Approval and Promulgation of Implementation Plans; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO-025-1025; FRL-5852-2]

Approval and Promulgation of Implementation Plans; State of

Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to approve two regulations which are

components of Missouri's State Implementation Plan (SIP) to meet the

15% Rate-of-Progress Plan (15% Plan, or ROPP) requirements of section

182(b)(1)(A) of the Clean Air Act (CAA), as amended (the Act).

Specifically, the EPA is proposing to approve Missouri rules 10 CSR 10-

5.443, ``Control of Gasoline Reid Vapor Pressure,'' and 10 CSR 10-

5.490, ``Municipal Solid Waste Landfills'' (MSWL). The implementation

of these rules will achieve reductions in the emissions of volatile

organic compounds (VOC) of approximately 7.76 tons per day (TPD), or

approximately 14 percent of the reductions required with the St. Louis

ozone nonattainment area. Final action on these regulations will

incorporate them into the Federally approved SIP.

DATES: Comments on this proposed action must be received in writing by

August 1, 1997.

ADDRESSES: Comments may be mailed to Royan W. Teter, Environmental

Protection Agency, Air Planning and Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101.

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

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SUPPLEMENTARY INFORMATION: On March 18,1996, the EPA proposed a

limited approval and limited disapproval (61 FR 10968)of the SIP

submitted by the state of Missouri to meet the 15% Plan

requirements of section 182(b)(1)(A) of the CAA, as amended (the

Act). The EPA also proposed conditional approval for two individual

components of the 15% Plan. The EPA proposed a limited approval

because the 15% Plan, submitted by Missouri, will result in

significant emission reductions from the 1990 baseline and, thus,

will improve air quality. The EPA proposed a limited disapproval of

the 15% Plan because it failed to demonstrate sufficient reductions

of VOCs to meet the 15% ROPP requirements.

Certain circumstances have arisen which the EPA believes make it

appropriate to repropose approval for two regulations which make up a

portion of Missouri's 15% Plan. What follows is an explanation of these

circumstances and a summary of the technical basis for the EPA's

proposal. A more detailed discussion is presented in the EPA's

Technical Support Document (TSD).

I. 10 CSR 10-5.443, ``Control of Gasoline Reid Vapor Pressure''

(RVP)

RVP is a measure of a fuel's volatility. It reflects the rate at

which gasoline evaporates and VOC emissions occur as it is directly

proportional to the rate of evaporation. Hence, the lower the RVP, the

lower the rate of evaporation. RVP restrictions during the summer

months can help offset the effect of summer temperatures upon the

volatility of gasoline which, in turn, lowers emissions of VOCs. VOC

emissions are an important component in the production of ground level

ozone during the hot summer months. Hence, further restricting the

allowable RVP of gasoline sold within the St. Louis nonattainment area

will help the state's effort to attain and maintain compliance with the

National Ambient Air Quality Standard (NAAQS) for ozone.

A. Background

In 1994, Missouri proposed the RVP rule as an interim and immediate

strategy to reduce VOC emissions and was not intended as a permanent

and long-term component of the 15% Plan. As such, the 1994 7.2 pounds

per square inch (psi) low RVP rule was not submitted to the EPA prior

to the 1994 ozone season and was not Federally enforceable. The

proposed rule was not intended to imply a preference for either low RVP

or reformulated gasoline (RFG) as a fuel control strategy for 1995 and

beyond. Missouri adopted an RVP strategy in light of the expediency

with which it could be implemented to reduce VOC emissions in the St.

Louis area. It was also recognized that the RVP of southern grade RFG

is limited to a maximum of 7.2 psi RVP. An RVP limit of 7.2 psi for

conventional gasoline would have an immediate impact on air quality

while still providing the flexibility to opt into the RFG program, if

the state legislature grants the enabling authority to select RFG as a

fuel control strategy for St. Louis.

Almost immediately after the proposed 7.2 psi RVP rule was adopted

by Missouri Air Conservation Commission (MACC) in March 1994, the state

resumed discussions with several petroleum industry representatives on

the option of further restricting the RVP of St. Louis's gasoline. An

agreement was reached regarding the 15% Plan for the St. Louis area,

which included lowering gasoline RVP control to 7.0 psi, as provided in

the current state rule.

To meet the 15% VOC emission reduction requirement of the CAA, as

well as to demonstrate attainment of the ozone standards by 1996, the

Missouri Department of Natural Resources (MDNR) evaluated the Region's

emission inventory to determine the feasibility of controlling

emissions from all source categories. The selected emission controls

were required to be timely, effective, and enforceable. Missouri

investigated additional controls for a broad range of source categories

including mobile sources, fuel distribution, fuel consumption,

automobile refinishing, architectural surface coating, solvent

cleaning, lithographic and graphic art processes, open burning,

pesticide application, and several categories subject to Federal air

toxics regulations. Based on the investigation of these and other

potential emission control measures, Missouri concluded that a motor

vehicle fuel control measure would be necessary to meet the CAA

requirements for the St. Louis ozone nonattainment area. As such,

Missouri revised the St. Louis RVP rule, thereby establishing an RVP

limit of 7.0 psi with a 1 psi waiver for gasoline containing at least 9

percent, but no more than 10 percent, ethanol. The revised rule became

effective on May 28, 1995, and was incorporated into Missouri's 15%

Plan; however, Missouri did not address the prohibition of RVP

restrictions beyond those established at the Federal level as

prescribed in section 211(c)(4)(A) of the CAA or the provisions in

section 211(c)(4)(C) which allow for a waiver from the prohibition

under certain circumstances. Likewise, the EPA did not address these

issues in its March 18, 1996, proposal. Missouri has since addressed

the requirements of the Act; thus, the EPA believes it appropriate to

repropose approval of Missouri's RVP rule. What follows is a discussion

of the requirements of the CAA and a description of how Missouri

addressed these requirements.

B. Regulatory History

In August 1987, the EPA first proposed in the Federal Register (FR)

a two-phase national program to reduce summertime gasoline volatility

(52 FR 31274). The EPA's proposal resulted in a two-phase final

regulation which was incorporated into the 1990 Amendments to the CAA

in section 211(h). Phase I of the regulation took effect in 1990 for

the years 1990 and 1991. Phase II of the regulation took effect in May

1992 (55 FR 23658). The rule separated areas of the country into two

regions identified as Class B and Class C. Generally, Class B states

are the warmer southern and western states, and Class C states are the

cooler northern states. Some ozone nonattainment areas were also

required to meet more stringent RVP requirements. For Class B

geographical areas such as St. Louis, the Phase II regulation limits

the volatility of gasoline sold during the high ozone season (June

through September) to 9.0 and 7.8 psi RVP for attainment and

nonattainment areas, respectively. Because of its nonattainment status,

St. Louis was required to comply with 7.8 psi RVP.

C. Necessity Finding

As noted above, Missouri did not find the Phase II fuel volatility

control regulation sufficient to ensure expeditious attainment of the

NAAQS for ozone. A more stringent low RVP requirement was deemed

necessary to ensure attainment and maintenance of the ozone standard.

Under sections 211(c) and 211(h) of the CAA, the EPA has

promulgated nationally applicable Federal standards for RVP levels in

motor vehicle gasoline. Because a Federal control promulgated under

section 211(c)(1) applies to the fuel characteristic RVP, nonidentical

state controls are prohibited under section 211(c)(4). Section

211(c)(4)(A) of the Act prohibits state regulation respecting a fuel

characteristic or component for which the EPA has adopted a control or

prohibition, unless the state control is identical to the Federal

control. Under section 211(c)(4)(C), the EPA may approve a nonidentical

state fuel control as a SIP provision, if the state demonstrates that

the measure is necessary to achieve the

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national primary or secondary ambient air quality standard that the

plan implements. The EPA can approve a state fuel requirement as

necessary only if no other measures would bring about timely

attainment, or if other measures exist but are unreasonable or

impracticable. While the Missouri low RVP requirement is preempted by

the Federal RVP requirements, the state can implement the low RVP

requirement if the EPA finds it necessary and approves it as a revision

to the SIP.

On February 4, 1997, MDNR submitted to EPA Region VII a draft

revision to the 15% ROPP in which the state requested authorization to

regulate fuel volatility, in accord with section 211(c)(4)(C). Included

in the submittal were materials providing justification for requesting

an exemption under section 211(c)(4)(C) of the CAA. A public hearing in

regards to the SIP was held on February 27, 1997. The SIP revision was

adopted by the MACC on March 27, 1997, and submitted to the EPA on May

8, 1997.

In its submittal, Missouri showed that additional VOC reductions

are needed to address St. Louis's recent history of nonattainment

problems and to ensure attainment of the ozone NAAQS in the

nonattainment area. While the area is designated as a moderate

nonattainment area, the St. Louis area is currently in danger of being

classified as a serious ozone nonattainment area due to exceedances

occurring since 1993. Missouri estimates that the area needs to achieve

approximately 53.8 tons per day of VOC reductions to attain the ozone

NAAQS. Because emission trends continue to increase, the state believes

it is important that control measures producing a significant portion

of the needed reduction be implemented and enforceable in time to

reduce emissions beginning in the 1997 ozone season. Otherwise, there

is a significant risk of exceedances and violations in 1997, and this

risk will increase over time. The EPA agrees that an important

criterion in evaluating the reasonableness of each control measure is

whether it will achieve significant emission reductions in the near

term, beginning in the 1997 and 1998 ozone seasons.

Missouri evaluated a broad range of available control measures to

determine whether there are sufficient reasonable and practicable

measures available to produce the needed emissions reductions without

requiring low RVP gasoline. In addition to assessing the quantity of

emission reductions attributable to each control measure, the state

also considered the time needed for implementation and cost

effectiveness of each measure in evaluating the reasonableness and

practicability of the other control measures in comparison to the low

RVP gasoline requirements. Missouri found that a 7.0 psi RVP

requirement would produce an estimated 6.28 tons per day of VOC

emissions reductions. Based on the state's evaluation, the EPA finds

that there are not sufficient other reasonable and practicable measures

available to produce the quantity of emissions reductions needed to

continue to achieve the NAAQS, and thus a low RVP requirement is

necessary.

Although, as mentioned previously, the state's adoption of a low

RVP requirement would not preclude the state from subsequently opting

in to the RFG program, Missouri's submittal did not include a

demonstration that RFG is unreasonable. Missouri noted that RFG is not

available in St. Louis as a matter of state law, since its enabling

legislation does not allow it to establish both an RFG program and an

enhanced motor vehicle inspection and maintenance program.

The EPA concurs with the state's analysis and its implicit

determination that ``other measures'' (as specified in section

211(c)(4)) need not encompass other state fuel measures including state

opt-in to Federal RFG. The Agency believes that the Act does not

require a state to demonstrate that other fuel measures are

unreasonable or impracticable, but rather section 211(c)(4) is intended

to ensure that a state resorts to a fuel measure only if there are no

available practicable and reasonable nonfuels measures. Thus, in

demonstrating that measures other than requiring low RVP gasoline are

unreasonable or impracticable, a state is not required to submit a

demonstration that other state fuel requirements or state opt-in to RFG

are unreasonable or impracticable. This interpretation resolves the

ambiguity of the phrase ``other measures'' and reasonably balances the

interests underlying the statutory preemption provision. In addition,

the result preserves the state's role, specified in section 101(a)(3)

of the Act, as the entity primarily responsible for determining the mix

of controls to be used to achieve the required emission reductions.

The state has already implemented virtually every other reasonably

available control measure. Other measures that could achieve emission

reductions (such as Graphic Arts, Pesticide Application, Aircraft

Emissions, Stage II Vapor Recovery, Marinas, Breweries, Asphalt

Application, Barge Loading, Unloading, and Transport) would only

achieve a small portion of the needed emission reductions. A detailed

discussion of Missouri's findings relative to the emission reduction

potential of each of these measures can be found in the EPA's TSD, as

well as a detailed discussion of the EPA's necessity finding.

D. Analysis of the Rule

The Missouri rule specifies that no person shall dispense, supply,

exchange in trade, offer for sale or supply, and sell or store gasoline

used as a fuel for motor vehicles that has an RVP greater than 7.0 psi,

or 8.0 psi for gasoline containing at least 9.0 percent by volume but

not more than 10.0 percent by volume of ethanol. This rule applies

beginning June 1 through September 15 of each year.

In addition, facilities other than a gasoline dispensing facility

shall keep and maintain at the facility, for two years following the

date of the RVP test, records of the information regarding the RVP of

gasoline that is to be used as a fuel for motor vehicles.

Gasoline used exclusively for fueling implements of agriculture and

gasoline in any tank, reservoir, storage vessel, or other stationary

container with a nominal capacity of 500 gallons or less shall be

exempt from this regulation.

The sampling procedures and test methods are consistent with the

EPA recommendations as described in 40 CFR part 80, Appendices D, E,

and F.

II. 10 CSR 10-5.490, ``Municipal Solid Waste Landfills''

A. Background

On March 12, 1996, the EPA adopted New Source Performance Standards

for Municipal Solid Waste Landfills (Title 40 CFR part 60, subpart WWW)

and Emission Guidelines (EG) and Compliance Times for Municipal Solid

Waste Landfills (Title 40 CFR part 60, subpart Cc). The subpart Cc EGs

apply to existing MSWLs.

Six MSWLs are located in the St. Louis area. Landfills emit VOCs,

including methane, through the decomposition of solid waste. The 1990

base year inventory indicates the nonmethane VOCs emitted from these

six landfills are 1.51 TPD. At the time of the EPA's previous proposal

on Missouri's 15% Plan, the submitted plan included only a discussion

of a rule which would result in a 1.48 TPD reduction in VOC emissions

within the St. Louis nonattainment area. In part, the delay in adopting

a final rule was related to the state's plans to model its rule after

the EPA emission standards which at the time, were yet to be

promulgated. Final promulgation of the

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EPA's emission standards for landfills was significantly delayed. In an

October 21, 1994, letter to Gale Wright, then Chief of the EPA Air

Branch, from Roger Randolph, Director, MDNR, Air Pollution Control

Program, the state committed to developing this rule with

implementation in 1996. The state had made every effort to move forward

with this rule despite delays in the promulgation of the EPA's emission

standards. Missouri submitted a draft of a rule for the EPA comment on

May 17, 1995. The EPA provided comments on the draft rule in June 1995.

Noting the state's progress, the EPA proposed to conditionally approve

the emissions reduction credit claimed in the submitted 15% Plan. Final

approval was subject to the state's submittal of a final rule by no

later than November 15, 1996. The public hearing for 10 CSR 10-5.490

was held July 25, 1996. The MACC adopted 10 CSR 10-5.490, ``Municipal

Waste Landfills,'' on August 29, 1996, and the rule became effective on

December 30, 1996. The final rule was submitted to the EPA on February

24, 1997. Because the final rule was not available at the time of the

EPA's previous proposal and the state has met the condition for final

approval prior to the EPA having taken final action on the March 18,

1996, proposal it is necessary to repropose action on this element of

Missouri's 15% Plan.

B. Analysis of the Rule

Rule 10 CSR 5.490, ``Municipal Solid Waste Landfills,'' covers the

St. Louis nonattainment area. This rule meets or exceeds the

requirements of the EG. The EG requires that landfills having design

capacities of two and a half (2.5) million Mg by mass or greater and

NMOC emissions of 50 Mg or greater shall install a gas collection and

control system. Rule 10 CSR 10-5.490 is more stringent in that it

applies to landfills having a design capacity of one million Mg by mass

or greater and NMOC emissions of 25 Mg per year. A detailed analysis of

the state's rule can be found in the EPA's TSD.

III. Proposed Action

By this action, the EPA proposes to approve Missouri rules 10 CSR

10-5.443, ``Control of Gasoline Reid Vapor Pressure,'' and 10 CSR 10-

5.490, ``Municipal Solid Waste Landfills,'' as part of Missouri's SIP

to meet the 15% ROPP requirements of section 182(b)(1)(A) of the CAA.

This proposed SIP revision meets the requirements of section 110 and

Part D of Title I of the CAA and 40 CFR part 51.

As indicated above, this action proposes approval of two rules

submitted as part of Missouri's 15% Plan. The EPA, as explained

previously, had proposed to approve or conditionally approve the

regulations included in the 15% Plan, and to give limited approval and

limited disapproval to the reductions claimed in the 15% Plan. The

rationale was detailed in the March 18, 1996, proposal also referenced

previously in this notice. The EPA is considering taking final action

on the regulations in the 15% Plan, including the specific regulations

described in this notice, as a separate action from the final action on

the 15% reduction credits. The EPA also requests comments on whether

the regulations may be acted on separately from the 15% reduction

credits.

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.

IV. Administrative Requirements

A. Executive Order 12866

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

by the Regional Administrator under the procedures published in the FR

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 Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5. U.S.C. 600 et seq., the

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, the 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.

This Federal action authorizes and approves into the Missouri SIP

requirements previously adopted by the state, and imposes no new

requirements. Therefore, the Administrator 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 the 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)).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate, or to

private sector, of $100 million or more. Under section 205, the 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 the EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

The EPA has determined that the proposed action does not include a

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

more to either state, local, or tribal governments in the aggregate, or

to the private sector. This Federal action authorizes and approves into

the Missouri SIP requirements previously adopted by the state, and

imposes no new requirements. Accordingly, no additional costs to state,

local, or tribal governments, or to the private sector, result from

this action.

List of Subjects in 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, Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: June 20, 1997.

William Rice,

Acting Regional Administrator.

[FR Doc. 97-17372 Filed 7-1-97; 8:45 am]

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