2011-18176. Approval and Promulgation of Air Quality Plans: State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving an April 20, 2011, request from the State of Missouri to exempt sources of Nitrogen Oxides (NO_X) in the Missouri portion of the St. Louis (MO-IL) metropolitan 8-hour ozone nonattainment area from the Clean Air Act (CAA) requirements for NO_X Reasonably Available Control Technology (RACT) for purposes of attaining the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). The Missouri NO_X RACT waiver request for its portion of the St. Louis metropolitan 8-hour ozone nonattainment area is based on the most recent three years of complete, quality-assured ozone monitoring data, which demonstrate that additional reductions of NO_X emissions in the Area would not contribute to attainment of the 1997 8-hour ozone NAAQS.

DATES:

This direct final rule will be effective September 19, 2011 without further notice unless EPA receives adverse comments by August 22, 2011. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments identified by Docket ID No. EPA-R07-OAR-2011-0451, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail or Hand Delivery or Courier: Lachala Kemp, Air Planning and Development Branch, U.S. Environmental Protection Agency, 901 North 5th Street, Kansas City, Kansas 66101.

Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2011-0451. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov. or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket. All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in 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. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lachala Kemp, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 901 N. 5th Street, Kansas City, Kansas 66101 at 913-551-7214, or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

Table of Contents

I. What action is EPA taking?

II. State Petition

III. EPA Review of the Petition

A. Has this ozone nonattainment area attained the 1997 8-hour ozone NAAQS?

B. EPA's Analysis of Missouri's NO_X RACT Waiver Petition

IV. What is the effect of this action?

V. EPA's Action

VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

EPA is approving an April 20, 2011, request from the State of Missouri to exempt sources of NO_X in the Missouri portion of the St. Louis (MO-IL) metropolitan 8-hour ozone nonattainment area from the CAA requirements for NO_X RACT for purposes of attaining the 1997 8-hour ozone NAAQS.^[1] The St. Louis (MO-IL) metropolitan 8-hour ozone nonattainment (hereafter referred to as the “St. Louis Area” or “Area”) includes the counties of Franklin, Jefferson, St. Charles, and St. Louis as well as St. Louis City in Missouri; and the counties of Madison, Monroe, St. Clair, and Jersey in Illinois. The State's NO_X RACT waiver request is based on the most recent three years of complete, quality-assured ozone monitoring data, which demonstrate that additional reduction of NO_X emissions in the Missouri portion of the St. Louis ozone nonattainment area would not contribute to attainment of the 1997 8-hour ozone NAAQS in this ozone nonattainment areas. See 76 FR 33647 (June 9, 2011) for more information about this monitoring data.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial action and anticipate no relevant adverse comments. EPA notes that the technical basis for this rule was its previous final determination on June 9, 2011 (76 FR 33647) that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. EPA received no comments during that particular rulemaking. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on September 19, 2011 without further notice unless EPA receives adverse comments by August 22, 2011. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

II. State Petition

On April 20, 2011, Missouri Department of Natural Resources (MDNR) submitted a request for a NO_X RACT waiver for the St. Louis metropolitan ozone nonattainment area. This NO_X RACT waiver was requested for the 1997 8-hour ozone NAAQS. MDNR based its NO_X RACT waiver request on quality-assured ozone air quality data for 2008-2010, which demonstrate that the 1997 8-hour ozone NAAQS has been attained in the St. Louis (MO-IL) metropolitan area without the implementation of additional NO_X RACT controls in the Missouri portion of the area.

III. EPA Review of the Petition

A. Has this ozone nonattainment area attained the 1997 8-hour ozone NAAQS?

An area may be considered in attainment with the 1997 8-hour ozone NAAQS if there are no violations of the NAAQS, as determined in accordance with 40 CFR 50.10 and appendix I, based on the most recent three years of complete, quality-assured air quality monitoring data. To attain this standard, the average of the annual fourth-highest daily maximum 8-hour average ozone concentrations are measured and recorded at each monitoring site over the most recent 3-year period (the monitoring site's ozone design value) must not exceed the ozone standard. Based on an ozone data rounding convention described in 40 CFR part 50, appendix I, the 1997 8-hour ozone standard is attained if the area's ozone design value is 0.084 parts per million (ppm) or less. The data must be collected and quality-assured in accordance with 40 CFR part 58, and must be recorded in EPA's Air Quality System. The monitoring network collecting the data must meet the applicable requirements of 40 CFR part 58. The data supporting attainment of the standard must meet the minimum data completeness requirements in 40 CFR part 50, appendix I.

The monitors and design values are displayed in Table 1. The table summarizes the annual fourth-highest daily maximum 8-hour ozone concentrations and their 3-year (2008-2010) averages for all monitors in the St. Louis (MO-IL) metropolitan area. These data reflect peak ozone concentrations quality assured and reported by the States of Illinois and Missouri.

Table 1—Annual Fourth-Highest Daily Maximum 8-Hour Ozone Concentrations and 3-Year Averages in ppm for the St. Louis (MO-IL) Area

State	County	Monitor	2008 4th high (ppm)	2009 4th high (ppm)	2010 4th high (ppm)	2008-2010 average (ppm)
Illinois	Jersey	Jerseyville, 17-083-1001	0.069	0.068	0.072	0.069
	Madison	Alton, 17-119-0008	0.068	0.067	0.080	0.071
		Maryville, 17-119-1009	0.070	0.074	0.074	0.072
		Wood River, 17-119-3007	0.067	0.066	0.070	0.067
	St. Clair	East St. Louis, 17-163-0010	0.064	0.069	0.072	0.068
Missouri	Jefferson	Arnold West, 29-099-00019	0.70	0.070	0.077	0.072
	St. Charles	Orchard Farm, 29-183-1004	0.072	0.073	0.077	0.074
		West Alton, 29-183-1002	0.076	0.071	0.084	0.077
	St. Louis	Maryland Heights, 29-189-0014	0.069	0.070	0.076	0.071
		Pacific, 29-189-0005	0.064	0.064	0.069	0.065
	St. Louis City	Blair Street, 29-510-0085	0.073	0.065	0.071	0.069

Review of the 2008-2010 ozone concentrations and site-specific ozone design values (3-year averages) shows that all of the monitoring sites were attaining the 1997 8-hour ozone NAAQS during this period. Therefore, based on the most recent three years of complete, quality assured ozone monitoring data, the 1997 8-hour ozone standard has been attained in the area. Review of preliminary data from the 2011 ozone season indicates that the area continues to attain the 8-hour ozone NAAQS. See 76 FR 33647.^[2]

B. EPA's Analysis of Missouri's NO _X RACT Waiver Petition

EPA's guidance document, “Guidance on Limiting Nitrogen Oxides (NO_X) Requirements Related to 8-Hour Ozone Implementation,” sets forth the criteria for demonstrating that further NO_X emission reductions in an ozone nonattainment area will not contribute to ozone NAAQS attainment.^[3] The guidance provides that three consecutive years of monitoring data documenting ozone levels attaining the ozone NAAQS in areas in which a state has not implemented certain NO_X emission controls is adequate to demonstrate that the additional NO_X emission reductions will not aid in achieving attainment of the ozone NAAQS. As described in the guidance document, approval of the NO_X emission control exemption is granted by EPA on a contingent basis. The NO_X emission control exemption continues only as long as the state's monitoring data continues to demonstrate attainment of the ozone NAAQS.^[4] If, prior to redesignation of the area to attainment of the ozone NAAQS, the area violates the 1997 8-hour ozone NAAQS, as defined at 40 CFR 50.10 and appendix I, EPA will undertake rulemaking to withdraw the NO_X emission control exemption, and the area would once again be subject to the NO_X emission control requirements under section 182(f) of the CAA.^[5]

EPA's review of the ozone monitoring data and Missouri's NO_X emission control exemption request shows that Missouri has complied with the requirements for a NO_X RACT exemption in the State's 8-hour ozone nonattainment area under section 182(f) of the CAA consistent with the guidelines contained in EPA's January 14, 2005, guidance document. Therefore, EPA has determined that the State of Missouri qualifies for exemption from the NO_X RACT requirements for the Missouri portion of the St. Louis (MO-IL) metropolitan ozone nonattainment area for the purposes of attaining the 1997 8-hour ozone NAAQS.

IV. What is the effect of this action?

The section 182(f) NO_X RACT exemption is based on a finding by EPA that additional reductions of NO_X would not contribute to attainment of the 1997 8-hour ozone NAAQS in the St. Louis (MO-IL) metropolitan nonattainment area. The Area has three consecutive years of ozone levels attaining the ozone standard, and preliminary 2011 ozone data show that the 1997 8-hour ozone standard continues to be attained in the area.

While EPA is waiving the requirements to control NO_X emissions through additional NO_X RACT controls in the Missouri portion of the St. Louis nonattaiment area, EPA recognizes that there are other benefits to controlling NO_X emissions. These benefits include reducing acid deposition, reducing nitrogen deposition in sensitive wetlands, estuaries, and their watersheds, and mitigating ozone transport to downwind ozone nonattainment areas. Missouri will continue to be required to control NO_X emissions from certain NO_X sources under other CAA programs, such as the Acid Rain program in title IV of the CAA, for purposes of achieving these environmental benefits. This NO_X RACT waiver will not affect other existing and pending NO_X emission control requirements for Missouri that are needed to achieve these environmental benefits. In addition, as noted above, this action does not affect the NO_X RACT controls in the St. Louis area previously approved by EPA relating to the 1-hour ozone standard.

In addition, EPA notes that an approval of this waiver request is solely for purposes of the CAA requirements to meet the 1997 8-hour ozone NAAQS. The waiver would not apply for purposes of the ozone NAAQS promulgated in 2008 (March 27, 2008, 73 FR 16435) or for purposes of any future ozone NAAQS EPA may promulgate. To the extent that section 182(f) may apply to the St. Louis area for purposes of the 2008 or any future ozone NAAQS, the State would need to submit a NO_X RACT SIP or would need to demonstrate that a waiver is appropriate for purposes of that different ozone NAAQS.

V. EPA's Action

EPA is approving Missouri's request to exempt the Missouri portion of the St. Louis 8-hour ozone nonattainment area from the section 182(f) NO_X RACT requirement. This approval is based on EPA's review of the data showing that the requirements of section 182(f)(1)(A), as elaborated upon in EPA's guidance for section 182(f) exemptions, have been met for the St. Louis (MO-IL) metropolitan ozone nonattainment area. If EPA subsequently determines through notice-and-comment rulemaking that the Area has violated the 1997 8-hour ozone standard, the basis for this exemption would no longer exist, and the area would thereafter have to address the pertinent requirements.

VI. Statutory and Executive Order Reviews

In reviewing a request from the State to exempt sources of NO_X in the Missouri portion of the St. Louis (MO-IL) metropolitan 8-hour ozone nonattainment area from the CAA requirements for NO_X RACT for purposes of attaining the 1997 8-hour ozone NAAQS, EPA's role is to approve state choices, provided they meet the criteria of the CAA. Accordingly, this action does not impose additional requirements beyond those imposed by state law. Therefore, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this exemption does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 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 in 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 16, 2009. 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: July 12, 2011.

Karl Brooks,

Regional Administrator, Region 7.

40 CFR part 52 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. Section 52.1342 is revised to read as follows:

§ 52.1342

Control strategy: Ozone.

(a) Determination of attainment. EPA has determined, as of June 9, 2011, that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. This determination, in accordance with 40 CFR 51.918, suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, reasonable further progress, contingency measures, and other plan elements related to attainment of the standards for as long as the area continues to meet the 1997 Ozone NAAQS.

(b) Approval. EPA is approving an April 20, 2011, request from the State of Missouri for a waiver from the Clean Air Act requirement for Oxides of Nitrogen (NO_X) Reasonably Available Control Technology (RACT) in the Missouri portion of the St. Louis (MO-IL) metropolitan 8-hour ozone nonattainment area for purposes of attaining the 1997 8-hour ozone National Ambient Air Quality Standard.

Footnotes

1.  EPA previously approved Missouri's NO_X RACT rules submitted to meet its obligations under the 1-hour ozone standard. See, 65 FR 31482, May 18, 2000. Today's action does not affect these State Implementation Plan (SIP)-approved rules, which remain in effect. This action relates only to Missouri's obligations with respect to NO_X RACT related to the 1997 8-hour ozone standard.

2.  In today's action, EPA is not reopening its final determination of attainment described in the June 9, 2011 final rule, but is merely explaining the technical basis for our conclusion that a NO_X emission control exemption is appropriate for the area based on the area's attainment of the ozone NAAQS.

3.  Steven D. Page, Director, Office of Air Quality Planning and Standards, “Guidance on Limiting Nitrogen Oxides (NO_X) Requirements Related to 8-Hour Ozone Implementation,” Memorandum to EPA Air Directors, Regions I-X, January 14, 2005 (found at: http://www.epa.gov/​ttn/​oarpg/​t1/​memoranda/​guide8hr-oz.pdf).

4.  Id. at 21.

5.  Id. at 21-22.