[Federal Register Volume 65, Number 97 (Thursday, May 18, 2000)]
[Rules and Regulations]
[Pages 31485-31489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12385]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 103-1103; FRL-6701-3]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving Missouri's 15% Rate-of-Progress Plan (ROPP), 
and Missouri rule 10-CSR 10-5.300, ``Control of Emissions From Solvent 
Metal Cleaning.'' This Plan is intended to fulfill the requirements of 
section 182(b)(1)(A) of the Clean Air Act (CAA or Act).

DATES: This rule is effective on June 19, 2000.

ADDRESSES: Copies of the state submittals are available at the 
following address for inspection during normal business hours: 
Environmental Protection Agency, Air Planning and Development Branch, 
901 North 5th Street, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Royan Teter at (913) 551-7609.

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 State Implementation Plan (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 action?
Have the requirements for approval of a SIP revision been met?
    What action is EPA taking?

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 established by EPA. 
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 
EPA 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 the proposed 
Federal action on the state submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
us.
    All state regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated into the Federally 
approved SIP. Records of such SIP actions are 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 
outright but are ``incorporated by reference,'' which means that we 
have approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

    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 enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA.

What Is Being Addressed in This Document?

    On November 12, 1999, Missouri submitted a revised ROPP. The plan 
established the 1996 target level of volatile organic compound (VOC) 
emissions for the Missouri portion of the St. Louis ozone nonattainment 
area. Missouri achieves the required reductions through a combination 
of 19 state and 9 Federal measures.
    On February 17, 2000, (65 FR 8083) EPA proposed to approve 
Missouri's ROPP and VOC rule 10 CSR 10-10.300. The public provided 
comments on the proposed action. We are responding to those comments 
below.

Have the Requirements for Approval of a SIP Revision Been Met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfied the completeness criteria of 40 CFR part 51, Appendix V. In 
addition, as explained above and in more detail in the technical 
support document which was part of the proposed action, the revision 
meets the substantive SIP requirements of the CAA, including section 
110 and implementing regulations.

Response to Comments

    The Missouri Coalition for the Environment and the Sierra Club 
submitted jointly written comments regarding our February 17, 2000 
proposal (65 FR 8083) to approve Missouri's 15% ROPP, and Missouri rule 
10-CSR 10-5.300, ``Control of Emissions From Solvent Metal Cleaning.'' 
Their paraphrased comments and EPA's responses follow.
1. Comments Relating to the Statutory Requirements for Review of the 
ROPP
    Comment: The commenters stated that the ROPP should be disapproved 
because it fails to show reasonable further progress ``as a matter of 
law.'' The commenters argue that the St. Louis nonattainment area is 
currently classified as ``serious'' under section 181 of the Act, and 
is therefore subject to the reasonable further progress (RFP) 
requirements of section 182(c) rather than 182(b).
    In addition, they argue section 182(b) is no longer relevant for 
purposes of determining RFP because it governs RFP toward the goal of 
attainment by 1996 whereas it is now 2000. They contend the plan should 
be disapproved based on the premise that section 182(c) is the 
applicable CAA requirement and their conclusion that Missouri's plan 
does not purport to satisfy the RFP requirements of section 182(c).
    Response: The St. Louis area is classified under section 181(a) of 
the Act as a moderate ozone nonattainment area, and has not been 
reclassified under section 181(b) as suggested by the commenters. In 
any event, the RFP requirements of section 182(b)(1) are applicable to 
all areas classified as

[[Page 31486]]

moderate or higher, and must be met regardless of an area's 
classification and attainment date.
    The RFP requirements of the CAA are structured in an additive 
fashion. For example, section 182(c) states that serious areas must 
meet the requirements of both subsections (b) and (c). As stated in the 
proposal on Missouri's submission, the scope of this rulemaking is 
limited to determining whether the submission meets the RFP 
requirements in section 182(b)(1). Whether it also meets additional 
requirements of the Act, even if such requirements were relevant, is 
beyond the scope of the rulemaking.
2. Comments on the Adequacy of EPA's Notice of Its Statutory Authority 
for the Rule
    Comment: The commenters argue that EPA failed to give notice of its 
statutory authority to approve a 15% Plan which relies on reductions in 
VOC emissions achieved after November 15, 1996 (the date specified in 
section 182(b)(1)(A)(i) for achieving the reductions). The commenters 
state that EPA has not met the notice requirements of section 
307(d)(3)(C) of the Act, or section 553 of the Administrative Procedure 
Act (APA).
    Response: As a preliminary matter, EPA notes that section 307(d) is 
not applicable to this rulemaking. Section 307(d)(1) lists the actions 
to which section 307(d) applies, and the list does not include approval 
of SIP submissions. See, e.g., Missouri Limestone Producers v. Browner, 
165 F. 3d 619, 621 (8th Cir. 1999). Therefore, the rulemaking is 
governed by the provisions of section 553 of the APA, which requires, 
in relevant part, that a notice of proposed rulemaking include 
``reference to the legal authority'' for the proposed rule, and ``a 
description of the subjects and issues involved'' in the proposed rule. 
APA, section 553(b). In general, the notice must be sufficient to allow 
for ``informed public comment.'' Id. at 623.
    EPA believes that the notice criteria in section 553(b) were met in 
the notice of proposed rulemaking on the ROPP. The notice contained a 
description of the statutory requirements in section 182(b)(1) of the 
Act against which submission was evaluated and a description of how the 
submission meets those requirements. The notice contains a description 
of the issues involving the November 15, 1996 deadline, and a 
discussion of the rationale for approving a ROPP extending beyond that 
date. See 65 FR 8089-8091.
    EPA notes that the commenters submitted extensive comments which 
took issue with EPA's stated legal basis for proposing to approve the 
ROPP. Therefore, EPA believes that the notice of proposed rulemaking 
provided sufficient notice to allow for ``informed public comment'' and 
to satisfy the requirements of the APA. The fact that the commenters 
disagree with EPA's basis for approval, to which EPA is responding 
below, does not mean that EPA failed to provide adequate notice of the 
basis for the proposed approval.
3. Comments Relating to the ROPP's Sufficiency With Respect to the 
Statutory Requirements
    Comment: In general, the commenters assert that since section 
182(b)(1) requires that the plan include a 15% decrease in baseline 
emissions by November 15, 1996, EPA cannot approve a plan which 
includes reductions occurring after 1996.
    Response: This assertion is contrary to relevant case law and would 
provide a disincentive for states to continue to achieve emission 
reductions in an area once a statutory date is missed, thus defeating 
the purpose of section 182(b)(1). As EPA explained in the proposal, 
even after the November 15, 1996 deadline for demonstrating the 15% VOC 
reduction has passed, the requirement to achieve the emission reduction 
remains, and the reduction must be demonstrated as soon as practicable. 
This is based on the ruling in Delaney v. EPA, 898 F. 2d 687, 691 (9th 
Cir. 1990), stating that once a statutory deadline has passed and has 
not been replaced by a later one, the deadline then becomes as soon as 
possible, which EPA has interpreted to be as soon as practicable. The 
Missouri submission indicates, and EPA agrees, that this date is 2003, 
when the full reductions from the second phase of Missouri's motor 
vehicle inspection and maintenance program will be realized. As 
indicated in EPA's proposal, neither Missouri nor EPA has been able to 
identify any practicable measures which are not included in the plan 
and which could accelerate this demonstration date.
    EPA also notes that the commenters do not take issue with the 
analysis of other measures, but only with the determination that a plan 
with a demonstration date after 1996 can be approved. For the reasons 
stated above and in the proposal, EPA believes that the Missouri 
submission can be approved even though the demonstration date is after 
1996.
    EPA also notes that, under the commenters' view that a 15% ROPP 
with a post-1996 demonstration date cannot be approved, there would be 
a disincentive for a state to adopt and implement a plan for achieving 
the 15% ROPP reductions, since EPA would be required to disapprove any 
post-1996 plan submitted by a state. In addition, EPA would be unable 
to promulgate a Federal plan after 1996, since it would also be unable 
to achieve emission reductions by 1996. EPA's approach keeps the 
requirement for emission reductions in place after 1996, and ensures 
that the reductions will be achieved as soon as practicable after that 
date.
    Comment: Referring to language in section 182(b)(1)(A) of the CAA 
the commenters assert that Missouri's ROPP falls short of achieving the 
required VOC emissions reductions. They note that Missouri's plan only 
accounts for emissions growth between 1990 and 1996 and contend that 
the plan should also account for growth that occurred between 1996 and 
the time the state's plan was submitted. They further contend that 
Missouri's use of 1996 emissions projections (developed by applying 
economic growth factors to emissions estimates from previous years), is 
arbitrary and capricious for two reasons: (1) Their belief that there 
is no basis for relying on emissions projections at this late date, 
asserting that 1996 actual emissions should be inventories instead; and 
(2) the ROPP does not account for growth after 1996.
    Response: Section 182(b)(1)(A)(i) reads, ``By no later than 3 years 
after the date of enactment of the Clean Air Act Amendments of 1990, 
the state shall submit a revision to the applicable implementation plan 
to provide for volatile organic compound emission reductions within 6 
years after the enactment of the Clean Air Act Amendments of 1990, of 
at least 15 percent from baseline emissions accounting for any growth 
in emissions after the year in which the Clean Air Act Amendments are 
enacted.'' As acknowledged by the commenters, the statute clearly 
contemplated that states would submit their ROPP by 1993 and implement 
them by 1996. The growth for which they must account is clearly tied to 
1996.
    The 1993 due date leads to a reasonable conclusion that Congress 
intended for the states to determine the required level of emissions 
reductions based on projected as opposed to actual emissions. Such an 
approach provides for equitable treatment of the states. It ensures 
there is no advantage gained from delayed implementation of emission 
control measures until after the compliance date has passed and

[[Page 31487]]

actual emissions can be estimated, rather than risk implementing a 
control plan designed around emission projections that are too high.
    Though not directly relevant to this rulemaking, but nonetheless 
important to achieving the air quality standards, EPA notes that 
neither Missouri nor EPA intends to ignore post-1996 changes in the 
area's emissions inventory. Appropriate consideration of such changes 
is paramount to ensuring that ozone levels in the St. Louis area are 
reduced to acceptable levels. Missouri has accounted for such changes 
in its attainment demonstration upon which EPA proposed action on April 
17, 2000 (65 FR 20404).
    Comment: The commenters stated that, even if a plan could be 
submitted after the statutory deadline for achieving the 15% 
reductions, most of the reductions included in the Missouri submission 
are not creditable because they did not occur prior to November 15, 
1996.
    Response: As stated previously, once the statutory deadline for 
demonstrating the 15% ROPP reductions has passed, the requirement 
remains in effect, and the new deadline is a date which is as 
expeditious as practicable. Similarly, ROPP reductions are creditable 
if the state shows that the reduction will occur by the new ROPP 
demonstration date. Because Missouri has shown that the remaining 
reductions will occur by the 2003 demonstration date, EPA believes that 
the reductions are creditable under section 182(b)(1).
4. Comments Relating to the Absence of Contingency Measures in the 15% 
Plan
    Comment: The commenters argue that Missouri's submission should not 
be approved because it does not include ``any specific contingency 
measures,'' and EPA's proposal makes no reference to the contingency 
measures to be approved as part of the 15% ROPP. The commenters assert 
that section 172(c)(9) of the Act requires that contingency measures 
meeting the requirements of that section must be included in any ROPP, 
and that failure to do so must result in disapproval of the plan. The 
commenters argue that this view linking the requirements of section 
172(c)(9) with the requirements for ROPP was announced as an EPA 
interpretation of section 172(c)(9) in the April 16, 1992, General 
Preamble (57 FR 13,498).
    Response: EPA does not agree that the contingency measure 
requirement in section 172(c)(9) must be met in order to meet the 
requirements for an approvable 15% ROPP. The Act requires contingency 
measures as part of the overall SIP and not as feature of each 
component of that plan, such as the 15% ROPP. Contrary to the 
commenters' contention, our position is supported by the plain language 
of section 172(c)(9). While the other subsections in section 172(c) 
begin with ``such plan provisions shall * * * ,'' section 172(c)(9) 
begins with ``such plan shall * * *.'' ``Such plan'' refers to the 
overall nonattainment plan rather than an individual element or 
provision of it. The difference in language between the contingency 
measures requirement and the other requirement in section 172(c) 
emphasizes that the contingency measures serve to backstop the entire 
nonattainment plan and not just particular elements of it.
    This interpretation is consistent with the statement in the General 
Preamble cited by the commenters which, contrary to their 
characterization, did not state that contingency measures must be 
included in the ROPP. In the General Preamble, EPA stated the Act's 
requirements for nonattainment plan submittals for moderate 
nonattainment areas. these included the requirement for a 15% ROPP 
(discussed in section III.A.3.(a)), an attainment demonstration 
(discussed in section III.A.3.(b)), and contingency measures (discussed 
in section III.A.3.(c)), see 57 FR 13,498, 13507-13,512, as well as 
other requirements for moderate areas.
    EPA stated that it expected the contingency measures would be 
submitted at the same time as these other plan elements, but did not 
state that the 15% ROPP or any other specific submittals were required 
to include contingency measures. Logically, had EPA intended to assert 
that contingency measures are required in 15% Plans, it would have said 
so in the General Preamble discussion of the requirements for 15% ROPP 
(section III.A.3.(a)), which contained a lengthy discussion of the 
contents of 15% Plans.
    The commenters correctly note that EPA's proposal did not address 
the issue of whether the various VOC rule submittals, including rule 10 
CSR 10-5.300 (which EPA proposed to approve into the SIP in the 
February 17, 2000, proposed rulemaking), were adequate to meet the 
contingency measure requirements of section 172(c)(9). The issue was 
not addressed because the proposal related only to whether Missouri met 
the 15% ROPP requirements in section 182(b)(1).
    In the proposal (65 FR 8083, 8088), EPA noted that rule 10-5.300 
had been submitted as part of the state's 1998 contingency measure SIP, 
and that a small fraction of the VOC reductions (0.64 tons per day out 
of an approximate total of 9 tons per day) was included in the state's 
15% Plan demonstration. EPA has not determined whether the 1998 
submittal meets the requirements of section 172(c)(9), and, as 
explained above, can approve Missouri's ROPP demonstration without 
making that determination. EPA will address the SIP's adequacy with 
respect to contingency measures in a separate rulemaking.
5. Comments Relating to EPA's Authority to Engage in Retroactive 
Rulemaking
    Comment: Finally, the commenters object to EPA's proposed action as 
``retroactive'' rulemaking which is not authorized under the Act. This 
comment is based on their assertion that EPA is proposing ``to give 
legal effect as of 1996 to events potentially occurring in 2000 and 
beyond.''
    Response: This comment is based on an incorrect characterization of 
EPA's proposal. Although not stated, this comment appears to be based 
on the commenters' view, addressed above, that EPA cannot approve a 15% 
ROPP which relies on reductions occurring after 1996, and that to 
approve such a plan we are making it ``retroactive'' to 1996. However, 
this is not what EPA has done. Rather, EPA has explained the legal and 
policy basis for approving a ROPP demonstration which extends beyond 
1966.
    In addition, EPA's approval of the state plan does not take effect 
until the future effective date specified in this notice, and EPA's 
approval of the plan does not alter the effective dates (which were 
established by Missouri during its rulemaking process) of the rules on 
which the plan relies. For these reasons, EPA is not engaged in 
``retroactive'' rulemaking and is authorized under the Act to take this 
final action.

What Action Is EPA Taking?

    We are taking final action to approve Missouri's 15% ROPP for the 
St. Louis area and VOC rule 10 CSR 10-5.300. In separate actions 
published in today's Federal Register, we are approving several other 
VOC regulations which are elements of the ROPP.

Administrative Requirements

    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. 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

[[Page 31488]]

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 preexisting 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 (Public Law 104-4).
    For the same reason, this rule also does not significantly or 
uniquely affect the communities of tribal governments, as specified by 
Executive Order 13084 (63 FR 27655, May 10, 1998).
    This rule will 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), because it 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 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, our 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), we have 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 requirement of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, we have taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859), March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the Executive Order. 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. section 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. We 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. section 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this section must be filed in the United States Court of Appeals for 
the appropriate circuit by July 17, 2000. 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, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: May 8, 2000.
Dennis Grams,
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 Sec. 52.1320, the table in paragraph (c) is amended by 
revising the entry for 10-5.300, under Chapter 5, to read as follows:


Sec. 52.1320  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
                                                          State effective
       Missouri citation                  Title                 date        DPA approval date     Explanation
----------------------------------------------------------------------------------------------------------------
                                    Missouri Department of Natural Resources
 
*                  *                  *                  *                  *                  *
                                                        *
     Chapter 5--Air Quality Standards and Pollution Control Regulations for the St. Louis Metropolitan Area
 
*                  *                  *                  *                  *                  *
                                                        *
10-5.300.......................  Control of Emissions    May 30, 1998.....  May 18, 2000.....
                                  From Solvent Metal
                                  Cleaning.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


    3. In Sec. 52.1320, the table in paragraph (e) is amended by adding 
the following entry at the end of the table: ``15% Rate-of-Progress 
Plan.''


Sec. 52.1320  Identification of plan.

* * * * *

[[Page 31489]]

    (e) * * *

                               EPA-Approved Missouri Nonregulatory SIP Provisions
----------------------------------------------------------------------------------------------------------------
   Name of nonregulatory SIP      Applicable geographic   State Submittal
           provision              or nonattainment area         date        EPA approval date     Explanation
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
15% Rate-of-Progress Plan......  St. Louis.............  11/12/99.........  May 18, 2000.....
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[FR Doc. 00-12385 Filed 5-17-00; 8:45 am]
BILLING CODE 6560-50-D