Clean Air Act Approval and Promulgation of Commitment to Adopt a Rule for Reasonably Available Control Technology for Oxides of Nitrogen for Missouri

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.

-----------------------------------------------------------------------

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]

BILLING CODE 6560-50-P