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ENVIRONMENTAL PROTECTION AGENCY
Western Area Power Administration
CFR Citation: 40 CFR Parts 52 and 81
IL ID: [IL 216-2;FRL-7496-4]
NOTICE: Part II
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans, and Designation of Areas for Air Quality Planning Purposes; State of Illinois
DATES: For good cause as explained below, this rule is effective May 12, 2003.
DOCUMENT SUMMARY: EPA has determined, in a separate rule published in today's
Federal Register, that the St. Louis ozone nonattainment area (St.
Louis area) has attained the onehour ozone National Ambient Air
Quality Standard (NAAQS). The St. Louis ozone nonattainment area
includes the Counties of Madison, Monroe, and St. Clair in Illinois and the Counties of Franklin, Jefferson, St. Charles, and St.
[[Page 25443]]
Louis and St. Louis City in Missouri. Based on the determination of
attainment, EPA has also determined, in today's separate rule, that
certain ozone attainment demonstration requirements along with certain
other ozone planning requirements of part D of title I of the Clean Air
Act (CAA or Act) are not applicable for the St. Louis ozone nonattainment area.
The EPA is approving a request from the State of Illinois,
submitted on December 26, 2002, to redesignate the MetroEast St. Louis
area (Madison, Monroe, and St. Clair Counties, Illinois) (the Illinois
portion of the St. Louis ozone nonattainment area) to attainment of the
onehour ozone NAAQS. In approving this request, the EPA is also
approving the State's plan for maintaining the onehour ozone NAAQS
through 2014 as a revision to the Illinois State Implementation Plan
(SIP); and finding as adequate and approving the State's 2014 Motor
Vehicle Emission Budgets (MVEBs) for Volatile Organic Compounds (VOC)
and Oxides of Nitrogen (NO
The EPA is approving an exemption from certain NO
SUMMARY: Environmental Protection Agency,
SUPPLEMENTAL INFORMATION
In the following, whenever ``we,'' ``us,'' or ``our'' are used, we mean the U.S. Environmental Protection Agency. Table of ContentsI. What Is the Background for This Rule?
II. What Actions Are We Taking and When Are They Effective? III. Why Are We Taking These Actions?
IV. What Are the Effects of These Actions?
V. What Comments Did We Receive and What Are Our Responses? VI. Statutory and Executive Order Reviews
I. What Is the Background for This Rule?
On January 30, 2003, EPA published a final rule and two proposed rules related to the St. Louis ozone nonattainment area (68 FR 4836, 68 FR 4842, and 68 FR 4847). The final rule (the January 30, 2003 final rule), 68 FR 4836, reinstated and made effective EPA's prior finding that the St. Louis nonattainment area failed to attain the onehour ozone NAAQS (onehour ozone standard) by November 15, 1996 (based on 19941996 ozone data) and reinstated a reclassification of the area to a serious nonattainment area. In addition, in the January 30, 2003 final rule, EPA established a schedule for submission of SIP revisions for Illinois and Missouri to meet the CAA requirements for a serious ozone nonattainment area and established November 15, 2004 as the date by which the St. Louis area must attain the ozone standard. A correction to this final rule was published on February 13, 2003 (68 FR 7410) which corrected a table entry.
In a January 30, 2003 proposed rule, 68 FR 4847 (the January 30,
2003 proposed rule), EPA proposed to determine that the St. Louis area
has attained the onehour ozone standard (clean air determination)
based on complete, qualityassured ozone monitoring data for the period
of 2000 through 2002. In addition, in the same proposed rule, EPA
proposed to: (a) approve the requests from the States of Missouri and
Illinois to redesignate the St. Louis area to attainment of the one
hour ozone NAAQS; (b) determine that certain planning requirements of
the CAA are not applicable to the St. Louis area based on the clean air
determination; (c) approve an exemption from NO
In the proposed rule found at 68 FR 4842, EPA proposed to approve a revision to the Missouri SIP for the vehicle inspection and maintenance (I/M) program operating in the Missouri portion of the St. Louis nonattainment area.
This rule is EPA's final action on the January 30, 2003 proposed
rule as it relates to the Illinois portion of the St. Louis
nonattainment area. A separate rule in today's Federal Register is
EPA's final action finding that the St. Louis area has attained the 1
hour ozone standard along with EPA's final action on the January 30,
2003 proposed rule as it relates to the Missouri portion of the St.
Louis nonattainment area. As noted in the January 30, 2003 proposed
rule on page 4848, EPA received separate requests from Missouri and
Illinois to redesignate the St. Louis area to attainment. In the
January 30, 2003 proposed rule, EPA proposed actions related to both
the Missouri and Illinois portions of the nonattainment area. However,
EPA stated that it was considering issuance of two separate rules when
it took final action on the redesignation requests. We received no
comments on this aspect of the proposal. With the exception of the
determination of attainment, EPA is taking final action related to the
Missouri portion of the nonattainment area, and is taking final action
on the Illinois portion of the St. Louis nonattainment area in separate
rulemaking actions. Section 107(d)(3)(v) provides, as a prerequisite to
redesignation, that: ``the State containing such area has met all
requirements applicable to the area under section 110 and part D.''
This section plainly shows that Congress meant for EPA to evaluate
whether each State requesting redesignation of an area has met the
applicable requirements. In addition, each state has authority only to
adopt and submit for approval a maintenance plan and a revision of its
SIP that are applicable to its territory. Since each state has the
authority only to request redesignation for the portion of the area
within its boundaries, and EPA evaluated each states' request for
redesignation separately, the final rules redesignating each states'
portion of the nonattainment area are being published separately.
However, EPA has concluded that in determining whether or not a
multistate area has attained the standard based upon complete, quality
assured ambient air quality monitoring data, EPA will consider the attainment status of the area as a whole. Therefore,
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EPA's finding that the area has attained the NAAQS applies to the
entire nonattainment area, and we are publishing that finding in a
separate rule today. See 67 FR 49600, July 31, 2002 (Reinstatement of
Redesignation of Kentucky Portion of CincinnatiHamilton area) for additional discussion of these issues.
The history for this action has been set forth in detail in the January 30, 2003 proposed rule (68 FR 4847, 48484849), and is summarized below.
The St. Louis area was designated as an ozone nonattainment area in March 1978 (43 FR 8962). On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Under section 107(d)(4)(A) of the Act, on November 6, 1991 (56 FR 56694), the St. Louis area was designated as a moderate ozone nonattainment area as a result of monitored violations of the onehour ozone NAAQS during the 19871989 period. On January 30, 2003, EPA reclassified the area to a serious ozone nonattainment area, effective January 30, 2003.
Illinois and Missouri adopted and implemented emission control
programs required under the Act to reduce emissions of VOC and
NO
On December 26, 2002, the Illinois Environmental Protection Agency
(IEPA) submitted an ozone redesignation request and ozone maintenance
plan for the MetroEast St. Louis area along with a request for an
exemption from NO
II. What Actions Are We Taking?
Considering the comments on the January 30, 2003 proposed rule, as discussed below and in the separate determination of attainment rule published in today's Federal Register, we conclude that it is appropriate to finalize the actions proposed in the January 30, 2003 proposed rule with regard to the MetroEast St. Louis area.
A. Determination of Attainment
In a separate rule in today's Federal Register, EPA has determined that the St. Louis ozone nonattainment area, consisting of both the Missouri and the Illinois portions of the area, has attained the one hour ozone standard. See section II.A of today's determination of attainment rule for further discussion regarding EPA's attainment determination.
Also, in the separate rule in today's Federal Register, EPA has
determined that certain attainment demonstration requirements (section
172(c)(1) of the Act) along with certain other related requirements of
part D of title I of the Act, specifically the section 172(c)(9)
contingency measure requirement (measures needed to mitigate a state's
failure to achieve reasonable further progress toward, and attainment
of, a NAAQS), the section 182 attainment demonstration and RateOf
Progress (ROP) requirements, and the section 182(j) multistate
attainment demonstration requirement, are not applicable to the St.
Louis area. The discussion contained in the separate rule pertaining to
the CAA requirements which are no longer applicable to the St. Louis area is hereby incorporated into this rule.
B. Redesignation of the MetroEast St. Louis Area to Attainment
Although EPA is determining that the entire St. Louis ozone nonattainment area has attained the onehour ozone standard, EPA has concluded that it is appropriate to take final action related to Illinois' request to redesignate the MetroEast St. Louis area and to Missouri's request to redesignate the Missouri portion of the St. Louis nonattainment area in separate rulemaking actions published today. In this rule, EPA is taking the following actions with respect to the MetroEast St. Louis area:
1. EPA is approving a request from the State of Illinois to redesignate the MetroEast St. Louis area to attainment of the onehour ozone NAAQS;
2. EPA is approving Illinois' plan for maintaining the onehour ozone NAAQS through 2014, as a revision to the Illinois SIP;
3. EPA is finding as adequate and approving the 2014 MVEBs for VOC
and NO
4. EPA is approving an exemption (waiver) from NO
C. Effective Date of These Actions
EPA finds that there is good cause for this redesignation to
attainment, SIP revision, and exemption from NO
III. Why Are We Taking These Actions?
EPA has determined, in a separate rule published in today's Federal
Register, that the St. Louis area has attained the 1hour ozone standard. In
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this rule, we have concluded that Illinois has fully met the
requirements for redesignation found at sections 107(d)(3)(E) and 175A
of the CAA for redesignation of an area from nonattainment to
attainment for ozone. In addition, EPA believes that the State of
Illinois has demonstrated that the area has attained, and that the criteria for redesignation have been met.
In the January 30, 2003 proposed rule at 68 FR 4847, EPA described the applicable criteria for redesignation to attainment. Specifically, section 107(d)(3)(E) allows for redesignation providing that: (1) the Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of the Act.
EPA has determined that the St. Louis area has attained the applicable NAAQS. EPA has fully approved the applicable implementation plan for the Illinois portion of the St. Louis area under section 110(k). EPA has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions. EPA has fully approved a maintenance plan for the Illinois portion of the area as meeting the requirements of section 175A. Illinois has met all requirements applicable to the MetroEast St. Louis area under section 110 and part D of the Act.
By finding that the maintenance plan provides for maintenance of
the NAAQS through 2014, EPA is hereby finding adequate and approving
the 2014 VOC and NO
The rationale for these findings is as stated in this rulemaking and the January 30, 2003 proposed rule found at 68 FR 4847. IV. What Are the Effects of These Actions?
In a separate rule published in today's Federal Register, EPA has determined that the St. Louis area attained the 1hour ozone standard and that certain attainment demonstration requirements (section 172(c)(1) of the Act) along with certain other related requirements of part D of title I of the Act, specifically the section 172(c)(9) contingency measure requirement (measures needed to mitigate a state's failure to achieve reasonable further progress toward, and attainment of, a NAAQS), the section 182 attainment demonstration and ROP requirements, and the section 182(j) multistate attainment demonstration requirement, are not applicable to the St. Louis area. EPA's determination that the St. Louis area has met the onehour ozone standard relieves Illinois and Missouri from the obligation to meet certain additional Clean Air Act requirements, which apply to areas not attaining that standard.
EPA notes that the area is likely to be designated nonattainment for the 8hour ozone standard, and would be subject to any additional requirements as a result of such designation. EPA also notes that it is not revoking the onehour standard for the St. Louis area.
Approval of the Illinois redesignation request changes the official
designation for the onehour ozone NAAQS found at 40 CFR part 81 for
the Illinois portion of the St. Louis area, including Madison, Monroe,
and St. Clair Counties, from nonattainment to attainment. It also
incorporates into the Illinois SIP a plan for maintaining the onehour
ozone NAAQS through 2014. The plan includes contingency measures to
remedy any future violations of the onehour ozone NAAQS, and includes
VOC and NO
Approval of an exemption from NO
V. What Comments Did We Receive and What Are Our Responses?
We received 5 letters containing comments regarding the January 30, 2003 proposed rule. Four of the letters supported the proposed rulemaking action. Two of the four letters in support of the proposed rulemaking action raised issues to which we are responding in this section. One of the five letters contained adverse comments and opposed the proposed rulemaking actions. A summary of the comments and EPA's responses to them are provided below. This discussion addresses comments relating to the St. Louis area as a whole and comments specifically relating to the Illinois portion of the area. Comments relating specifically to the Missouri portion of the area are addressed in a separate final rule for Missouri also published today. A. Comments Related to Meeting the Criteria for Redesignation to Attainment
Comment 1: The St. Louis area has failed to meet any of the five criteria specified in section 107(d)(3)(E) of the CAA for redesignation to attainment.
Response 1: EPA's determination that the St. Louis area has
attained the onehour ozone standard is contained in a separate rule
published in today's Federal Register. Further, EPA has found that the
area has met all five of the criteria specified in section 107(d)(3)(E)
of the CAA for redesignation to attainment. Below are specific comments
and responses raised by the commenter regarding each criterion. It
should be noted that, although the commenter generally directed
comments at issues for both States, Illinois and Missouri, this final
rulemaking focuses on the Illinois portion of St. Louis ozone
nonattainment area. To that extent, most responses given here focus on
that portion of the nonattainment area. For our responses relative to
the Missouri portion of the area, please refer to the separate final
rulemakings for the State of Missouri also published in today's Federal Register.
B. Comments Related to Criterion 1: The Area Must Be Attaining the 1 Hour Ozone NAAQS
Comment 2: Monitoring data are not representative of air quality conditions. Monitoring data collected during the Labor Day weekend in 2002 are ``hopelessly contaminated'' due to voluntary emission reductions undertaken by industry and others.
Response 2: See the response to comment 2 in the separate rule in today's Federal Register regarding the determination of attainment for the St. Louis area. See also the responses to comments 18 and 19 below.
Comment 3: Monitored data run directly counter to air quality modeling.
[[Page 25446]]
The modeling supported the contention that the NAAQS could be attained
only in 2004 after all control measures are adopted. Thus, the
monitored ozone standard attainment during the 20002002 period is a
``fluke'' explainable by factors other than the success of the
pollution control measures. In addition, based on a September 4, 1992
EPA policy memorandum (``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' from John Calcagni) (the Calcagni
Memo), the commenter believes that supplemental ozone modeling may be
necessary to determine the representativeness of the monitored data.
Without such supplemental modeling, the commenter asserts that the
January 30, 2003 proposed rule's implicit conclusion that the St. Louis area ozone data are ``representative'' is baseless.
Response 3: See the response to comment 3 in the separate rule in today's Federal Register regarding the determination of attainment for the St. Louis area. See also the responses to comments 19, 21, 23, and 24 below.
Comment 4: The monitored data do not support a conclusion of continued attainment since the number of exceedances tripled from 2000 to 2001 and more than doubled from 2001 to 2002, showing an upward trend in peak ozone concentrations. The commenter notes that, if the same number of ozone standard exceedances that occurred in 2002 occur in 2003 or 2004, the area will again violate the onehour ozone standard.
Response 4: See the response to comment 4 in the separate rule in today's Federal Register regarding the determination of attainment for the St. Louis area. See also the response to comment 20 below.
Comment 5: EPA asserts that the data are ``quality assured'' but provided no explanation. EPA must demonstrate that the data are qualityassured. EPA must document the adequacy of the states' quality assurance plans. In addition, the commenter questions whether the ozone data relied on for the attainment determination were qualityassured since they were entered into AIRS faster than usual.
Response 5: See the response to comment 5 in the separate rule in
today's Federal Register regarding the determination of attainment for
the St. Louis area. See also the response to comment 2 in the separate
rule concerning EPA's actions taken to insure the proper monitoring and qualityassurance of ozone data.
C. Comments Related to Criterion 2: The Area Must Have a Fully Approved SIP Under Section 110(k)
Comment 6: The serious area SIP requirements of the CAA are applicable to the St. Louis area. These requirements have not been met by the States, and there is no ``claim'' that they could not have been submitted with the redesignation request. Thus, the SIPs are not ``fully approved''. In addition, the Calcagni Memo includes procedures suggested by EPA for reducing the stringency of the control measures by requiring them to become part of the contingency plan. The states have not done these procedures.
Response 6: The SIP, which is required to be ``fully approved'' under criterion 2, is the ``applicable'' implementation plan (section 107(d)(3)(E)(ii)). This section requires that the SIP must be ``fully approved'' under section 110(k) rather than partially, conditionally, or limitedly approved (Calcagni Memo page 3). Section 107(d)(3)(E)(v) requires the SIP to include ``all requirements applicable to the area under section 110 and Part D''. The commenter asserts, without explanation, that the statute requires EPA to determine that the ``serious'' area requirements are applicable to its consideration of the redesignation request for the area. However, the Act is not as prescriptive as the commenter assumes. See, Wall v. EPA, 265 F.3d 426,438 (6th Cir. 2001) which states ``The statute, however, does not describe how the EPA is to decide which Part D requirements are `applicable' in evaluating a redesignation request.''
EPA has established a policy to provide guidance in determining how to apply the statutory criterion with respect to this issue. As stated in the January 30, 2003 proposed rule (68 FR 4851), the Calcagni Memo describes EPA's interpretation of the section 107(d)(3)(E) requirement. Under this interpretation, states requesting redesignation to attainment must meet the relevant CAA requirements that come due prior to the submittal of a complete redesignation request. Areas may be redesignated even though they have not adopted measures that come due after the submission of a complete redesignation request. Pursuant to the January 30, 2003 final rule (68 FR 4836), the emission control measures and plans resulting from serious nonattainment area requirements for the St. Louis area are due on January 30, 2004. Since these emission control measures and plans are not yet due, the Illinois SIP is not deficient. EPA policy and a reasonable application of sections 107(d)(3)(E)(ii) and (v) allow for an area to be redesignated without the area adopting measures which are not yet due. EPA has consistently applied this policy and interpretation in other redesignations, including the DetroitAnn Arbor redisgnation discussed at 60 FR 1246512466.
In addition, there is no requirement in section 107(d)(3)(E) that indicates that States must ``claim'' that they could not have submitted the serious area SIP revisions or any additional revisions at the time of the redesignation requests if those requirements are not applicable to the area when the requests are made. EPA's action to reclassify the St. Louis area to a serious nonattainment area was published in the Federal Register after Illinois had submitted its redesignation request, and it established a deadline for submission of the serious area requirements which has not yet passed. Thus, Illinois is not required to include in its request a ``claim'' that the State cannot complete the serious area requirements.
Finally, the Calcagni Memo (pages 1213) discusses the statutory requirement that the State must implement all measures included in its SIP prior to redesignation. (In our response to comment 26 below, we discuss how this requirement has been met.) This requirement does not expand the universe of requirements which are ``applicable'' for purposes of redesignation. Unless the serious area requirements are applicable, and already contained in the SIP prior to redesignation, the discussion in the Calcagni Memo does not relate to the issue raised by the commenter. Because the serious area requirements are not applicable requirements for the MetroEast St. Louis area and Illinois, the guidance in the Calcagni Memo relating to mechanisms for converting part D measures into contingency measures is not applicable for the purposes of this redesignation and assessment of Illinois' ozone maintenance plan.
Comment 7: The January 30, 2003 proposed rule suggests that a SIP
meeting the serious area requirements need not be fully approved
because such a plan is not yet due. The commenter believes that the CAA
does not make an exception for SIP revisions that have or have not
become due. In fact, the serious area requirements have, as a matter of
law, become due. The plans were due by June 14, 1998, and no later than
May 18, 2002 pursuant to previous EPA and Court actions. The commenter
stated that the May 18, 2002 date was set by EPA in a March 19, 2001 rulemaking, and that the effect of a
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decision by the Court of Appeals for the Seventh Circuit was to reinstate this submission due date.
Response 7: Section 107(d)(3)(E)(ii) of the Act requires that the applicable SIP for the area must be fully approved under section 110(k) of the Act as one of the criteria for redesignation to attainment. As discussed in comments 6 above and 8 below, the applicable SIP for the Illinois portion of the St. Louis area is fully approved, and the serious area emission control measure and plan requirements are not yet due. In making this determination, EPA is not creating an ``exception'' to the statutory requirements for approved SIPs, but is determining that SIP revisions which are not yet due are not ``applicable'' for purposes of sections 107(d)(3)(E)(ii) and (v) of the Act (for purposes of assessing the State's ozone redesignation request). As noted in the January 30, 2003 proposed rule at 68 FR 4838, on November 25, 2002, the Court of Appeals for the Seventh Circuit vacated a June 26, 2001 final rule extending the St. Louis area's attainment date to November 15, 2004, and remanded to EPA for ``entry of a final rule that reclassifies St Louis as a serious nonattainment area effective immediately * * *'' (Sierra Club and Missouri Coalition for the Environment v. EPA, 311 F. 3d 853 (7th Cir. 2002)). In response to the Court's order, and in accordance with section 181(b)(2) of the Act, EPA reinstated the nonattainment determination and reclassification contained in the March 19, 2001 rulemaking (66 FR 15585), but did not reinstate the state plan revision and regulation due date established in that rulemaking. In the January 30, 2003 final rule, EPA established a deadline of 12 months after January 30, 2003 for the States to submit the serious area requirements. The rationale for the deadline is stated in the January 30, 2003 final rule (68 FR 4838). Today's final redesignation rule does not reopen the January 30, 2003 final rule, and comments on the appropriate deadline for the serious area requirements are beyond the scope of this rule.
With respect to the commenter's assertion that the serious area requirements should have been due by June 14, 1998, this is based on an argument made by the commenter in the U.S. District Court and in the Court of Appeals for the District of Columbia that the reclassification of the St. Louis area to serious should have been made retroactive to 1997, with the serious area measures due in 1998. This argument is not only outside of the scope of this rulemaking as explained previously, but it was also rejected by the Court. (See, Sierra Club v. Whitman, 285 F.3d, 68 (D.C. Cir. 2002)). As explained above, EPA's determination that the serious area requirements are not ``applicable'' with respect to this redesignation is consistent with the Act, with the January 30, 2003 final rule, with applicable EPA policy, and with relevant judicial decisions. Additionally, note that the decision made by the Court on November 25, 2002 required the EPA to rulemake to reclassify the St. Louis area to serious nonattainment effective immediately on the date of the rulemaking. The Court did not order the EPA to reinstate the reclassification with an effective date contained in the March 19, 2001 rulemaking, and the Court did not order the EPA to reinstate the May 18, 2002 State plan due date set forth in the March 19, 2001 rulemaking.
Comment 8: There is no ``fully approved'' or even partially approved SIP because the June 26, 2001 rule was vacated by the Court of Appeals for the Seventh Circuit.
Response 8: This comment refers to both the Missouri and Illinois portions of the St. Louis area. In this rule, EPA is providing a response regarding only the Illinois portion of the St. Louis area. See the separate rule in today's Federal Register regarding redesignation of the Missouri portion of the St. Louis area for EPA's response to this comment as it pertains to the Missouri portion of the St. Louis area.
In the January 30, 2003 proposed rule at 68 FR 4850 through 4856, EPA described the actions taken by EPA in the June 26, 2001 rule which were vacated by the Court of Appeals for the Seventh Circuit. Also, in the January 30, 2003 proposed rule at 68 FR 4850 through 4856, EPA reproposed to approve some requirements, and explained that certain additional actions vacated by the Court were no longer applicable requirements since the area has attained the NAAQS. As discussed in the January 30, 2003 proposed rule, the additional actions vacated by the Court which are no longer applicable include the contingency measure requirements of section 172(c), additional RACM requirements of section 172(c)(1) and section 182(b), and the attainment demonstration requirements of section 182(b)(1). That discussion is incorporated by reference herein. See also the discussion in section II.A of the separate rulemaking in today's Federal Register concerning the inapplicability of certain requirements.
In the June 26, 2001 rule, EPA took the following applicable
actions: approved Missouri's and Illinois' 1hour ozone attainment
demonstration; found that the St. Louis ozone nonattainment area met
the reasonably available control measures (RACM) requirements of the
Act; found that the contingency measures identified by the States are
adequate; approved the Illinois and Missouri motor vehicle emissions
budgets (MVEBs); and approved an exemption from the NO
To be considered fully approved pursuant to section 110(k), the SIP must not have partial approval, disapproval, or conditional approval of submittals. EPA is not partially approving, disapproving, nor conditionally approving any of the SIP actions contained in the June 26, 2001 rule vacated by the Court. EPA is fully approving the measures submitted by Illinois which are applicable for purposes of section 107(d)(3)(E)(v), and is determining that the other submissions are not applicable. Therefore, the Illinois SIP is ``fully approved'' for all applicable requirements.
Comment 9: EPA attempted to assert that the Illinois and Missouri SIPs ``can be considered to be approved''. This is a ``pseudo approval'' and an attempt by EPA to escape the simple straightforward statutory requirement for a fully approved SIP. This effort by EPA fails because of the clear language of the CAA, and because EPA must do a rulemaking to approve the SIPs. EPA is also avoiding the requirement for judicial review of its actions.
Response 9: This comment refers to both the Missouri and Illinois portions of the St. Louis area. In this rule, EPA is providing a response regarding only the Illinois portion of the St. Louis area. See the separate rule in today's Federal Register regarding redesignation of the Missouri portion of the St. Louis area for EPA's response to this comment as it pertains to the Missouri portion of the St. Louis area.
The use of the phrase ``can be considered to be approved'' (See the [[Page 25448]]
January 30, 2003 proposed rule at 68 FR 48514852) was merely a
statement that the SIP will meet the section 110 requirements and, as
such, ``can be considered to be approved'' if EPA approves certain plan
elements, described in the proposed rulemakings. In the January 30,
2003 proposed rule, EPA proposed to grant an exemption to the State of
Illinois from the NO
The proposed rule at 68 FR 4851 states that on November 25, 2002,
the U.S. Court of Appeals for the Seventh Circuit (Court) issued a
decision in Sierra Club and Missouri Coalition for the Environment v.
EPA, 311 F.3d. 853 (7th Cir. 2002) (``Sierra Club''). In this decision,
the Court vacated the June 26, 2001 final rule and remanded to EPA for
entry of a final rule that reclassifies St. Louis as a serious
nonattainment area for ozone. Although the Court's decision extensively
addressed only EPA's action extending the attainment date for St. Louis
providing its rationale for vacating this action, the Court's order
also vacated the other EPA actions in the June 26, 2001 final rule. EPA
has approved all SIP elements that are applicable to the MetroEast St.
Louis area, and is today determining that others are not applicable.
This is not a ``psuedoapproval'' of the SIP elements, but a
determination that because certain requirements are not applicable
(e.g., the ozone attainment demonstration and RACM), they need not be
approved. (See response to comment 8 for more discussion.) The
applicable requirements which were approved prior to the vacated June
26, 2001 action (e.g., VOC RACT and the 15 percent ROP plan) were
subject to notice and comment rulemaking and judicial review. The
measures approved today (the ozone maintenance plan and contingency
measures, MVEBs, and NO
In acting on a redesignation request, EPA can rely on any prior SIP approvals plus any additional approvals it may perform in conjunction with acting on the redesignation. EPA has already taken final action to approve all required SIP elements or is approving them in conjunction with this final action on the redesignation. Therefore, the MetroEast St. Louis area has a fully approved SIP. See the Calcagni Memo, page 3. The Calcagni Memo allows for approval of SIP elements and redesignation to attainment to occur simultaneously, and EPA has frequently taken this approach in its redesignation actions. See (66 FR 53096) (PittsburghBeaver Valley, Pennsylvania, October 19, 2001); (65 FR 37879) (CincinnatiHamilton, Ohio, June 19, 2000); (61 FR 20458) (ClevelandAkronLorain, Ohio, May 7, 1996); (60 FR 37366) (July 20, 1995); and (61 FR 3183231833) (Grand Rapids, Michigan, June 21, 1996).
Comment 10: The SIP fails to meet the section 110 requirements because the inapplicable ``moderate'' area requirements contained in the SIP do not provide for implementation, maintenance, and enforcement of the NAAQS; modeling shows that the plan does not provide for attainment until 2004.
Response 10: EPA finds that the Illinois SIP meets the section 110 requirements. See the January 30, 2003 proposed rule and responses to comments 8 and 9 for further discussion. See the responses to comments 19, 21, 23, and 24 below. See also the response to comment 3 in the separate rule published in today's Federal Register with regard to the redesignation of the Missouri portion of the St. Louis area.
Comment 11: The SIP fails to meet the part D requirements of the CAA. EPA asserts that certain requirements of part D are not applicable because monitoring data show that the area has attained. EPA relies on the case of Sierra Club v. EPA for this conclusion. However, this case has no application here because it was not a ``redesignation case''. Given the attainment demonstration modeling, it would be impossible to conclude that any of the ``Part D requirements are not necessary''. All part D requirements are applicable unless, prior to redesignation, EPA formally exempts the St. Louis area from the Part D requirements.
Response 11: See section II.A of the separate rule published in today's Federal Register with regard to the redesignation of the Missouri portion of the St. Louis area for a discussion of the rationale for EPA's determination of attainment and suspension of certain CAA requirements.
The part D requirements applicable to the MetroEast St. Louis area
specifically include the requirements of sections 172(c) and 176 as
well as the applicable requirements of subpart 2. The section 172(c)
requirements include General Plan Requirements which, to the extent
applicable, must provide for the implementation of all RACM as
expeditiously as practicable (at a minimum, this requires RACT for
stationary sources), Reasonable Further Progress (RFP), emissions
inventories, identification and quantification of allowable emissions
for major new or modified stationary sources, permits for new and
modified major stationary source, other emission control measures
needed to assure attainment of the NAAQS, section 110(a)(2)
requirements, and contingency measures. Section 110(a)(2) requirements
include: submittal of a SIP that has been adopted by the state after
reasonable public notice and hearing; provisions for establishment and
operation of appropriate apparatus, methods, systems, and procedures
needed to monitor ambient air quality; implementation of a source
permit program; provisions for the implementation of part C
requirements (Prevention of Significant Deterioration (PSD));
provisions for the implementation of part D requirements (nonattainment
area New Source Review (NSR)) permit programs); provisions for
stationary source emission control measures, source monitoring, and
source reporting; provisions for air pollution modeling; and provisions
for public and local agency participation in planning and emission control rule development.
[[Page 25449]]
Subpart 2 requirements include: attainment demonstrations; 1990 base
year inventory and periodic emissions inventories updates; emission
statements; 15 percent rateofprogress plans; VOC RACT; RACM; stage II vapor recovery; I/M; and NO
As stated in the response to comment 8 above, Illinois' SIP meets all applicable requirements, including section 110 and part D requirements. As stated in the January 30, 2003 proposed rule at 68 FR 4852 and 4853, EPA has approved Illinois' RFP plan, permitting programs, and VOC RACT rules as meeting the requirements of part D. Illinois' SIP has regulations requiring annual emission statements from major sources. Illinois has submitted complete emission inventories, which have been approved by the EPA. Illinois has approved general conformity rules pursuant to section 176. In this action, EPA has approved Illinois' maintenance plan, which includes adequate contingency measures. Thus, Illinois has met the applicable part D requirements of the Act. Note also that, as stated in our response to comment 8 above, by finding that the St. Louis area has attained the onehour ozone standard, the attainment demonstration and RACM requirements are no longer applicable requirements. See also the final rule for Missouri published in today's Federal Register describing how the Missouri portion of the area has met the applicable requirements.
Neither Section 107(d)(3)(E) of the Act nor EPA policy referenced by the commenter require modeling as a prerequisite to redesignation of an ozone nonattainment area. In addition, no modeling was conducted as part of the redesignation requests submitted by Missouri or Illinois. Thus, there is no modeling basis for EPA to make any conclusions regarding the necessity for the Part D requirements. (Modeling is not a required element of a redesignation request. See, 65 FR 37879 Cincinnati redesignation for additional discussion of this issue. (See, Wall v. EPA, 265 F.3d. 426 upholding this interpretation.) However, the monitoring data collected over the 2000 through 2002 period show that the area has in fact attained the ozone standard. EPA finds no need for further controls to bring about attainment.
With respect to the commenter's assertion that the Tenth Circuit Court of Appeals Sierra Club v. USEPA case is not applicable because it is not a ``redesignation'' case, the commenter misses the point of the case as it relates to St. Louis. The Tenth Circuit's endorsement of the interpretation of the Act in ``Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995 (Seitz Memo), that certain ``statutory'' requirements relating to attainment are not applicable to an area which has attained the standard, was not dependent on the fact that the area was not being redesignated. The case involved a determination by EPA that Salt Lake and Davies Counties, Utah, had attained the ozone standard, and that, therefore, certain additional requirements relating to attainment (such as an attainment demonstration) would not apply so long as the area continued to attain. The Court expressly recognized that the area could be redesignated without having met those requirements, even though the action at issue there was an attainment determination and not a redesignation. The Court stated: ``Recall that the Environmental Protection Agency's determination to exempt the Counties from limited ozone requirements is really no more than a suspension of those requirements for so long as the area continues to attain the standard or until the area is formally redesignated to attainment.'' (Sierra Club v. USEPA, 99 F.3d. 1551, 1558 (10th Cir.1996)) (See also, 66 FR 53095 for EPA's redesignation of the Pittsburgh area.) The Court did not say, as the commenter would have it, that the area would have to adopt those measures which had been determined to be unnecessary in order to be redesignated. As it did in the Utah Counties, in which EPA redesignated those Counties without requiring that they meet the suspended requirements, EPA is here determining that the St. Louis area is attaining the standard and that certain CAA requirements do not apply. The basis for this determination and the suspension of certain requirements for the area was explained in detail in the January 30, 2003 proposed rule at 68 FR 48504858 and further explained in this response to various comments on the issue. The determination is based on monitored data, not modeling, for reasons explained in this notice. Nothing in the Tenth Circuit case prohibits EPA from simultaneously suspending the requirements and redesignating an area, which is what this rulemaking accomplishes. EPA has taken this dual action in a number of areas, including Louisville (66 FR 53665), Cincinnati (65 FR 37879), Grand Rapids (61 FR 31831), and Pittsburgh (66 FR 53094). Upon redesignation to attainment, the suspended nonattainment requirements will no longer apply at all since the area is no longer designated as a nonattainment area.
Comment 12: EPA asserts that the RACM requirements of section 172(c)(1) need not be adopted because the area has attained the NAAQS, thus, these measures would not accelerate attainment. This is confoundingly circular reasoning which erases the ``fully approved'' requirements of the CAA. EPA's assertion is not relevant here.
Response 12: The April 16, 1992 General Preamble (57 FR 13560) states that EPA interprets section 172(c)(1) such that the RACM requirements are a ``component'' of an area's attainment demonstration. Thus, since the attainment demonstration is not an applicable requirement, RACM is also no longer an applicable requirement. See our response to comment 8 above for further discussion. EPA has also been consistent in this interpretation. See the final rulemaking for Pittsburgh, 66 FR 53096 (October 19, 2001) for additional discussion of this interpretation.
EPA believes that its policy is not ``confoundingly circular reasoning'' but rather straightforward reasoning. It is reasonable to conclude that states need not develop an attainment demonstration showing how they will attain a NAAQS that they have already attained. Similarly, states need not adopt additional RACM as necessary to accelerate attainment when attainment has already been achieved.
As stated in the response to comments 8 and 9 above, SIPs must be ``fully approved,'' as required by section 107(d)(3)(E)(ii), only with respect to the ``applicable'' requirements of section 110 and part D, as addressed in section 107(d)(3)(E)(v) of the Act. If requirements are not ``applicable'' with respect to those sections, they need not be fully approved.
Comment 13: The RACM and RACT requirements of the CAA are not tied to reasonable further progress but are required by the CAA to be implemented as expeditiously as practicable. This is supported by H.R. Rep. No. 101490, Part 2, 101st Cong., 2d Sess. at p. 223; Sierra Club v. USEPA, 99 F.3d 1551, 1557 (10th Cir. 1996); Wall v. EPA, 265 F.3d 426, 441 (6th Cir. 2001); and, EPA's Seitz Memo, page 4. EPA's contention that any additional RACM and RACT measures need not be adopted directly repudiates the plain language of the CAA.
Response 13: This comment refers to both the Missouri and the Illinois
[[Page 25450]]
portions of the St. Louis area. EPA is hereby providing a response
regarding the Illinois portion of the St. Louis area. See the separate
rulemaking in today's Federal Register regarding the redesignation of
the Missouri portion of the St. Louis area for EPA's response to this
comment as it pertains to the Missouri portion of the St. Louis area.
The RFP requirement under section 172(c)(2) of the Act is defined
via section 171(1) of the Act as an annual incremental reduction in
emissions of the relevant air pollutant (VOC and NO
RACM is a general requirement of section 172(c)(1) which calls for SIPs to contain ``all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology and shall provide for attainment of the national primary ambient air quality standards.'' EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could contribute to reasonable progress or attainment. See General Preamble 57 FR 13498, April 16, 1992. Thus, where an area has already met all applicable requirements for progress and has attained the relevant standard, no additional RACM measures are required.
Section 182(b)(2) specifies the SIP requirements for RACT in moderate nonattainment areas. These requirements include implementation of RACT at each source of VOC covered by Control Technology Guidelines (CTGs) and at all other major sources of VOC. EPA has never indicated that the area could avoid implementing VOC RACT requirements because the area has attained the standard.
As stated in the January 30, 2003 proposed rule at 68 FR 4855,
Illinois has adopted and implemented all required VOC RACT rules. In
addition, section 182(f) establishes NO
The commenter states that H.R. Rep. No. 101490, Part 2, 101st Cong., 2d Sess. at p. 223 does not tie RACM and RACT measures to RFP. This document is a recitation of the statute, but does not address tying RACM and RACT to RFP.
With respect to the commenter's contention that EPA's position regarding additional RACM and RACT measures being rejected in the Tenth Circuit Sierra Club case and in Wall v. EPA, the commenter is incorrect. The Wall case involved VOC RACT, which is not an issue here, because, as discussed previously, and in response to comment 14 below, Illinois has adopted all applicable VOC RACT measures. The Tenth Circuit Sierra Club case upheld EPA's determination that RACT was not tied to reasonable further progress, and that case did not address EPA's interpretation of RACM at all. The commenter's Seventh Circuit brief, which it relies on to support its position that RACM requirements must be met for an area to be redesignated, argued that EPA's interpretation of the RACM requirement (that section 172(c)(1) requires only implementation of all RACM which would expedite attainment) is an improper reading of the CAA. That issue was not addressed or decided by the Seventh Circuit. However, the issue of EPA's interpretation of the RACM requirement was raised and upheld in the 5th Circuit (Sierra Club v. EPA, 314 F.3d 735, 74345 (5th Cir. 2002)) and in the District of Columbia Circuit (Sierra Club v. EPA 294 F.3d 155, 16263 (D.C. Cir. 2002)). Both circuits found that EPA's interpretation that the statute only required implementation of RACM measures that would advance attainment was reasonable.
Comment 14: The rulemaking should identify each VOC RACT rule implemented by the states and identify whether the states have met the VOC RACT requirements.
Response 14: This comment refers to both the Missouri and the Illinois portions of the St. Louis area. EPA is here providing a response regarding the Illinois portion of the St. Louis area. See a separate rulemaking in today's Federal Register regarding redesignation of the Missouri portion of the St. Louis area for EPA's response to this comment as it pertains to the Missouri portion of the St. Louis area.
The January 30, 2003 proposed rule states at 68 FR 4855 that both States have adopted and implemented all required VOC RACT rules. In addition, the proposed rule provided the following Web site which contains the content of Illinois rules: http://www.epa.gov/region5/air/sips/sips.htm .
The Illinois VOC RACT rules for the MetroEast St. Louis area listed on this Web site include the following:
Part 219A General Provisions
Part 219B Organic Emissions From Storage And Loading Operations Part 219C Organic Emissions From Miscellaneous Equipment
Part 219E Solvent Cleaning
Part 219F Coating Operations
Part 219G Use Of Organic Material
Part 219H Printing And Publishing
Part 219Q Synthetic Organic Chemical And Polymer Manufacturing Plant
Part 219R Petroleum Refining And Related Industries; Asphalt Materials
Part 219S Rubber And Miscellaneous Plastic Products
Part 219T Pharmaceutical Manufacturing
Part 219V Socmi: Batch And Air Oxidation Processes
Part 219W Agriculture
Part 219X Construction
Part 219Y Gasoline Distribution
Part 219Z Dry Cleaners
Part 219Aa Paint And Ink Manufacturing
Part 219Bb Polystyrene Plants
Part 219Gg Marine Terminals
Part 219Hh Motor Vehicle Refinishing
Part 219Pp Miscellaneous Manufacturing
Part 219Qq Misc. Formulation Mfg.
Part 219Rr Misc. Organic Chemical Mfg.
Part 219Tt Other Emission Units
Part 219Appendices.
These VOC control rules have been incorporated into the Illinois SIP by reference at 40 CFR 52.720. As part of the December 26, 2002 redesignation request submittal, the IEPA has confirmed that the State has implemented all RACT rules contained in the SIP.
Comment 15: The January 30, 2003 proposed rule concedes that EPA's
waiver of the NO
Response 15: As proposed in the January 30, 2003 proposed rule at
68 FR 4847 and as finalized in this rulemaking, the EPA is exempting
the MetroEast St. Louis area from the NO
is based on the St. Louis area attaining the onehour ozone NAAQS
without the implementation of these NO
Comment 16: As the EPA concedes in the January 30, 2003 proposed rule, the Illinois SIP does not include transportation conformity procedures as required by the Act. EPA has no authority to waive this mandatory requirement for SIPs. Therefore, Illinois' SIP is incomplete.
Response 16: Section 176(c) of the Act provides that state conformity provisions must be consistent with Federal transportation conformity regulations that the CAA requires EPA to promulgate. The Federal transportation conformity regulations were finalized on November 24, 1993, amended on August 7, 1995, and amended again on August 15, 1997 (40 CFR parts 51 and 93 Transportation Conformity Rule Amendment: Flexibility and Streamlining). On March 2, 1999, a court decision (Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999)) rescinded several sections of the Federal transportation conformity rule, requiring EPA to revise those sections of the Federal rule. Illinois submitted transportation conformity rules on September 23, 1998. The SIP revision was submitted by Illinois in response to the August 1997 changes to the Federal regulations. EPA has not acted on the Illinois transportation conformity rules submittal as it does not address later Federal transportation conformity regulation amendments. Once EPA has completed the revisions to the Federal rule to reflect the 1999 court decision, Illinois will need to revise the State's rule to address the changes.
EPA believes that it is reasonable to interpret the conformity
requirements as not applying for purposes of evaluating Illinois' ozone
redesignation request under section 107(d) of the Act. The rationale
for this is based on a combination of two factors. First, the
requirement to submit SIP revisions to comply with the conformity
provisions of the Act continues to apply to a nonattainment area after
redesignation to attainment, since such an area would be subject to a
section 175A maintenance plan. Second, EPA's Federal conformity rules
require the performance of conformity analyses in the absence of
Federally approved state rules. Therefore, because areas are subject to
the conformity requirements regardless of whether they are redesignated
to attainment and must implement conformity under Federal rules if
state rules are not yet approved, EPA believes it is reasonable to view
these requirements as not applying for purposes of evaluating a
redesignation request. EPA has explained its rationale and has applied
this interpretation in a number of redesignation actions. See
redesignations for: Tampa, Florida (60 FR 52748, December 7, 1995);
Jacksonville, Florida (60 FR 41, January 3, 1995); Miami, Florida (60
FR 10325, February 24, 1995); Grand Rapids, Michigan (61 FR 31835, June
21, 1996); and ClevelandAkronLorain, Ohio (61 FR 20458, May 7, 1996).
The U.S. Court of Appeals for the Sixth Circuit recently upheld this
interpretation in Wall v. EPA, No. 004010, Slip Op. at 2124 (6th Cir.
September 11, 2001). The Court upheld EPA's view that failure to submit
a revision that meets the part D transportation conformity requirements
is not a basis to deny an ozone redesignation request. Therefore, the
EPA can redesignate the Illinois portion of the St. Louis ozone
nonattainment area to attainment of the onehour ozone standard
notwithstanding the lack of fully approved transportation conformity rules in Illinois' SIP.
D. Comments Related to Criterion 3: The Improvement in Air Quality Must
Be Due to Permanent and Enforceable Reductions in Emissions
Comment 17: The St. Louis area cannot meet this requirement since there is not an approved SIP meeting the ``serious'' area requirements, and there is no applicable implementation plan.
Response 17: This comment refers to both the Missouri and Illinois portions of the St. Louis area. EPA is here providing a response regarding the Illinois portion of the St. Louis area. See a separate rulemaking in today's Federal Register regarding redesignation of the Missouri portion of the St. Louis area for EPA's response to this comment as it pertains to the Missouri portion of the St. Louis area.
As described in the response to comments for Criterion (2) above,
the Illinois SIP meets the applicable CAA requirements. The applicable
SIP requirements are described in the January 30, 2003 proposed rule
(68 FR 48504856). EPA's approval of previous SIP submittals and this
rulemaking, which grants Illinois an exemption from the NO
In any event, this criterion is not dependent on which requirements are applicable or have been approved or implemented. The requirement is that air quality improvements be attributable to permanent and enforceable emissions reductions, which is a separable inquiry from the question of the requirements applicable to the area. Illinois' December 26, 2002 submission contains a detailed analysis of the air quality improvements in the St. Louis area and their relation to the emission reductions resulting from the permanent and enforceable emission control measures which are in place in the St. Louis area. (See response to comment 19 below for further discussion.) These measures and resulting emissions changes are listed in the January 30, 2003 proposed rule at 68 FR 48564858. These measures are all part of the applicable SIP. Thus, the commenter is incorrect in its assertion that there is no applicable SIP.
Comment 18: It is impossible to demonstrate that monitored concentrations during and after the 2002 Labor Day weekend resulted from permanent and enforceable emissions reductions. The emissions reductions were due to voluntary curtailment of operations by large industrial operations.
Response 18: The monitoring data for the St. Louis nonattainment
area demonstrate that the estimated number of exceedances per year
averaged over three years is 1.0 or less at all monitoring sites in the area. EPA
[[Page 25452]]
believes that any voluntary measures taken by industry and others over
a two or three day period in this three year time period does not
render the air quality monitoring data unrepresentative of the air
quality. As exp
FOR FURTHER INFORMATION CONTACT Edward Doty, Environmental Scientist, U.S. Environmental Protection Agency, Region 5, Air and Radiation Division (AR18J), Air Programs Branch, Regulation Development Section, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 8866057, (doty.edward@epa.gov).
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