93.130(b)(5), which apply to serious, severe,
and extreme ozone nonattainment areas and serious carbon monoxide areas
after January 1, 1995. In an October 14, 1994, EPA memorandum, it is
indicated that it was EPA's intent for this requirement to apply to all
areas. This memorandum also cited an incorrect reference in sections
51.452(c)(1) and 93.130(c)(1) to paragraph (a) of the same section. The
reference should have been to paragraph (b). The corrections are made
in 10-2.390(24)(A)6., 10-2.390(24)(C)1., 10-5.480(26)(A)6., and 10-
5.480(26)(C)1. of the Missouri rules.
B. Sections 51.458 and 93.133 require the Transportation Conformity
SIP revisions to provide that written commitments to mitigation
measures must be obtained prior to a positive conformity determination,
and that project sponsors must comply with such commitments. The
Missouri rules modify this language to make it appropriate for the
state rules in 10-2.390(26)(C) and 10-5.480(29)(C).
C. In part IV(L)(1) of the Preamble to the final Transportation
Conformity
[[Page 7713]]
rule, EPA stated that Transportation Conformity SIPs should specify
what action by an affected recipient of funds designated under Title 23
U.S.C. or the Federal Transit Act, constitutes adoption or approval of
a nonfederal transportation project for inclusion in a regional
emissions analysis. ``Adoption and approval'' are defined in 10-
2.390(5)(C)4.C. and 10-5.480(5)(C)3.D.
D. Part IV(F)(1) of the Preamble to the final Transportation
Conformity rule discusses the ``timely implementation'' of
transportation control measures as being a criteria for a conformity
determination. Specifically, EPA uses the term ``maximum priority.''
10-2.390(13)(C) and 10-5.480(13)(C) add language which clarifies the
term ``maximum priority.''
IV. Consultation
Section 51.402 (93.105) requires the state to include procedures
for interagency consultation and resolution of conflicts in the
Transportation Conformity SIPs. The SIPs are to provide ``well-defined
consultation procedures whereby representatives of the MPOs, state and
local air quality planning agencies, state and local transportation
agencies * * * must consult with each other and with local or regional
offices of EPA, FHWA, and FTA on the development of the implementation
plan, the TIP, and associated conformity determinations.'' Both 10-
2.390(5) and 10-5.480(5) establish consultation procedures which meet
EPA's consultation criteria.
Both St. Louis and Kansas City are bistate areas. 10-2.390(5) and
10-5.480(5) establish the consultation, conflict resolution and public
participation procedures for conformity determinations, SIPs,
transportation plans, and TIPs, and clearly state the agencies that
will be involved in the consultation process in Kansas and Missouri for
the Kansas City area, and in Illinois and Missouri for the St. Louis
area. The roles and responsibilities of each agency are outlined in
detail.
The consultation process established in 10-2.390(5) and 10-5.480(5)
incorporate the basic principle behind sections 51.402 and 93.105 in
the Federal Transportation Conformity rule. Missouri has established a
mechanism by which every agency with any responsibility for any key
transportation or air quality decision must consult with every other
agency with an interest in that decision. Each interested party is
provided with all the necessary information needed for meaningful input
and, prior to taking any action, the views of the party are considered
and responded to in a substantive manner. The reader is referred to the
Technical Support Document for information on specific processes within
the interagency consultation procedures, including conflict resolution
procedures and the public participation process. EPA has determined
that sections 10-2.390(5) and 10-5.480(5) meet the requirements of
52.402 and 93.105 of the Federal Transportation Conformity rule.
EPA Action: The effect of this action is that EPA grants full
approval of Missouri's February 14, 1995, submittals. These SIP
revisions meet the requirements set forth in 40 CFR Sec. 51.396. As
explained above, Missouri will be required to revise its rules
consistent with revisions promulgated by EPA subsequent to Missouri's
adoption of its rules.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities (5 U.S.C. Secs. 603 and
604). Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
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, because the Federal SIP
approval does not impose any new requirements, EPA certifies that it
does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-state relationship under the
CAA, preparation of a regulatory 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. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this state implementation plan, the state has
elected to adopt the program provided for under section 110 of the CAA.
These rules may bind state and local governments to perform certain
actions and also require the private sector to perform certain duties.
To the extent that the rules being finalized for approval by this
action will impose new requirements, sources are already subject to
these regulations under state law. Accordingly, no additional costs to
state or local governments, or to the private sector, result from this
final action. EPA has also determined that this final action does not
include a mandate that may result in estimated costs of $100 million or
more to state or local governments in the aggregate or to the private
sector. EPA has determined that these rules result in no additional
costs to tribal government.
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 April 29, 1996. Filing a petition for
reconsideration by the
[[Page 7714]]
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 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and record keeping requirements, Volatile organic compounds.
Dated: February 6, 1996.
Dennis Grams,
Regional Administrator.
Part 52, 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. 7401-7671q.
Subpart AA--Missouri
2. Section 52.1320 is amended by adding paragraph (c)(92) to read
as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(c) * * *
(92) On February 14, 1995, the Missouri Department of Natural
Resources submitted two new rules which pertain to transportation
conformity in Kansas City and St. Louis.
(i) Incorporation by reference.
(A) New rule 10 CSR 10-2.390 (except section (20) Criteria and
Procedures: Interim Period Reductions in Ozone Areas (TIP)) and 10 CSR
10-5.480 (except section (22) Criteria and Procedures: Interim Period
Reductions in Ozone Areas (TIP)), both entitled Conformity to State
Implementation Plans of Transportation Plans, Programs, and Projects
Developed, Funded, or Approved Under Title 23 U.S.C. or the Federal
Transit Act, effective May 28, 1995.
(ii) Additional material.
(A) Missouri's Air Pollution Control Plan, St. Louis Metropolitan
Area Ozone and Carbon Monoxide Transportation Conformity, January 12,
1995.
(B) Missouri's Air Pollution Control Plan, Kansas City Metropolitan
Area Ozone Transportation Conformity, January 12, 1995.
(C) Policy agreement, entered into between the Missouri Department
of Natural Resources, the Mid-America Regional Council, and the Highway
and Transportation Commission of the state of Missouri, dated August
31, 1993.
(D) Letter from the state of Missouri to EPA, dated December 7,
1995, in which the state commits to implementing its state rule
consistent with the Federal Transportation Conformity rule, as amended
on August 29, 1995, with regards to the granting of an NOx waiver
and the NOx conformity requirements.
[FR Doc. 96-4565 Filed 2-28-96; 8:45 am]
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