03-11186. Approval and Promulgation of Implementation Plans; State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is announcing approval of a revision to the state implementation plan (SIP) for the vehicle inspection and maintenance (I/M) program operating in the Missouri portion of the St. Louis, Missouri, ozone nonattainment area. Missouri made several amendments to the state-adopted I/M rule to improve performance of the program and requested that the SIP be revised. The effect of this action ensures Federal enforceability of the state air program rules and maintains consistency between the state-adopted rules and the approved SIP. EPA proposed approval of this rule in the Federal Register on January 30, 2003 (68 FR 4842). This final action is being published to meet our statutory obligation under the Clean Air Act (CAA or the Act).

DATES:

This final rule is effective May 12, 2003.

ADDRESSES:

A copy of the state submittal is available at the following address for inspection during normal business hours: EPA, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT:

Leland Daniels at [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

What is a SIP?

What is the Federal approval process for a SIP?

What does Federal approval of a state regulation mean to me?

What is being addressed in this document?

What comments were received on the proposed approval of the I/M SIP revision and what is our response?

What action is EPA taking?

What is the effective date for this rulemaking?

What Is a SIP?

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards that we established. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

What Is the Federal Approval Process for a SIP?

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding our proposed action on the state submission. If adverse comments are received, we must address them prior to taking any final action.

All state regulations and supporting information that we approve under section 110 of the CAA are incorporated into the Federally-approved SIP. The record of each SIP approval is maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR but are “incorporated by reference,” which means that EPA has approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean?

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take an enforcement action to return a violator to compliance. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

What Is Being Addressed in This Document?

This rulemaking addresses a number of submissions from Missouri Department of Natural Resources (MDNR) concerning revisions to the I/M SIP for St. Louis. The content of those submissions is described below.

State statutory amendments in 1999 required an interagency agreement between MDNR and the Missouri Highway Patrol for the administration and enforcement of section 307.366, Missouri Revised Statutes (RSMo); established criteria and procedures for the I/M contract; and provided the residents of Franklin County the option of biennial motor vehicle registration. For vehicles sold by a licensed motor vehicle dealer, any inspection and approval within 120 days preceding the date of the sale is considered timely for the purpose of vehicle registration. Costs for repair work performed by a recognized repair technician only may be included toward reaching the waiver amount. The $5.00 fee reduction for any person required to wait for up to 15 minutes before the inspection begins was deleted. Penalties for longer wait times were retained. The I/M amendments contained in the October 25, 2000, submittal reflected these statutory changes.

The October 25, 2000, submission included revisions made to the I/M rule (10 CSR 10-5.380). These changes removed a fee reduction (otherwise known as a wait time penalty) of $5.00 whenever someone had to wait up to 15 minutes for a test; incorporated a transition program from January 1 through April 4, 2000; and provided another test option for residents of Franklin County.

The June 19, 2002, submittal contained a plan for incorporating the On-Board Diagnostic (OBD) test into the I/M program and a commitment to do so. This was in response to our amendment of the Federal I/M rule that changed the implementation date for use of the OBD test from January 1, 2001, to January 1, 2002, and provided options for other implementation dates. We took no action on this plan as Missouri was involved in amending the I/M rule to incorporate the provisions of the plan. This revision is described below.

The December 13, 2002, submittal contained additional amendments made to the I/M rule. In addition to restructuring the rule, a number of amendments were made to: clarify the meaning of vehicles primarily operated in the area (section 1); clarify existing definitions and include new definitions (section 2); clarify fleet vehicle testing requirements and requirements for Federal facilities, set fee payment methods, station and clean screening testing procedures, emission test standards and waiver requirements (section 3); clarify the vehicle test report requirement for vehicles that fail the OBD test, the clean screening test report requirements and the fleet vehicle reporting requirements (section 4); clarify the test methods for the OBD and the visual test methods; exempt hybrid electric vehicles from tailpipe test methods; include clean screening test methods as valid test methods (section 5), and delete the transition period.

As discussed in the proposed rulemaking (68 FR 4842; January 30, 2003), the state's requirement that the I/M240 test be the deciding test for the retest during the phase-in period for the OBD test is inconsistent with our April 5, 2001, rule which requires only the OBD test be used for the retest. Although the Missouri regulation is not consistent with our requirements for the OBD test during the 2003-2004 phase-in period, the Federal I/M rule (see 40 CFR 51.372) provides additional flexibility with regard to as-of-yet unimplemented I/M program elements for basic I/M areas that qualify for redesignation to attainment. Under this additional flexibility, an as-of-yet unimplemented I/M program element may be converted into a contingency measure as part of the area's approved maintenance plan (which, in turn, forms a part of the area's approved redesignation request). We believe that the St. Louis ozone nonattainment area is eligible for redesignation and, in a separate rulemaking today, we are taking final action to find that the area has attained the 1-hour ozone standard and to redesignate the area from nonattainment to attainment for that standard. Thus, the Missouri I/M regulation meets the requirements of 40 CFR 51.372, and we are taking final action to approve the program pursuant to that section.

MDNR's letter of January 17, 2003, informed us that a printing error occurred when the revised rule was first published on November 30, 2002, in the state's official administrative rules publication, the Missouri Code of State Regulations (CSR). Inadvertently, the table containing the final transient emission test standards for Light Duty Vehicles was omitted in subparagraph (3)(G)4.A of the Missouri rule. The table was part of the rule revision which had been adopted by the Missouri Air Conservation Commission (MACC) after notice and public comment. The post-adoption publication of the rule omitted the table, and the December 31, 2002, publication of the Missouri CSR corrected the printing error by reinserting the table. The December 31, 2002, publication was an administrative correction only and did not change the rule as adopted by the MACC nor the effective date of the rule.

Even though MDNR's initial submission did contain an error, which was corrected between our signature of the proposed rule and this final action, we view it as inadvertent and nonsubstantive. In addition, the corrected version of the state rule is the version which was available to the public for comment at the state level and has been included in EPA's docket for this rule since the January 30 publication of the proposal. Therefore, we do not believe that any additional public comment on the corrected rule is necessary and, in this Federal Register document, we are taking final action to approve the revisions to the I/M SIP as described in the January 30, 2003, proposed rule.

Elsewhere in today's Federal Register publication, we are also taking final action to find that the St. Louis area has attained the 1-hour ozone standard, redesignate the area to attainment, and approve the state's plan for maintaining the 1-hour ozone standard. This final rulemaking on this I/M SIP revision is being done in conjunction with the above rulemaking to fulfill the applicable CAA requirements.

What Comments Were Received on the Proposed Approval of the I/M SIP Revision and What Is Our Response?

Comments were submitted by the Great Rivers Environmental Law Center on behalf of the Sierra Club and the Missouri Coalition for the Environment. Its conclusion was that EPA should disapprove the proposed SIP revision. A summary of the comments and our responses to the comments are provided below.

Comment 1: St. Louis is now a “serious” ozone nonattainment area and, as a result, its I/M program must meet the requirements of section 182(c)(3). EPA acknowledges that the I/M program does not meet these requirements. It should, accordingly, be disapproved, or at most partially approved.

Response 1: On November 25, 2002, the Seventh Circuit Court of Appeals vacated a June 26, 2001, rule extending the St. Louis area's attainment date, and remanded to EPA for “entry of a final rule that reclassifies St. Louis as a serious nonattainment area effective immediately * * *” (Sierra Club and Missouri Coalition for the Environment v. EPA, 311 F. 3d 853 (7th Cir. 2002)). In response to the Court's order, and in accordance with section 181(b)(2) of the Act, EPA reinstated the nonattainment determination and reclassification contained in the March 19, 2001, rulemaking (66 FR 15585) in the January 30, 2003, final rule at 68 FR 4838. In addition, the January 30, 2003, final rule established a deadline of January 30, 2004, for submission of SIP revisions to meet the serious nonattainment area requirements. The final rule also explained that EPA was concurrently proposing to redesignate the area to attainment, and that such a redesignation, if done prior to the deadline for submission of the serious area requirements, would eliminate the need for Missouri and Illinois to submit SIP revisions to meet the serious area requirements (68 FR 4836). The final rule, including the serious area submittal deadline, was not challenged within the 60-day period provided in section 307(d) of the CAA. This subsequent rulemaking does not reopen the issue of the submittal deadline or the determination that SIP submissions would not be due should the area be redesignated prior to the due date.

Section 110(k)(3) of the CAA requires EPA to approve a plan submission in full if it meets “all of the applicable requirements” of the Act. Under that section a partial approval is appropriate where only a portion of the plan submission meets all of the applicable requirements of the Act. The commenter asserts that the I/M revision cannot be fully approved because it does not meet the I/M program requirements for serious areas under section 182(c)(3). However, under our interpretation of the statute, these requirements are not applicable, because they are not yet due. (See also the response to comment 2 concerning the due date for the serious area requirements.) In addition, because the area is today being redesignated to attainment, it is no longer obligated to meet the I/M requirements of section 182(c)(3). (See the September 4, 1992, memorandum from John Calcagni, “Procedures for Processing Requests to Redesignate Areas to Attainment,” p. 4, n. 3.) Therefore, the fact that the submittal does not include all of the requirements for an I/M program for a serious area does not require EPA to disapprove or partially approve it. Since, as discussed elsewhere in this notice, the submittal meets all of the applicable requirements of the Act, EPA is fully approving the revisions to the Missouri I/M program.

Comment 2: EPA suggests that because Missouri's SIP revisions to conform to the serious requirement are not yet due, the applicable criteria for approval are those pertaining to “moderate” ozone nonattainment areas. This determination is erroneous because the “serious” SIP submissions have, “as a matter of law”, become due. EPA's later rulemakings withdrawing these rules was vacated by the Seventh Circuit, effectively reinstating the withdrawn rules, including the May 18, 2002, SIP submission deadline. In addition, if EPA “had obeyed the law”, the revisions would have been due by June 14, 1998.

Response 2: As explained in response to comment 1, on January 30, 2003, EPA reinstated a rule reclassifying the St. Louis area to “serious” nonattainment and established a deadline of January 30, 2004, for the state to submit the serious area requirements. The rationale for the deadline is stated in the January 30, 2003, final rule (68 FR 4838). This redesignation rulemaking does not reopen the January 30 rulemaking, and comments on the appropriate deadline for the serious area requirements are thus beyond the scope of this rule.

With respect to the commenter's assertion that the serious area requirements should have been due by June 14, 1998, this is based on an argument made by the commenter in the U.S. District Court and the Court of Appeals for the District of Columbia that the reclassification of the St. Louis area to serious should have been made retroactive to 1997, with the serious area measures due in 1998. This argument pertaining to the timing of reclassification is not only outside the scope of this rulemaking as explained previously, but it was rejected by both Courts (See, Sierra Club v. Whitman, 285 F.3d 63, 68 (D.C. Cir.2002)). A detailed discussion of the inapplicability of the serious area requirements to the St. Louis area is also included in the response to comments on the final rule determining the area has attained the ozone national ambient air quality standard (NAAQS) and redesignating the area to attainment, published in today's Federal Register.

Comment 3: The proposed revisions, as EPA itself concedes, do not even meet the requirement for a basic I/M program that moderate ozone nonattainment areas must promulgate and implement. Nonetheless, EPA says that “additional flexibility” may be extended to the state under 40 CFR 51.372. This is an arbitrary conclusion. First, the cited regulation does not provide for approval of I/M programs that do not meet federal requirements; it merely permits states to treat otherwise approval programs as contingency measures in their maintenance plans. Second, the regulation's flexibility is contingent upon the following: “A contingency commitment that includes an enforceable schedule for adoption and implementation of the (I/M) program, and appropriate milestones. The schedule shall include the date for submission of a SIP meeting all of the requirements of this subpart. Schedule milestones shall be listed in months from the date EPA notifies the state that it is in violation of the ozone or CO standard or any earlier date specified in the state plan. Unless the state, in accordance with the provisions of the maintenance plan, chooses not to implement I/M, it must submit a SIP revision containing an I/M program no more than 18 months after notification by EPA.” Missouri's maintenance plan does not include a contingency commitment that meets these requirements.

Response 3: The commenter is incorrect in the assertion that 40 CFR 51.372 does not authorize EPA to approve I/M SIPs that do not meet all EPA requirements. Section 51.372(c) states as follows: “Any nonattainment area that EPA determines would otherwise qualify for redesignation from nonattainment to attainment shall receive full approval of a SIP submittal under sections 182(a)(2)(B) or 182(b)(4)” if the submittal meets the requirements of section 51.372(c)(1) through (4). (Emphasis added.) As explained in detail in the proposal (68 FR 4842, 4844 January 30, 2003), the revision to the I/M program submitted by Missouri meets all of the applicable Federal I/M requirements, with the exception that Missouri does not require the exclusive use of an OBD test for the retest of vehicles which fail the initial OBD emissions test (during the 2003-2004 phase-in of the Missouri OBD rule). (After the 2003-2004 phase-in period, the Missouri rule requires the appropriate OBD test for both the initial test and the retest, which is consistent with EPA's rule.) Because, as explained below, Missouri has included a commitment to consider adoption of the OBD test for the retest as a contingency measure and has met all other requirements of § 51.372(c), that section authorizes EPA to fully approve the Missouri I/M SIP submittal under section 182(b)(4) of the CAA. This conclusion is consistent with the language of the regulation and with the application of the regulation to other I/M program approvals in conjunction with redesignations (see 60 FR 12459; March 7, 1995).

The commenter is also incorrect in its assertion that Missouri's submission does not meet the requirements of 40 CFR 51.372(c)(4), which the commenter quotes in its comment. Section 51.372(c)(4) provides that the state must make the following commitments: (1) An enforceable schedule for adoption, submission to EPA, and implementation of the I/M program element; (2) appropriate milestones in months from EPA notification of the violation (or any earlier trigger date provided in the plan); and (3) a commitment to submit the program to EPA within 18 months of the notification of the violation, unless the state elects not to implement the I/M element of its contingency measures. The commenter does not identify any specific elements of this requirement which it believes are not met, but Missouri's maintenance plan contains provisions meeting all of these elements. The plan commits that the state will adhere to the following schedule (pp. 40-43 of the maintenance plan), if the state selects this contingency measure:

1. Three months from notification by EPA of a violation—the state will propose necessary regulatory changes for adoption by the Missouri Air Conservation Commission.

2. Five months from notification—the state will present proposed revisions for public hearing.

3. Six months from notification—the state will request adoption by the Commission.

4. Ten to eighteen months after notification—the state will submit the adopted regulations to EPA as a SIP revision.

5. Eighteen months after notification—the state will implement the contingency measure.

The commenter has not provided any information indicating that these commitments in Missouri's maintenance plan do not meet the requirements of 40 CFR 51.372(c)(4), and EPA finds that the state has met these requirements.

In the January 30, 2003, proposal on the I/M revisions, EPA discussed how Missouri had met the requirements of section 51.372(c)(1)-(3) (68 FR 4842, 4844-4845). EPA did not receive any comments on its proposal with respect to these other requirements. For the reasons stated in the proposal, EPA finds that the requirements of section 51.372(c)(1)-(3) are met.

What Action Is EPA Taking?

EPA's review of the material submitted indicates that the state has revised the I/M program in accordance with the requirements of the CAA and the Federal rule except for one. The state's requirement that the I/M240 test be the deciding test for the retest during the phase-in period for the OBD test is inconsistent with our April 5, 2001, rule which requires only the OBD test be used for the retest (see Test Procedures and Standards in the January 30, 2003, proposed rule, page 4844 for further discussion). However, since the St. Louis area is being redesignated to attainment with the 1-hour ozone standard elsewhere in today's Federal Register, and as provided for in the Federal I/M rule at 40 CFR 51.372, we are fully approving the Missouri SIP revision for the St. Louis I/M program pursuant to that section and incorporate by reference the state I/M rule, 10 CSR 10-5.380, which was submitted on December 13, 2002.

As noted in the January 30, 2003, proposal, Missouri has revised its regulations to require Federal facilities operating vehicles in the I/M program area to report certification of compliance to the state. These requirements appear to be different from those for other non-Federal groups of Missouri registered vehicles. However, at this time we are not requiring states to implement 40 CFR 51.356(a)(4) dealing with Federal installations within I/M areas. The Department of Justice has recommended to us that this Federal regulation be revised since it appears to grant states authority to regulate Federal installations in circumstances where the Federal government has not waived sovereign immunity. It would not be appropriate to require compliance with this regulation if it is not authorized. We will be revising this provision in the future and will review state I/M SIPs with respect to this issue when this new rule is final.

Therefore, for these reasons, we are neither proposing approval nor disapproval of the specific requirements which apply to Federal facilities at this time.

What Is the Effective Date For This Rulemaking?

To fulfill the requirements of the CAA, this rulemaking is being done in conjunction with another rulemaking published today which finds that the St. Louis area has attained the 1-hour ozone standard, redesignates the area to attainment, and approves the state's plan for maintaining the 1-hour ozone standard. Because these rulemakings are linked, in that the redesignation cannot be completed until this I/M rulemaking is completed, EPA finds that there is good cause for this final rule to become effective immediately upon publication as the redesignation will also become effective immediately for good cause shown. See also the discussion in the referenced rulemaking for additional information. The immediate effective date is authorized under 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction.” In the January 30, 2003, final rule (68 FR 4836), we reclassified the St. Louis area to a “serious” nonattainment area and established a schedule for submission of SIP revisions fulfilling the requirements for serious ozone nonattainment areas. Upon the effective date of the rule that finds the area has attained, redesignates the area, and approves the maintenance plan (also published today), the state of Missouri will be relieved of the obligation to develop and submit these SIP revisions. Thus, Missouri will not be required to develop a SIP for the implementation of an enhanced I/M program. EPA finds that good cause exists for this final rule being immediately effective since, in conjunction with the redesignation, it relieves the state of Missouri of certain requirements established as a result of the January 30, 2003, reclassification to a serious nonattainment area.

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 will 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 rule 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 rule also does not have tribal implications because it will 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, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule 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 is not economically significant.

In reviewing SIP 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 SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP 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 United States Senate, the United States 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 July 11, 2003. 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 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: April 29, 2003.

William W. Rice,

Acting Regional Administrator, Region 7.

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 et seq.

Subpart AA—Missouri

2. In § 52.1320 the table in paragraph (c) is amended by revising the entry for 10-5.380, under Chapter 5, to read as follows:

§ 52.1320

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Missouri Regulations

Missouri citation	Title	State effective date	EPA approval date	Explanation
Missouri Department of Natural Resources
	*         *         *         *         *         *         *
Chapter 5—Air Quality Standards and Air Pollution Control Regulations for the St. Louis Metropolitan Area
	*         *         *         *         *         *         *
10-5.380	Motor vehicle emissions inspection	12/30/02	5/12/03
*         *         *         *         *         *         *

* * * * *