[Federal Register: May 12, 2003 (Volume 68, Number 91)]
[Rules and Regulations]
[Page 25442-25466]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my03-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[IL 216-2;FRL-7496-4]
Approval and Promulgation of Implementation Plans, and
Designation of Areas for Air Quality Planning Purposes; State of
Illinois
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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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 one-hour 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 Metro-East St. Louis
area (Madison, Monroe, and St. Clair Counties, Illinois) (the Illinois
portion of the St. Louis ozone nonattainment area) to attainment of the
one-hour ozone NAAQS. In approving this request, the EPA is also
approving the State's plan for maintaining the one-hour 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 (NOX), as contained in the
maintenance plan, for transportation conformity purposes. Refer also to
a separate rule published today (the attainment determination rule)
regarding similar approvals for the State of Missouri.
The EPA is approving an exemption from certain NOX
emission control requirements, as provided for in section 182(f) of the
Clean Air Act, for the Metro-East St. Louis area. Because the St. Louis
area is currently attaining the one-hour ozone NAAQS, the EPA is
granting the Metro-East St. Louis area an exemption from NOX
Reasonably Available Control Technology (NOX RACT)
requirements. However, all NOX emission controls previously
adopted by the State must continue to be implemented.
DATES: For good cause as explained below, this rule is effective May
12, 2003.
ADDRESSES: Copies of the documents relevant to this rule are available
for inspection at the offices of the Environmental Protection Agency,
Region 5, Regulation Development Section, Air Programs Branch (AR-18J),
77 West Jackson Boulevard, Chicago, Illinois 60604. Interested persons
wanting to examine these documents should make an appointment with the
appropriate EPA office at least 24 hours in advance before visiting the
office. The reference file number is IL 216.
FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist,
U.S. Environmental Protection Agency, Region 5, Air and Radiation
Division (AR-18J), Air Programs Branch, Regulation Development Section,
77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6057,
(doty.edward@epa.gov).
SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,''
or ``our'' are used, we mean the U.S. Environmental Protection Agency.
Table of Contents
I. 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 one-hour
ozone NAAQS (one-hour ozone standard) by November 15, 1996 (based on
1994-1996 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 one-hour ozone standard (clean air determination)
based on complete, quality-assured 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 NOX RACT
requirements in the Metro-East St. Louis area; and (d) find adequate
and approve Missouri's and Illinois' 2014 MVEBs for VOC and
NOX, as contained in the States' maintenance plans, for
transportation conformity purposes.
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,
[[Page 25444]]
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 Cincinnati-Hamilton 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, 4848-4849), 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 one-hour ozone NAAQS during the 1987-1989 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
NOX. These emission control programs include stationary
source RACT (VOC and NOX in Missouri and VOC only in
Illinois), vehicle inspection and maintenance (I/M), transportation
control measures (TCMs), and other emission control measures (see the
analysis and discussion of specific emission control measures at 68 FR
4847). As a result of the emission control programs, ozone monitors in
the St. Louis area have recorded three years of ozone monitoring data
for the 2000-2002 period showing that the area has attained the one-
hour ozone NAAQS.
On December 26, 2002, the Illinois Environmental Protection Agency
(IEPA) submitted an ozone redesignation request and ozone maintenance
plan for the Metro-East St. Louis area along with a request for an
exemption from NOX RACT requirements for the Metro-East St.
Louis area. Included in this State submittal is a plan to maintain the
one-hour ozone NAAQS through 2014 and 2014 VOC and NOX MVEBs
for transportation conformity purposes. The January 30, 2003 proposed
rule, in part, addressed this State submittal.
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 Metro-East 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 Rate-Of-
Progress (ROP) requirements, and the section 182(j) multi-state
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 Metro-East St. Louis Area to Attainment
Although EPA is determining that the entire St. Louis ozone
nonattainment area has attained the one-hour ozone standard, EPA has
concluded that it is appropriate to take final action related to
Illinois' request to redesignate the Metro-East 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
Metro-East St. Louis area:
1. EPA is approving a request from the State of Illinois to
redesignate the Metro-East St. Louis area to attainment of the one-hour
ozone NAAQS;
2. EPA is approving Illinois' plan for maintaining the one-hour
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 NOX in Illinois' ozone maintenance plan for the purposes
of transportation conformity; and
4. EPA is approving an exemption (waiver) from NOX RACT
requirements for the Metro-East St. Louis area.
C. Effective Date of These Actions
EPA finds that there is good cause for this redesignation to
attainment, SIP revision, and exemption from NOX RACT
requirements to become effective immediately upon publication because a
delayed effective date is unnecessary due to the nature of a
redesignation to attainment which relieves the area from certain Clean
Air Act requirements that would otherwise apply to it. The immediate
effective date for this action is authorized under both 5 U.S.C.
553(d)(1), which provides that rulemaking actions may become effective
less than 30 days after publication if the rule ``grants or recognizes
an exemption or relieves a restriction'' and section 553(d)(3) which
allows an effective date less than 30 days after publication ``as
otherwise provided by the agency for good cause found and published
with the rule''. As indicated above, in the January 30, 2003 final
rule, EPA reclassified the St. Louis area to a ``serious''
nonattainment area and established a schedule for submission of SIP
revisions fulfilling the requirements for serious ozone nonattainment
areas. Upon the effective date of this rule, the State of Illinois will
be relieved of the obligation to develop and submit these SIP
revisions. In addition, the Illinois rules adopted to meet the
requirements of title V of the CAA, provide that in a ``serious'' area,
stationary sources with potential emissions of VOC and NOX
greater than 50 tons per year are major sources. As such, these major
sources are subject to the title V permit program and are required to
submit title V permit applications within twelve months of January 30,
2003. Upon the effective date of this rule, stationary sources which
are newly subject to the title V permitting program as a result of the
January 30, 2003 reclassification of the St. Louis area to a serious
nonattainment area will be relieved of the requirement to submit title
V permit applications to the State of Illinois. EPA finds that good
cause exists for this final rule being immediately effective since it
relieves the State of Illinois as well as stationary sources of certain
requirements established as a result of the January 30, 2003
reclassification to a serious nonattainment area.
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 1-hour ozone
standard. In
[[Page 25445]]
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 Metro-East
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 NOX MVEBs contained within the maintenance
plan. The MVEB for NOX in the Metro-East St. Louis area is
18.72 tons per ozone season weekday. The MVEB for VOC in the Metro-East
St. Louis area is 10.13 tons per ozone season weekday.
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 1-hour 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) multi-state attainment
demonstration requirement, are not applicable to the St. Louis area.
EPA's determination that the St. Louis area has met the one-hour 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 8-hour 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 one-hour standard for the St. Louis area.
Approval of the Illinois redesignation request changes the official
designation for the one-hour 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 one-hour
ozone NAAQS through 2014. The plan includes contingency measures to
remedy any future violations of the one-hour ozone NAAQS, and includes
VOC and NOX MVEBs for 2014 for the Illinois portion of the
St. Louis area.
Approval of an exemption from NOX RACT requirements for
the Metro-East St. Louis area means that Illinois is no longer
obligated by the Clean Air Act to adopt and submit NOX RACT
regulations for applicable NOX stationary sources. This also
means that the Illinois SIP can be judged to be complete despite the
lack of such regulations in the Metro-East St. Louis area.
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 one-hour 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 2000-2002 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 one-hour 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
quality-assured. 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 quality-assured
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
quality-assurance 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 Detroit-Ann Arbor redisgnation discussed
at 60 FR 12465-12466.
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 12-13) 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 Metro-East 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
[[Page 25447]]
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' 1-hour 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 NOx RACT
requirements for and disapproved an exemption from the NOx
new source review (NSR) and NOx conformity requirements for
the Illinois portion of the St. Louis ozone nonattainment area. EPA has
determined, for the reasons stated in the proposed rule, that the
attainment demonstration, and RACM requirements, are no longer
applicable requirements since the area has attained the NAAQS. In this
final rule, EPA is approving contingency measures as part of Illinois'
maintenance plan, granting an exemption from the NOx RACT
emission control requirements, and approving MVEBs for 2014, for the
Illinois portion of the area.
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 4851-4852) 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 NOX RACT requirements in the Illinois
portion of the St. Louis area under section 182(f) of the Act. In
today's final rule, EPA is taking final action exempting the State of
Illinois from the NOX RACT requirements in the Metro-East
St. Louis area. By taking this action, EPA now concludes that the
Illinois SIP is fully approved. The use of the quoted phrase was not
intended to escape a statutory requirement. In fact, it recognized
EPA's obligation to complete rulemaking in order to approve the SIP,
and it recognized that EPA could not determine that the SIP was fully
approved and complete the redesignation of the Illinois portion of the
St. Louis area to attainment of the one-hour ozone NAAQS until it took
final action to approve the remaining SIP element (an exemption from a
RACT requirement, as approved today, eliminates the CAA requirement for
NOX RACT and moots this SIP element). All of the SIP
elements which are applicable to the Metro-East St. Louis area for
purposes of redesignation have either been approved in previous
rulemakings or are approved in today's rule.
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 Metro-East St.
Louis area, and is today determining that others are not applicable.
This is not a ``psuedo-approval'' 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 NOX RACT exemption) have been subject
to notice and comment rulemaking and this action is subject to judicial
review. Our determination that certain requirements are not applicable
has been subject to notice and comment rulemaking and is subject to
judicial review. The public has had full opportunity to comment on all
of our actions, as evidenced by the numerous comments submitted by the
commenter. Therefore, EPA has not avoided any requirement for public
comment or judicial review.
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 Metro-East
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)
(Pittsburgh-Beaver Valley, Pennsylvania, October 19, 2001); (65 FR
37879) (Cincinnati-Hamilton, Ohio, June 19, 2000); (61 FR 20458)
(Cleveland-Akron-Lorain, Ohio, May 7, 1996); (60 FR 37366) (July 20,
1995); and (61 FR 31832-31833) (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 Metro-East 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 rate-of-progress plans; VOC RACT; RACM; stage II
vapor recovery; I/M; and NOX emission controls.
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
one-hour 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 4850-4858 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. 101-490, 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 NOX in this
case) that is required to ensure attainment of the applicable standard
(here the one-hour ozone standard) by the applicable date. Section
182(b)(1)(A) sets forth the specific requirements for RFP for a
moderate nonattainment area which includes a reduction in VOC emissions
of at least 15 percent from baseline emissions. As stated in the
January 30, 2003 proposed rule at 68 FR 4854, EPA approved Illinois' 15
percent ROP plan on July 14, 1997 (62 FR 37494).
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 NOX RACT requirements
for major stationary sources. Under the provisions of section 182(f),
the EPA is exempting the Illinois portion of the St. Louis ozone
nonattainment area from the requirements for NOX RACT in
this rulemaking. With the granting of this exemption, Illinois has met
all applicable RACT requirements.
The commenter states that H.R. Rep. No. 101-490, 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, 743-45 (5th Cir.
2002)) and in the District of Columbia Circuit (Sierra Club v. EPA 294
F.3d 155, 162-63 (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 Metro-East St. Louis area
listed on this Web site include the following:
Part 219--A General Provisions
Part 219--B Organic Emissions From Storage And Loading Operations
Part 219--C Organic Emissions From Miscellaneous Equipment
Part 219--E Solvent Cleaning
Part 219--F Coating Operations
Part 219--G Use Of Organic Material
Part 219--H Printing And Publishing
Part 219--Q Synthetic Organic Chemical And Polymer Manufacturing Plant
Part 219--R Petroleum Refining And Related Industries; Asphalt
Materials
Part 219--S Rubber And Miscellaneous Plastic Products
Part 219--T Pharmaceutical Manufacturing
Part 219--V Socmi: Batch And Air Oxidation Processes
Part 219--W Agriculture
Part 219--X Construction
Part 219--Y Gasoline Distribution
Part 219--Z Dry Cleaners
Part 219--Aa Paint And Ink Manufacturing
Part 219--Bb Polystyrene Plants
Part 219--Gg Marine Terminals
Part 219--Hh Motor Vehicle Refinishing
Part 219--Pp Miscellaneous Manufacturing
Part 219--Qq Misc. Formulation Mfg.
Part 219--Rr Misc. Organic Chemical Mfg.
Part 219--Tt Other Emission Units
Part 219--Appendices.
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 NOX RACT requirements for the Illinois portion
of the nonattainment area was vacated by the Court of Appeals for the
Seventh Circuit. Therefore, the Illinois SIP is not approvable because
it fails to meet the NOX RACT requirements of the Act.
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 Metro-East St. Louis area from the NOX RACT requirements
under section 182(f) of the Act. This NOX RACT exemption
[[Page 25451]]
is based on the St. Louis area attaining the one-hour ozone NAAQS
without the implementation of these NOX RACT emission
controls. Section 182(f), and in particular section 182(f)(2)(B)(i), of
the Act, provides for such an exemption since NOX RACT
emission reductions in this area would be in excess of those emission
reductions needed to attain the standard, as evidenced by EPA's
determination of attainment finalized in a separate rulemaking for
Missouri also published in today's Federal Register. The rationale for
the exemption is not the same as that stated in the June 26, 2001 final
rule vacated by the Court of Appeals for the Seventh Circuit. The
vacated NOX RACT exemption was based on a modeled attainment
demonstration indicating that additional NOX emission
reductions in this area would not be needed to attain the one-hour
ozone standard. The EPA is not relying on the exemption basis expressed
in that earlier, vacated final rule, but rather on a new determination,
based on monitored air quality. Attainment of the one-hour standard
without the implementation of NOX RACT rules demonstrates
that such rules are not needed to attain the one-hour ozone standard in
the St. Louis area. Therefore, the Metro-East St. Louis area qualifies
for a NOX RACT exemption under section 182(f)(2)(B)(i) of
the Act.
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 Cleveland-Akron-Lorain, 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. 00-4010, Slip Op. at 21-24 (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 one-hour 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 4850-4856). EPA's approval of previous SIP submittals and this
rulemaking, which grants Illinois an exemption from the NOX
RACT requirements, render Illinois' SIP ``fully approved'' for all
applicable SIP requirements. As stated in response to comments 7 and 8
above, since the serious area requirements are not yet due, the SIP is
not deficient even though the serious area requirements have not been
included.
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 4856-4858. 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 explained in more detail in response to comment 19 below,
ozone levels monitored during 2000-2002 are due to permanent and
enforceable emission control measures which are in place (e.g. I/M
programs, RACT on VOC stationary sources).
In the event that some sources did voluntarily reduce emissions
over this two or three day period, EPA has no basis to conclude that
these voluntary reductions had a significant effect on the monitored
air quality. As the commenter points out, ozone formation occurs
through ``complex chemistry and meteorology''. Voluntary reductions
over a short time period may or may not have had an impact on the
monitored air quality. (We note that ``voluntary'' reductions are
always a factor, since total emissions at a given point in time depend,
for example, on how many people decide to drive on a given day or
weekend). However, the State's demonstration that air quality
improvements are due to permanent and enforceable emission reductions
is based on its analysis of emission reductions over a ten-year period
(see response to comment 19), consistent with the guidance in the
Calcagni Memo at page 4.
Note that in general, EPA encourages voluntary reductions to reduce
emissions. EPA supports programs such as the Air Quality Index which
encourages people to voluntarily reduce ozone forming activities such
as filling gas tanks, painting, mowing, etc. at times when ozone
formation is expected to be high. Although these measures are not
enforceable nor measurable, they are encouraged. In addition, EPA does
not believe that Congress intended, in enacting section
107(d)(3)(E)(iii) of the Act, that communities and states, acting to
protect the health of their residents, should be ineligible for
redesignation merely because they encourage voluntary ozone precursor
emission reductions during periods when ozone concentrations may be
high.
Comment 19: EPA cannot demonstrate that permanent and enforceable
emission reductions are responsible for any alleged improvement of air
quality. The only way to demonstrate this point is through
photochemical grid modeling. No such modeling has been presented.
Without modeling, EPA's claim is pure speculation. Emission reductions
attributable to the emission controls ``could just as easily lead to
increases in ozone concentrations.'' The attainment demonstration
modeling shows that attainment was ``impossible'' in 2003.
Response 19: 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.
EPA's response to this and other comments on the attainment
demonstration modeling is included in the response to comments 21 and
24 below. In addition, see Wall v. EPA (265 F.3d 426, 435) and our
response to comment 23 for further discussion regarding the use of
modeling in demonstrating maintenance of the NAAQS.
Neither section 107(d)(3)(E)(iii) of the Act nor the Calcagni Memo
referenced by the commenter require modeling as a prerequisite to
redesignation of an ozone nonattainment area. Thus, modeling is not a
necessary prerequisite for demonstrating that the improvement in air
quality is due to permanent and enforceable reductions. See the General
Preamble for the Interpretation of Title I of the CAA Amendments of
1990, (57 FR 13496) (April 16, 1992), supplemented at 57 FR 18070
(April 28, 1992); ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' John Calcagni, Director, Air Quality Management
Division, September 4, 1992; ``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after November 15, 1992,'' Michael H.
Shapiro, Acting Assistant Administrator for Air and Radiation,
September 17, 1993 (Shapiro Memo); and ``Use of Actual Emissions in
Maintenance Demonstrations for Ozone and CO Nonattainment Areas,'' D.
Kent Berry, Acting Director, Air Quality Management Division, November
30, 1993. Our policies provide that an area may meet this requirement
by showing how its ozone precursor emissions changed due to permanent
and enforceable emissions reductions from when the area was not
monitoring attainment of the 1-hour ozone NAAQS to when it reached
attainment. See the rationale set forth in the Cincinnati redesignation
(65 FR 37879, 37886-37889) (June 19, 2000) and the Pittsburgh
redesignation (66 FR 53094) (October 19, 2001). The Court of Appeals
for the Sixth Circuit has recently upheld EPA's interpretation in Wall
v. EPA (265 F.3d 426, 435).
In the January 30, 2003 proposed rule at 68 FR 4856-4858, EPA
explains the basis for concluding that the observed air quality
improvements are due to the implementation of permanent and enforceable
emission reductions. The reasons cited include: emission controls which
have resulted in emission reductions; an analysis of meteorological
conditions which has shown a downward trend in ozone design values
while the annual number of days conductive to forming high ozone
concentrations showed no significant trend between 1989 and 2002; and
an assessment of emissions in 1990 and 2000 which has shown a
substantial decrease in emissions of VOC and NOX.
Annual days conducive to ozone formation (those days with
relatively clear skies, low wind speeds and southerly wind directions,
high peak temperatures exceeding 85 degrees Fahrenheit, and little or
no precipitation) have shown no noticeable trend up or down, only
relatively random year-to-year variations. The annual number of ozone
conducive days have stayed between approximately 20 and 50, with no
consistent increasing or decreasing trend. Meanwhile, annual site-
exceedances have decreased from over 120 in 1978, over 100 in 1983,
over 60 in 1988, to a total of 11 in the three year period of 2000 to
2002, showing a significant downward trend and steadily improving peak
ozone levels. In addition, the year-to-year fluctuation of annual
conducive days cannot be correlated with higher or lower ozone
exceedance levels over the last few years. Since 1989, as the annual
number of conducive days fluctuated from year-to-year with no
significant long term trend, the number of exceedances demonstrated a
significant long term downward trend. This indicates a disassociation
between monitored exceedances and meteorological effects.
During the 1990-2000 period, as the area-wide worst-case three year
ozone design values (see our response to comment 20 for further
discussion of the area's ozone design values) in the St. Louis area
were decreasing, the VOC and NOX emissions in the St. Louis
area were also significantly decreasing in a downward trend. The
following tables list VOC and NOX emissions in 1990 and 2000
for the Missouri and Illinois portions of the St. Louis ozone
nonattainment area. Both sections of the nonattainment area have
experienced a
[[Page 25453]]
downward trend in VOC and NOX emissions. The downward trend
in emissions and ozone design values with no significant trends in days
conducive to ozone formation implies that observed improvements in air
quality are due to the implementation of permanent and enforceable
emission control measures.
1990 and 2000 Missouri Portion of the St. Louis Nonattainment Area VOC
and NOX Emissions
[Emissions in Tons Per Ozone Season Weekday]
------------------------------------------------------------------------
Source category VOC NOX
------------------------------------------------------------------------
1990:
Point Sources................................. 81.97 347.61
Area Sources.................................. 87.74 29.47
On-Road Mobile Sources........................ 135.421 135.00
Off-Road Mobile Sources....................... 64.30 114.32
------------
1990 Totals............................... 369.43 626.40
============
2000:
Point Sources................................. 46.59 165.96
Area Sources.................................. 57.38 32.27
On-Road Mobile Sources........................ 103.79 181.75
Off-Road Mobile Sources....................... 40.59 73.16
------------
2000 Totals............................... 248.35 453.14
------------------------------------------------------------------------
1990 and 2000 Metro-East Area VOC and NOX Emissions
[Emissions in tons per ozone season weekday]
------------------------------------------------------------------------
Source category VOC NOX
------------------------------------------------------------------------
1990:
Point Sources................................. 74.05 95.85
Area Sources.................................. 33.84 1.66
On-Road Mobile Sources........................ 43.27 45.13
Off-Road Mobile Sources....................... 23.49 23.99
------------
1990 Totals............................... 174.651 166.63
============
2000:
Point Sources................................. 17.91 61.91
Area Sources.................................. 28.32 1.18
On-Road Mobile Sources........................ 26.57 54.71
Off-Road Mobile Sources....................... 21.31 23.85
2000 Totals............................... 94.11 141.64
------------------------------------------------------------------------
Reductions in VOC and NOX emissions have brought many
areas across the Country into attainment. EPA has approved many ozone
redesignations showing decreases in ozone precursor emissions resulting
in attainment of the ozone standard. See redesignations for Charleston
(59 FR 30326, June 13, 1994; 59 FR 45985, September 6, 1994),
Greenbrier County (60 FR 39857, August 4, 1995), Parkersburg (59 FR
29977, June 10, 1994); (59 FR 45978, September 6, 1994), Jacksonville/
Duval County (60 FR 41, January 3, 1995), Miami/Southeast Florida (60
FR 10325, February 24, 1995), Tampa (60 FR 62748, December 7, 1995),
Lexington (60 FR 47089, September 11, 1995), Owensboro (58 FR 47391,
September 9, 1993), Indianapolis (59 FR 35044, July 8, 1994; 59 FR
54391, October 31, 1994), South Bend-Elkhart (59 FR 35044, July 8,
1994; 59 FR 54391, October 31, 1994), Evansville (62 FR 12137, March
14, 1997; 62 FR 64725, December 9, 1997), Canton (61 FR 3319, January
31, 1996), Youngstown-Warren (61 FR 3319, January 31, 1996), Cleveland-
Akron-Lorain (60 FR 31433, June 15, 1995; 61 FR 20458, May 7, 1996),
Clinton County (60 FR 22337, May 5, 1995; 61 FR 11560, March 21, 1996),
Columbus (61 FR 3591, February 1, 1996), Kewaunee County (61 FR 29508,
June 11, 1996; 61 FR 43668, August 26, 1996), Walworth County (61 FR
28541, June 5, 1996; 61 FR 43668, August 26, 1996), Point Coupee Parish
(61 FR 37833, July 22, 1996; 62 FR 648, January 6, 1997), and Monterey
Bay (62 FR 2597, January 7, 1997). Most of the areas that have been
redesignated to attainment of the one-hour ozone standard have
continued to attain it. Areas that are not maintaining the one-hour
ozone standard have maintenance plans to bring them back into
attainment.
Between 1990 and 2000, area-wide VOC and NOX emissions
in the St. Louis area decreased by 37 percent and 25 percent,
respectively (46 percent and 25 percent, respectively, in Metro-East
St. Louis). These emissions reductions are due to the use of low
volatility gasoline, more stringent Tier I motor vehicle emission
standards, implementation of a more stringent vehicle inspection and
maintenance (I/M) program, controls on area sources, adoption of
tighter emissions limits on existing stationary sources, and
requirements for the use of reformulated and low RVP gasoline in motor
vehicles. Some of the specific emission control measures implemented in
the Metro-East St. Louis area include:
[sbull] Basic and Enhanced I/M for Motor Vehicles
[sbull] Transportation Control Measures (TCMs)
[sbull] Low-Volatility (low Reid Vapor Pressure (RVP)) Gasoline
[sbull] Tightened Reasonably Available Control Technology (RACT)
Standards for Some Source Categories
[[Page 25454]]
[sbull] RACT for Sources Covered By New Control Techniques
Guidelines (CTGs)
[sbull] Architectural Surface Coating Standards
[sbull] Volatile Organic Liquids Storage Facility Controls
[sbull] Automobile Refinishing Operation Controls
[sbull] Marine Vessel Loading Emission Controls.
The commenter claims that the combination of NOX and VOC
emissions reductions could just as easily have led to increases in
ozone. However, the actual monitoring data collected in the area show
that ambient ozone concentrations have dropped when this combination of
ozone precursor emission reductions occurred. In other metropolitan
areas, other levels of VOC and NOX reductions have also
resulted in attainment. See the redesignation rules listed above in the
first part of this response. The St Louis area's decrease in ozone
levels is consistent with what other areas have experienced when ozone
precursor emissions have been reduced. The commenter has not provided
data showing that decreases in ozone precursor emissions have led to
higher levels of ozone. In fact, the available data (as discussed in
the January 30, 2003 proposed rule) for the St. Louis area prove just
the opposite. Decreases in VOC and NOX emissions in the St.
Louis area are associated with a decrease in peak ozone levels. There
is no reason to assume that future reductions in VOC and NOX
emissions will cause just the opposite effect. Therefore, it is
appropriate for the EPA to assume that future reductions in VOC and
NOX emissions will lead to lower peak ozone concentrations.
EPA's conclusion that improvements in air quality are attributable
to permanent and enforceable reductions in precursors is not
``speculation'' but is based on a careful review of the various
technical analyses conducted by the States and described above. EPA
believes it is reasonable not to require photochemical grid modeling.
Three-year averaging of annual exceedance rates addresses variations in
meteorological conditions. Analysis of meteorological conditions showed
no significant trend in the number of days conducive to ozone
formation, and the commenter has presented no evidence that the three
year attainment period was unusually favorable. It is important to note
that, redesignation is not intended as an absolute guarantee that the
area will never monitor future standard violations. This is what
maintenance plan contingency measures are designed to address and
correct. See Cincinnati redesignation (65 FR 37879, 37886-37889) (June
19, 2000) and the Pittsburgh redesignation (66 FR 53094) (October 19,
2001).
Comment 20: If improvements in St. Louis air quality were due to
permanent and enforceable emission reductions, the trend in monitored
concentrations would be to go down. However, exceedances tripled from
2000 to 2001 and more than doubled from 2001 to 2002.
Response 20: A violation of the 1-hour ozone NAAQS occurs when the
estimated number of exceedances per year averaged over three years is
greater than 1.0 at any monitoring site in the area or its downwind
environs, using conventional rounding techniques. Although there was an
increase in the number of exceedances between 2000 and 2001 as well as
between 2001 and 2002, year-to-year trends in exceedances are not used
to determine attainment, but rather an average over three years at each
monitoring site is used. As noted in a separate rulemaking published in
today's Federal Register, EPA has determined that the St. Louis area is
in attainment with the NAAQS.
As indicated in the January 30, 2003 proposed rule at 68 FR 4850,
Table 1 Summarizes the number of expected exceedances at each monitor
in the area.
Table 1.--1-Hour Ozone NAAQS Exceedances in the St. Louis, Illinois-Missouri Area From 2000 to 2002
----------------------------------------------------------------------------------------------------------------
Estimated exceedances Average
--------------------------------- number of
Site name County or city and state estimated
2000 2001 2002 exceedances
2000-2002
----------------------------------------------------------------------------------------------------------------
Jerseyville......................... Jersey, IL.................. 0.0 1.0 1.0 0.7
Alton............................... Madison, IL................. 0.0 0.0 0.0 0.0
Maryville........................... Madison, IL................. 0.0 0.0 1.0 0.3
Edwardsville........................ Madison, IL................. 0.0 0.0 0.0 0.0
Wood River.......................... Madison, IL................. 0.0 1.0 0.0 0.3
Houston............................. Randolph, IL................ 0.0 0.0 0.0 0.0
East St. Louis...................... St. Clair, IL............... 0.0 0.0 0.0 0.0
Arnold.............................. Jefferson, MO............... 0.0 0.0 0.0 0.0
West Alton.......................... St. Charles, MO............. 1.0 1.0 1.0 1.0
Orchard Farm........................ St. Charles, MO............. 0.0 0.0 2.0 0.7
Bonne Terre......................... St. Genevieve, MO........... 0.0 0.0 0.0 0.0
South Lindbergh..................... St. Louis, MO............... 0.0 0.0 2.0 0.7
Queeny.............................. St. Louis, MO............... 0.0 0.0 0.0 0.0
Hunter.............................. St. Louis, MO............... 0.0 0.0 0.0 0.0
Flo Valley.......................... St. Louis, MO............... 0.0 0.0 0.0 0.0
St. Ann (old)....................... St. Louis, MO............... 0.0 n/a n/a \1\ 0.0
St. Ann (new)....................... St. Louis, MO............... n/a 0.0 0.0 \1\ n/a
Broadway............................ St. Louis City, MO.......... 0.0 0.0 0.0 0.0
Clark............................... St. Louis City, MO.......... 0.0 0.0 0.0 0.0
Margaretta.......................... St. Louis City, MO.......... 0.0 0.0 0.0 0.0
----------------------------------------------------------------------------------------------------------------
\1\ The owner of the property on which the old St. Ann monitor was located terminated the lease agreement with
the Missouri Department of Natural Resources. The new site is 0.7 miles east of the old site. In general,
ambient monitors should remain at the same location for the duration of the monitoring period required for
demonstrating attainment. However, when three complete, consecutive calendar years of data is not available
for a monitoring site, adjustments are made consistent with EPA monitoring criteria, in determining the
average number of estimated exceedances per year. The average number of estimated exceedances for 2000--2002
for the old St. Ann monitor is the estimated exceedances for 2000, or 0.0. In addition, where a monitor has
been in operation less than three years, the average estimated number of exceedances cannot be determined.
Since the new St. Ann monitor has been in operation less than three years, the average number of estimated
exceedances for 2000--2002 was not determined.
[[Page 25455]]
The area has monitored attainment for the three year period from
2000-2002. This indicates that the current level of emissions is
adequate to keep the St. Louis area in attainment. In addition, the Act
does not presume that the area will always be in attainment. The Act
provides that, if the area were to violate the 1-hour ozone standard,
then the contingency measures in the maintenance plan would be
triggered. This would reduce the ozone precursor emissions and bring
the area back into attainment.
One exceedance was monitored in the area in 2000, three in 2001,
and seven in 2002. EPA notes that when dealing with numbers as small as
one exceedance in 2000, any subsequent increase in the number of
exceedances will result in the number of exceedances being at least
doubled. Thus, citing a doubling or tripling of exceedances is not
necessarily an indicator of significant changes in air quality.
The one-hour ozone NAAQS is based on a three-year average. For a
violation, the estimated number of exceedances per year must exceed 1.0
at any monitoring site. Under this standard, a monitor may record up to
three exceedances over a three-year period without causing a violation
of the standard. The fourth-highest monitored level at a monitor over a
three-year period can be used as an indicator of potential violations
of the NAAQS. (Note that since other factors, such as missing data, can
affect the calculation of the estimated number of exceedances, the
fourth highest monitored value is not solely used to determine a
violation. See the discussion in the January 30, 2003 proposed rule at
68 FR 4849 and 4850 for an example of how the number of estimated
exceedances is determined.) The term ``design value'' is used to refer
to the fourth highest monitored value in a three year period. For an
individual monitor, the design value is the fourth-highest monitored
value in a three-year period. For an area such as the St. Louis area,
the highest of the individual monitor design values over a three-year
period is referred to as the ``area's design value''. The lower an
area's design value the more likely the area will meet the standard.
Also, an area's design value which decreases over time indicates that
the monitored ozone concentrations are generally lowering and the air
quality is improving.
The St. Louis area's design value decreased as follows:
0.156 parts per million (ppm) in 1987--1989 (see 52 FR 13385--13386
dated March 18, 1999); 0.136 ppm in 1994--1996 (see 53 FR 15581 dated
March 19, 2001); 0.131 ppm in 1996--1998 (see 53 FR 15583 dated March
19, 2001); 0.127 ppm in 1998--2000 (see 53 FR 15584 dated March 19,
2001), and, 0.123 ppm in 2000--2002. This indicates that the monitored
air quality improved over this time period.
In the January 30, 2003 proposed rule at 68 FR 4856--4858, and in
the response to comment 19, EPA explains the basis for concluding that
the observed air quality improvements are due to the implementation of
permanent and enforceable emission reductions. The reasons cited
include emission controls which have resulted in emission reductions,
an analysis of meteorological conditions which has shown a trend in the
reduction of ozone from 1989 to the present while the number of days
conducive to forming ozone showed no significant trend, and an
assessment of emissions in 1990 and 2000 which have shown substantial
decreases in emissions of VOCs and NOX.
Finally, it is noted that the commenter errs in totalling the
exceedance numbers from many monitors for each year and concluding, on
the basis of the exceedance totals that a worsening ozone trend has
occurred. Referring to Table 1 in the January 30, 2003 proposed rule
(68 FR 4850) (repeated above), one can see that many monitors,
including the worst-case monitor at West Alton, show no consistent
trend in exceedance numbers in the 2000-2002 period on a monitor-
specific basis. The ``sudden'' increase in exceedances from zero to two
at the Orchard Farm and South Lindbergh monitoring sites, although
implying a worsening ozone trend, simply point to the instability of
considering year-to-year changes within a small time period.
Comment 21: The only modeling which the commenter is aware of was
relied upon in the June 26, 2001 rulemaking. This modeling shows that
it is impossible to attain the NAAQS in St. Louis in 2002. The
significant factor is long range transport. This suggests that
variations in out-of-state transport may account for the monitored
improvements in air quality.
Response 21: Previous modeling referenced by the commenter was
conducted as part of the attainment demonstration approved by EPA in
the June 26, 2001 rulemaking (66 FR 33995). (This approval was vacated
by the U.S. Court of Appeals for the Seventh Circuit, as explained
previously.) This modeling demonstrated that utilizing planned controls
and measures, the area will attain the standard by no later than
November 15, 2004. EPA disagrees with the Commenter's assertion that
the modeling demonstrated it was impossible to attain the standard in
2002. The purpose of the modeling was to determine the likelihood of
attainment. EPA's approval of the States' attainment demonstrations did
not include a determination that attainment or maintenance of the
standard prior to 2004 was impossible.
The assumptions used in the modeling for the attainment
demonstration approved in the June 26, 2001 rulemaking are described in
an April 3, 2001 proposed rule (66 FR 17649-52). In this discussion,
EPA noted that the States incorporated corrections to the 1996 base
year emissions inventory, documented an assessment of the model's
performance by applying statistical tests, and discussed assumptions
regarding which states are affected by the NOX SIP call
including NOX limits on facilities.
As discussed in the April 2001 notice, the States had taken
measures to revise the emissions inventory to reflect the most current
data inputs available. In addition, an evaluation of the model was
performed as a measure of the ``likelihood'' that the standard will be
achieved. The June 26, 2001 rulemaking at 66 FR 17652 states:
The states conclude, and EPA concurs, that the revised modeling
system performs at an acceptable level because it satisfactorily
reproduces peak ozone concentrations relative to the monitored peak
ozone concentrations. The modeling system adequately simulates the
observed magnitude and spatial and temporal patterns of monitored
ozone concentrations. Furthermore, the modeling results accurately
differentiate between days with marginal ozone levels and days with
elevated ozone concentrations. Therefore, based on the revised
modeling and WOE results presented by the states which confirm the
adequacy of the adopted emission control strategy, EPA is approving
the states' attainment demonstrations.
The conclusions made regarding the likelihood of attainment based
upon the attainment demonstration modeling were the best that could be
drawn from the available information. It is likely that different
conclusions regarding attainment would be drawn if the State's were
required to conduct modeling as part of the maintenance demonstration.
For example, if a prospective maintenance demonstration were performed
with an ozone photochemical model following EPA guidance, the modeling
would be allowed to use episode days from the 2000-2002 period, not
1991 and 1995 as was used in the attainment demonstration modeling. It
is highly likely, if not certain, that the outcome would be a
conclusion that attainment will be
[[Page 25456]]
preserved through the required 10-year period.
Ozone models are designed to primarily predict the relative impacts
of emission changes on future ozone levels. Thus, it is not uncommon to
observe that actual monitored ozone concentrations are different than
modeled values at certain locations. The commenter's assertion that
attaining the standard in 2002 is impossible is not supported by the
existing science.
The commenter does not provide data to support its hypotheseis that
variations in out-of-state transport may account for the improvement in
air quality. The commenter only speculates that out-of-state transport
may account for the improvement in air quality. As described in the
response to comments 19 and 20 above, the States demonstrated that
improvements in air quality are due to emission controls which have
resulted in emission reductions, an analysis of meteorological
conditions which has shown no significant decrease in the annual number
of days conducive to ozone formation while there has been a significant
reduction in monitored ozone concentrations, and an assessment of
emissions in 1990 and 2000 which have shown decreased emissions of VOCs
and NOX. Thus, the states have demonstrated that the air
quality improvements in the St. Louis area are due to permanent and
enforceable emission reductions in the St. Louis area.
E. Comments Related to Criterion 4: The Area Must Have a Fully Approved
Maintenance Plan Meeting the Requirements of Section 175A
Comment 22: Under section 175A(a) of the Act, the state maintenance
plans must be a SIP revision. Section 110(a)(2)(A) of the Act requires
a SIP to contain enforceable emission limitations. The maintenance plan
for each State does not include any enforceable emission limitations.
Response 22: 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 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 Act requires the area to have a fully approved SIP and to have
met all of the applicable requirements of the Act. The Illinois SIP
satisfies this requirement as described in EPA's proposed rulemaking
published on January 30, 2003 (68 FR 4847). The measures that the State
relies on to maintain the one-hour ozone standard (the emission
controls which have been previously implemented plus the statewide
NOX emission control rules now being implemented) have been
approved into the SIP and are State and Federally enforceable. This
includes Illinois' statewide NOX rules, approved by the EPA
on November 8, 2001 (66 FR 56449 and 66 FR 56454). The State must
continue to implement these measures as provided for in the Federally
approved SIP.
The Act does not require a separate level of enforcement for a
maintenance plan as a prerequisite to redesignation. The enforcement
program approved for and applicable to the SIP as a whole also applies
to the maintenance plan. See discussion in the Cincinnati redesignation
(65 FR 37879, 37881-37882), and Sixth Circuit decision in Wall v. EPA,
supra, at 20-21, upholding EPA's interpretation of the requirement.
All of the control measures which the State relied on to attain and
maintain the one-hour ozone standard are SIP-approved measures. EPA
cannot withhold its approval of the maintenance plan submitted by
Illinois because of concerns that the State may, at some future time,
either submit a SIP revision to amend or remove a program, or that the
State may fail to implement these programs in the Metro-East St. Louis
area. The Federally approved SIP requirements remain in place, and
remain enforceable until such time as EPA takes action to approve SIP
revisions to amend or remove them. This can only be done via Federal
rulemaking, which includes procedures for public comment and review.
Comment 23: Section 182(j), 40 CFR 51.112(b), the Calcagni Memo,
and the General Preamble require the use of photochemical modeling to
demonstrate maintenance. EPA is overruling Congress, EPA regulations,
and common sense by proposing to predict maintenance for ten years
without any modeling. Monitoring is more accurate to show past
concentrations, but modeling is required to predict future
concentrations. The commenter cites Ober v. U.S.E.P.A., 84 F.3d 304
(9th Cir. 1996) in support of this assertion.
Response 23: EPA disagrees with the commenter's assertion that the
use of photochemical modeling to demonstrate maintenance is required by
the Act, EPA policy, or EPA regulations. The EPA is not overruling
Congress or EPA regulations.
Section 175A requires States to develop and submit, as a SIP
revision, a plan for maintaining the NAAQS for at least 10 years after
redesignation. The plan shall contain such additional measures, if any,
as the Administrator deems necessary to ensure such maintenance.
Section 175A does not require modeling.
Section 182(j) contains no reference to maintenance plans. Section
182(j)(1) requires that each state in a multi-state ozone nonattainment
area shall ``* * * (A) take all reasonable steps to coordinate,
substantively and procedurally, the revisions and implementation of
State implementation plans applicable to the nonattainment area
concerned; and (B) use photochemical grid modeling or any other
analytical method determined by the Administrator, in his discretion,
to be at least as effective''. The language in this section clearly
refers to ``nonattainment'' areas. Thus, EPA believes that section
182(j) is applicable to attainment demonstrations not maintenance
plans.
Even if the commenter is correct in the assertion that section
182(j) applies to maintenance plans, this section does not necessarily
require modeling. EPA has the discretion to approve the use of other
analytical methods determined to be at least as effective. In the
Calcagni Memo, on page 9, EPA stated ``A State may generally
demonstrate maintenance of the NAAQS by either showing that future
emissions of a pollutant or its precursors will not exceed the level of
the attainment inventory, or by modeling to show that the future mix of
sources and emission rates will not cause a violation of the NAAQS''.
By this policy, EPA has, in effect, expressed how its discretion will
be utilized regarding the use of emissions in lieu of modeling for
demonstrating maintenance. In addition, the Sixth Circuit in Wall v.
EPA (265 F.3d 426, 435) determined that ``EPA's actions are completely
consistent with its own interpretive memorandum, which allows for NAAQS
maintenance to be demonstrated by showing that the future emissions of
a pollutant's precursors will not exceed the level that allowed the
area to achieve attainment in the first place.'' The Ober v. U.S.E.P.A.
case cited by the commenter deals with modeling requirements for
approval of a SIP revision in a nonattainment area for particulate
matter, and has no relevance to the ozone maintenance plan at issue
here.
The regulation at 40 CFR 51.112(a) requires the SIP to demonstrate
that the measures, rules, and regulations contained in it are adequate
to provide for the timely attainment and maintenance of the NAAQS. The
regulation at 40 CFR 51.112(b) specifies
[[Page 25457]]
what the demonstration required in 40 CFR Sec. 51.112(a) must include.
The Sixth Circuit in Wall v. EPA (265 F.3d 426, 435) determined that
EPA's position that the regulation at 40 CFR 51.112(a) applies only to
attainment demonstrations and not to maintenance plans is ``neither
impermissible nor in conflict with a statutory mandate * * * Moreover,
EPA's actions are completely consistent with its own interpretive
memorandum, which allows for NAAQS maintenance to be demonstrated by
showing that the future emissions of a pollutant's precursors will not
exceed the level that allowed the area to achieve attainment in the
first place.''
Lastly, the January 30, 2003 proposed rule at 68 FR 4858 states
that emissions of NOX in the Metro-East St. Louis area will
be reduced from 141.64 to 96.67 tons per ozone season weekday from 2000
to 2014 and in Missouri, they will be reduced from 453.14 to 317.58
tons per ozone season weekday from 2000 to 2014. Emissions of VOCs in
the Metro-East St. Louis area will be reduced from 94.11 to 75.98 tons
per ozone season weekday from 2000 to 2014 and in Missouri, they will
be reduced from 248.35 to 182.57 tons per ozone season weekday from
2000 to 2014. A ``common sense'' conclusion is that further emission
reductions are projected to occur through 2014. Based on past trends of
emissions decreases, peak ozone levels will continue to be reduced from
2000 to 2014. Further modeling would continue to demonstrate
attainment. The commenter has not provided any data to indicate that
these emission reductions would lead to modeled increases in ozone
concentrations.
Comment 24: EPA and the States have stated in testimony provided to
courts and the public that maintenance of the NAAQS in 2003 is not
possible. EPA and the states have stated that, due to upwind emissions,
attainment with the NAAQS cannot be achieved until 2004.
Response 24: The commenter uses the same arguments in this comment
to state that the attainment with the NAAQS cannot be maintained as was
used in comment 21 above to claim that the area cannot attain the
NAAQS. See the response to comment 21 for further discussion.
EPA disagrees with the commenter's assertion that the modeling
demonstrated it was impossible to maintain the standard in 2003. The
evaluation of the modeling is to determine the likelihood of attainment
by a future attainment deadline (2004 in this case). EPA's approval of
the States' attainment demonstrations did not include a determination
that attainment or maintenance of the standard prior to 2004 was
impossible.
The commenter references documents submitted by EPA and the States
as well as language used in various rulemakings stating, in effect,
that reductions in upwind emissions are necessary for attainment of the
standard and that the earliest attainment date is November 15, 2004. At
the time these documents were developed, EPA and the States were basing
their conclusions on the attainment demonstration including the
accompanying modeling. The statements made were the best conclusions
that could be drawn from the available information.
The conclusion that the maintenance plan will provide for
maintenance of the NAAQS for the next ten years as required by section
175A is based, in part, on more recent information than what was relied
upon in the attainment demonstration which included the modeling
referred to by the commenter. The maintenance plan includes an emission
inventory which is more recent than the inventory used in the
attainment demonstration. See the response to comment 36 for further
discussion.
EPA has no data to support the commenter's hypothesis that
variations in out-of-state transport may account for the improvement in
air quality. The commenter only speculates that out-of-state transport
solely account for the improvement in air quality. EPA concludes that
the plan demonstrates maintenance through 2014.
Comment 25: The SIPs must provide assurance that the States have
adequate personnel, funding and authority to carry out the SIP. The
record for this action must provide real evidence of this assurance.
The commenter raises the following specific concerns with regard to
Illinois:
a. The Illinois I/M funding expires on June 30, 2003. Illinois has
no funding mechanism to replace this funding. Based on this
observation, the EPA cannot lawfully find that Illinois has adequate
funding to fully implement its SIP;
b. EPA cannot lawfully find that the Illlinois motor vehicle
emissions budgets are adequate because they presume full funding for
the Illinois I/M program;
c. Illinois is failing to adequately administer and enforce the
title V source operating permits program due mainly to a lack of
funding. Illinois failed to issue all source permits within three years
of receiving interim approval of its title V permits program by the EPA
on March 7, 1995 (60 FR 12478). At least 24 of the unpermitted sources
are located in Madison and St. Clair Counties, Illinois. Illinois has
announced that it will be very difficult to meet a commitment to issue
all required source permits by the December 2003 deadline. Illinois is
also violating the requirement to act on all source permit applications
within 18 months of receipt, violating the requirements of 40 CFR
70.7(a)(2). This is due to a lack of adequate funding; and
d. Illinois is failing to adequately enforce its title V program
through regular source inspections.
The commenter expresses the general concern that Illinois lacks the
funds to adequately enforce any of the Clean Air Act requirements and
to implement its SIP, including NSR, PSD, and RACT rules. Therefore,
the commenter believes that EPA should reject Illinois' statement in
the maintenance plan that Illinois has the necessary resources to
enforce any violations of its rules or source permit provisions.
Response 25: 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 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,
and as it relates to the general assertion that the Illinois
maintenance plan lacks a showing of adequate resources.
With regard to the commenter's Illinois-specific comments, we have
the following responses:
a. The Illinois I/M program, in the Metro-East St. Louis area, is
currently funded through a combination of fuel taxes and Congestion
Mitigation and Air Quality (CMAQ) funds. It is EPA's understanding that
Illinois currently has sufficient funding from CMAQ previously
appropriated and obligated and from fuel taxes to run this program
through December 2003. Meanwhile, Illinois officials are seeking
alternative funding sources to replace the expired CMAQ funding,
including continuance of CMAQ funding through Congressional
reauthorization. The EPA believes at this time that it is reasonable to
assume that Illinois will continue to implement this program, for
several reasons. First, Illinois is committed to continuing
implementation of this program, which it has been operating since 1986.
Second, if Illinois fails to maintain this program other than
termination through approvable means (for example, by substituting an
emissions control measure to achieve
[[Page 25458]]
equal or greater emissions reductions), the program remains an
enforceable component of the approved SIP. Finally, it is noted that
this program is contractor operated, with the contractor operating
under a binding contract extending through 2005. This contract, which
is on file at EPA as part of the documentation for this portion of the
SIP, contains penalty clauses insuring that the State will continue
funding the I/M program through the lifetime of the contract (in the
event that the State prematurely terminates the contract, the State
would still be obligated to reimburse the contractor through 2005 for
the estimated value of the contract). Illinois has no financial
incentive to discontinue the I/M program;
b. Since, for the reasons described above, EPA can assume that the
Illinois I/M program will continue to operate in the Metro-East St.
Louis area and since this program is an ozone maintenance measure
assumed in Illinois' ozone maintenance demonstration, it is correct to
conclude that Illinois' mobile source emissions budgets are acceptable
and are not in jeopardy due to a pending termination of the I/M
program; and
c-d. As evidenced in the December 23, 2003 maintenance plan,
Illinois remains committed to implementing the SIP after redesignation
of the area. The Illinois ozone SIP for the Metro-East St. Louis area
has been fully approved, and there are no criteria requiring EPA to
evaluate and assess title V programs prior to redesignation of the area
to attainment. The SIP approval and redesignation criteria do not
include evaluating permitting programs to ascertain whether any
deficiencies exist in these programs. The maintenance plan is designed
to assure that attainment of the one-hour ozone standard is preserved.
Whatever deficiencies are confirmed to exist in the source permitting
program may be addressed and corrected in other contexts, including a
finding of failure to implement under section 173(b) of the Act.
Therefore, this comment is not a basis for disapproving Illinois' ozone
maintenance plan and the EPA disagrees with the commenter on this
issue.
In addition, it should be noted that section 107(d)(3) and section
175A ozone redesignation and ozone maintenance plan requirements
require compliance with section 110 and part D requirements under title
I of the Act. Title I of the Act itself does not require compliance
with title V of the Act for purposes of considering redesignations to
attainment of the NAAQS. Therefore, even if the commenter were correct
in its assertion that Illinois is not properly implementing its title V
permit program, this would not be a basis for disapproval of the
redesignation request and concerns with title V compliance and
implementation are moot.
The ozone SIP for the Metro-East St. Louis area has been fully
approved, and there are no criteria requiring EPA to evaluate and
assess title V programs prior to redesignation of the area to
attainment. The SIP approval and redesignation criteria do not include
evaluating permitting programs to ascertain whether any deficiencies
exist in these programs. The maintenance plan is designed to assure
that attainment of the one-hour ozone standard is preserved. Whatever
deficiencies are confirmed to exist in the source permitting program
may be addressed and corrected in other contexts, including a finding
of failure to implement under section 173(b) of the Act.
EPA disagrees with the commenter that this action must include in
the record further evidence of Illinois resource commitments. Neither
this commenter nor any other person has submitted substantive comments
that would lead EPA to separately analyze whether it should call on the
State to revise its section 110(a)(2) SIP regarding enforcement and
funding.
Comment 26: EPA policy indicates that a state may not relax
existing controls upon redesignation. However, the States are moving
requirements for Lowest Achievable Emissions Rates (LAER), new source
emission offsets, and NOX RACT to the contingency plans
without a modeling demonstration showing that these control measures
are not needed for attainment, contrary to EPA policy.
Response 26: 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.
Illinois has a commitment on page 26 of the maintenance plan to
maintain all of the emission control measures implemented in the Metro-
East St. Louis area to ensure maintenance of the one-hour ozone NAAQS.
The commenter refers to the Calcagni Memo at page 10 which states
that ``the State will be expected to maintain its implemented control
strategy despite redesignation to attainment, unless such measures are
shown to be unnecessary for maintenance or are replaced with measures
that achieve equivalent reductions''.
Section 175A of the Act requires that maintenance plans shall
contain contingency provisions deemed necessary to assure that the
States will promptly correct any violation of the standard which occurs
after redesignation of the area as an attainment area. These provisions
shall include a requirement that the State will implement ``all
measures with respect to the control of the air pollutant concerned
which were contained in the SIP for the area before redesignation of
the area as an attainment area''. On page 6 of an October 14, 1994
memorandum entitled, ``Part D New Source Review (part D NSR)
Requirements for Areas Requesting Redesignation to Attainment'' from
Mary D. Nichols, assistant Administrator for Air and Radiation, EPA
stated its interpretation that the term ``measures'' used in section
175A does not include part D NSR permitting programs. In accordance
with this interpretation, EPA believes that LAER and offsets, which are
components of Illinois' part D NSR permitting program, are not required
to be retained following redesignation of the Metro-East St. Louis area
as an attainment area.
LAER and new source emissions offsets are specified in part D and
subpart 2 of the Act to be applicable to nonattainment areas. Upon
redesignation to attainment, these requirements are no longer
applicable. Removing the LAER and offsets provision in the State's
permitting program is not contrary to the above mentioned policy. Upon
redesignation to attainment, the LAER requirements included in
stationary source permits and the emissions offsets which were obtained
by stationary sources at the time when the LAER and offset provisions
were in effect will remain in effect for those facilities. Thus, the
LAER and offset measures which were relied upon to attain the NAAQS
will remain in effect following redesignation.
Following redesignation, any new facilities subject to the State's
permitting requirements will be subject to the PSD requirements of part
C of title I of the Act. Under these requirements, the State must
ensure that such new facilities will not cause significant
deterioration of air quality to the extent that they cause or
contribute to peak ozone levels in excess of the NAAQS (see section 165
of the Act). As part of the PSD program, sources are required to
perform a source-specific air quality demonstration to show no adverse
impact on the NAAQS. This is a more accurate way of predicting impacts
than
[[Page 25459]]
to do generalized modeling which does not consider emissions growth at
specific sources.
Illinois' new source rules are structured such that new source
requirements, for new sources seeking permits after the area is
redesignated to attainment, automatically revert to PSD requirements
after an area is redesignated to attainment. This rule is part of
Illinois' approved SIP.
For Illinois, it is noted that the State has not relied on
NOX RACT to attain the ozone standard and the Illinois SIP
does not contain NOX RACT rules. Therefore, moving
NOX RACT to the contingency plan is not a relaxation of the
Illinois SIP.
Regarding modeling, the Shapiro Memo at page 6 states that ``States
may be able to move SIP measures to the contingency plan upon
redesignation if the State can adequately demonstrate that such action
will not interfere with maintenance of the standard * * * for ozone,
the State would need to submit an attainment modeling demonstration
consistent with EPA's current ``Guideline on Air Quality Models.''
showing that the control measure is not needed to maintain the
standard''. As stated above, all emission control measures in place as
a result of the LAER and Offsets rules are being retained by sources
already implementing them following redesignation. For the Illinois
portion of the St. Louis area, as noted above, NOX RACT is
not part of Illinois' existing SIP. Thus, no modeling is needed to
demonstrate that these measures are not needed since all are being
retained or are not parts of existing SIPs.
Comment 27: The contingency provisions of the maintenance plans
fall short of those required. All serious area requirements of section
182(c) of the CAA should be included in the contingency plans and
implemented promptly in case of a violation. Virtually none of these
provisions are included in the contingency plans and, thus, the
contingency plans cannot be approved.
Response 27: EPA disagrees with the commenter's assertion that all
of the serious area requirements of section 182(c) should be included
in the contingency plans and implemented in case of a violation.
The requirements of section 175A(d) are the applicable requirements
for contingency measures in maintenance plans. Section 175A(d) states:
Each plan revision submitted under this section shall contain
such contingency provisions as the Administrator deems necessary to
assure that the State will promptly correct any violation of the
standard which occurs after the redesignation of the area as an
attainment area. Such provisions shall include a requirement that
the State will implement all measures with respect to the control of
the air pollutant concerned which were contained in the State
implementation plan for the area before redesignation of the area as
an attainment area.
None of the serious area requirements were contained in the SIPs
prior to redesignation. The plans must contain contingency measures
which assure that the States ``will promptly correct any violation of
the standard which occurs after the redesignation of the area as an
attainment area''. As described in response to comment 28 below and in
the January 30, 2003 proposed rule, EPA believes that this requirement
has been met. The statute does not require that all serious area
requirements be included in the maintenance plans as contingency
measures, but rather that all measures included in the SIP prior to
redesignation be included in the maintenance plans as contingency
measures. As explained previously, certain serious area requirements
need not be met in the case of the St. Louis area since the area has
attained the standard prior to the date that these requirements are
due. Since these provisions are not applicable in the St. Louis area,
they do not need to be included in the maintenance plans as contingency
measures.
The commenter's assertion that there is no implementation plan
applicable to this ``serious area'' is addressed above. See, for
example, our response to comment 17.
Comment 28: 42 U.S.C. 7505a(d) requires that the states will
promptly correct any violation of the standard which occurs after
redesignation. However, there is nothing in either contingency plan
which assures prompt correction of future violations. The plans contain
no adopted measures, and no schedule to adopt specific measures. The
plans offer to adopt an unspecified measure within eighteen months of
notification of a violation. This is an unreasonably long period. The
plans should require adoption in much less than eighteen months and
immediate implementation.
Response 28: 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.
EPA disagrees that Illinois' maintenance plan lacks adequate
contingency provisions should the area violate the standard. As stated
in the January 30, 2003 proposed rule at 68 FR 4859, the contingency
plan portion of each State's maintenance plan delineates the State's
planned actions in the event of future one-hour ozone standard
violations, increasing ozone levels threatening a subsequent violation
of the ozone standard, and unanticipated increases in ozone precursor
emissions threatening a subsequent violation of the ozone standard.
Illinois has developed a contingency plan with several levels of
triggered actions depending on whether the ozone standard has actually
been violated after the redesignation of the area to attainment or
whether a subsequent violation of the ozone standard is threatened on
the basis of increased ozone concentrations approaching the standard or
unanticipated significant increases in ozone precursor emissions.
Illinois has also committed to continue to implement all control
measures included in the SIP prior to redesignation consistent with
section 175A(d) of the Act.
The action trigger levels and planned corrective actions in each
contingency plan are the following:
A Level I Trigger will be exceeded if: (1) The monitored ambient
ozone levels exceed 124 parts per billion, one-hour averaged, more than
once per year at any monitoring site in the St. Louis maintenance area
(the current St. Louis ozone nonattainment area), or more than two
exceedances in any two-or three-year period; or (2) the St. Louis
maintenance area's VOC or NOX emissions for 2005 or 2008
increase more than 5 percent above the 2000 attainment levels. In the
event one of these action trigger levels are exceeded, Illinois and
Missouri will work together to evaluate the situation and determine if
adverse emissions trends are likely to continue. If so, the States will
determine what and where emission controls may be required to avoid a
violation of the one-hour ozone NAAQS. A study shall be completed
within nine months of the determination of the action trigger
exceedance.
A Level II Trigger will be exceeded if a violation of the one-hour
ozone NAAQS at any monitoring site in the St. Louis ozone maintenance
area is recorded after the area is redesignated to attainment of the
standard. If this trigger is exceeded, Illinois and Missouri will work
together to conduct a thorough analysis to determine appropriate new
emission control measures, from those
[[Page 25460]]
listed below, to address the cause of the ozone standard violation.
The contingency plan for Illinois lists a number of possible
contingency measures. The plan calls for the appropriate contingency
measures to be adopted no later than 18 months of a Level I or Level II
trigger being exceeded. The December 23, 2002 maintenance plan for the
Metro-East St. Louis area stated that the adopted contingency measures
would be implemented as expeditiously as practicable, but generally
within 24 months of adoption. However, in a letter dated April 15, 2003
from the IEPA, the State noted that the final maintenance plan was
erroneously modified based on a prior comment letter from the EPA
addressing the State's October 1, 2002 draft maintenance plan. The
State has corrected its contingency implementation deadline commitment
to reflect the contingency implementation deadline language contained
in the October 1, 2002 draft maintenance plan, which commits the State
to implement adopted contingency measures within 18 months of a
determination of a violation of the one-hour ozone standard based on
quality-assured data. The October 1, 2002 draft maintenance plan was
the version of the maintenance plan reviewed by the public in the
State's public hearing and during its public review period. The State
notes that, in amending its October 1, 2002 draft maintenance plan to
the final December 23, 2002 version, the State did not intend to extend
the implementation deadline for contingency measures, but to merely
address EPA's comment on the October 1, 2002 draft version. With the
April 15, 2003 letter, the State of Illinois officially clarifies its
commitment to implement contingency measures within 18 months of a
determination that a one-hour ozone standard violation has occurred.
The April 15, 2003 letter includes a revised contingency measures
section, section 6.1, to replace the same section of the December 23,
2002 version of the State's maintenance plan, consistent with its
clarification.
The list of possible contingency measures in Illinois' contingency
plan include the following:
Point Source Measures
[sbull] NOX SIP call Phase II (non-utility measures)
[sbull] Reinstatement of requirements for new source offsets and/or
Lowest Achievable Emission Rates
[sbull] Apply RACT to smaller existing sources
[sbull] Tighten RACT for existing sources covered by Control
Techniques Guidelines
[sbull] NOX RACT
[sbull] Expand geographic coverage of current point source emission
control measures
[sbull] Apply Maximum Available Control Technology for industrial
sources
[sbull] Other point source measures to be identified Mobile Source
Measures--
[sbull] Transportation Control Measures, including, but not limited
to, area-wide rideshare programs, telecommuting, transit improvements,
and traffic flow improvements
[sbull] High-enhanced vehicle inspection/maintenance (OBDII)
[sbull] California engine standards
[sbull] Other mobile source measures to be identified
Area Source Measures
[sbull] California architectural/industrial maintenance coating
emission controls
[sbull] California commercial and consumer products coating
emission controls
[sbull] Broader geographic applicability of existing emission
control measures
[sbull] California off-road engine standards
[sbull] Other area source measures to be identified
As stated in the Calcagni Memo, page 12, ``For purposes of section
175A, a State is not required to have fully adopted contingency
measures that will take effect without further action by the State in
order for the maintenance plan to be approved. However, the contingency
plan is considered to be an enforceable part of the SIP and should
ensure that the contingency measures are adopted expediently once they
are triggered.'' Thus, according to this policy, the plans need not
contain adopted measures.
In order to properly deal with future ozone standard violations and
to comply with its own internal rulemaking procedure requirements,
Illinois requires time to evaluate potential controls and provide
public notice and public participation in the rulemaking process when
adopting contingency measures. The commenter provided no rationale for
why a time period shorter than 18 months to adopt and implement
contingency measures is warranted. EPA finds that 18 months, as
described in Illinois' maintenance plan, as amended by the IEPA's April
15, 2003 letter, to adopt and implement contingency measures is a
reasonable time period for Illinois to meet its regulatory obligations
while meeting the requirement under section 175A to promptly correct
any violation of the one-ozone standard after the redesignation of the
St. Louis area to attainment. In addition, this 18 month period to
adopt and implement contingency measures is consistent with other
redesignations, such as that approved for Pittsburgh, Pennsylvania (66
FR 53102), in which a 12 to 24 month time period was specified to adopt
and implement contingency measures.
Comment 29: Neither maintenance plan provides any procedure for
quantifying the reductions needed to correct violations.
Response 29: 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 comment as
it pertains to the Missouri portion of the St. Louis area.
As indicated above, the maintenance plans refer to a violation of
the NAAQS as a level II trigger. In the event of a violation, Illinois
and Missouri have committed to work together to conduct a thorough
analysis to determine appropriate measures to address the cause of the
ozone standard violation. It is impossible for a State to determine,
before a violation, what emission reductions are necessary to correct a
violation. For example, if Illinois would select tightening RACT for
existing sources as a contingency measure, the amount of emissions
reductions resulting from implementation of this measure is dependent
upon the number of sources subject to RACT rules in the area at the
time of the violation. Since the State has no control over when a
source ceases operating, it is impossible to determine, at this time,
how many sources will be affected by a tightening of RACT which may be
implemented at some unspecified time in the future. Thus, it is
impossible to determine beforehand how much of an emission reduction
will be achieved by implementing this measure.
The approach taken in the Illinois maintenance plan is to conduct a
thorough analysis to determine the magnitude of the emissions
reductions needed to correct an ozone standard violation, the types of
sources for which emission reductions must be made, and the mechanisms
for achieving the emissions reductions. The list of contingency
measures includes a reasonable mix of emission control measures from
which to select the emission control measures most suited to address a
future ozone standard violation (a level II trigger), if one
[[Page 25461]]
occurs, or to alleviate an unanticipated worsening of air quality or
emissions (a level I trigger). EPA finds that this is a reasonable
approach which will assure prompt correction of the air quality
problem. In addition, this approach is consistent with EPA guidance
contained in the Calcagni Memo.
Comment 30: The contingency measures in the maintenance plans are
vague and open ended. Neither plan identifies any measures to be
adopted. No firm schedule for adoption and implementation is included.
Response 30: 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.
EPA disagrees with the commenters assertion that the contingency
measures are vague, and open ended. In response to comments 28 and 29
above, EPA addressed the procedures contained in the maintenance plan
for evaluating which measures are necessary to promptly correct a
violation.
In addition, in response to comment 28 above, EPA identified the
list of potential contingency measures contained in Illinois'
maintenance plan along with a schedule of 18 months to adopt and
implement selected contingency measures in the event of a violation (a
level II trigger) or worsening air quality (a level I trigger). EPA has
concluded that the maintenance plan satisfies EPA guidance regarding
adoption and implementation of contingency measures consistent with EPA
guidance and the Act.
Comment 31: Each maintenance plan contains inadequate provisions to
respond to anticipated violations of the NAAQS. Anticipated violations
are based on emissions inventories exceeding the 2000 inventory or two
exceedances at any monitoring site during a two- or three-year period.
There is no commitment to adopt any additional controls to address
anticipated violations.
Response 31: 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 indicated above, a Level I Trigger will be exceeded if: (1) the
monitored ambient ozone levels exceed 124 parts per billion, one-hour
averaged, more than once per year at any monitoring site in the St.
Louis maintenance area (the current St. Louis ozone nonattainment
area), or more than two exceedances in any two- or three-year period;
or (2) the St. Louis maintenance area's 2005 or 2008 VOC or
NOX emissions increase more than 5 percent above the 2000
attainment levels. In the event one of these action trigger levels are
exceeded, Illinois and Missouri will work together to evaluate the
situation and determine if adverse emissions trends are likely to
continue. If so, the States will determine what and where emission
controls may be required to avoid a violation of the one-hour ozone
NAAQS. A study shall be completed within nine months of the
determination of the action trigger exceedance to select emission
controls needed to mitigate possible future ozone standard violations.
Illinois commits to implement any selected emission controls as
expeditiously as practible.
It is true that Illinois has not specified implementation deadlines
for implementing new emissions controls in the event of exceedance of a
Level I trigger. Illinois has only committed to conduct studies to
determine if new emission controls are needed to avert possible future
ozone standard violations. These studies could conclude that no
additional emission controls are needed to avoid a future ozone
standard violation. For example, such a study during 2004 could
conclude that statewide NOX emission controls to be
implemented to meet the State's NOX control SIP will be
adequate to prevent a future ozone standard violation. In this case,
Illinois may conclude that no additional emission controls are
necessary. Given that the study could reach such a conclusion, Illinois
is not committing to implement additional emission controls at this
time.
In addition, note that section 175A(d) of the Act only requires a
state to implement additional emission controls in the event of a
standard violation after an area is redesignated to attainment. Under
this section of the Act, States are not obligated to implement
additional emission controls if an area is ``threatened'' with a future
ozone standard violation. Similarly, EPA does not require such action
on the part of the States. EPA does encourage the States to take
preventative measures to prevent future ozone standard violations if at
all possible, but does not definitively require the States to implement
additional emission controls unless a violation of the standard has
actually occurred. The commitments of Illinois to respond to Level I
triggers go beyond the minimum requirements of section 175A(d) and the
EPA.
The contingency plan meets the requirements of section 175A(d) of
the Act and applicable guidance in the Calcagni Memo. The Administrator
has exercised discretion regarding adoption and implementation of
contingency measures consistent with EPA guidance and the Act.
Comment 32: The maintenance plans contain no commitment to
implement measures in the SIP. EPA cannot approve the maintenance plan
without this commitment.
Response 32: 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.
The commenter is incorrect in its statement that the maintenance
plan does not contain a commitment to implement emission control
measures in the SIP. Such a commitment was included in Illinois'
maintenance plan. Section 6.1 of Illinois' maintenance plan states the
following: ``Consistent with this plan, Illinois agrees to adopt and
implement the necessary corrective actions in the event that violations
of the one-hour ozone NAAQS occur anywhere within the St. Louis
maintenance area after redesignation to attainment.'' In addition, as
described in response to comment 28, Illinois is retaining and is
continuing to implement all of the emission control measures contained
in its SIP prior to redesignation.
Comment 33: The maintenance plans do not address expected growth in
areas adjacent to the nonattainment area, such as Ste. Genevieve
County. An assessment of this growth should be included. Also, the
plans are based on the ``irrational assumption'' that ``if there is no
increase in emissions, and no decrease in controls, the standard will
be maintained.''
Response 33: 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
[[Page 25462]]
pertains to the Missouri portion of the St. Louis area.
The commenter's characterization of the ``basic premise'' of the
maintenance plans is incorrect. The plans do not simplistically assume
that there will be no increase in emissions. The plans carefully
project the growth in emissions that will occur in various source
sectors (source categories or types), and the emission reductions which
will occur based on emission control programs which are in place, in
order to determine the net change in emissions from 2000 through 2014.
The States are required to and have applied the appropriate techniques
to estimate and account for potential emissions changes in the area.
These techniques are necessarily based on source sector-specific growth
indicators (positive and negative), i.e., sector-specific economic
factors, because the States have no way of predicting specific changes
which will take place on a source-by-source basis in the emissions
inventory.
Specific new source projects, such as those cited by the commenter,
are addressed through mechanisms other than maintenance plans. To
implement new source projects, Illinois implements PSD and NSR
permitting regulations depending on the attainment status and
classification of an area. These regulations address the air quality
impacts of new sources and expansion of existing sources both inside
and outside the boundaries of nonattainment areas. They are designed to
prevent new source construction or existing source expansion which
would adversely affect an area's ability to attain or maintain a
national standard.
EPA believes that it is the function of the State's air permitting
rules, rather than the maintenance plan, to ensure that specific
potential new sources do not create emissions which would interfere
with the maintenance of the ozone standard. The new source rules in
Illinois' address potential new sources both inside and outside of the
St. Louis area.
The anticipated plant referenced by the commenter is a potential
source in Missouri. See the response to comment 33 in a separate
rulemaking in today's Federal Register regarding redesignation of the
Missouri portion of the St. Louis area for a discussion regarding this
facility.
Comment 34: The emission estimates in the maintenance plans are
unreliable. A recent study of flares throws doubt into the St. Louis
emission inventory. Flares area used extensively in the Metro-East St.
Louis area, including at the Conoco Wood River Refinery, two barge
loading facilities, Granite City Steel, and three bulk gasoline storage
facilities. EPA must consider the significant underestimation of flare
emissions in the emission inventory.
Response 34: This comment refers to both the Missouri and Illinoi
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.
EPA believes that the States used the appropriate emission
estimates in developing the emission inventories. The commenter cites a
study of emissions from flares reported by the Bay Area Management
District which the commenter alleges shows that the States greatly
underestimated emissions from flares. EPA does not agree that the study
cited by the commenter renders the emission estimates unreliable.
The Bay Area Air Quality Management District (AQMD) study
referenced by the commenter is a ``Draft'' document, which has the
stipulation ``Do Not Cite or Quote.'' In addition, the study was
specific to refinery flares and not all flare systems in general. The
submitted comment inappropriately extends the applicability of this
draft study document to flares at barge loading facilities, steel
making operations, and bulk gasoline storage facilities.
IEPA staff reviewed the flare operations at the Conoco Phillips
Wood River Refinery, which is the only facility in the Metro-East St.
Louis area that the AQMD study findings would possibly apply to, and
found a well-designed emissions recovery and control system. The flares
at the Wood River refinery function primarily as safety devices and are
provided to avoid discharge of raw hydrocarbons to the atmosphere both
during upsets and during planned intermittant maintenance activities.
Process units' hydrocarbon emissions to flares are kept to a minimum to
prevent product loss. Whenever possible, vent gasses are recovered,
compressed, and used for firing heaters and boilers rather than being
sent to flares. Seal vessels and pressure control systems allow nearly
all vent gasses to be recovered by managing the pressure levels during
normal operations and upsets.
The Conoco Phillips Wood River Refinery has four refinery flares
that the findings of the AQMD study would apply to--the distilling
flare, the alkylation flare, the aromatics low-pressure flare, and the
aromatics high-pressure flare. The AQMD technical assessment document
presented that the primary concern for the 28 flares studied was that
refinery flares were being used more often and more routinely than
historic emissions data indicated. For the Conoco Phillips Wood River
Refinery, this finding is not valid. The Conoco Phillips refinery
flares are used only as safety devices and as minimally as possible
because loss of product occurs when these devices must be used. When it
became necessary to use these safety devices, all upset emissions were
reported in the annual emissions reports. Such reports for 2000 were
used in the development of the emission inventories developed by the
IEPA for the redesignation request and the maintenance plan. Therefore,
the Illinois redesignation request and maintenance plan accurately
includes these emissions.
Another issue identified in the AQMD refinery flare study was in
regards to emissions control efficiency (CE) since its impact has a
significant effect on reported emissions. All field studies regarding
flare CE, which were referenced in the AQMD technical analysis
document, indicate that CEs of greater than 98 percent could be
expected for flares. The emissions for the Conoco Phillips flares, as
included in Illinois' emissions inventories, uses EPA's recommended CE
of 98 percent for all flares except in the lube area, which has a 99
percent CE. Therefore, any impact of inventory emissions from
overestimation of CE is considered to be insignificant for the Conoco
Phillips Wood River Refinery.
In regards to the impacts of crosswinds, the AQMD technical analyis
document references one laboratory scale Canadian study that indicates
that CEs may be impacted by crosswinds. The Canadian researchers,
however, indicate that applying their laboratory findings after scaling
up to the actual sizes of flares that refineries normally use could
prove difficult. A referenced study in the AQMD technical analysis
document shows that crosswinds with a speed of 18 miles per hour (8
meters per second) are needed before any impact is seen on CEs for
flares. In the years of 1999 and 2000, no hourly wind speeds greater
than 11 miles per hour was recorded at the Edwardsville monitor, which
is located less than 10 miles from Wood River, during high ozone days
in the St. Louis area. Therefore, crosswinds are not considered to be
an issue that might impact emission estimates for the Metro-East St.
Louis area refinery flares.
Further review of the document has shown that methane was included
in the emission factor that was used to
[[Page 25463]]
derive emissions for this study. Methane is not an ozone precursor, and
the inclusion of this pollutant could significantly alter the
preliminary findings. The study targets the control efficiencies of the
flares and states that ``efficiency drops approximately by the cube of
the speed (wind)''. This would suggest that on high wind event days
that the control efficiencies would be at their lowest. However, in the
St. Louis area, high ozone days have been characterized by low wind
conditions, which would produce minimal impact on flare control
efficiencies during the periods of concern.
Lastly, NOX and VOC emissions from all flares constitute
less than one-tenth of one percent of the total emissions inventory for
the St. Louis ozone nonattainment area. Therefore, any potential
changes in calculation methodology from this source category, even if
changes were warranted based on this draft study, would still likely
produce an insignificant change to the St. Louis area total VOC and
NOX emissions.
Comment 35: The Illinois request for approval of its maintenance
plan and revised motor vehicle emissions budgets was submitted under
the signature of David Kolaz, Chief, Bureau of Air, Illinois
Environmental Protection Agency (IEPA). This submission included the
commitment to adopt contingency measures in the event of ozone standard
exceedances and/or violations. The IEPA is without authority to make
this commitment on behalf of the State of Illinois. During the Illinois
public hearing (November 7, 2002), the IEPA stated that it did not have
the authority to impose emission control requirements. The IEPA
explained that such authority rests with the Illinois Pollution Control
Board, a separate and independent State agency. The EPA cannot lawfully
approve the maintenance plan submitted by the IEPA if the State is not
legally bound to implement the commitments in the plan, including
contingency measures.
Response 35: Under the Illinois Environmental Protection Act, the
IEPA has authority to develop and submit for EPA approval air quality
control plans. Section 4(j) of the Illinois Environmental Protection
Act states: ``The Agency shall have the duty to represent the State of
Illinois in any and all matters pertaining to plans, procedures, or
negotiations for interstate compacts or other governmental arrangements
relating to environmental protection.'' In addition, section 4(l) of
the Illinois Environmental Protection Act states that ``The Agency is
hereby designated as * * * air pollution agency for the state for all
purposes of the Clean Air Act * * *'' These provisions give the IEPA
the authority to develop and submit air quality plans to the EPA.
Therefore, EPA disagrees with the commenter that the IEPA lacks the
authority to submit an ozone maintenance plan that commits the State to
certain actions if triggered under the contingency plan.
With regard to adoption of specific emission control measures or
rules, the IEPA has the authority and responsibility of developing
source emission control regulations, which are subsequently adopted by
the Illinois Pollution Control Board. Establishment of a separate
rulemaking body is consistent with the process established by many
states.
The Calcagni Memo suggests that a procedure for adoption of
contingency measures should be in place. However, there is no
suggestion that a state must alter or suspend its rulemaking process in
order to commit to implementation of contingency measures. If the State
is unable to adopt a particular contingency measure as a result of its
rulemaking process, it will be required to adopt and implement another
equally effective measure (or group of measures) within the same 18-
month time frame. The IEPA will continue to be responsible for ensuring
that its commitment is met, and the commitment remains enforceable.
Comment 36: EPA cannot conclude that keeping emissions no higher
than the projected inventory amounts will ensure maintenance of the
ozone NAAQS.
Response 36: As stated in response to comment 23 above, keeping
emissions no higher than those that occurred in the attainment period
(2000 through 2002) will ensure maintenance of the NAAQS. The Court of
Appeals for the Sixth Circuit in Wall v. EPA (265 F.3d 426, 435)
determined that ``EPA's actions are completely consistent with its own
interpretive memorandum, which allows for NAAQS maintenance to be
demonstrated by showing that the future emissions of pollutant's
precursors will not exceed the level that allowed the area to achieve
attainment in the first place.''
Comment 37: Neither maintenance plan provides a technical analysis
demonstrating that maintenance of the 2000 emission levels will assure
maintenance of the NAAQS. Such a demonstration requires photochemical
grid modeling.
Response 37: 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.
EPA disagrees that modeling is required to demonstrate maintenance
of the NAAQS. EPA reiterates its response to comment 23 in that the
Court of Appeals for the Sixth Circuit in Wall v. EPA (265 F.3d 426,
435) determined that ``EPA's actions are completely consistent with its
own interpretive memorandum, which allows for NAAQS maintenance to be
demonstrated by showing that the future emissions of a pollutant's
precursors will not exceed the level that allowed the area to achieve
attainment in the first place.'' Also see the response to comment 36
above.
Illinois' maintenance plan includes a technical analysis, as
described in the response to comment 28 above, that demonstrates
maintenance of the NAAQS based on a comparison of base year (attainment
year) and projected VOC and NOX emissions. This analysis
meets the maintenance requirements of the Act and of EPA guidelines.
Comment 38: EPA announced substantial changes in its PSD program on
December 21, 2002. Illinois is required to administer these changes in
attainment areas effective March 3, 2003, and three years later for
nonattainment areas. 67 FR 80185. Therefore, the new NSR rules will not
go into effect in the Metro-East St. Louis area for three years unless
EPA redesignates the area to attainment. On February 27, 2003, Illinois
announced that it is filing a lawsuit challenging the NSR changes due,
in part, to the fact that the State lacks the resources to administer
the new NSR rules. On the basis of this admission, EPA cannot lawfully
make the finding that Illinois has adequate resources to administer the
new NSR program that will only be necessary if EPA redesignates the
area to attainment.
Response 38: The Federal revisions to the PSD regulations
promulgated on December 31, 2002 became effective on March 3, 2003.
States like Illinois, to which EPA had delegated the authority to
administer the PSD program, are required to implement the revisions as
of their effective date. The commenter does not provide any specific
information that the IEPA lacks the resources to administer the revised
program in the Metro-East St. Louis area upon redesignation. In
addition, the IEPA has not formally notified EPA that it does not have
sufficient resources to
[[Page 25464]]
administer the PSD program under the revised regulations.
Even if the State is unable to administer the PSD program in the
Metro-East St. Louis area, the only consequences would be that EPA
would, under this hypothetical situation, withdraw the delegation of
the PSD program and administer the program itself. In addition, sources
would still be required to obtain a source permits (and demonstrate
that they will not adversely impact air quality) prior to construction,
regardless of which agency (the IEPA or EPA) is responsible for permit
issuance. Therefore, the perceived defect would not result in an
inability to maintain the one-hour ozone standard in the area.
Comment 39: The maintenance plan must include RACM and RACT, for
the reasons stated in comment 13 above.
Response 39: EPA incorporates its response to comment 13 in
response to this comment.
F. Comments Related to Criterion 5: The Area Must Have Met All
Applicable Requirements Under Section 110 and Part D
Comment 40: Neither State has met all the requirements applicable
to the area. The serious area requirements of section 182(c) are
applicable, but none of these requirements have been met. Some of the
requirements are applicable and enforceable now, such as the 50 ton per
year threshold for permitting and enforcement and paragraphs 7, 8, and
10 of section 182(c).
Response 40: 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 stated in the response to comments 6 through 11 above, the
Illinois SIP meets the applicable requirements and the serious area
requirements are not applicable for purposes of this redesignation.
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. Upon completion of today's actions, the Illinois
SIP is fully approved for all applicable regulations. SIP revisions
addressing the serious area requirements are required to be submitted
by January 30, 2004, after the submittal of Illinois' complete
redesignation request and maintenance plan.
The commenter errs in the conclusion that the 50 ton per year
emissions threshold for permitting and enforcement is not in effect in
Illinois. As of January 30, 2003, the St. Louis area was classified as
a serious nonattainment area (68 FR 4836). At that time, the 50 ton per
year emissions threshold for permitting and enforcement immediately
became effective in Illinois. However, by redesignating the Metro-East
area to attainment in this rulemaking, the 50 ton per year emissions
threshold for permitting and enforcement is no longer applicable.
Section 182(c) paragraphs 7 and 8 refer to special rules for
modifications of major sources while paragraph 10 refers to a 1.2 to 1
offset requirements for serious nonattainment areas. As stated in
response to comment 7, EPA established a future date for submission of
the serious area requirements, including section 182(c)(7), (8), and
(10), and the requirements are not now applicable for purposes of this
redesignation.
G. Comments Related to Implementation of Contingency Measures
Comment 41: A commenter requested that in the final rule, EPA
expressly state that, in the event of a future violation of the NAAQS,
Illinois and Missouri will not necessarily be required to evaluate any
particular contingency measure nor be required to submit further
attainment demonstrations.
Response 41: As stated above, the contingency plans delineate the
States' planned actions in the event of future one-hour ozone standard
violations (Level II trigger in the Illinois and Missouri ozone
maintenance plans), multiple ozone standard exceedances at any monitor
in a single or two year period (not a violation based on three years of
data) (Level I trigger in the Illinois and Missouri ozone maintenance
plans), or unanticipated emissions increases threatening a subsequent
violation of the one-hour ozone standard (Level I trigger in the
Illinois and Missouri ozone maintenance plans). In the event of an
exceedance of a Level I trigger, Illinois will work with Missouri to
evaluate the situation and to determine if adverse emissions or air
quality trends are likely to continue and to threatened maintenance of
the one-hour standard. If so, Illinois will determine to what extent,
what type, and where (local or regional) emission controls may be
required to avoid a violation of the one-hour ozone standard. A study
will be completed within nine months of the determination of the action
trigger exceedance. If needed to avoid future ozone standard
violations, emission control measures and regulations will be adopted
within 18 months of the completion of the study and implemented as
expeditiously as practicable.
In the event of a Level II trigger (a determination of a violation
of the one-hour ozone standard in the St. Louis area), the States will
complete an analysis of the air quality issue within six months of the
ozone standard violation determination, and Illinois will adopt and
implement necessary emission control measures and rules within 18
months of the ozone standard violation determination.
EPA expects that, through this process, the States will identify
the appropriate emission control measures to implement in the near term
to maintain the ozone NAAQS. The States are not obligated to select any
particular emission control measure for study and/or implementation.
The States must, however, select those emission control measures that
their analyses show are adequate for maintenance of the NAAQS and which
can be implemented within the time constraints contained within the
maintenance plans.
With regard to the need for new ozone attainment demonstrations, as
indicated in the January 30, 2003 proposed rule (68 FR 4847), a final
determination of attainment leads to the conclusion by the EPA that
Illinois is not obligated to produce new ozone attainment
demonstrations for the St. Louis area for purposes of attaining the
one-hour ozone standard. The available quality-assured ozone data for
the most recent three years demonstrate that the St. Louis area has
attained the one-hour ozone standard. This conclusion leads to the
conclusion that additional emission reduction in the Metro-East St.
Louis area may only be needed for the purposes of maintaining the ozone
standard in the St. Louis area and for reducing ozone and ozone
precursor transport into downwind areas. Therefore, additional ozone
modeling to support a new ozone attainment demonstration is not needed
at this time.
Following the redesignation of the St. Louis area to attainment of
the one-hour ozone standard (the subject of this final rule and that
for the Missouri portion of the St. Louis area also published today), a
violation of the one-hour ozone
[[Page 25465]]
standard will not necessarily trigger the need for Illinois to conduct
additional photochemical dispersion modeling for the St. Louis area. In
this situation, the maintenance plan requirements place no specific
ozone modeling requirements on the State. Illinois is free to choose
the types of analyses it deems necessary to determine the levels and
types of additional emission controls needed to rectify the ozone
attainment problem. Redesignated areas are not subject to an obligation
to meet additional nonattainment area requirements, such as attainment
demonstrations, since they are no longer as nonattainment areas.
Instead, they must implement contingency measures, which is what
Congress provided in the Act.
H. Comments Related to Redesignation of a Portion of the St. Louis Area
Comment 42: One commenter requested that in the event the EPA is
unable to finalize Missouri's I/M program, as proposed in a separate
rulemaking on January 30, 2003, EPA should proceed with the
redesignation for the Illinois portion of the St. Louis area.
Response 42: In a separate rule published in today's Federal
Register, EPA is approving Missouri's revised I/M rule. In addition, as
explained above, EPA is finalizing its actions on the Missouri and
Illinois redesignation requests in separate rulemakings.
I. Comments Related to Interstate Transport
Comment 43: EPA must ensure that the CAA requirements of section
110(a)(2)(D) pertaining to interstate transport impacts are actively
and adequately met through the States' SIP's and through Federal
control programs such as the NOX SIP call.
Response 43: 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 stated above, EPA believes that state obligations under the
NOX SIP call are not applicable requirements for purposes of
evaluating a redesignation request. The NOX SIP call
requirements are not linked with a particular area's ozone designation
and classification. EPA believes that the requirements linked with a
particular nonattainment area's classification are the requirements
that are the relevant measures to evaluate in reviewing a redesignation
request. The NOX SIP call submittal requirements continue to
apply to a State regardless of the designation of any one particular
area in the State.
Thus, we do not believe that the NOX SIP call submission
should be construed to be an applicable requirement for purposes of
redesignation. The section 110 and part D requirements, which are
linked with a particular area's designation and classification, are the
relevant measures to evaluate in reviewing a redesignation request.
This policy is consistent with EPA's existing conformity and oxygenated
fuels requirements, as well as with section 184 ozone transport
requirements. See Reading, Pennsylvania proposed and final rulemakings
(61 FR 53174-53176) (October 10, 1996), (62 FR 24826) (May 7, 1997);
Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458) (May 7,
1996); and Tampa, Florida final rulemaking at (60 FR 62748, 62741)
(December 7, 1995). See also the discussion on this issue in the
Cincinnati redesignation (65 FR 37890) (June 19, 2000).
Illinois has adopted and EPA has approved statewide NOX
rules into the SIP on November 8, 2001 (66 FR 56449 and 66 FR 56454).
These rules will remain in effect and will remain Federally enforceable
following the redesignation of the Metro-East St. Louis area to
attainment of the one-hour ozone standard.
Comment 44: A commenter notes that the expected NOX
emission control programs and emission reductions for the St. Louis
area should not be jeopardized due to the absence of continued Federal
enforceability of the SIPs.
Response 44: The SIPs will remain Federally enforceable following
redesignation of the St. Louis area to attainment. In addition,
NOX emission control measures (with the exception of NSR,
which will be replaced by PSD) which are currently in place will remain
as SIP requirements following redesignation to attainment. Illinois
will continue to implement and enforce its statewide NOX
emission control regulations adopted to comply with the NOX
SIP call. This rulemaking, however, finalizes a NOX RACT
waiver for the Metro-East St. Louis area. NOX RACT has never
been part of the Illinois SIP. This redesignation does not jeopardize
any NOX emission control regulations expected and part of
the SIP for the Metro-East St. Louis area or for the State of Illinois.
Comment 45: The redesgination of the St. Louis area to attainment
should not weaken the impetus to rapidly address NOX
transport to downwind areas. These efforts are critical to addressing
the 8-hour and 1-hour ozone NAAQS in the St. Louis and downwind areas.
Any revisions to SIP requirements would have to meet the applicable
provisions of the Act and be approved by the EPA.
Response 45: As noted above, the redesignation of the St. Louis
area to attainment of the one-hour ozone standard will have no effect
on the implementation of the statewide NOX control rules in
Illinois. In addition, irregardless of the attainment status of the St.
Louis area for the one-hour ozone standard, EPA will proceed with
making its decision as to whether the eastern portion of Missouri must
meet specific NOX SIP call requirements. EPA will closely
review any proposed changes in the NOX emission control
programs which are currently in place in the Metro-East St. Louis area
and in Illinois to ensure that the proposed changes will not adversely
affect the attainment of the NAAQS in the St. Louis area and in
downwind ozone nonattainment areas.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 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 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 approves pre-existing 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 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
[[Page 25466]]
(65 FR 67249, November 9, 2000). This action also does not have
Federalism implications because it does 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). This action
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 Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has 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 Clean Air Act. 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. This 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.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 11, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas, Ozone.
Dated: April 30, 2003.
Thomas V. Skinner,
Regional Administrator, Region 5.
0
For the reasons stated in the preamble, chapter I, title 40 of the Code
of Federal Regulations is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: U.S.C. 7401 et seq.
Subpart O--Illinois
0
2. Section 52.726 is amended by adding paragraph (ee) to read as
follows:
Sec. 52.726 Control strategy: Ozone.
* * * * *
(ee) Approval of the Maintenance Plan for the Illinois Portion of
the St. Louis Area--On December 30, 2002 Illinois submitted Maintenance
Plan for the Illinois portion of the St. Louis Nonattainment Area. The
plan includes 2014 On-Road Motor Vehicle Emission Budget of 10.13 tons
per ozone season weekday of VOCs and 18.72 tons per ozone season
weekday NOX to be used in transportation conformity.
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 81.314 the table entitled ``Illinois-Ozone (1-Hour
Standard)'' is amended by revising the entry for St. Louis Area to read
as follows:
Sec. 81.314 Illinois.
* * * * *
Illinois--Ozone (1-hour standard)
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
St. Louis Area:
Madison County.................. May 12, 2003........... Attainment
Monroe County................... May 12, 2003........... Attainment
St. Clair County................ May 12, 2003........... Attainment
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000, unless otherwise noted.
* * * * *
[FR Doc. 03-11524 Filed 5-9-03; 8:45 am]
BILLING CODE 6560-50-P