Approval and Promulgation of Implementation Plans; State of
Missouri
Related Material
[Federal Register: May 18, 2000 (Volume 65, Number 97)]
[Rules and Regulations]
[Page 31485-31489]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my00-10]
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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
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State effective
Missouri citation Title date DPA approval date Explanation
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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.
* * * * * *
*
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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
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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]
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