Approval and Promulgation of Implementation Plans; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO-30-1-7152a; FRL-5424-7]

Approval and Promulgation of Implementation Plans; State of

Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: By this action the EPA gives conditional approval to the State

Implementation Plan (SIP) submitted by the state of Missouri for the

purpose of fulfilling the requirements set forth in the EPA's General

Conformity rule. The SIP was submitted by the state to satisfy the

Federal requirements in 40 CFR 51.852 and 93.151.

DATES: This action will be effective May 10, 1996, unless by April 10,

1996, adverse or critical comments are received.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the:

Environmental Protection Agency, Air Planning and Development Branch,

726 Minnesota Avenue, Kansas City, Kansas 66101; and EPA Air &

Radiation Docket and Information Center, 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Lisa V. Haugen at (913) 551-7877.

SUPPLEMENTARY INFORMATION:

I. Background

Section 176(c) of the Clean Air Act (CAA), as amended (the Act),

requires the EPA to promulgate criteria and procedures for

demonstrating and ensuring conformity of Federal actions to an

applicable implementation plan developed pursuant to section 110 and

Part D of the Act. Conformity to an SIP is defined in the Act as

meaning conformity to an SIP's purpose of eliminating or reducing the

severity and number of violations of the National Ambient Air Quality

Standards (NAAQS) and achieving expeditious attainment of such

standards. The Federal agency responsible for the action is required to

determine if its actions conform to the applicable SIP. On November 30,

1993, EPA promulgated the final rule (hereafter referred to as the

General Conformity rule), which establishes the criteria and

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procedures governing the determination of conformity for all Federal

actions, except Federal highway and transit actions.

The St. Louis area was designated nonattainment for ozone and

carbon monoxide (CO) in 1978. On November 6, 1991, EPA promulgated a

rule which classified the St. Louis area as a moderate ozone

nonattainment area, and as an unclassified nonattainment area for CO.

In this same rulemaking, EPA promulgated nonattainment designations for

three areas in Missouri which failed to achieve the NAAQS for lead. The

nonattainment areas are identified as portions of Iron County,

Missouri, in the vicinity of the Asarco primary lead smelting facility;

the area surrounding the Doe Run primary/secondary lead smelter-

refinery installation near Boss, Missouri; and the area in the vicinity

of the Doe Run primary lead smelter in Herculaneum, Missouri. Kansas

City was redesignated to attainment for ozone, and a maintenance plan

was approved, in a June 23, 1992, Federal Register notice. Section

51.851 (93.151) of the General Conformity rule requires that states

submit an SIP revision containing the criteria and procedures for

assessing the conformity of Federal actions to the applicable SIP,

within 12 months after November 30, 1993. As the rule applies to all

nonattainment areas and maintenance areas, an SIP revision which

addresses the requirements of the General Conformity rule became due on

November 30, 1994.

II. Review of State Submittal

On February 14, 1995, the state of Missouri submitted a General

Conformity SIP revision. The submission included Missouri rule 10 CSR

10-6.300 (10-6.300), which applies to all areas in the state of

Missouri which are designated as nonattainment or maintenance for any

criteria pollutant or standard for which there is an NAAQS. The General

Conformity rule establishes the criteria for EPA approval of SIPs. See

40 CFR 51.851 and 93.151. These criteria provide that the state

provisions must be at least as stringent as the requirements specified

in EPA's General Conformity rule, and that they can be more stringent

only if they apply equally to Federal and nonfederal entities.

The state of Missouri chose to use the model General Conformity

rule developed by the State and Territorial Air Pollution Program

Administrators (STAPPA)/Association of Local Air Pollution Control

Officials (ALAPCO). The STAPPA/ALAPCO model rule added clarifying

changes consistent with the intent of the Federal rule. The STAPPA/

ALAPCO rule also contains ``more stringent'' and ``lateral'' options

which change the substance of the Federal rule. Missouri did not adopt

any of these options from the model rule.

Missouri rule 10 CSR 10-6.300 was adopted by the Missouri Air

Conservation Commission, after proper notice and public hearing, on

January 12, 1995, and became effective on May 28, 1995. The rule

applies to all areas in the state of Missouri which are designated as

nonattainment or maintenance for any criteria pollutant or standard for

which there is an NAAQS.

III. Conditional Approval

EPA has determined that SIP revisions which use, verbatim, the

model rule developed by STAPPA/ALAPCO are not approvable. Two sentences

added by STAPPA/ALAPCO as clarifying language make the model rule more

stringent than the Federal General Conformity rule. Missouri rules 10

CSR 10-6.300(3)(C)4 and (9)(B)2 include this language. EPA did not make

a determination as to the approvability of the language in the STAPPA/

ALAPCO rule until after the state of Missouri officially submitted the

required SIP revision. However, in a letter dated December 7, 1995,

from David Shorr, Director, Missouri Department of Natural Resources

(MDNR), to Dennis Grams, Regional Administrator, EPA, the state has

committed to change the unapprovable sections and resubmit the SIP

revision, within one year from December 7, 1995.

Under section 110(k)(4) of the Act, EPA may grant a conditional

approval of this revision based on the state's commitment to correct

deficiencies by a date certain, but not later than one year after the

date of approval of the plan revision. Furthermore, section 110(k)(4)

of the Act states that, should the state fail to meet its commitment,

this conditional approval will convert to a disapproval. As the state

has committed to correct this SIP revision within one year from

December 7, 1995, EPA grants a conditional approval of the state's

submittal.

EPA ACTION

By this action, EPA grants conditional approval of Missouri's

February 14, 1995, submittal. This SIP revision substantially meets the

requirements set forth in 40 CFR 51.851 and 93.151, except as noted

above.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in the Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time.

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.

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, EPA certifies that it does not have a significant impact

on any small entities affected. 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

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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.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by

a July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from E.O. 12866 review.

Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

state, local, or tribal governments in the aggregate.

Through submission of this SIP, the state has elected to adopt the

program provided for under section 110 of the CAA. These rules may bind

state and local governments to perform certain actions and also require

the private sector to perform certain duties. To the extent that the

rules being finalized for approval by this action will impose new

requirements, sources are already subject to these regulations under

state law. Accordingly, no additional costs to state or local

governments, or to the private sector, result from this final action.

The EPA has also determined that this final action does not include a

mandate that may result in estimated costs of $100 million or more to

state or local governments in the aggregate or to the private sector.

EPA has determined that these rules result in no additional costs to

tribal government.

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 May 10, 1996. 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, Lead, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: February 6, 1996.

Dennis Grams,

Regional Administrator.

Part 52, 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. 7401-7671q.

Subpart AA--Missouri

2. Section 52.1320 is amended by adding paragraph (c)(93) to read

as follows:

Sec. 52.1320 Identification of plan.

* * * * *

(c) * * *

(93) On February 14, 1995, the Missouri Department of Natural

Resources (MDNR) submitted a new rule which pertains to general

conformity.

(i) Incorporation by reference.

(A) New rule 10 CSR 10-6.300, entitled Conformity of General

Federal Actions to State Implementation Plans, effective May 28, 1995.

3. Section 52.1323 is amended by adding paragraph (h) to read as

follows:

Sec. 52.1323 Approval Status.

* * * * *

(h) The state of Missouri commits to revise 10 CSR 6.300 to remove

language in paragraphs (3)(C)4. and (9)(B) which is more stringent than

the language in the Federal General Conformity rule. In a letter to Mr.

Dennis Grams, Regional Administrator, EPA, dated December 7, 1995, Mr.

David Shorr, Director, MDNR, stated:

We commit to initiating a change in the wording in the above

paragraphs [paragraphs (3)(C)4. and (9)(B)] of Missouri rule 10 CSR

10-6.300, and to submit the change to EPA within one year from the

date of this letter [December 7, 1995]. We intend that the change

will give our rule the same stringency as the General Conformity

Rule.

[FR Doc. 96-5733 Filed 3-8-96; 8:45 am]

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