[Federal Register Volume 64, Number 102 (Thursday, May 27, 1999)]
[Rules and Regulations]
[Pages 28753-28757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13381]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO 073-1073; FRL-6350-3]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is conditionally approving the 1998 revisions to the
Kansas City ozone maintenance plan as a revision to the Missouri State
Implementation Plan (SIP). Full approval is contingent upon Missouri's
submission of additional, enforceable control measures.
The Kansas City ozone maintenance area experienced a violation of
the National Ambient Air Quality Standard (NAAQS) for ozone in 1995. In
response to this violation, Missouri submitted revisions to its ozone
maintenance plan. These revisions pertain to the implementation of
control strategies to achieve reductions in volatile organic compound
(VOC) emissions within the Missouri portion of the Kansas City ozone
maintenance area. A major purpose of these revisions is to provide a
more flexible approach to maintenance of acceptable air quality levels
in Kansas City, while achieving emission reductions equivalent to those
required by the previously approved plan.
In a separate Federal Register document published today, EPA is
also conditionally approving a similar plan submitted by the Kansas
Department of Health and Environment to address the Kansas portions of
the ozone maintenance area.
EFFECTIVE DATE: This rule will be effective June 28, 1999.
ADDRESSES: Copies of the state submittal(s) are available at the
following addresses for inspection during normal business hours:
Environmental Protection Agency, Air Planning and Development Branch,
726 Minnesota Avenue, Kansas City, Kansas
[[Page 28754]]
66101; and the Environmental Protection Agency, Air and Radiation
Docket and Information Center, Air Docket (6102), 401 M Street, S.W.,
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Royan W. Teter, Air Planning and
Development Branch, 726 Minnesota Avenue, Kansas City, Kansas 66101,
(913) 551-7609.
SUPPLEMENTARY INFORMATION:
I. Background
The Kansas City metropolitan area (KCMA), consisting of Clay,
Platte, and Jackson Counties in Missouri, and Johnson and Wyandotte
Counties in Kansas, was designated nonattainment for ozone in 1978. The
Clean Air Act (CAA) provides for areas with a prescribed amount of air
quality data showing attainment of the standard to be redesignated from
nonattainment to attainment, if the requirements of section
107(d)(3)(E) are met. One of these requirements is for the area to
adopt a maintenance plan consistent with the requirements of section
175A. This plan must demonstrate attainment of the NAAQS with a margin
of safety sufficient to remain in attainment for ten years. Also, the
plan must contain a contingency plan to be implemented if the area once
again violates the standard.
Ozone monitoring data from 1987 through 1991 demonstrated that the
Kansas City nonattainment area had attained the ozone NAAQS. In
accordance with the CAA, the Missouri Department of Natural Resources
(MDNR) revised the ozone SIP for the Missouri portion of the Kansas
City area to recognize the area's attainment status. EPA published
final approval of the Missouri SIP on June 23, 1992. The SIP became
effective on July 23, 1992 (57 FR 27939). This action effected the
redesignation of the area to attainment.
The contingency plan approved as part of the 1992 SIP identified
four measures which were to be implemented upon subsequent violation of
the standard in the Kansas City area. These contingency measures
required: (1) certain new or expanding sources of ozone precursors to
acquire emissions offsets; (2) the installation of Stage II vapor
recovery systems at retail gasoline stations or the implementation of
an enhanced inspection and maintenance (I/M) program for motor
vehicles; (3) the implementation of transportation control measures
achieving a 0.5 percent reduction in areawide VOC emissions; and (4)
the completion of a comprehensive emissions inventory.
In a letter from Dennis Grams, EPA Region VII Administrator, to
David Shorr, MDNR Director, on January 31, 1996, EPA informed the MDNR
of a violation of the ozone NAAQS. Quality-assured air quality
monitoring data indicated measured exceedances of the ozone standard on
July 11, 12, and 13, 1995, at the Liberty monitoring site in Kansas
City. The highest recorded value for each day was 0.128 ppm, 0.161 ppm,
and 0.131 ppm, respectively. These exceedances, in combination with the
measured exceedance of 0.128 ppm recorded on July 29, 1993, constitute
a violation of the standard.
As a result of this violation, Missouri was required to implement
the contingency measures identified in the approved SIP. In response to
a request by Roger Randolph (Missouri Air Pollution Control Program
Director) to William Spratlin (Air, RCRA, and Toxics Division
Director), EPA stated in an August 17, 1995, letter that Missouri and
Kansas could substitute other contingency measures for those in the
approved SIP, provided that the substitute measures were submitted
through the SIP revision process, were designed to achieve
substantially equivalent emission reductions, and were implemented
expeditiously to address the violation. It must be emphasized that this
flexibility was extended to both Kansas and Missouri.
To address the short-term need to control emissions, Missouri
promulgated an emergency rule to limit the summertime Reid Vapor
Pressure (RVP) of gasoline sold within the KCMA to 7.2 pounds per
square inch (psi) (10 CSR 10-2.330). The emergency rule was to expire
on October 27, 1997. Prior to its expiration, the state promulgated a
permanent regulation. The permanent rule was published in the Code of
State Regulations (CSR) on September 30, 1997, and became effective
October 30. On October 9, 1997, EPA published a rule, which
conditionally approved the state emergency rule. The state fulfilled
the requirements of the conditional approval by submitting a permanent
Missouri rule on November 13, 1997. EPA published full approval of
Missouri's permanent RVP rule on April 24, 1998 ( 63 FR 20318). The
approval became effective on May 24, 1998.
To address the longer-term need to reduce VOC and nitrogen oxides
(NOX) emissions, the Mid-America Regional Council's Air
Quality Forum (AQF), comprised of representatives from local
governments, business, health, and environmental organizations, agreed
to examine various alternative control strategies and recommend a suite
of viable measures to Missouri and Kansas. The AQF recommended: (1)
expanding public education efforts; (2) low RVP gasoline; (3) motor
vehicle I/M; (4) seasonal no-fare public transit; (5) a voluntary clean
fuel fleets program; and (6) additional transportation control
measures. The AQF also recommended a group of supplemental measures
aimed at reducing ozone levels. The emissions reductions associated
with the voluntary measures, specifically clean fuel fleets and
transportation control, cannot be quantified due to their voluntary
nature.
The MDNR presented a maintenance SIP, with the AQF recommendations,
to the Missouri Air Conservation Commission (MACC) on June 24, 1997. At
that time, the MACC recommended inclusion of a more timely and less
politically sensitive control measure in place of the I/M provision. As
a result, on October 7, 1997, the AQF recommended the implementation of
a reformulated gasoline (RFG) program in the KCMA. In response,
Missouri has committed to pursuing, among other options, petitioning
EPA to require the sale of RFG in the KCMA under the provisions of the
Federal RFG program.
The final state submittal provides for continued monitoring,
emissions inventory updates, a summertime RVP limit, and several
programs for which emissions reductions cannot be quantified, including
completion of a stationary source study, voluntary clean fuel fleets,
seasonal low-fare transit, air quality conscious land use planning, and
bicycle and pedestrian friendly transportation planning. In addition,
the revised plan contains commitments to adopt either the Federal RFG
Program, a state fuel regulation, or a Stage II regulation.
If violations continue to occur after implementation of the above
measures, the state will adopt further regulations as necessary,
selected from a list including, but not limited to, Stage II vapor
recovery, enhanced I/M, emissions offsets from new or modified sources,
and mandatory clean fuel fleets.
According to state estimates, limiting the summertime RVP of
gasoline to 7.2 psi achieves VOC emissions reductions of only 4.0 tons
per day. As such, additional reductions are necessary to provide for
reductions substantially equivalent to those (8.4 tons per day)
obtainable by implementing the contingency measures approved in the
1992 maintenance plan SIP. The implementation of an RFG or equivalent
emission reduction program is therefore critical to meeting Missouri's
obligation to achieve the reductions called for in the maintenance
plan.
[[Page 28755]]
II. Evaluation Criteria
To evaluate the maintenance plan revision, EPA referred to
requirements of section 175A of the Act. EPA also reviewed guidance
issued specifically to address applicable procedures for handling
redesignation requests, including maintenance plan provisions entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' John Calcagni, Director, Air Quality Management Division,
to EPA Regional Division Directors, dated September 4, 1992. In
addition, EPA reviewed the maintenance plan for evidence that the
substitute control measures provide for emissions reductions which are
substantially equivalent to those approved in the 1992 SIP, pursuant to
guidance given in the August 17, 1995, letter, from William Spratlin to
Roger Randolph. Finally, EPA evaluated the revised maintenance plan
with respect to the ``Guidance for Implementing the 1-Hour Ozone and
Pre-Existing PM10 NAAQS'' from Richard D. Wilson, Acting
Assistant Administrator for Air and Radiation, to EPA Regional
Administrators.
III. Review of Submittal
According to the September 4, 1992, memo from John Calcagni
regarding ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' a maintenance plan must provide for maintenance of the
ozone NAAQS for at least ten years after redesignation. Section 175A of
the CAA defines the general framework of a maintenance plan. The
Calcagni memo identifies the following list of core provisions
necessary to ensure maintenance of the ozone NAAQS: emission inventory,
maintenance demonstration (including control measures), air monitoring
network, verification of continued attainment, and a contingency plan.
Missouri's revised maintenance plan adequately addresses each of the
required core measures as detailed in EPA's January 26, 1999, proposed
rule (64 FR 3901).
IV. Response to Comments
The American Petroleum Institute (API) submitted written comments
regarding the Agency's January 26, 1999, notice of proposed rulemaking
(64 FR 3901). API's comments and EPA's responses are discussed below.
API stated that despite EPA's September 29, 1998, rule which allows
former nonattainment areas to opt in to the Federal RFG program, EPA
does not have the authority to allow Missouri to opt in for the Kansas
City area. API contends that section 211(k)(6) of the CAA authorizes
opt-ins for currently classified nonattainment areas, and does not
allow attainment areas to opt in. API also attached its comments on the
proposal for the September 1998 rule. API stated that the rule is
contrary to the plain language of the Act, and is currently being
challenged in the Court of Appeals for the District of Columbia.
Finally, API stated that Missouri and EPA ``should wait until the court
rules on EPA's rule before moving forward with an effort to opt the
Kansas City area into the RFG program.'' Response: EPA's authority to
promulgate the underlying opt-in rule is not at issue in this action.
EPA fully responded to comments regarding the agency's authority to
promulgate the revisions to the opt-in rule in the September 29, 1998,
rulemaking, and the issues raised in that rulemaking are not raised in
today's action on the KCMA maintenance plan revisions. The rule is in
effect, notwithstanding the pending petition for review. In addition,
this conditional approval of the revised maintenance plan will not
necessarily result in Missouri opting into the RFG program. As
described above, Missouri could fulfill the condition by adopting and
submitting appropriate alternative regulations which ensure that VOC
emissions are reduced by an amount that is substantially equivalent to
that required under the 1992 SIP.
When Missouri submits a SIP revision to comply with the condition
of this approval, EPA will act on that submission through notice-and-
comment rulemaking. At that time, EPA will consider comments on what
action it should take on the specific alternative selected by Missouri.
V. Conclusion
In today's document, EPA conditionally approves Missouri's 1998
revisions to the Kansas City SIP for control of ozone. This includes
the VOC control measures described above, the emission reduction
credits identified by the state, and the commitment to implement the
additional reductions as expeditiously as practicable.
Full approval of the SIP is conditioned upon receipt of one of the
following: (1) a letter from the Governor of Missouri requesting that
EPA require the sale of Federal RFG within the Missouri portion of the
KCMA; (2) an alternative state fuel regulation; or (3) a regulation
requiring Stage II vapor recovery systems at retail gasoline stations.
If the state fails to submit one of the above, the conditional approval
converts to a disapproval one year from the effective date of the final
rule conditionally approving the state's 1998 submittal.
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.
VI. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. E.O. 12875
Under E.O. 12875, Enhancing the Intergovernmental Partnership, EPA
may not issue a regulation that is not required by statute and that
creates a mandate upon a state, local, or tribal government, unless the
Federal Government provides the funds necessary to pay the direct
compliance costs incurred by those governments, or EPA consults with
those governments. If EPA complies by consulting, E.O. 12875 requires
EPA to provide to the OMB a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments; a summary of the nature of their concerns; copies of any
written communications from the governments; and a statement supporting
the need to issue the regulation. In addition, E.O. 12875 requires EPA
to develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local, or tribal
governments. This rule does not impose any enforceable duties on these
entities. The rule merely approves submissions made by the state, and
establishes a schedule for submitting additional measures. However, the
schedule is not judicially enforceable. Accordingly, the requirements
of section 1(a) of E.O. 12875 do not apply to this rule.
C. E.O. 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an
[[Page 28756]]
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not address an environmental health or safety risk that
would have a disproportionate effect on children.
D. E.O. 13084
Under E.O. 13084, Consultation and Coordination with Indian Tribal
Governments, EPA may not issue a regulation that is not required by
statute, that significantly or uniquely affects the communities of
Indian tribal governments, and that imposes substantial direct
compliance costs on those communities, unless the Federal Government
provides the funds necessary to pay the direct compliance costs
incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to the OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of Section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. This final rule will
not have a significant impact on a substantial number of small entities
because 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. Also, EPA will evaluate the RFA
implications of any requirements which may be established by subsequent
state submissions in response to the conditional approval when EPA
takes rulemaking action on those submissions. Therefore, because the
Federal SIP approval does not create any new requirements, I certify
that this action will not have a significant economic impact on a
substantial number of small entities. Moreover, due to the nature of
the Federal-state relationship under the CAA, preparation of
flexibility analyses 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. EPA, 427
U.S. 246, 255-66 (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
the applicability of state requirements. Moreover, EPA's disapproval of
the submittal would not impose a new Federal requirement. Therefore, I
certify that this conditional approval will not have a significant
economic impact on a substantial number of small entities because it
does not remove existing requirements nor does it substitute a new
Federal requirement.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to state, local, or tribal governments in the aggregate,
or to the private sector, of $100 million or more. Under section 205,
EPA must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 requires EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
preexisting requirements under state or local law, and imposes no new
requirements. The schedule established by the conditional approval is
not judicially enforceable, and any subsequent state submissions to
meet the conditions will be analyzed at that time to determine
applicability of the Unfunded Mandates Act. Accordingly, no additional
costs to state, local, or tribal governments, or to the private sector,
result from this action. In addition, Section 203 does not apply to
this action because it affects only the state of Kansas, which is not a
small government.
G. Submission to Congress and the Comptroller General
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 United States Comptroller General
prior to publication of the rule in the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
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 26, 1999. 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,
[[Page 28757]]
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 20, 1999.
William Rice,
Acting Regional Administrator, Region VII.
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. Section 52.1319 is added to read as follows:
Sec. 52.1319 Identification of plan--Conditional approval.
(a) Elements of the maintenance plan revision to the State
Implementation Plan (SIP) submitted by the Governor's designee on March
23, 1998, which address contingency measures for the Kansas City Ozone
Maintenance Area are conditionally approved. This includes a commitment
to implement the additional reductions as expeditiously as practicable.
(b) Full approval of the SIP is conditioned upon receipt of one of
the following by June 28, 1999: a letter from the Governor of Missouri
requesting that EPA require the sale of Federal reformulated gasoline
within the Missouri portion of the KCMA beginning April 15, 2000; an
equivalent alternative state fuel regulation; or a regulation requiring
Stage II vapor recovery systems at retail gasoline stations in the
Missouri portion of the KCMA. If the state fails to submit one of the
above requirements within the time specified, the conditional approval
automatically converts to a disapproval without further regulatory
action.
[FR Doc. 99-13381 Filed 5-26-99; 8:45 am]
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