[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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