Approval and Promulgation of Implementation Plans; State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve a statewide NO_X rule to reduce the emissions of nitrogen oxides (NO_X) and establish a NO_X emissions trading program for the state of Missouri. This rule is a critical element in the state's plan to attain the ozone standard in the St. Louis ozone nonattainment area.

DATES:

Comments must be received on or before October 23, 2000.

ADDRESSES:

Written comments should be mailed to Kim Johnson, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

Copies of the state submittal 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:

Kim Johnson at (913) 551-7975.

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 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 document?

Have the requirements for approval of a SIP revision been met?

What action is EPA taking?

What Is a SIP?

Section 110 of the Clean Air Act (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 us 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.

This rule is being parallel processed. Parallel processing means that EPA will propose approval of a rule before it is final (or in this case legally binding) under state law. Under parallel processing, EPA proposes action on a state submission before it is final or effective, and will take final action on its proposal if the final state submission is substantially unchanged from the submission on which the proposal is based, or if significant changes in the final state submission are anticipated and adequately described in EPA's proposal.

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?

We are proposing to approve, as an amendment to Missouri's SIP, rule 10 CSR 10-6.350, “Emissions Limitations and Emissions Trading of Oxides of Nitrogen,” submitted to us on June 29, 2000. The basis for our proposed approval of the rule is described in this document, and in more detail in the technical support document (TSD) prepared for this proposal. The TSD is available at the address identified above. Because the rule is not yet effective under state law, the submittal from Missouri requested that we propose approval of the regulation by parallel processing.

The rule requires reductions in NO_X emissions by establishing NO_X emissions limitations for large electric generating units (EGU) which includes any EGU with a nameplate capacity greater than 25 megawatts across the state, beginning May 1, 2003. EGUs located in the eastern third of the state are limited to an emission rate of 0.25 lbs. NO_X per million British thermal units per hour (mmBtu) of heat input during the control period. The EGUs located in the western two-thirds of the state are limited to the less stringent rate of 0.35 lbs. NO_X mmBtu of heat input during the control period. The control period begins on May 1 and ends on September 30 of the same calendar year. The control period is limited to this period because this is the time of year when ozone formation is most likely to occur at unhealthful levels.

The rule also establishes a trading program for the state of Missouri to allow the affected EGUs' flexibility in meeting the requirements of this rule. The trading program establishes allowances for each affected NO_X unit for each control period. The system then tracks the balance of the allowances for each unit. At the end of the control period, units with remaining allowances can either bank the allowances for future years or trade the allowances to units with a deficit (overdraft accounts.)

Other features of the trading program include the following:

1. the availability of early reduction credits for affected NO_X units which reduce their NO_X emissions rate prior to May 1, 2003;

2. an individual EGU opt-in provision which allows EGU units that are not initially affected by the rule to opt in to the NO_X trading program, thereby subjecting them to the rule, including the trading program; and

3. geographic flow control to discourage the flow of allowances from west to east and to encourage more reductions in the vicinity of the St. Louis area.

The rule specifies appropriate compliance methods, reporting and recordkeeping sufficient to determine compliance, referencing the requirements of 40 CFR part 75 (EPA's monitoring requirements for acid rain sources). We believe that this portion of the rule meets the applicable enforceability requirements.

This rule is a critical element in the state's plan to attain the ozone standard in the St. Louis ozone nonattainment area. The St. Louis ozone nonattainment area includes Franklin, Jefferson, St. Charles, and St. Louis counties and St. Louis City in Missouri; and Madison, Monroe, and St. Clair counties in Illinois. As part of the control strategy for the attainment of the ozone standard in the St. Louis area, Missouri and Illinois included NO_X reductions for certain sources throughout the two states.

Full approval of the ozone attainment demonstration for St. Louis is dependent upon the adoption of regional NO_X emissions control regulations, sufficient to achieve attainment of the ozone standard based on the attainment demonstration. EPA's proposal on the attainment demonstration is in 65 FR 20404, April 17, 2000. That proposal includes a detailed discussion of the role of regional NO_X emission reductions in attainment of the ozone standard in the St. Louis area. The target levels established in the NO_X rule, described above, are consistent with the levels in the attainment demonstration.

The state has made a commitment to provide an annual demonstration to us that the total actual NO_X emissions, from affected utilities, remain below the inventory projections used in the St. Louis attainment demonstration. The state has also committed to continue to evaluate the effects of this rule on the monitored ozone levels in the St. Louis ozone nonattainment area, and make any necessary adjustments based on the monitoring data.

Because the attainment demonstration assumes that specific NO_X emission reductions will occur as a result of the rule, we believe it is critical that the state closely monitor progress toward achieving the reductions, and take corrective action if necessary to ensure the reductions are realized. This corrective action could include making modifications to the rule or taking further action to address the NO_X emissions reduction shortfall if any occurs.

The state is committed to evaluating the effectiveness of the rule in achieving necessary NO_X reductions, and we intend to review the annual demonstration submitted by Missouri. If necessary, we may exercise our authorities under sections 110 and 179 of the Act to require further action to remedy shortfalls, if any, in the NO_X reduction program, when it is implemented.

For clarification, our evaluation of the statewide NO_X rule is not related to the obligations which Missouri may subsequently have under EPA's regional NO_X reduction rule (the NO_X SIP call). That rule, explained in more detail in our April 17, 2000, proposal on the attainment demonstration, requires that certain states develop regional NO_X controls to address contributions to downwind nonattainment of the ozone standard in the eastern portion of the country. In response to a recent judicial remand of the SIP call as it relates to Missouri, EPA intends to undertake rulemaking to establish regional NO_X requirements for a portion of Missouri. When that rulemaking is completed, we anticipate that it will establish separate NO_X reduction requirements to address contributions by Missouri sources to ozone nonattainment in other areas. The state would then be required to take subsequent action, pursuant to the NO_X SIP call, to ensure NO_X emissions address long-range transport, and we would then take separate rulemaking action on Missouri's response to the NO_X SIP call.

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 criteria in 40 CFR part 51, appendix V for completeness of SIP revisions submitted for parallel processing. In addition, as explained above and in more detail in the TSD which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110, part D of Title I, and implementing regulations.

What action is EPA taking?

We are proposing to approve, as an amendment to Missouri's SIP, rule 10 CSR 10-6.350, “Emissions Limitations and Emissions Trading of Oxides of Nitrogen.” We are processing this as a proposal action through parallel processing because this rule is not yet effective under state law. We anticipate that the final effective rule will be the same as the rule on which this proposal is based.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed 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 proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve 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 (Pub. L. 104-4). For the same reason, this proposed 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 proposed 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 proposed 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 requirements 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 proposed 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. We have 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 proposed 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.).

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