[Federal Register Volume 59, Number 24 (Friday, February 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2590]
[[Page Unknown]]
[Federal Register: February 4, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-16-1-6022; FRL-4833-8]
Clean Air Act Approval and Promulgation of Commitment to Adopt a
Rule for Reasonably Available Control Technology for Oxides of Nitrogen
for Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to conditionally approve revisions to the State
implementation plan (SIP) for ozone submitted by the state of Missouri.
This portion of the implementation plan was submitted by the state to
satisfy Clean Air Act (CAA) requirements for adoption of rules for
application of reasonably available control technology (RACT) for
oxides of nitrogen (NOX) in the St. Louis metropolitan area. In
this document, EPA is proposing action, not on the rules themselves,
but on a commitment by the state to submit the NOX RACT rules at a
later date.
DATES: Comments on this proposed action must be received in writing by
March 7, 1994.
ADDRESSES: Comments should be addressed to Josh Tapp at the Region VII
address. Copies of the state's submittal and other information are
available for inspection during normal business hours at the following
location: Environmental Protection Agency, Region VII, Air Branch, 726
Minnesota Avenue, Kansas City, Kansas 66101; and Missouri Department of
Natural Resources, Air Pollution Control Program, Jefferson State
Office Building, 205 Jefferson Street, Jefferson City, Missouri 65101.
FOR FURTHER INFORMATION CONTACT: Josh Tapp at (913) 551-7606.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for the reduction of oxides
of NOX emissions through RACT are set out in section 182(f) of the
CAA. Section 182(f) requirements are described by EPA in a notice,
``State Implementation Plans; Nitrogen Oxides Supplement to the General
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I;
Proposed Rule,'' published November 25, 1992 (57 FR 55620). The
November 25, 1992, notice should be referred to for further information
on the NOX requirements.
Section 182(f) of the CAA requires states within moderate or above
ozone nonattainment areas (the St. Louis metropolitan area is a
moderate area) or the ozone transport region to apply the same
requirements to major stationary sources of NOX (``major'' as
defined in sections 302 and 182(c), (d), and (e)) as are applied to
major stationary sources of volatile organic compounds (VOC). For more
information on what constitutes a major source, see section 2 of the
NOX Supplement to the General Preamble (57 FR 55622).
Section 182(b)(2) requires submittal of RACT rules for major
stationary sources of VOC emissions (not covered by a control
techniques guideline (CTG) document) by November 15, 1992. There were
no NOX CTGs issued before enactment and EPA has not issued a CTG
document for any NOX sources since enactment. States, in their
RACT rules, are expected to require final installation of the actual
NOX controls by May 31, 1995, from those sources for which
installation by that date is practicable. (See 57 FR at 55623.)
Under section 110(k)(4), the Administrator may approve a plan
revision based on a commitment from the state to adopt specific
enforceable measures by a specified date, but not later than one year
after the date of EPA approval of the plan revision that incorporated
that commitment. Refer to the NOX Supplement to the General
Preamble (57 FR 55622-55623) for details of this conditional approval
with respect to the NOX requirements.
The memorandums of July 22, 1992, and September 16, 1992, from
Deputy Assistant Administrator Michael Shapiro concerning the SIP
submittals due November 15, 1992, also outline general requirements for
conditional approval actions.
II. This Action
A. Analysis of State Submission
As noted above, section 110(k)(4) of the CAA allows EPA to accept a
commitment from states to adopt portions of SIPs rather than the SIP
itself. For example, EPA may, in certain cases, accept a commitment
from states to adopt NOX RACT rules rather than the NOX RACT
rule itself. The NOX Supplement to the General Preamble (57 FR
55623) and the aforementioned memorandums of July 22, 1992, and
September 16, 1992, outline EPA's criteria for acceptability of
committal SIPs for the NOX RACT rules. The following is a
statement of the criteria and an analysis of how Missouri's submittal
meets these criteria.
1. The State must provide a description of the reason for the
committal SIP versus a full SIP submittal.
A discussion of the reasoning behind the State's submission of an
NOX RACT committal SIP is provided on page 2 of the SIP
submission. Missouri's decision to submit an NOX RACT committal
SIP instead of a full SIP submittal was twofold. First, urban airshed
modeling (UAM) will identify the role of NOX emissions in ozone
formation but the modeling exercise will not be completed until 1994,
consistent with the UAM submission date. Since it was not clear to the
Missouri Department of Natural Resources (MDNR) on November 15, 1992,
that NOX emission reductions would be effective in reducing ozone
concentrations, it was not practical for Missouri to submit NOX
RACT regulations at that time. Secondly, EPA failed to provide states
with NOX RACT guidance by November 15, 1992, making the
development of a full NOX RACT SIP by that date an ambiguous
target for Missouri.
However, in the committal SIP, Missouri has committed to submit
NOX RACT regulations by October 31, 1994, unless St. Louis
qualifies for an exemption pursuant to section 182(f) of the Act.
Missouri is also aware that the Act requires NOX RACT to be
implemented by May 1995. The committal SIP schedule is consistent with
this requirement.
2. The State must provide documentation that credible photochemical
grid modeling is not available or that such modeling did not consider
the effects of NOX reductions.
This documentation is provided on page 2 of the committal SIP.
According to MDNR, UAM was previously conducted in St. Louis in 1985;
however, at that time the UAM was not used to focus on the effect of
NOX control strategies in St. Louis. The only UAM exercise
available to examine NOX emissions will be the current exercise
which is being conducted pursuant to the requirements of section 182(j)
of the Act.
3. The State must identify the resources which are available to
complete UAM modeling.
Pages 10 through 13 describe the resources being utilized to
complete the enormous task of UAM-based modeling demonstration. There
are ten separate organizations and agencies that MDNR and the Illinois
Environmental Protection Agency have organized into two committees to
provide input to the UAM. The committees are the ``UAM Policy and
Oversight Committee'' and the ``Ozone Technical Subcommittee.''
Additionally, MDNR provided a list of the individuals responsible for
conducting certain portions of the UAM demonstration and a list of the
equipment which has been made available to execute the model and the
post processing analysis. EPA believes that the State has provided an
adequate demonstration of resources available.
4. The State must provide a schedule outlining the milestones that
have been and will be achieved towards the completion of the NOX
RACT rules. The schedule must include a date for final submittal of
rules to EPA. The date for submitting the final rules to EPA must be no
later than 12 months after EPA's final approval of the committal SIP.
Page 6 of the SIP submission contains an enforceable schedule.
Critical dates included in this schedule are the UAM final submission
date (November 15, 1993) and submittal of final NOX RACT
regulations to EPA (October 31, 1994). Missouri failed to submit the
final UAM modeling exercise by November 15, 1993. However, EPA Region
VII is working closely with the state on this submission. We are
encouraged by Missouri's progress and we believe that the submission of
the final NOX RACT regulations (if necessary) will not be delayed
beyond October 31, 1994.
It is important to note that MDNR has committed to submit the final
NOX RACT regulations six months before implementation of NOX
RACT is required by the Act. It should be noted that further failure by
the state to meet the applicable milestones listed in the NOX RACT
schedule contained in the SIP submission will affect EPA's
determination to issue final conditional approval.
EPA is proposing to approve Missouri's commitment to adopt NOX
RACT rules for the St. Louis area because it meets the requirements of
section 110(k)(4) of the CAA and conforms to the policy in the NOX
Supplement to the General Preamble (cited above), and the memorandums
from Deputy Assistant Administrator Michael Shapiro of July 22, 1992,
and September 16, 1992, concerning the SIP submittals due November 15,
1992.
B. Procedural Background
The Act requires states to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a state must be adopted after reasonable notice and
public hearing. Section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2). Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a state under the
Act must be adopted by such state after reasonable notice and public
hearing. The state of Missouri held a public hearing on April 29, 1993,
on the commitment to adopt NOX RACT rules for St. Louis. Following
the public hearing, the commitment was adopted by the state and signed
by the Director of MDNR on May 27, 1993, and submitted to EPA on June
14, 1993, as a revision to the SIP.
C. RACT Determination and Implementation
States--including those for which EPA approves a commitment to
adopt an NOX RACT rule--are expected to require final installation
of the actual NOX controls by May 31, 1995, from sources for which
installation by that date is practicable. The NOX Supplement to
the General Preamble (57 FR 55623) contains a detailed discussion of
EPA's interpretation of the RACT requirement.
III. Implications of This Action
EPA is proposing to approve the commitment for adoption of NOX
RACT rule(s) as an SIP revision submitted to EPA for the St. Louis area
June 14, 1993. Section 110(k)(4) of the Act provides that where EPA
takes final action to approve a commitment to submit an SIP or portion
of an SIP, the state must fulfill that commitment (i.e., submit the
required SIP or portion thereof) within one year following EPA
approval. If the state does not fulfill its commitment by submitting
the SIP or revision to EPA within that year, the Act requires that the
SIP be disapproved. If EPA disapproves the SIP for failing to meet the
commitment, there are several additional consequences. As provided
under section 179 of the Act, the state of Missouri would have up to 18
months after a final SIP disapproval to correct the deficiencies that
are the subject of the disapproval, before EPA is required to impose
either the highway funding restriction or the requirement for two-to-
one new source review offsets. If the state has not corrected its
deficiencies within six months after imposing the first sanction, EPA
must impose the second sanction. Any sanction EPA imposes must remain
in place until EPA determines that the state has come into compliance.
If EPA ultimately disapproves all or part of the SIP submittal for the
St. Louis nonattainment area and the state of Missouri fails to correct
the deficiency within 18 months of such disapproval, EPA anticipates
that the first sanction it would impose would be the two-to-one offset
requirement. Note also that any final disapproval would trigger the 24-
month clock for EPA to impose a federal implementation plan as provided
under section 110(c)(1) of the Act.
IV. Request for Public Comments
EPA is requesting comments on all aspects of today's proposal. EPA
is particularly interested in comments addressing the adequacy of the
state's schedule for submission of NOX RACT rules. As indicated at
the outset of this notice, EPA will consider any comments received by
March 7, 1994.
V. Executive Order 12866
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of
Management and Budget (OMB) waived Table 2 and 3 SIP revisions from the
requirement of section 3 of Executive Order 12291 for a period of two
years. The EPA has submitted a request for a permanent waiver for Table
2 and 3 SIP revisions. The OMB has agreed to continue the waiver until
such time as it rules on EPA's request. This request continues in
effect under Executive Order 12866 which superseded Executive Order
12291 on September 30, 1993.
VI. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 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. 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.
Conditional approvals of SIP submittals 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, I certify that it does not have a significant impact on
affected small entities. 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)).
If the conditional approval is converted to a disapproval under
section 110(k), based on the state's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new federal requirement. Therefore, EPA certifies
that this disapproval action does not have a significant impact on a
substantial number of small entities, because it does not remove
existing state requirements or substitute a new federal requirement.
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.
VII. Miscellaneous
Proposed Rulemaking Action
EPA proposes to conditionally approve this plan as a part of
Missouri's SIP.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
.Authority: 42 U.S.C. 7401-7671q.
Dated: January 20, 1994.
William W. Rice,
Acting Regional Administrator.
[FR Doc. 94-2590 Filed 2-3-94; 8:45 am]
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