25418 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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 CAA, 

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, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds.

Dated: April 29, 2003. 

William W. Rice, 

Acting Regional Administrator, Region 7.

■ Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for Part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart AA—Missouri

■ 2. In § 52.1320 the table in paragraph 

(c) is amended by revising the entry for 

10–5.380, under Chapter 5, to read as follows:

§ 52.1320 Identification of plan.

* * * * *

(c) * * *

EPA-APPROVED MISSOURI REGULATIONS

Missouri citation Title State effective date EPA approval 

date Explanation 

Missouri Department of Natural Resources

* * * * * * * 

Chapter 5—Air Quality Standards and Air Pollution Control Regulations for the St. Louis Metropolitan Area

* * * * * * * 

10–5.380 ................................................................................ Motor vehicle emissions inspection.12/30/02 5/12/03 

*******

* * * * *

[FR Doc. 03–11186 Filed 5–9–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[MO 182–1182; FRL–7494–5] 

Determination of Attainment of Ozone 

Standard, St. Louis Area; Approval and 

Promulgation of Implementation Plans, 

and Redesignation of Areas for Air 

Quality Planning Purposes, State of 

Missouri

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is determining that the 

St. Louis ozone nonattainment area (St. 

Louis area) has attained the 1-hour 

ozone National Ambient Air Quality 

Standard (NAAQS). The St. Louis ozone 

nonattainment area includes the 

counties of Franklin, Jefferson, St. 

Charles, and St. Louis as well as St. 

Louis City in Missouri and the counties 

of Madison, Monroe, and St. Clair in 

Illinois. This determination is based on 

three years of complete, quality-assured 

ambient air quality monitoring data for 

the 2000 through 2002 ozone seasons 

that demonstrate that the 1-hour ozone 

NAAQS has been attained in the area. 

EPA is also determining that certain 

ozone attainment demonstration 

requirements, along with certain other 

related requirements of part D of title I 

of the Clean Air Act (CAA), are not 

applicable to the St. Louis area. 

EPA is also approving a request from 

the state of Missouri, submitted on 

December 6, 2002, to redesignate the St. 

Louis area to attainment of the 1-hour 

ozone NAAQS. In approving this 

request EPA is also approving the state’s 

plan for maintaining the 1-hour ozone 

NAAQS through 2014, as a revision to 

the Missouri State Implementation Plan 

(SIP). EPA is also finding adequate and 

approving the state’s 2014 Motor 

Vehicle Emission Budgets (MVEBs) for 

volatile organic compounds (VOCs) and 

nitrogen oxide compounds (NOX) in the 

submitted maintenance plan for 

transportation conformity purposes. 

Refer also to a separate rule published 

today regarding similar approvals for 

the state of Illinois.

DATES: This rule is effective May 12, 

2003.

ADDRESSES: Relevant documents for this 

rule are available for inspection at the 

Environmental Protection Agency, 

Region 7, Air Planning and 

Development Branch, 901 North 5th 

Street, Kansas City, Kansas 66101. 

Interested persons wanting to examine 

these documents should make an 

appointment with the appropriate office 

at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT:

Tony Petruska, (913) 551–7637, 

(petruska.anthony@epa.gov).

SUPPLEMENTARY INFORMATION:

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA.

Table of Contents 

I. What is the background for this action? 

II. What actions are we taking and when are 

they effective? 

III. Why are we taking these actions to 

redesignate the area? 

IV. What are the effects of redesignation to 

attainment of the 1-hour NAAQS? 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25419

V. What comments did we receive and what 

are our responses? 

VI. Statutory and Executive Order Reviews.

I. What Is the Background for This 

Action? 

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 

found at 68 FR 4836 reinstated and 

made effective a prior EPA finding that 

the St. Louis ozone nonattainment area 

did not attain the 1-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 

state implementation plan revisions 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, which corrected a 

table entry (68 FR 7410). In the 

proposed rule found at 68 FR 4847, EPA 

proposed to determine that the St. Louis 

ozone nonattainment area has attained 

the 1-hour ozone standard based on 

complete, quality-assured monitoring 

data for 2000 through 2002. In addition, 

the proposed rule proposed to approve 

requests from the states of Missouri and 

Illinois to redesignate the St. Louis area 

to attainment with the 1-hour ozone 

NAAQS, proposed to determine that 

certain requirements of the CAA are not 

applicable, proposed to approve the 

states’ maintenance plans as revisions to 

the SIP, and proposed to find adequate 

and approve the 2014 motor vehicle 

emission budgets for volatile organic 

compounds and nitrogen oxide 

compounds for transportation 

conformity purposes. In the proposed 

rule found at 68 FR 4842, EPA proposed 

to approve a revision to the state 

implementation plan for the inspection 

and maintenance (I/M) program 

operating in the Missouri portion of the 

St. Louis area.

This rule is EPA’s final action finding 

that the St. Louis ozone nonattainment 

area has attained the 1-hour ozone 

standard, as well as EPA’s final action 

on the January 30, 2003, proposal found 

at 68 FR 4847 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, qualityassured ambient air quality monitoring 

data, EPA will consider the attainment 

status of the area as a whole. Therefore, 

EPA’s finding that the area has attained 

the NAAQS applies to the entire 

nonattainment area, and we are 

publishing that finding in this rule. In 

another rule published today, EPA 

references this finding and takes 

separate action on a similar 

redesignation request and SIP 

submission by Illinois. 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 proposed 

rulemaking published January 30, 2003 

(68 FR 4847, 4848–4849), and is 

summarized below. 

The Missouri portion of the St. Louis 

nonattainment area includes Franklin, 

Jefferson, St. Charles, and St. Louis 

Counties and St. Louis City. The Illinois 

portion of the St. Louis nonattainment 

area includes Madison, Monroe, and St. 

Clair Counties (collectively referred to 

as the Metro-East area). 

The St. Louis area was designated as 

an ozone nonattainment area in March 

1978 (43 FR 8962). On November 15, 

1990, the CAA Amendments of 1990 

were enacted. Under section 

107(d)(4)(A) of the CAA, 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 1-hour 

ozone NAAQS during the 1987–1989 

period. On January 30, 2003, EPA 

reclassified the area to a serious 

nonattainment area, effective January 

30, 2003. 

The states adopted and implemented 

emission control programs required 

under the CAA to reduce emissions of 

VOC and NOX. These emission control 

programs include stationary source 

reasonably available control technology 

(RACT), vehicle I/M programs, 

transportation control measures (TCMs), 

and other 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 1-hour ozone NAAQS. 

On December 6, 2002, the Missouri 

Department of Natural Resources 

(MDNR) submitted a Redesignation 

Demonstration and Maintenance Plan 

for the Missouri Portion of the St. Louis 

ozone nonattainment area along with a 

request to redesignate the Missouri 

portion of the St. Louis nonattainment 

area to attainment of the 1-hour ozone 

NAAQS. Included in the Redesignation 

Demonstration and Maintenance Plan 

for the Missouri Portion of the St. Louis 

nonattainment area is a plan to maintain 

the 1-hour ozone NAAQS for at least the 

next 10 years, and the 2014 MVEBs for 

transportation conformity purposes. 

II. What Actions Are We Taking and 

When Are They Effective? 

After consideration of the comments 

received in response to the January 30, 

2003, proposal, as described in section 

V below, we are taking the following 

actions: 

A. Determination of Attainment 

EPA is determining that the St. Louis 

ozone nonattainment area, consisting of 

both the Missouri and the Illinois 

portions of the area, has attained the 1-

hour ozone standard. 

EPA is also determining that certain 

attainment demonstration requirements 

(section 172(c)(1) of the CAA), along 

with certain other related requirements, 

of part D of title I of the CAA, 

specifically the section 172(c)(9) 

contingency measure requirement 

(measures needed to mitigate a state’s 

25420 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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. 

On January 30, 2003 (68 FR 4847), 

EPA proposed that the St. Louis area 

had attained the standard based on 

2000–2002 monitoring data. With this 

finding, EPA also proposed that certain 

requirements, including an attainment 

demonstration, were no longer 

applicable as the area had attained the 

standard. EPA has explained at length 

in other actions its rationale for the 

reasonableness of this interpretation of 

the CAA and incorporates those 

explanations by reference. See (67 FR 

49600) (Cincinnati-Hamilton, Kentucky, 

July 31, 2002); (66 FR 53095) 

(Pittsburgh-Beaver Valley, 

Pennsylvania, October 19, 2001); (65 FR 

37879) (Cincinnati-Hamilton, Ohio and 

Kentucky, June 19, 2000); (61 FR 20458) 

(Cleveland-Akron-Lorain, Ohio May 7, 

1996); (60 FR 36723) (July 18, 1995) Salt 

Lake and Davis Counties, Utah); (60 FR 

37366) (July 20, 1995), (61 FR 31832–

31833) (June 21, 1996) (Grand Rapids, 

MI). The United States Court of Appeals 

for the Tenth Circuit has upheld EPA’s 

interpretation. Sierra Club v. EPA, 99 F. 

3d 1551 (10th Cir. 1996).

EPA reiterates the position set forth in 

its prior rulemaking actions and in the 

January 30, 2003 (68 FR 4847) proposed 

rulemaking for the St. Louis area. 

Subpart 2 of part D of title I of the CAA 

contains various air quality planning 

and SIP submission requirements for 

ozone nonattainment areas. EPA 

believes it is reasonable to interpret the 

provisions regarding Reasonable Further 

Progress (RFP) and attainment 

demonstrations, along with other certain 

other related provisions, not to require 

SIP submissions if an ozone 

nonattainment area subject to those 

requirements is monitoring attainment 

of the ozone standard (i.e., attainment of 

the NAAQS demonstrated with three 

consecutive years of complete, qualityassured, air quality monitoring data). 

EPA interprets the general provisions of 

subpart 1 of part D of title I (sections 

171 and 172) not to require the 

submission of SIP revisions concerning 

RFP, attainment demonstrations or 

section 172(c)(9) contingency measures. 

As explained in a memorandum from 

John S. Seitz, Director, Office of Air 

Quality Planning and Standards, 

entitled ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Area Meeting the Ozone National 

Ambient Air Quality Standard,’’ dated 

May 10, 1995, EPA believes it is 

appropriate to interpret the more 

specific attainment demonstration and 

related provisions of subpart 2 in the 

same manner. See Sierra Club v. EPA,

99 F. 3d. 1551 (10th Cir. 1996). 

The attainment demonstration 

requirements of section 182(b)(1) 

require that the plan provide for ‘‘such 

specific annual reductions in emissions 

* * * as necessary to attain the national 

primary ambient air quality standard by 

the attainment date applicable under the 

CAA.’’ If an area has, in fact, monitored 

attainment of the relevant NAAQS, EPA 

believes there is no need for an area to 

make a further submission containing 

additional measures to achieve 

attainment. This is also consistent with 

the interpretation of certain section 

172(c) requirements provided by EPA in 

the General Preamble to Title I. As EPA 

stated in the General Preamble, no other 

measures to provide for attainment 

would be needed by areas seeking 

redesignation to attainment since 

‘‘attainment will have been reached’’ (57 

FR 13564). Upon attainment of the 

NAAQS, the focus of state planning 

efforts shifts to the maintenance of the 

NAAQS and the development of a 

maintenance plan under section 175A. 

Similar reasoning applies to other 

related provisions of subpart 2. The first 

of these are the contingency measure 

requirements of section 172(c)(9) of the 

CAA. EPA has previously interpreted 

the contingency measure requirements 

of section 172(c)(9) as no longer being 

applicable once an area has attained the 

standard since those ‘‘contingency 

measures are directed at ensuring RFP 

and attainment by the applicable date’’

(57 FR 13564). 

The state must continue to operate an 

appropriate network, in accordance 

with 40 CFR part 58, to verify the 

attainment status of the area. The air 

quality data relied upon to determine 

that the area is attaining the ozone 

standard must be consistent with 40 

CFR part 58 requirements and other 

relevant EPA guidance and recorded in 

EPA’s Aerometric Information Retrieval 

System (AIRS). 

EPA has reviewed the ambient air 

monitoring data for ozone (consistent 

with the requirements contained in 40 

CFR part 58 and recorded in EPA’s 

AIRS) for the St Louis ozone 

nonattainment area from the 2000 to 

2002 ozone seasons. EPA has also 

reviewed the preliminary data collected 

to date for the 2003 ozone season (for St. 

Louis, the ozone season is April 1 

through October 31 of each year). On the 

basis of this review, EPA has 

determined that the area has attained 

the 1-hour ozone standard during the 

2000–2002 period and continues to 

attain the standard, and therefore is not 

required to submit an attainment 

demonstration and a section 172(c)(9) 

contingency measure plan, nor does it 

need any other measures to attain the 1-

hour ozone standard. 

B. Redesignation of Missouri Portion of 

the St. Louis Area to Attainment 

Although EPA is determining that the 

entire St. Louis nonattainment area has 

attained the 1-hour ozone standard, EPA 

has determined that it is appropriate to 

take final action related to Missouri’s 

request to redesignate the Missouri 

portion of the St. Louis nonattainment 

area and take final action related to 

Illinois’ request to redesignate the 

Illinois portion of the St. Louis 

nonattainment area in separate 

rulemaking actions being published 

today. In the January 30, 2003, proposal, 

EPA stated that it was considering 

publishing separate rulemakings for 

Missouri and Illinois (68 FR 4848). We 

received one comment in support of 

publishing separate rulemakings and no 

adverse comments. In this rulemaking, 

EPA is taking the following actions with 

respect to the Missouri portion of the St. 

Louis nonattainment area: 

EPA is approving a request from the 

state of Missouri to redesignate the 

Missouri portion of the St. Louis 

nonattainment area to attainment of the 

1-hour ozone NAAQS. 

In addition, EPA is taking the 

following actions: 

1. Approving Missouri’s plan for 

maintaining the 1-hour ozone NAAQS 

through 2014, as a revision to the 

Missouri SIP; 

2. Finding adequate and approving 

the 2014 MVEBs of 47.14 tons per ozone 

season weekday for VOC and 68.59 tons 

per ozone season weekday for NOX in 

the submitted maintenance plans for 

transportation conformity purposes; 

and,

3. Determining that the attainment 

demonstration (and related contingency 

measure requirements) and reasonably 

available control measure (RACM) 

requirements of the CAA are not 

applicable. 

C. Effective Date of These Actions 

EPA finds that there is good cause for 

this determination of attainment, 

redesignation to attainment and SIP 

revision 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 CAA requirements that would 

otherwise apply to it. The immediate 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25421

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.’’

In addition, as indicated above, the 

January 30, 2003, final rule 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 

Missouri will be relieved of the 

obligation to develop and submit these 

SIP revisions. In addition, the Missouri 

rules adopted to meet the requirements 

of title V of the CAA, provide that in a 

‘‘serious’’ area, stationary sources with 

potential emissions of VOCs 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 to a 

serious nonattainment area will be 

relieved of the requirement to submit 

title V permit applications. In a separate 

rulemaking, EPA is redesignating the 

Illinois portions of the St. Louis area to 

attainment. Additional requirements 

specific to the Illinois portion of the St. 

Louis area are described in that separate 

rulemaking and are also being lifted as 

a result of that portion’s redesignation to 

attainment. EPA finds that good cause 

exists for this final rule being 

immediately effective since it relieves 

the state of Missouri as well as 

stationary sources of certain restrictions 

which would otherwise apply. 

III. Why Are We Taking These Actions 

To Redesignate the Area? 

EPA has determined that the St. Louis 

area has attained the 1-hour ozone 

standard. In addition, EPA has 

determined that the state of Missouri 

has demonstrated that the criteria for 

redesignation of the Missouri portion of 

the area from nonattainment to 

attainment 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 

implementation plan and applicable 

Federal air pollutant control regulations 

and other permanent and enforceable 

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. 

EPA has determined that the St. Louis 

area has attained the applicable 

NAAQS. EPA has fully approved the 

applicable implementation plan for the 

Missouri 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 

Missouri portion of the area as meeting 

the requirements of section 175A. 

Missouri has met all requirements 

applicable to the Missouri portion of the 

area under section 110 and part D. 

By finding that the maintenance plan 

provides for maintenance of the NAAQS 

through 2014, EPA is hereby finding 

adequate and approving the 2014 

MVEBs contained within the 

maintenance plan. The MVEB for NOX

in the Missouri portion of the St. Louis 

area is 68.59 tons per ozone season 

weekday. The MVEB for VOCs in the 

Missouri portion of the St. Louis area is 

47.14 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 

Redesignation to Attainment of the 1-

Hour NAAQS? 

These actions determine that the area 

attained the 1-hour ozone standard and 

that certain other related requirements 

of part D of title I of the CAA, 

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 

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 1-hour ozone 

standard relieves the states from the 

obligation to meet certain additional 

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 1-hour standard for 

the St. Louis area. 

Approval of the Missouri 

redesignation request changes the 

official designation for the 1-hour ozone 

NAAQS found at 40 CFR part 81 for the 

Missouri portion of the St. Louis area, 

including the City of St Louis, and the 

Counties of Franklin, Jefferson, St. 

Charles, and St. Louis from 

nonattainment to attainment. It also 

incorporates into the Missouri SIP a 

plan for maintaining the 1-hour ozone 

NAAQS through 2014. The plan 

includes contingency measures to 

remedy any future violations of the 1-

hour ozone NAAQS, and includes VOC 

and NOX MVEBs for 2014 for the 

Missouri portion of the St. Louis area. 

V. What Comments Did We Receive and 

What Are Our Responses? 

We received five letters regarding the 

January 30, 2003, proposed rule found 

at 68 FR 4847. Four of the letters 

generally supported the rulemaking 

action. Two of the four letters in support 

of the rulemaking action raised issues to 

which EPA is responding in this 

section. One of the five letters contained 

adverse comments. 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 Missouri 

portion of the area. Comments relating 

specifically to the Illinois portion of the 

area are addressed in the final rule for 

Illinois published elsewhere in this 

Federal Register. 

A. Comment 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 ozone 

standard is set forth in section II.A 

above. EPA has further found that the 

area has met all of the five criteria 

25422 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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. 

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 on Labor Day 

weekend in 2002 are ‘‘hopelessly 

contaminated’’ due to voluntary 

emission reductions undertaken by 

industry and others. 

Response 2: Section 107(d)(3)(E)(i) of 

the CAA states that one criterion for 

redesignation to attainment is that EPA 

must determine that the NAAQS has 

been attained. The regulations at 40 CFR 

part 58 specify data collection and 

quality assurance procedures. For 

ozone, an area is attaining the 1-hour 

ozone NAAQS if there are no violations, 

as determined in accordance with 40 

CFR 50.9 and appendix H. The 

regulation at 40 CFR 50.9 states ‘‘the 

standard is attained when the expected 

number of days per calendar year with 

maximum hourly average 

concentrations above 0.12 part per 

million is equal to or less than 1 as 

determined by appendix H.’’ Appendix 

H states, ‘‘The basic principle in making 

this determination is relatively 

straightforward. . . . In its simplest 

form, the number of exceedances at a 

monitoring site would be recorded for 

each calendar year and then averaged 

over the past 3 calendar years to 

determine if this average is less than or 

equal to 1.’’ The monitoring data for the 

St. Louis nonattainment area 

demonstrate that the estimated number 

of exceedances per year averaged over 

three years (2000 through 2002) is 1.0 or 

less at all monitoring sites in the area. 

In the case of St. Louis, all of the data 

collected are reviewed, quality assured 

and submitted to EPA’s Air Quality 

System (AQS) database. EPA conducts a 

number of activities to determine that 

the data meet the data collection and 

quality assurance procedures of 40 CFR 

part 58 including the following:

—EPA ensures that the state (and local 

agencies) is performing quality 

assurance/quality control (QA/QC) 

checks properly through systems 

audits as required per 40 CFR part 58, 

appendix A. During these systems 

audits EPA ensures that states are 

properly calibrating instruments, 

properly performing precision and 

span checks on instruments, and 

properly conducting audits of the 

instruments as required in 40 CFR 

part 58, appendix A. 

—EPA chooses several hourly ozone 

values and tracks those data points 

from their collection at the monitor 

through their data handling 

procedures, including QA/QC 

procedures, to its final destination in 

the AQS database. 

—To ensure quality data, as required by 

40 CFR part 58, appendix A, prior to 

the start of ozone season each year, 

EPA certifies at least one primary 

standard ozone photometer for each of 

the state and local agencies. These 

primary ozone photometers stay in 

the state/local laboratories. Transfer 

standard photometers are verified 

against the primary photometer and 

are used to calibrate the ozone 

analyzers in the field. Thus, all of the 

data collected is traceable back to 

EPA’s primary photometer.

—EPA, as well as the quality assurance 

groups of the state and local agencies, 

conduct audits on the ozone 

instruments collecting the data. These 

audits are required to be performed 

quarterly as per 40 CFR part 58, 

appendix A. EPA audits each ozone 

instrument at least once per ozone 

season. This ensures that the 

instrument is operating properly and 

collecting accurate data, and it also 

acts as a check on the state and local 

quality assurance groups to make sure 

that the audits they have conducted 

are accurate. 

—As required by 40 CFR part 58, 

appendix A, Precision and Span 

checks are performed every two 

weeks by the agency operating the 

instrument.

EPA believes that any voluntary 

measures which may have been taken 

by industry and others over a two- or 

three-day period in this three-year time 

period do not render the air quality 

monitoring data unrepresentative of the 

air quality. The data would only be 

‘‘contaminated’’ if there had been an 

error with respect to collection and 

quality assurance of the data, which 

there was not. The commenter offers no 

information indicating data collection 

was improper. In addition, even if these 

activities by the community were 

relevant to whether the area had 

attained, there is no evidence that 

emissions were actually reduced to an 

extent which would have a significant 

effect on ozone levels. See response to 

comment 18 below regarding further 

discussion on the ‘‘voluntary 

reductions’’ during the Labor Day 

weekend in 2002. In fact, as explained 

in the January 30, 2003, proposal at 68 

FR 4856–4858, and in section V.D. 

below, the monitored improvements in 

air quality were due to permanent and 

enforceable emission reductions. For 

example, as explained further in 

response to comment 19, the Missouri 

centralized motor vehicle inspection 

and maintenance program began in 

April 2000, the first year of the 2000–

2002 time period. The use of 

reformulated gasoline began in 1999 and 

achieved additional reductions during 

the 2000–2002 time period. The 

monitoring data accurately reflected 

actual air quality conditions. See 

response to comment 19 below 

regarding EPA’s conclusion that 

improvements in air quality are 

attributable to permanent and 

enforceable reductions in ozone 

precursor emissions. 

Comment 3: EPA’s proposal ignores 

the second component discussed in a 

September 4, 1992, redesignation 

guidance document from John Calcagni 

entitled ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment’’ (Calcagni memo) to EPA 

regional offices, that the determination 

of attainment should rely not only on 

monitored values, but on supplemental 

EPA-approved modeling. For St. Louis, 

monitored data runs directly counter to 

air quality modeling. The modeling 

supported the contention that the 

NAAQS could be attained only in 2004 

after all control measures are adopted. 

Thus, the monitored attainment is a 

‘‘fluke’’ explainable by factors other 

than the success of the pollution control 

measures. In addition, based on 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: The commenter cites a 

policy memorandum entitled 

‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment’’ dated 

September 4, 1992 (Calcagni memo), 

which states that there are two 

components in determining that an area 

has met the section 107(d)(3)(E)(i) 

requirement. This policy states the 

following:

The state must show that the area is 

attaining the applicable NAAQS. There are 

two components involved in making this 

demonstration which should be considered 

interdependently. The first component relies 

upon ambient air quality data. * * * The 

second component relies upon supplemental 

EPA-approved air quality modeling. No such 

supplemental modeling is required for O3

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25423

(ozone) nonattainment areas seeking 

redesignation * * * (pages 2 and 3).

This document explains that 

supplemental modeling may be needed, 

for example, in sulfur dioxide and 

carbon monoxide areas, where 

emissions are localized and a small 

number of monitors may not be 

representative of air quality (page 3). In 

contrast, ozone is not a localized 

pollutant, and the St. Louis area has an 

extensive monitoring network 

consisting of nineteen monitors 

operating each year from 2000 through 

2002 as described in EPA’s proposal at 

68 FR 4850. Therefore, consistent with 

the language in the policy and the 

rationale in calling for modeling in 

some cases for some pollutants and not 

in other cases, modeling is not required 

as part of this redesignation. Neither 

section 107(d)(3)(E) nor the policy 

referenced by the commenter requires 

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. Therefore, EPA 

does not believe that the monitored data 

runs counter to air quality modeling. 

See Wall v. EPA, 265 F.3d 426 (6th Cir. 

2001), and the redesignations for 

Pittsburgh (66 FR 53094, October 19, 

2001), and Cincinnati (65 FR 37879, 

June 19, 2000). See response to 

comments 10, 19, 21, 23, 24, 26, 37 

below regarding further discussion of 

modeling issues. 

Commenter’s contention that 

attainment cannot be reached until at 

least 2004 is addressed below in 

response to comments 21 and 24. 

In addition, the correlation between 

air quality improvements and 

permanent and enforceable emission 

reductions, demonstrating that 

monitored attainment is not a ‘‘fluke’’ is 

described in detail in the proposal and 

section V.D below. 

The ozone modeling approaches used 

do not support any direct comparisons 

between ozone modeling results and 

monitored ozone concentrations for 

years other than a monitored and 

modeled base period. Although 

statistical comparisons are made 

between monitored ozone data and 

modeled base period ozone 

concentrations to validate ozone 

modeling results, ozone models are not 

designed to explicitly model ozone 

concentrations at specific locations or to 

exactly predict future ozone 

concentrations that can be compared to 

monitored ozone concentrations on a 

site-by-site basis. Ozone models are 

designed to primarily predict the 

relative impacts of emission changes on 

future peak ozone levels assuming the 

same meteorological conditions that are 

modeled for the base period. Such 

modeling techniques produce results 

with considerable uncertainty (relative 

to time- and location-specific monitored 

ozone concentrations) when one 

actually compares future modeled 

results with monitored ozone 

concentrations for the same years. The 

commenter errs in trying to force 

comparisons not supported by the 

existing science. 

What the modeling results do imply is 

that, as regional NOX emission controls 

are implemented through statewide 

rules in Illinois, Missouri, and other 

states, peak ozone levels in the St. Louis 

area are expected to decrease. This 

increases the likelihood of maintaining 

the ozone standard in the St. Louis area, 

thus supporting the approval of the 

state’s ozone redesignation request. 

Illinois and Missouri are committed to 

implement statewide NOX emission 

controls regardless of the attainment 

status of the St. Louis area. Both states 

are currently implementing statewide 

NOX control rules. 

Comment 4: The monitored data do 

not support a conclusion of continued 

attainment since the trend is toward 

increases in exceedances because 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 exceedances that occurred in 

2002 occur in 2003 or 2004, the area 

will again violate the one-hour ozone 

standard. 

Response 4: See response to comment 

20 below for our detailed response to 

the comment relating to air quality 

trends. The determination of attainment, 

as explained in the January 30, 2003, 

proposal, in section II.A. above, and in 

response to comment 2, is based on the 

requirements of section 107(d)(3)(E)(i) 

and EPA’s regulation which defines 

attainment of the ozone standard. The 

regulatory definition is based on design 

values over a 3-year period, not on yearto-year trends within the three-year 

period. It would be inconsistent with 

the regulation to adopt an additional 

criterion for determining attainment. 

It should be noted that a ‘‘worsening’’

ozone trend for the St. Louis area can 

only be discerned for the 2000–2002 

period by combining the annual number 

of exceedances for all monitoring sites 

in the area (by totaling the number of 

exceedances for each year for all 

monitoring sites combined). This 

approach is technically flawed. The 

ozone standard is based on assessing the 

peak ozone data for each monitoring site 

individually not by cumulating the data 

for all sites. Review of the yearly 

exceedance data for each monitoring 

site, as given in Table 1 in the January 

30, 2003, proposed rule (68 FR 4850) 

and in response to comment 20 below, 

shows that no consistent ozone 

exceedance rate trend can be established 

for the individual monitoring sites for 

this period. For example, the West 

Alton site experienced one ozone 

exceedance per year with no up or 

down trend. The Wood River monitor in 

Illinois increased from zero exceedances 

in 2000 to one exceedance in 2001 and 

back down to zero exceedances in 2002. 

Many monitors continued to record zero 

exceedances throughout the 2000–2002 

period as noted above. Some monitors, 

which recorded zero exceedances in 

2000 and 2001, recorded one or two 

exceedances in 2002, hardly a 

consistent, robust trend. Contrary to the 

commenter’s assertion, on a monitor-bymonitor basis, which is the basis for 

assessing compliance with the 1-hour 

ozone standard, there is no consistent 

‘‘worsening’’ trend in peak ozone 

concentrations.

Comment 5: EPA asserts that the data 

is ‘‘quality assured’’ but provided no 

explanation. EPA must demonstrate that 

the data is quality assured. EPA must 

document the adequacy of the states’

quality assurance plan. Also, the 

commenter questions whether the data 

relied on for the attainment 

determination was quality-assured since 

it was entered in AIRS earlier than 

usual. 

Response 5: As indicated in the 

response to comment 2 above, the 

regulations at 40 CFR part 58 specify 

data collection and quality assurance 

procedures. The Calcagni memo on page 

2 specifies that the data should be 

collected and quality-assured in 

accordance with 40 CFR part 58 and 

recorded in AIRS in order for it to be 

available to the public for review. The 

monitoring data for the St. Louis area 

was quality assured and entered into 

AIRS in accordance with these 

requirements. 

Appendix A to 40 CFR part 58 

specifies the quality assurance 

requirements for state and local air 

monitoring stations. The regulation at 

40 CFR 58.35(c) requires that the 

monitoring data be entered into AIRS 

within 90 days after the end of the 

calendar quarter in which it is collected. 

Thus, monitoring data collected through 

September 2002 must be quality assured 

and entered into AIRS by December 31, 

2002. Monitoring data for October 2002 

must be quality assured and entered 

into AIRS by March 31, 2003. 

25424 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

Monitoring data collected in a calendar 

quarter can be quality assured and 

entered into AIRS at any time prior to 

90 days after the end of that quarter. 

The monitoring data is quality 

assured and entered into AIRS by the 

state and local agencies in the St. Louis 

area. The regulation at 40 CFR 58.20 

requires states to adopt and submit to 

EPA revisions to the SIP which provide 

for meeting the requirements of 

appendix A. On September 27, 1984 (49 

FR 38103), EPA approved Missouri’s Air 

Quality Monitoring Plan. EPA stated in 

this September 27, 1984, rulemaking 

that ‘‘the Missouri Air Quality 

Monitoring Plan satisfies the 

requirements of 40 CFR 58.20.’’ On 

March 4, 1981 (46 FR 15136), EPA 

approved Illinois’ Air Quality 

Surveillance Plan. EPA stated in this 

March 4, 1981, rulemaking that EPA has 

reviewed the plan and ‘‘it meets the 

requirements of * * * EPA regulations 

in 40 CFR part 58.’’ As part of the 

September 27, 1984, and March 4, 1981, 

rulemakings the public was provided 

the opportunity to review and comment 

on Missouri’s and Illinois’ quality 

assurance procedures. Pursuant to the 

Calcagni memo, page 3, and upheld in 

Wall v. EPA (265 F.3d. 426, 437), an 

EPA action on a redesignation request 

does not mean that earlier issues with 

regard to the SIP will be reopened. 

Thus, there is no requirement to present 

quality assurance procedures in this 

rulemaking. 

In addition to Missouri’s Air Quality 

Monitoring Plan and Illinois’ Air 

Quality Surveillance Plan, EPA 

reviewed and approved the States’

Quality Management Plans (QMP). 

Under the states’ QMP, the state and 

local agencies conducting the ambient 

monitoring develop Quality Assurance 

Project Plans (QAPP). It is through the 

QMP and QAPP that EPA reviewed and 

approved the states’ and local agencies’

quality assurance procedures. In order 

to verify that the state and local agencies 

followed these procedures and that the 

data meets the data collection and 

quality assurance procedures of 40 CFR 

part 58, EPA conducted the actions 

listed in the response to comment 2 

above. 

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 

promulgated 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 to become part of the 

contingency measure. 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 partial, 

conditional, or limited approval 

(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.’’

This comment relates to the issue of 

which requirements are ‘‘applicable,’’

rather than whether the SIP is fully 

approved. 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 CAA 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 which requirements are 

applicable in reviewing a redesignation 

request. As stated in the January 30, 

2003, proposed rule (page 4851), the 

September 4, 1992, Calcagni memo (see

‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, September 4, 1992) 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. A detailed 

discussion of EPA’s rationale for this 

interpretation is contained in the rule 

redesignating Detroit-Ann Arbor, 60 FR 

12459, 12465–12466 (March 7, 1995). 

Pursuant to the January 30, 2003, final 

rule reclassifying the St. Louis area to 

‘‘serious’’ (68 FR 4836), the serious 

nonattainment area requirements are 

due on January 30, 2004. The final rule 

has not been timely challenged under 

section 307(b)(1) of the CAA. Thus, the 

serious nonattainment area 

requirements due date is January 30, 

2004. Since the serious area 

requirements are not yet due, the SIP is 

not deficient because the serious area 

requirements have not been included. 

EPA policy and a reasonable application 

of sections 107(d)(3)(E)(ii) and (v) allow 

for an area to be redesignated even 

though the area has not adopted 

measures which are not yet due. EPA 

has consistently applied this policy and 

interpretation in other redesignations 

including the Detroit-Ann Arbor 

redesignation cited above. 

In addition, there is no requirement in 

section 107(d)(3)(E) that states must 

‘‘claim’’ (or demonstrate) 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 request is made. EPA’s 

action to reclassify the area to a serious 

nonattainment area was published in 

the Federal Register after both states 

had submitted their redesignation 

requests to attainment, and it 

established a deadline for submission of 

the serious area requirements which had 

not yet passed, and still remains in the 

future. Thus, Missouri was not required 

to include in its request a ‘‘claim’’ that 

the state cannot complete the serious 

area requirements. 

Finally, the Calcagni memo discusses 

the statutory requirement that the state 

must implement all measures included 

in the SIP prior to redesignation (pages 

12–13). (In response to comment 32, 

EPA discusses 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 to an area, 

and already contained in a 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 St. 

Louis, for the reasons discussed above, 

and are not included in the SIP for St. 

Louis, the guidance in the Calcagni 

memo and in a memorandum entitled 

‘‘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’’ dated September 

17, 1993 (Shapiro memo), relating to 

mechanisms for converting part D 

measures into contingency measures is 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25425

not relevant for purposes of this 

redesignation.

Comment 7: The proposed rulemaking 

suggests that a SIP meeting the serious 

area requirements need not be fully 

approved because such a plan is not yet 

due. 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 

decision by the Court of Appeals for the 

Seventh Circuit was to reinstate this 

submission date. 

Response 7: Section 107(d)(3)(E)(ii) 

requires that the applicable SIP for the 

area must be fully approved under 

section 110(k). As discussed in the 

response to comments 6 and 8, the 

applicable SIPs for the St. Louis area are 

fully approved, and the serious area 

requirements have not yet become 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 section 

107(d)(3)(E)(ii) and (v). As stated in the 

January 30, 2003, final rule at 68 FR 

4838, on November 25, 2002, the 

Seventh Circuit Court of Appeals 

vacated a June 26, 2001, rule extending 

the St. Louis area’s attainment date, 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 

CAA, EPA reinstated the nonattainment 

determination and reclassification 

contained in the March 19, 2001, 

rulemaking (66 FR 15585). In the 

January 30 rule, EPA also 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). The 

January 30, 2003, final rule was not 

challenged and this redesignation 

rulemaking does not reopen the January 

30 rulemaking. 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 the Court of 

Appeals for the District of Columbia that 

the reclassification of the St. Louis area 

to serious should have been made 

retrocative to 1997, with the serious area 

measures due in 1998. This argument is 

not only outside the scope of this 

rulemaking as explained previously, but 

it was rejected by both Courts (See, 

Sierra Club v. Whitman, 285 F.3d, 63, 

68 (D.C. Cir. 2002)). The Courts rejected 

the notion that retroactive SIP 

submission dates should be imposed 

because they would have passed before 

the area had notice and opportunity to 

meet the deadlines. See also,

Metropolitan Washington, DC, 

Maryland and Virginia Determination of 

Nonattainment (68 FR 3410, January 24, 

2003). As explained above, EPA’s 

determination that the serious area 

requirements are not ‘‘applicable’’ with 

respect to this redesignation because 

they are not yet due is consistent with 

the CAA, with the January 30, 2003, 

final rule, with applicable EPA policy, 

with relevant judicial decisions, and 

with a long history of prior 

redesignation actions. 

Comment 8: There is no ‘‘fully 

approved’’ or even a 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. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois 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 herein. See 

also the discussion in section II.A 

concerning the inapplicability of certain 

requirements. In the June 26, 2001, rule, 

EPA took the following relevant actions: 

approved Missouri’s and Illinois’ 1-hour 

ozone attainment demonstration; found 

that the St. Louis ozone nonattainment 

area met the RACM requirements of the 

CAA; found that the contingency 

measures identified by the states of 

Illinois and Missouri are adequate; 

approved the Illinois and Missouri 

MVEBs; approved an exemption from 

the oxides of nitrogen (NOX) emission 

control requirements for RACT 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 

this rule and 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 

rulemaking, EPA is approving 

contingency measures as part of 

Missouri’s maintenance plan, and 

approving MVEBs for 2014, for the 

Missouri portion of the area. In a 

separate rulemaking in today’s Federal 

Register, EPA is approving revisions to 

Missouri’s I/M rule.

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 

Missouri which are applicable for 

purposes of section 107(d)(3)(E)(v), and 

is determining that the other 

submissions are not applicable. 

Therefore, the SIP is ‘‘fully approved’’

for all applicable requirements. 

Comment 9: EPA attempted to assert 

that the Missouri and Illinois SIPs ‘‘can 

be considered to be approved.’’ This is 

a ‘‘pseudo-approval’’ and an attempt by 

EPA to escape the simple 

straightforward statutory requirement to 

have 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 SIP. 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. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

25426 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

The use of the phrase ‘‘can be 

considered to be approved’’ (see the 

January 30, 2003, proposed rule at 68 FR 

4851, 4852) was merely a statement the 

SIPs will meet the section 110 

requirements and as such ‘‘can be 

considered to be approved’’ if EPA were 

to approve certain plan elements, 

described in the proposed rulemakings. 

On January 30, 2003, EPA published 

two proposed rules found at 68 FR 4842 

and 68 FR 4847. As part of these 

proposals, EPA proposed to approve 

revisions to Missouri’s I/M rule. In 

today’s Federal Register, EPA is taking 

final action approving Missouri’s I/M 

rule. By taking these actions, EPA now 

concludes that Missouri’s SIP is 

approved. The use of the quoted phrase 

was not intended to escape a statutory 

requirement. In fact, it recognized EPA’s 

obligation to complete rulemakings in 

order to approve SIPs, and it recognized 

that EPA could not determine that the 

SIP was fully approved until it took 

final action to approve the remaining 

SIP elements. All of the SIP elements 

which are applicable to the St. Louis 

area for purposes of redesignation have 

either been approved in previous 

rulemakings (see response to comments 

6, 7, 8, 13, 14, 15, and 16 for a 

discussion of these prior rulemakings) 

or are approved in rulemakings 

published today. 

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). In this decision, the 

Court vacated the June 26, 2001, 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 opinion addressed 

only EPA’s action extending the 

attainment date for St. Louis, the Court’s 

order vacated the other EPA actions in 

the rulemaking as well. EPA has 

approved all SIP elements that are 

applicable to the St. Louis area and is 

determining that certain others are not 

applicable. This is not a ‘‘pseudoapproval’’ of the SIP elements, but a 

determination that because certain 

requirements (e.g., the attainment 

demonstration and RACM) are not 

applicable, they need not be approved. 

(See response to comment 8 for more 

discussion of the requirement for a fully 

approved SIP.) The applicable 

requirements which were approved 

prior to the June 26, 2001, action (e.g., 

VOC RACT, NOX RACT, the ROP Plan) 

were subject to notice and comment 

rulemaking and judicial review. The 

measures approved today (the 

maintenance plan and contingency 

measures, MVEBs, I/M program 

revisions) have been subject to notice 

and comment rulemaking and EPA’s 

action is subject to judicial review. 

EPA’s 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 EPA’s 

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 upon a redesignation 

request, EPA may 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 St. Louis area has a fully approved 

SIP. See ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ John Calcagni, Director, 

Air Quality Management Division, 

September 4, 1992, page 3 (Calcagni 

memo). The Calcagni memo allows for 

approval of SIP elements and 

redesignation 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), (61 

FR 31832–31833) (June 21, 1996) (Grand 

Rapids, MI).

Comment 10: The SIPs fail to meet the 

section 110 requirements because the 

‘‘inapplicable ‘‘moderate’’ area’’

requirements contained in the SIPs do 

not provide for implementation, 

maintenance, and enforcement of the 

NAAQS because modeling shows that 

the plan does not provide for attainment 

until 2004. Furthermore, Missouri has 

failed to meet the section 110(a)(2)(D) 

requirements related to the NOX SIP 

call. 

Response 10: EPA finds that the 

Missouri SIP meets the section 110 

requirements. See the January 30, 2003, 

proposal and the responses to comments 

8 and 9 for further discussion. 

Submissions under the NOX SIP call 

are not applicable requirements for 

purposes of evaluating a redesignation 

request. 

At this time, Missouri is not subject 

to the NOX SIP call. As explained in the 

proposal, EPA’s determination that 

Missouri significantly contributes to 

downwind nonattainment was vacated 

by the Court of Appeals for the District 

of Columbia Circuit. EPA is not relying 

on a SIP to predict attainment but is 

relying on air quality monitoring data to 

show that the area has attained. With 

respect to the assertion that the area 

must have an approved attainment 

demonstration SIP in order to meet the 

requirements of section 110, EPA has 

addressed this issue in its response to 

comments on the lack of an approved 

attainment demonstration for the area. 

Section 110(a)(1) does not add any 

additional requirements for compliance 

with the NAAQS other than those 

included in section 172(c) and 182, and 

the commenter does not identify any 

specific additional requirements. See 

the responses to comments 3, 21, and 24 

with respect to the assertion that the 

modeling for the area shows that it 

cannot attain until 2004. 

The SIP call budget for Missouri was 

proposed on February 22, 2002 (67 FR 

8396), but has not yet been finalized. 

For this reason alone, it is not an 

applicable requirement. In addition, the 

NOX SIP call requirements for a state are 

not linked with a particular 

nonattainment area’s designation and 

classification in that state. EPA believes 

that the requirements linked with a 

particular nonattainment area’s 

designation and classification are the 

relevant measures to evaluate in 

reviewing a redesignation request. The 

NOX SIP call submittal requirements, 

where applicable, continue to apply to 

a state regardless of the designation of 

any one particular area in the state. 

Thus, we do not agree 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, December 

7, 1995). See also the discussion on this 

issue in the Cincinnati redesignation (65 

FR 37890, June 19, 2000), and in the 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25427

Pittsburgh redesignation (66 FR 50399, 

October 19, 2001). 

Comment 11: The state SIPs fail to 

meet the part D requirements of the 

CAA. EPA asserts that certain 

requirements of part D are not 

applicable because monitoring data 

shows 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: Section II.A of this 

document, discussing the rationale for 

EPA’s determination of attainment and 

suspension of certain requirements, 

addresses the applicability of the part D 

requirements. The part D requirements 

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 source), RFP, emissions 

inventory, identification and 

quantification of allowable emissions 

for major new or modified stationary 

sources, permits for new and modified 

major stationary sources, 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 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. 

Subpart 2 requirements include 

attainment demonstration, 1990 base 

year inventory and periodic emissions 

inventories updates, emission 

statements, 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, the Missouri 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 each state’s RFP, permitting 

programs, and VOC RACT rules as 

meeting the requirements of part D. 

Missouri’s SIP has regulations requiring 

annual emission statements from major 

sources. Missouri has submitted 

complete emission inventories. Missouri 

has approved general conformity rules 

pursuant to section 176. In addition, 

Missouri has approved transportation 

conformity rules. EPA is approving in 

this action Missouri’s maintenance plan 

which includes adequate contingency 

measures. Thus, Missouri has met the 

applicable part D requirements of the 

CAA. Note that also as stated in the 

response to comment 8, by finding that 

the St. Louis area has attained the 

standard, the attainment demonstration 

and RACM requirements are no longer 

applicable requirements. See also the 

final rule for Illinois describing how the 

Metro-East St. Louis area has met the 

applicable requirements. 

As indicated in comment 3 above, 

neither section 107(d)(3)(E) nor EPA 

policy referenced by the commenter 

requires 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, as 

explained in detail in comment 3, 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 Sierra 

Club 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 CAA in the 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 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. EPA, 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 for 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 requirements are suspended 

and do not apply because the area is 

being redesignated. The basis for this 

determination and the suspension of 

certain requirements for the area was 

explained in detail in the proposal 

found 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 document. 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 area 

requirements will no longer apply at all 

since the area is no long a designated 

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 

25428 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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 response to comment 8 for further 

discussion. Also, EPA has 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 reasonably available 

control measures as necessary to 

accelerate attainment when attainment 

has already been achieved. 

As stated in the response to comments 

8 and 9, 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). 

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. EPA, 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 Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

EPA has previously addressed the 

rationale for its determination that 

additional RACM is not required for an 

area attaining the standard. (See, e.g., 

section II and response to comment 12.) 

The RFP requirement under section 

172(c)(2) is defined as progress that 

must be made toward attainment. 

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, 

4855, EPA approved Missouri’s 15 

percent ROP plan. 

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 VOCs covered 

by Control Technology Guidelines 

(CTGs) and all other major sources of 

VOCs. 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, Missouri 

has adopted and implemented all 

required VOC RACT rules. In addition, 

section 182(f) establishes NOX RACT 

requirements for major stationary 

sources. EPA approved Missouri’s NOX

RACT rule into the SIP on May 18, 2000 

(65 FR 31482). 

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 

was rejected in the Tenth Circuit Sierra 

Club case and in Wall, 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, 

Missouri has adopted all applicable 

VOC RACT measures. Missouri has also 

adopted NOX 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–

745 (5th Cir. 2002)) and the District of 

Columbia Circuit (Sierra Club v. EPA, 

294 F.3d 155, 162–163 (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 Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois 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 sites which contain the 

content of these rules, and references to 

EPA’s rulemakings approving these 

rules. The Web site for Missouri is: 

http://www.epa.gov/region07/programs/

artd/air/rules/missouri/chap5.htm.

The VOC RACT rules listed on this 

Web site and EPA’s rulemakings 

approving these rules include the 

following:

10 CSR 10–5.070 Open Burning 

Restrictions, 37 FR 10842 (5/31/72) 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25429

10 CSR 10–5.220 Control of Petroleum 

Liquid Storage, Loading and Transfer, 

37 FR 10842 (5/31/72) 

10 CSR 10–5.295 Control of Emissions 

From Aerospace Manufacturing and 

Rework Facilities, 65 FR 31489 (5/18/

2000) 

10 CSR 10–5.300 Control of Emissions 

from Solvent Metal Cleaning, 45 FR 

24140 (4/9/80) and 45 FR 56806 (7/

11/80) (correction) 

10 CSR 10–5.310 Liquefied Cutback 

Asphalt Paving Restricted, 45 FR 

24140 (4/9/80) and 45 FR 46806 (7/

11/80) (correction) 

10 CSR 10–5.320 Control of Emissions 

from Perchloroethylene Dry Cleaning 

Installations, 46 FR 20172 (4/3/81) 

10 CSR 10–5.330 Control of Emissions 

from Industrial Surface Coating 

Operations, 45 FR 24140 (4/9/80) and 

45 FR 46806 (7/11/80) (correction) 

10 CSR 10–5.340 Control of Emissions 

from Rotogravure and Flexographic 

Printing Facilities, 46 FR 20172 (4/3/

81) 

10 CSR 10–5.350 Control of Emissions 

from Manufacture of Synthesized 

Pharmaceutical Products, 46 FR 

20172 (4/3/81) 

10 CSR 10–5.360 Control of Emissions 

from Polyethylene Bag Sealing 

Operations, 49 FR 40164 (10/15/84) 

10 CSR 10–5.370 Control of Emissions 

from the Application of Deadeners 

and Adhesives, 55 FR 7712 (3/5/90) 

10 CSR 10–5.390 Control of Emissions 

from Manufacture of Paints, 

Varnishes, Lacquers, Enamels and 

Other Allied Surface Coating 

Products, 50 FR 14925 (4/16/85) 

10 CSR 10–5.410 Control of Emissions 

from the Manufacture of Polystyrene 

Resin, 55 FR 7712 (3/5/90) 

10 CSR 10–5.420 Control of Equipment 

Leaks from Synthetic Organic 

Chemical and Polymer Manufacturing 

Plants, 53 FR 12417 (4/14/88) 

10 CSR 10–5.440 Control of Emissions 

from Bakery Ovens, 65 FR 8060 (2/17/

2000) 

10 CSR 10–5.442 Control of Emissions 

From Offset Lithographic Printing 

Operations, 65 FR 8060 (2/17/00) 

10 CSR 10–5.450 Control of VOC 

Emissions from Traffic Coatings, 65 

FR 8060 (2/17/00) 

10 CSR 10–5.451 Control of Emissions 

from Aluminum Foil Rolling, 65 FR 

8060 (2/17/00) 

10 CSR 10–5.455 Control of Emissions 

from Solvent Cleanup Operations, 65 

FR 8060 (2/17/00) 

10 CSR 10–5.490 Municipal Solid Waste 

Landfills, 63 FR 20320 (4/24/98) 

10 CSR 10–5.500 Control of Emissions 

From Volatile Organic Liquid Storage, 

65 FR 31489 (5/18/00) 

10 CSR 10–5.520 Control of Volatile 

Organic Compound Emissions From 

Existing Major Sources, 65 FR 31489 

(5/18/2000) 

10 CSR 10–5.530 Control of Volatile 

Organic Compound Emissions From 

Wood Furniture Manufacturing 

Operations, 65 FR 31489 (5/18/00) 

10 CSR 10–5.540 Control of Emissions 

From Batch Process Operations, 65 FR 

31489 (5/18/00) 

10 CSR 10–5.550 Control of Volatile 

Organic Compound Emissions From 

Reactor Processes and Distillations 

Operations Processes in the Synthetic 

Organic Chemical Manufacturing 

Industry, 65 FR 31489 (5/18/00)

The rationale for approval of each of 

these rules is described in the respective 

Federal Register document approving 

each rule. As stated previously, in the 

response to comment 5, this 

redesignation rulemaking does not 

reopen rulemakings regarding prior SIP 

approvals. 

Comment 15: Missouri has not 

adopted all appropriate NOX and NOX

RACT rules. Thus, the SIP is not 

approvable. 

Response 15: Missouri has adopted 

and EPA has approved into Missouri’s 

SIP a NOX RACT rule meeting the 

requirements of section 182(f). The 

Missouri NOX RACT rule can be found 

at 10 CSR 10–5.510. See comment 13 for 

further discussion on Missouri’s NOX

RACT rule. As described in response to 

previous comments, pursuant to the 

Calcagni Memo page 3, and upheld in 

the Wall case cited previously, an EPA 

action on a redesignation request does 

not mean that earlier issues with regard 

to the SIP will be reopened. See also, 

Southwestern Pennsylvania Growth 

Alliance v. Browner, 144 F.3d 984 (6th 

Cir. 1998). Thus, EPA is not reopening 

Missouri’s NOX RACT rule as part of 

this redesignation. 

Missouri has adopted and EPA has 

approved into the SIP a state-wide NOX

rule (10 CSR 10–6.350 Emissions 

Limitations and Emissions Trading of 

Oxides of Nitrogen, 65 FR 82285 (12/28/

00)). 

As stated in comment 10 above, EPA 

believes that submissions under the 

NOX SIP call are not applicable 

requirements for purposes of evaluating 

Missouri’s redesignation request. 

EPA has determined that Missouri has 

adopted all applicable NOX and NOX

RACT rules. 

Comment 16: The Missouri I/M rule 

being approved in a separate rulemaking 

does not meet the requirements for an 

I/M program. EPA needs to explain how 

it can approve an I/M rule since it does 

not meet the I/M requirements for a 

serious area. 

Response 16: EPA is responding to 

comments regarding Missouri’s I/M 

program in a separate rulemaking 

published in today’s Federal Register. 

EPA’s response to comments included 

in that rulemaking are incorporated 

here. 

The Federal rule at 40 CFR 51.372(c) 

states that ‘‘Any nonattainment area that 

EPA determines would otherwise 

qualify for redesignation from 

nonattainment to attainment shall 

receive full approval of a SIP submittal 

under Sections 182(a)(2)(B) or 182(b)(4) 

if the submittal contains the following 

elements: (1) Legal authority to 

implement a basic I/M program (or 

enhanced if the State chooses to opt up) 

as required by this subpart. The 

legislative authority for an I/M program 

shall allow the adoption of 

implementing regulations without 

requiring further legislation. (2) A 

request to place the I/M plan (if no I/M 

program is currently in place or if an I/

M program has been terminated) or the 

I/M upgrade (if the existing I/M program 

is to continue without being upgraded) 

into the contingency measures portion 

of the maintenance plan upon 

redesignation. (3) A contingency 

measure consisting of a commitment by 

the Governor or the Governor’s designee 

to adopt or consider adopting 

regulations to implement the required I/

M program to correct a violation of the 

ozone or CO standard or other air 

quality problem, in accordance with the 

provisions of the maintenance plan. (4) 

A contingency commitment that 

includes an enforceable schedule for 

adoption and implementation of the I/

M program, and appropriate milestones. 

The schedule shall include the date for 

submission of a SIP meeting all of the 

requirements of this subpart. Schedule 

milestones shall be listed in months 

from the date EPA notifies the State that 

it is in violation of the ozone or CO 

standard or any earlier date specified in 

the State plan. Unless the State, in 

accordance with the provisions of the 

maintenance plan, chooses not to 

implement I/M, it must submit a SIP 

revision containing an I/M program no 

more than 18 months after notification 

by EPA.’’

Regarding item (1) above, as indicated 

in the response to comment 35, 

Missouri has the authority to implement 

an I/M program. Regarding item (2) 

above, the maintenance plan contains 

‘‘High Enhanced I/M’’ as a contingency 

measure. The plan was accompanied by 

a request from an authorized Missouri 

official for EPA to approve the 

maintenance plan. Regarding item (3) 

above, section 7.1 of the maintenance 

plan contains a commitment to adopt or 

consider adopting the I/M program 

listed as a contingency measure. 

25430 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

Regarding item (4) above, the SIP 

contains an enforceable schedule for 

adoption and implementation of the I/

M program. Section 7.1 of the 

maintenance plan sets for a schedule 

with milestones for promulgation and 

implementation of a program meeting 

the requirements. 

This meets the condition imposed by 

the Federal rule at 40 CFR 51.372(c). 

Thus, EPA is approving the I/M program 

in a separate rulemaking. This satisfies 

the basic I/M requirements for moderate 

ozone areas. Since EPA is taking final 

action to approve the redesignation of 

the St. Louis area prior to the date that 

the serious area requirement for 

enhanced I/M would be due, EPA can 

approve the I/M program as meeting the 

moderate rather than the serious area I/

M requirement, as fully explained in 

this final rule and in the separate I/M 

approval action taken elsewhere in 

today’s Federal Register. 

D. Comments Related to Criterion 3: The 

Improvement in Air Quality Must Be 

Due to Permanent and Enforceable 

Reductions in Emissions 

Comment 17: The 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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

As described in the response to 

comments for Criterion 2 above, the 

SIPs meet the applicable CAA 

requirements. The applicable SIP 

requirements are described in the 

January 30, 2003, proposed rulemaking 

(68 FR 4850–4856). EPA’s approval of 

previous SIP submittals, this rulemaking 

and today’s rulemaking approving 

Missouri’s I/M rule render Missouri’s 

SIP ‘‘fully approved’’ for all applicable 

SIP requirements. As stated in response 

to comments relating to Criterion 2, 

above, since the serious area 

requirements are not yet due, the SIP is 

not deficient because 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 

reductions in emissions which is a 

separate inquiry from the question of 

the requirements applicable to the area. 

Missouri’s submission contains a 

detailed analysis of the air quality 

improvements in St. Louis and their 

relation to the permanent and 

enforceable control measures which are 

in place in the area. (See response to 

comment 19 for further discussion.) 

These measures are listed in the 

proposal 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 on the 2002 Labor Day 

weekend resulted from permanent and 

enforceable reductions. The 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 

believes that any voluntary measures 

taken by industry and others over a twoor 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 measures 

which are in place (e.g., I/M programs, 

RACT on VOC and NOX 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 an 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 CAA requirements and EPA 

policy including the Calcagni memo at 

page 4. Also, see the response to 

comment 2 above for further discussion 

on this issue. 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. 

Comment 19: EPA cannot 

demonstrate that permanent and 

enforceable 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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois 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. In 

addition, see the 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) nor 

the Calcagni memo referenced by the 

commenter require modeling as a 

prerequisite to redesignation of an 

ozone nonattainment area. Thus, 

modeling is not required to demonstrate 

that the improvement in air quality is 

due to permanent and enforceable 

reductions. See General Preamble for 

the Interpretation of Title I of the CAA 

Amendments of 1990 at 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. 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25431

Shapiro, Acting Assistant Administrator 

for Air and Radiation, September 17, 

1993; 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 guidance provides 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 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 explained the 

basis for concluding that the observed 

air quality improvements are due to the 

implementation of permanent and 

enforceable emission reductions. The 

reasons include, analysis of the 

emission controls which have resulted 

in emission reductions, an analysis of 

meteorological conditions showing a 

trend toward the reduction of ozone 

concentrations 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 a substantial 

decrease in emissions of VOCs 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 yearly 

variations. The number of conducive 

days have stayed between 

approximately 20 and 50 days per year 

with no increasing or decreasing trend. 

Meanwhile, 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. In addition, year-to-year 

fluctuation of conducive days cannot be 

correlated with higher or lower 

exceedance levels over the last few 

years. Since 1989, as the number of 

conducive days fluctuated from year to 

year, the number of exceedances 

demonstrated no similar trend. This 

indicates a disassociation between 

monitored exceedances and 

meteorological effects.

During the 1990–2000 period, as the 

area-wide ozone design values in the St. 

Louis area were decreasing, the VOC 

and NOX emissions in the St. Louis area 

were also significantly decreasing (see 

response to comment 20 for further 

discussion on the area’s design values). 

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. These 

tables show that the entire 

nonattainment area experienced a 

downward trend in VOC and NOX

emissions. This downward trend in 

emissions and ozone design values, 

along with no significant trend in the 

number of days conducive to ozone 

formation shows that the 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 135.42 135.00 

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 174.65 166.63 

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 ozone precursor (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 Pittsburgh (66 FR 

53094, October 19, 2001), Cincinnati (65 

FR 37879, June 19, 2000), 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 for the 1-hour ozone 

standard have continued to attain it. 

Areas that are not maintaining the 1-

hour ozone standard have a 

maintenance plan 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. In Missouri, the 

VOC and NOX emissions during this 

time period decreased by 33 percent and 

28 percent, respectively. (See the 

rulemaking redesignating the Illinois 

portion of the St. Louis area published 

in today’s Federal Register for NOX and 

VOC reductions for the Metro-East area.) 

These emissions reductions were due to 

the implementation of Missouri’s 15 

percent rate-of-progress plan, including 

its implementation of a centralized 

motor vehicle inspection and 

maintenance program and stationary 

source controls. Additional reductions 

25432 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

were due to tighter Federal standards for 

new vehicles, and some were due to 

requirements for reformulated and low 

Reid Vapor Pressure (RVP) gasoline for 

motor vehicles. In addition, Title IV of 

the CAA resulted in reduced NOX

emissions from utility sources. 

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 shows that ambient ozone 

concentrations have dropped when this 

combination of ozone precursor 

reductions occurred. In other 

metropolitan areas, other levels of VOC 

and NOX reductions have also resulted 

in attainment. See the areas listed above 

in first part of this response. The St 

Louis area’s decrease in ozone levels is 

consistent with what other areas have 

experienced. The commenter has not 

provided data showing that decreases in 

ozone precursor emissions have led to 

higher levels of ozone. 

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. Threeyear averaging addresses variations in 

meteorological conditions, an 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 

violations. This is what maintenance 

plan contingency measures are designed 

to address and correct. See the 

Cincinnati redesignation (65 FR 37879, 

37886–37889, June 19, 2000) and the 

Pittsburgh redesignation (66 FR 53094, 

October 19, 2001) for additional 

discussion of this issue. 

Comment 20: If improvements in St. 

Louis air quality were due to permanent 

and enforceable 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: As stated in response to 

comment 2 above, 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 is 

used. For reasons stated previously, 

EPA has determined that the St. Louis 

area is in attainment with the NAAQS. 

As indicated in the January 30, 2003, 

proposal 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

Site name County or city and state 

Estimated exceedances Average number of estimated 

exceedances 

2000–2002

2000 2001 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

1The 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. 

The area has monitored attainment for 

the three-year period from 2000–2002. 

This demonstrates that the current level 

of emissions is adequate to keep the area 

in attainment during weather conditions 

as in past years associated with higher 

levels of ozone. In addition, the CAA 

does not presume that the area will 

always be in attainment. The CAA 

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 in the area was 

monitored in 2000, three in 2001, and 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25433

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. In other words, 

when dealing with a number as small as 

one, any increase will be at least double 

that value. 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 

upon 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 

reduced 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 combining the exceedance data 

from many monitors 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. 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 

referred to 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, proposal (66 FR 17649–

17652). In this discussion, EPA noted 

that the states incorporated corrections 

to the 1996 base year emissions 

inventory, an assessment of the model’s 

performance by applying statistical 

tests, and assumptions regarding which 

states are affected by the NOX SIP call 

including NOX limits on facilities. 

As discussed in the April 2001 

document, 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. And, it is 

likely that different conclusions 

regarding attainment would be drawn if 

the states 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. In addition, 

the modeling would use a more current 

base-year inventory (1999 or 2000) 

rather than the 1996 base-year inventory 

used in the attainment demonstration 

modeling. It is highly likely, if not 

certain, that the outcome would be a 

conclusion that attainment will be 

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 from 

25434 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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 hypothesis that variations 

in out-of-state transport may account for 

the improvement in air quality. The 

commenter only speculates that out-ofstate 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 permanent and 

enforceable 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 has shown decreased 

emissions of VOCs and NOX. Thus, the 

states have demonstrated the 

improvements in the St. Louis area are 

due to permanent enforceable 

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: Section 175A(a) of the 

CAA requires that state maintenance 

plans must be SIP revisions. Section 

110(a)(2)(A) of the CAA requires a SIP 

to contain enforceable emission 

limitations. The maintenance plans for 

each state do not include any 

enforceable emission limitations. For 

example, Missouri NOX controls have 

not yet been promulgated. 

Response 22: This comment refers to 

both the Missouri and Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

In this rulemaking, EPA is approving 

Missouri’s maintenance plan as a SIP 

revision. 

The CAA requires the area to have a 

fully approved SIP and to have met all 

of the applicable requirements of the 

CAA. The area’s SIP satisfies these 

requirements as described in this final 

rule and in EPA’s proposed rulemaking 

published on January 30, 2003 (68 FR 

4847). The measures that the states are 

relying on to maintain the 1-hour ozone 

standard have been approved into the 

SIPs and are state and Federally 

enforceable. This includes Missouri’s 

NOX RACT rule found at 10 CSR 10–

5.510 and the statewide NOX rule found 

at 10 CSR 10–6.350. (See response to 

comment 10 above regarding the NOX

SIP Call.) The states must continue to 

implement these measures as provided 

for in the Federally-approved SIPs. 

The CAA 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 SIPs as a whole 

also applies to the maintenance plan. 

See discussion in the Cincinnati 

redesignation (65 FR 37879, 37881–

37882), and the Sixth Circuit decision in 

Wall v. EPA, 265 F. 3d at 438, 

upholding EPA’s interpretation of the 

requirement. As explained below in the 

response to comment 26, Missouri has 

committed to continue to implement the 

measures included in the approved SIP 

and relied on for maintenance of the 

standard. 

All of the control measures which the 

states relied upon are SIP-approved 

measures. EPA cannot withhold its 

approval of the maintenance plan 

submitted by the states because of 

concerns that the states may, at some 

future time, either submit a SIP revision 

to amend or remove a program, or that 

the states may fail to implement these 

programs in the St. Louis area. The 

Federally-approved SIP requirements 

remain in place and 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 its assertion. 

Response 23: EPA disagrees with the 

commenter’s assertion that the use of 

photochemical modeling to demonstrate 

maintenance is required by the CAA, 

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 its 

assertion that section 182(j) applies to 

maintenance plans, this section does not 

necessarily require modeling. EPA has 

the discretion to use 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 in 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.’’ See also EPA’s discussion 

in its brief in the Wall case. The Ober

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 the plan are adequate to 

provide for the timely attainment and 

maintenance of the NAAQS. The 

regulation at 40 CFR 51.112(b) specify 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25435

what the demonstration required in 40 

CFR 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 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 proposed rule at 68 FR 

4858 states that projected emissions of 

NOX in Illinois 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. Projected 

emissions of VOCs in Illinois 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, 

reduced peak ozone levels will continue 

from 2000 to 2014. Further modeling 

would continue to demonstrate 

attainment. The commenter has not 

provided any data to indicate that these 

reductions in ozone precursors 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 of the 

NAAQS cannot be achieved until 2004. 

EPA’s modeling demonstrates that it is 

not possible to assure that the NAAQS 

would be maintained in 2003. 

Response 24: The Commenter uses the 

same arguments in this comment to 

state that the attainment of the NAAQS 

cannot be maintained as were 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 

purpose of the modeling is to predict 

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 commenter refers to documents 

submitted by EPA and the states, as well 

as to 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 

projected to be November 15, 2004. At 

the time these documents were 

developed, EPA and the states were 

basing their conclusions on the 

attainment demonstration and 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-ofstate transport solely account for the 

improvement in air quality. EPA 

concludes that the plan demonstrates 

maintenance through 2014. 

Comment 25: The SIP 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. 

Response 25: This comment refers to 

both the Missouri and Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

EPA disagrees with the commenter 

that this action must include in the 

record further evidence of resource 

commitments. The analysis has already 

been performed in prior rulemakings 

and need not be reopened here. See the 

redesignation of Cincinnati (65 FR 

37881–37882), Pittsburgh (66 FR 53102), 

and Cleveland (65 FR 77308, 77315) for 

additional examples in which EPA has 

taken this position. See also, 

Southwestern Pennsylvania Growth 

Alliance v. Browner, 144 F.3d 984 (6th 

Cir. 1998). 

In a final rulemaking action published 

on April 9, 1980 (45 FR 24146), EPA 

approve Missouri’s SIP as meeting the 

financial and manpower resource 

commitments of the CAA. 

The Sixth Circuit in Wall v. EPA (265 

F.3d 426, 437) determined regarding 

resource and authority commitments for 

enforcement that ‘‘there is no language 

in the CAA or in the EPA’s regulations 

that specifically requires that a separate 

commitment be made within the 

maintenance plans themselves * * *. 

Morever, this decision is in accord with 

the interpretation given to the CAA 

under the Calcagni Memorandum, 

advising that ‘an EPA action on a 

redesignation request does not mean 

that earlier issues with regard to the SIP 

will be reopened,’ an interpretation that 

has been upheld by this court.’’

EPA also notes that more recent 

resource commitment reviews have 

been performed. For example, in the 

February 17, 2000, proposed rule at 65 

FR 8099 EPA noted that in proposing to 

approve Missouri’s I/M program, the 

‘‘the SIP includes a detailed budget plan 

that describes the source of funds for 

personnel, program administration, 

program enforcement, and purchase of 

equipment. * * * The SIP meets the 

Federal requirements for evidence of 

adequate tools and resources under 40 

CFR.51.372 and 51.354.’’

Comment 26: EPA policy states that a 

state may not relax existing controls 

upon redesignation. However, the states 

are moving LAER, offsets and NOX

RACT to the contingency plan 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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

Missouri has a commitment on page 

29 of the maintenance plan which states 

‘‘The department provides assurance 

that all of the control measures adopted 

by state rules and listed in the ROP plan 

or this document will be enforced to 

ensure maintenance of the one-hour 

ozone NAAQS.’’

The commenter refers to the Calcagni 

memo at page 10 which states that ‘‘the 

25436 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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 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 

on the term ‘‘measures’’ used in section 

175A does not include part D NSR 

permitting programs. In accordance 

with this interpretation, EPA believes 

that lowest achievable emission rate 

(LAER) and offsets, which are 

components of Missouri’s part D NSR 

permitting program, are not required to 

be retained following redesignation of 

the St. Louis area as an attainment area. 

LAER and offsets are specified in part 

D and subpart 2 of the CAA applicable 

to nonattainment areas. Upon 

redesignation to attainment, these 

requirements are no longer applicable. 

Removing the LAER and offsets 

provision in the states’ permitting 

programs is not contrary to the abovementioned policy. Upon redesignation 

to attainment, the LAER requirements 

included in stationary source permits 

and the 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, as a 

minimum, to the Prevention of 

Significant Deterioration (PSD) 

requirements of Part C of Title I of the 

CAA. (In Missouri, the LAER and offset 

requirements remain in effect, unless 

the NSR rules are revised by the state 

and the revision is approved by EPA.) 

Under the PSD requirements, the states 

must ensure that such new facility will 

not cause a significant deterioration of 

air quality to the extent that it causes or 

contributes air pollution in excess of the 

NAAQS (Section 165). 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. Thus, 

maintenance of the NAAQS is an 

inherent feature of the PSD program, 

should Missouri choose not to retain its 

current program for new source 

permitting in the future. 

As for NOX RACT, Missouri has an 

approved NOX RACT rule which will 

remain in effect following redesignation. 

Thus, there will be no relaxation of NOX

RACT in Missouri following 

redesignation. 

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.’’ As stated 

above, for Missouri, all control measures 

established prior to redesignation as a 

result of the LAER and offset 

requirements are being retained 

following redesignation and NOX RACT 

is being retained. 

Comment 27: The contingency 

provision of the maintenance plan fall 

short of those required. All serious area 

requirements of Section 182(c) of the 

CAA must be included in the 

contingency plan and implemented 

promptly in case of a violation. 

Virtually none of these provisions are 

included in the contingency plan and 

thus cannot be approved. 

Response 27: EPA disagrees with the 

commenter’s assertion that all the 

serious area requirements of section 

182(c) are required to be included in the 

contingency plan and implemented in 

case of a violation. 

The requirements for maintenance 

plans and contingency measures are set 

forth in section 175A(d). Section 

175A(d) states:

Each plan revision submitted under this 

section shall contain such contingency 

provisions as the Administrator EPA 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 

was an applicable requirement that was 

contained in the SIP prior to 

redesignation. The plan must contain 

contingency measures that the 

Administrator deems appropriate to 

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, EPA believes that this 

requirement has been met. The statute 

does not require that all serious area 

requirements be included in the 

maintenance plan as contingency 

measures but rather that all measures 

included in the SIP prior to 

redesignation be included in the 

maintenance plan as contingency 

measures. As explained previously, 

certain serious area requirements need 

not be met in the case of St. Louis since 

they are not yet due. Since these 

provisions are not applicable in St. 

Louis, they do not need to be included 

in the maintenance plan as contingency 

measures. 

The commenter’s assertion that ‘‘there 

is no implementation plan applicable to 

this ‘serious area’ ’’ is addressed in other 

responses in this rulemaking. See, e.g., 

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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

EPA disagrees that Missouri’s 

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 

the maintenance plans delineated 

Missouri’s planned actions in the event 

of future 1-hour ozone standard 

violations, increasing ozone levels 

threatening a subsequent violation of 

the ozone standard, and unanticipated 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25437

increases in ozone precursor emissions 

threatening a subsequent violation of 

the ozone standard. Missouri 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. 

Missouri has also committed to 

continue to implement all control 

measures included in the SIP prior to 

redesignation consistent with section 

175A(d) of the CAA. 

The action trigger levels and planned 

corrective actions in the 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 threeyear 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 

1-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 1-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 

measures, from those listed below, to 

address the cause of the ozone standard 

violation. 

The contingency plan for Missouri 

lists a number of possible contingency 

measures. The plan calls for the 

appropriate contingency measures to be 

adopted and implemented within 18 

months of a Level I or Level II trigger 

being exceeded. The list of possible 

contingency measures in Missouri’s 

contingency plan include the following: 

Point Source Measures

• NOX SIP Call Phase II (non-utility) 

• Apply RACT to smaller existing 

sources 

• Tighten RACT for existing sources 

covered by EPA Control Techniques 

Guidelines 

• Expanded geographic coverage of 

current point source measures 

• MACT for industrial sources 

• New source offsets and Lowest 

Achievable Emission Rates 

• Other measures to be identified 

Mobile Source Measures 

• Transportation Control Measures, 

including, but not limited to, area-wide 

rideshare programs, telecommuting, 

transit improvements, and traffic flow 

improvements. 

• High Enhanced I/M (OBDII) 

• California Engine Standards 

• Other measures to be identified 

Area Source Measures 

• California Architectural/Industrial 

Maintenance (AIM) 

• California Commercial and 

Consumer Products 

• Broader geographic applicability of 

existing measures 

• California Off-road Engine 

Standards 

• Other measures to be identified 

As stated in the September 4, 1992, 

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, EPA has long interpreted section 

175A not to require that contingency 

measures have already been adopted. 

On July 21, 1983 (48 FR 33265), EPA 

approved Missouri rule 10 CSR 10–

1.010, General Organization which set 

forth the organization, powers and 

duties of the Missouri Air Conservation 

Commission. The rule contained a new 

section (3) which described procedures 

to be followed by the Air Pollution 

Control Program for providing public 

notice and public participation in the 

rulemaking process. 

In order to comply with 10 CSR 10–

1.010, and the underlying statute by 

which Missouri is authorized by the 

legislature to adopt regulations, 

Missouri requires time to evaluate 

potential controls and provide public 

notice and public participation in the 

rulemaking process when adopting 

contingency measures. In addition, 

selected controls would require a period 

of time for sources to install the controls 

(e.g., RACT on smaller sources) or for an 

implementing agency to fund and 

establish the new program (e.g., 

transportation control measures). The 

commenter provided no rationale for its 

assertion that an outside date of 18 

months for adoption of measures is 

unreasonable. The statute affords EPA 

discretion to determine whether the 

timeframe for implementation of 

contingency measures is reasonable. 

EPA finds that 18 months as described 

in the maintenance plan to adopt and 

implement contingency measures is a 

reasonable time period for Missouri to 

meet its regulatory obligations while 

meeting the requirement under section 

175A to promptly correct any violation 

of the standard. In addition, this 18-

month period to adopt and implement 

contingency measures is consistent with 

other redesignations such as Pittsburgh 

(66 FR 53102) in which a 12- to 24-

month time period was specified to 

adopt and implement contingency 

measures. See also the Louisville 

redesignation (66 FR 53665, October 23, 

2001) approving an 18-month schedule 

for implementation of contingency 

measures, and Northern Kentucky 

(Cincinnati-Hamilton) (65 FR 37879, 

June 19, 2000) and (67 FR 49600, July 

31, 2002). 

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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

As indicated in the response to 

comment 28 above, the maintenance 

plan refers 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 reductions are 

necessary to correct a violation. For 

example, if Missouri would select 

tightening RACT for existing sources as 

a contingency measure, the amount of 

reductions by implementing this 

measure is dependent upon the number 

of sources subject to RACT rules in the 

25438 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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 a reduction 

will be achieved by implementing this 

measure. See the discussion in the 

Cuyohoga and Jefferson Counties, Ohio, 

redesignation for particulate matter (65 

FR 77308, December 11, 2000). 

The approach taken in the 

maintenance plan is to conduct a 

thorough analysis to determine the 

magnitude of the reductions needed to 

correct the violation, the types of 

sources from which reductions must be 

made (e.g., point, area, or mobile 

sources), and the mechanisms for 

achieving the reductions. The list of 

contingency measures includes a 

reasonable mix of measures from which 

to select the measures most suited to 

address a future violation (a level II 

trigger), if one occurs, or to alleviate an 

unanticipated decline in air quality (a 

level I trigger). EPA finds that this is a 

reasonable approach which will assure 

prompt correction of the violation. In 

addition, consistent with the Calcagni 

memo, the maintenance plan includes a 

Level I trigger in which Missouri will 

evaluate and determine if adverse 

emissions trends are likely to continue. 

If so, Missouri will determine what and 

where emission controls may be 

required to avoid a violation of the 1-

hour ozone NAAQS. 

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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area.

EPA disagrees with the commenter’s 

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 Missouri’s 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 a decline 

in air quality (a level I trigger). EPA has 

concluded that the maintenance plan 

satisfies statutory requirements and EPA 

guidance regarding adoption and 

implementation of contingency 

measures consistent with EPA guidance 

and the CAA. The commenter 

acknowledges this 18-month time 

period to adopt and implement 

contingency measures in the comments. 

Comment 31: Each maintenance plan 

contains inadequate provisions to 

respond to anticipated violations of the 

NAAQS. Anticipated violations are 

based upon inventories exceeding the 

2000 inventory or two exceedances at 

any monitoring site. 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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois 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 average, 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 is 

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 1-hour ozone 

NAAQS. The emission controls will be 

selected from a list of measures 

included in the contingency plan. A 

study shall be completed within nine 

months of the determination of the 

action trigger exceedance, and 

Missouri’s maintenance plan contains a 

commitment to adopt and implement 

the necessary contingency measures 

within 18 months of a Level I trigger 

consistent with the discretion afforded 

EPA by the statute. The contingency 

plan meets the requirement of section 

175A(d) and the applicable guidance in 

the Calcagni memo. 

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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

The commenter is incorrect in its 

statement that the maintenance plan 

does not contain a commitment to 

implement measures in the SIP. Such a 

commitment was included in Missouri’s 

maintenance plan. Section 5.4 of 

Missouri’s maintenance plan states the 

following: ‘‘The department provides 

assurance that all of the control 

measures adopted by state rules and 

listed in the ROP plan or this document 

will be enforced to ensure maintenance 

of the one-hour ozone NAAQS. Any 

revisions to the control measures 

included as part of the maintenance 

plan will be submitted as a SIP revision 

to EPA for approval.’’ As described in 

response to comment 28, Missouri is 

retaining all of the 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 plan is 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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

The commenter’s characterization of 

the ‘‘basic premise’’ of the maintenance 

plan is incorrect. The plan does not 

simplistically assume that there will be 

no increase in emissions. The plan 

carefully projects the growth in 

emissions which will occur in various 

source sectors, and the reductions 

which will occur based on emission 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25439

control programs which are in place, in 

order to determine the net change in 

emissions from 2000–2014. 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 sector-based 

growth indicators (positive and 

negative), i.e., sector-specific economic 

factors, because the states have no way 

of predicting specific changes which 

take place within the emissions 

inventory.

Specific projects, such as those cited 

by the commenter, are addressed 

through mechanisms other than 

maintenance plans. Missouri 

implements Prevention of Significant 

Deterioration and NSR permitting 

regulations. These regulations address 

the air quality impacts of new sources 

and modifications of existing sources 

both inside and outside the boundaries 

of the nonattainment area. 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. The anticipated plant 

referenced by the commenter is a 

potential source in Missouri and the 

state is currently in the process of 

reviewing construction permit 

applications under state permitting 

requirements. This plant has not 

received the preconstruction permit 

necessary for construction and 

operation. Before any such project can 

be permitted, a permit applicant would 

be required, among other requirements, 

to identify specific emission increases 

and decreases associated with a 

particular project and demonstrate that 

the project would not have a significant 

adverse impact on an ambient air 

quality standard. Missouri regulation 10 

CSR 10–6.060, Missouri’s construction 

permitting rule, is part of the Federallyapproved SIP. 

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. 

Comment 34: The emission estimates 

are unreliable. A recent study of flares 

throws doubt into the St. Louis emission 

inventory. EPA must consider the 

significant underestimation of flare 

emissions in the emission inventory. 

Response 34: This comment refers to 

both the Missouri and Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

EPA believes that the states used the 

appropriate emission estimates in 

developing the emission inventory. 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 Management Study 

referenced by the commenter is a draft 

document and specifically states on the 

first page ‘‘Do not cite or quote.’’ This 

document is currently undergoing 

scientific review. Therefore, no 

conclusions or comparisons should be 

drawn from this study until it becomes 

final. This study specifically addresses 

refinery flare emissions. However, no 

refineries are located in the Missouri 

side of the non-attainment area. Further 

review of the document has shown that 

methane was included in the emission 

factor that was used to 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 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 inventory for the Missouri side of 

the St. Louis 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 

total inventory.

Comment 35: Missouri states that it 

operates an enhanced I/M program but 

this has never been authorized by the 

Missouri legislature. 

Response 35: The Missouri 

Legislature authorized MDNR to 

develop an I/M program, including a 

centralized test only program, as 

necessary to provide for attainment and 

maintenance of the national ambient air 

quality standard. That authority is 

codified in the Missouri Revised 

Statutes, Sections 643.300—643.355. 

Missouri’s I/M program has 

incorporated most of the features of an 

enhanced program, described in our 

2000 rulemakings (65 FR 8097, February 

17, 2000 and 65 FR 31480, May 18, 

2000). 

The I/M program operated in the St. 

Louis, Missouri, area is known as the 

Gateway Clean Air Program. The 

Gateway Clean Air Program utilizes 

transient emission testing, the IM240 

test, at centralized testing stations. 

These features are commonly thought of 

as being associated with an ‘‘enhanced’’

I/M program, as compared with 

decentralized, idle test programs. The 

IM240 test measures the vehicle under 

various operating conditions, measures 

NOX, and makes these measurements in 

terms of grams per mile, all of which the 

idle test cannot. Additionally, the 

Gateway Clean Air Program includes gas 

cap testing, which addresses 

evaporative hydrocarbon emissions that 

a tailpipe test cannot. Thus, Missouri 

often refers to the Gateway Clean Air 

Program as an Enhanced I/M program. 

As seen in Missouri’s December 2002 

program evaluation, this program is 

achieving emission reductions beyond 

those which would be achieved through 

a decentralized, idle test program. The 

descriptive terminology is irrelevant in 

any event. Missouri has assumed 

emissions reductions for the program it 

has in place (whatever label is used to 

describe the program), and the 

commenter does not provide any 

information indicating that the assumed 

reductions are not appropriate. 

Comment 36: The emission inventory 

submitted by Missouri is not an 

inventory of emissions during the 

attainment period but is projected 

emissions drawn from Missouri’s old 

attainment demonstration. EPA cannot 

conclude that keeping emissions no 

higher than these projected inventory 

amounts will ensure maintenance of the 

NAAQS. 

Response 36: Missouri did not use the 

same inventories in the attainment 

demonstration as was used in the 

maintenance plan. Missouri used a 

1995/1996 inventory for the attainment 

demonstration and a 1999 inventory for 

the maintenance plan. 

In the maintenance plan, Missouri 

selected 2000 as ‘‘the attainment year’’

for purposes of demonstrating 

attainment of the 1-hour ozone NAAQS. 

Both point and area source inventories 

were grown from 1999 emission 

inventories. To demonstrate 

maintenance of the ozone standard 

through a ten-year maintenance period, 

Missouri projected VOC and NOX

emissions for the St. Louis area to 2007 

25440 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

and 2014 and compared these projected 

emissions to the 2000 attainment year 

emissions. The 2007 emission estimates 

were generated to test a midpoint in the 

ten-year maintenance period. 

In the April 17, 2000, proposed rule 

at 65 FR 20411 for the attainment 

demonstration, EPA noted that ‘‘The 

state submittals describe in detail the 

procedures used to develop, and then 

project, the base year emission 

inventories to the 1995/1996 period and 

to project emission to account for 

growth and control through 2003.’’ The 

maintenance plan does not rely on these 

inventories. 

As stated in response to comment 23 

above, keeping emissions no higher than 

those projected in the inventory will 

ensure maintenance of the NAAQS. 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.’’

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 hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

EPA disagrees that modeling is 

required to demonstrate maintenance of 

the NAAQS. EPA reiterates its response 

to other comments including comments 

23 and 36 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.’’

Missouri’s 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 requirements of the CAA, is 

consistent with EPA guidance, and 

demonstrates maintenance of the 

NAAQS. 

Comment 38: The maintenance plan 

must include RACM and RACT, for the 

reasons stated in comment 13 above. 

Response 38: 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 39: 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 39: This comment refers to 

both the Missouri and Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

As stated in the response to comments 

6 through 11 above, the SIPs meet 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 SIP is 

fully approved for all applicable 

regulations. SIP revisions addressing the 

serious area requirements were required 

to be submitted by January 30, 2004. 

Section 182(c) paragraphs 7 and 8 

refer to special rules for modifications of 

major sources while paragraph 10 refers 

to 1.2 to 1 offset requirements for 

serious nonattainment areas. Missouri 

rule 10 CSR 10–6.020 defines the 

Missouri portion of the St. Louis area as 

a moderate ozone nonattainment area. A 

SIP revision would be required to 

redefine the Missouri portion of the St. 

Louis area to a serious nonattainment 

area. 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 40: One 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 40: As stated above, the 

contingency plan portion of each state’s 

maintenance plans delineate the states’

planned actions in the event of future 1-

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. In the event of a level I trigger, 

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 

1-hour ozone NAAQS. A study shall be 

completed within nine months of the 

determination of the action trigger 

exceedance. In the event of a Level II 

trigger, Illinois and Missouri will work 

together to conduct a thorough analysis 

to determine appropriate contingency 

measures. EPA expects that through this 

process, the states will identify the 

appropriate measures to implement to 

maintain the NAAQS. Redesignated 

areas are not subject to an obligation to 

meet additional nonattainment area 

requirements such as attainment 

demonstrations since they are no longer 

designated nonattainment areas. 

Instead, they must implement the 

contingency measures, which is what 

Congress provided for in the CAA. 

H. Comments Related to Redesignation 

of a Portion of the St. Louis Area 

Comment 41: 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 41: 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 

Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 25441

redesignation requests in separate 

rulemakings. 

I. Comments Related to Interstate 

Transport 

Comment 42: 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’ SIPs 

and through federal control programs 

such as the NOX SIP call. 

Response 42: This comment refers to 

both the Missouri and Illinois portions 

of the St. Louis area. EPA is hereby 

providing a response regarding the 

Missouri portion of the St. Louis area. 

See the rulemaking in today’s Federal 

Register regarding redesignation of the 

Illinois portion of the St. Louis area for 

EPA’s response to this comment as it 

pertains to the Illinois portion of the St. 

Louis area. 

As stated above, EPA believes that 

submissions under the NOX SIP call 

should not be considered applicable 

requirements for purposes of evaluating 

a redesignation request. The NOX SIP 

call requirements are not linked with a 

particular nonattainment area’s 

designation and classification. EPA 

believes that the requirements linked 

with a particular nonattainment area’s 

designation and 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 (60 FR 62748, December 7, 

1995). See also the discussion on this 

issue in the Cincinnati redesignation (65 

FR 37890, June 19, 2000). 

Missouri has adopted and EPA has 

approved into the SIP a state-wide NOX

rule (10 CSR 10–6.350 Emissions 

Limitations and Emissions Trading of 

Oxides of Nitrogen (65 FR 82285, 

December 28, 2000). This rule will 

remain as a SIP requirement following 

redesignation of the area to attainment. 

EPA is also determining in a separate 

rulemaking (proposed at 67 FR 8396) 

whether or not the eastern part of 

Missouri is to be subject to the NOX SIP 

call in response to a court remand. 

Comment 43: 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 43: The SIPSs will remain 

Federally enforceable following 

redesignation of the St. Louis area to 

attainment. In addition, all of the NOX

emission controls measures which are 

currently in place will remain as SIP 

requirements following redesignation to 

attainment. These emission control 

measures include NOX RACT, and the 

state-wide NOX rule in Missouri. Any 

revisions to SIP requirements would 

have to meet the applicable provisions 

of the CAA and be approved by EPA. 

Comment 44: The redesignation 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. 

Response 44: The St. Louis 

redesignation to attainment will not 

delay EPA’s decision as to whether or 

not the eastern portion of Missouri is to 

be included in the NOX SIP call. EPA 

will closely review any proposed 

changes to the NOX emission control 

programs which are currently in place 

in the St. Louis area to ensure that the 

proposed changes will not adversely 

affect the maintenance of the NAAQS. 

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 

(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 

CAA. 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 CAA. 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 CAA. Thus, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. 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 

25442 Federal Register / Vol. 68, No. 91 / Monday, May 12, 2003 / Rules and Regulations 

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 CAA, 

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, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Ozone, Wilderness areas.

Dated: April 29, 2003. 

William W. Rice, 

Acting Regional Administrator, Region 7.

■ Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart AA—Missouri

■ 2. In § 52.1320(e) the table is amended 

by adding an entry at the end of the table 

to read as follows:

§ 52.1320 Identification of Plan.

* * * * *

(e) * * *

EPA APPROVED MISSOURI NONREGULATORY SIP PROVISIONS

Name of nonregulatory SIP provision Applicable geographic or nonattainment 

area 

State submittal date EPA approval date Explanation 

* * * * * * * 

Maintenance Plan for the Missouri Portion of the St. 

Louis Ozone Nonattainment Area including 2014 OnRoad Motor Vehicle Emission Budgets.

St. Louis .................................................... 12/06/02 5/12/03 

PART 81—[AMENDED]

■ 1. The authority citation for part 81 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

■ 2. In § 81.326 the table entitled 

‘‘Missouri—Ozone (1–Hour Standard)’’

is amended by revising the entry for St. 

Louis Area to read as follows:

§ 81.326 Missouri.

* * * * *

MISSOURI—OZONE

[1-Hour Standard] 

Designated area 

Designation Classification 

Date 1 Type Date 1 Type 

* * * * * * * 

St. Louis Area: 

Franklin County ........................................... 5/12/03 Attainment.

Jefferson County ......................................... 5/12/03 Attainment.

St. Charles County ...................................... 5/12/03 Attainment.

St. Louis ....................................................... 5/12/03 Attainment.

St. Louis County .......................................... 5/12/03 Attainment.

1This date is October 18, 2000, unless otherwise noted. 

* * * * *

[FR Doc. 03–11187 Filed 5–9–03; 8:45 am] 

BILLING CODE 6560–50–P

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.

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.