Federal Register, Volume 66 Issue 123 (Tuesday, June 26, 2001)

[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Rules and Regulations]
[Pages 33996-34011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15842]

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Part II

Environmental Protection Agency

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40 CFR Parts 52 and 81

Approval and Promulgation of Implementation Plans; States of Illinois
and Missouri; 1-Hour Ozone Attainment Demonstrations, Motor Vehicle
Emissions Budgets, Reasonably Available Control Measures, Contingency
Measures, Attainment Date Extension, and Withdrawal of Nonattainment
Determination and Reclassification; Final Rule

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules
and Regulations

[[Page 33996]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[Tracking No. MO-0132-1132, IL 196-3; FRL-7001-7]

Approval and Promulgation of Implementation Plans; States of
Illinois and Missouri; 1-Hour Ozone Attainment Demonstrations, Motor
Vehicle Emissions Budgets, Reasonably Available Control Measures,
Contingency Measures, Attainment Date Extension, and Withdrawal of
Nonattainment Determination and Reclassification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Clean Air Act (Act), EPA is approving the
Illinois and Missouri 1-hour ozone attainment demonstration State
Implementation Plans (SIP) for the St. Louis moderate ozone
nonattainment area. In conjunction with its approval of the attainment
demonstration, EPA is: extending the ozone attainment date for the St.
Louis ozone nonattainment area to November 15, 2004, while retaining
the area's current classification as a moderate ozone nonattainment
area; withdrawing EPA's March 19, 2001, rulemaking determining
nonattainment and reclassification of the St. Louis ozone nonattainment
area; finding that the St. Louis ozone nonattainment area meets the
reasonably available control measures (RACM) requirements of the Act;
finding that the contingency measures identified by the states of
Illinois and Missouri are adequate; approving the Illinois and Missouri
motor vehicle emissions budgets (MVEB); and approving an exemption from
the oxides of nitrogen ( NOX) emission control requirements
for reasonably available control technology (RACT) and disapproving an
exemption from the NOX new source review (NSR) and
NOX conformity requirements for the Illinois portion of the
St. Louis ozone nonattainment area.

DATES: This rule is effective immediately June 26, 2001.

ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
addresses: U.S. Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604;
or U.S. Environmental Protection Agency, Region 7, Air, RCRA, and
Toxics Division, 901 North 5th Street, Kansas City, Kansas 66101.
Please make arrangements prior to visiting the Regional Offices.

FOR FURTHER INFORMATION CONTACT: Edward Doty, EPA Region 5, (312) 886-
6057; or Lynn M. Slugantz, EPA Region 7, (913) 551-7883.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Background

A notice of proposed rulemaking was published on this action on
April 17, 2000 (65 FR 20404), and notices of supplemental proposed
rulemakings were published on April 3, 2001 (66 FR 17647), and April
19, 2001 (66 FR 20122). In a related Federal Register in March 1999 (64
FR 13384), EPA has also published a notice regarding the St. Louis
area's potential eligibility for an attainment date extension. EPA
received comments on these proposals. EPA has also received comments on
a related notice: the ``Extension of Attainment Dates for Downwind
Transport Areas,'' 64 FR 12221 (March 25, 1999). In this final rule,
EPA responds to adverse comments on these proposed rulemakings and
notices. For details on the SIP submittals and the EPA analysis of the
submittals, refer to the notices of proposed rules referenced above in
this paragraph, and the technical support document for the April 17,
2000, proposal.
EPA is making this final rulemaking effective immediately. Section
553(d) of the Administrative Procedure Act generally provides that
rules may not take effect earlier than 30 days after they are published
in the Federal Register. However, if an Agency identifies a good cause,
section 553(d)(3) allows a rule to take effect earlier, provided that
the Agency publishes its reasoning in the final rule. EPA is making
this action effective immediately because the effective date of the
nonattainment determination and reclassification (which is being
withdrawn as a result of this final rule) is imminent. In addition, EPA
finds good cause for making this action effective immediately because,
in part, it relieves a restriction that would otherwise go into effect.

Information

This section provides additional information by addressing the
following questions:

I. What Illinois and Missouri SIP revisions are the topic of
this action?
II. What previous actions have been taken regarding the St.
Louis area attainment demonstrations and attainment dates?
III. What MVEBs are we approving?
IV. How did Illinois fulfill the requirements for an exemption
from NOX emission control requirements for RACT for the
Illinois portion of the St. Louis ozone nonattainment area?
V. What Contingency Measures are we approving for the St. Louis
area?
VI. Implementation of RACM.
VII. What are the requirements for full approval of the
attainment demonstration?
VIII. Did Illinois and Missouri fulfill these requirements for
full approval?
IX. What are the requirements for an attainment date extension?
X. How did Illinois and Missouri satisfy the criteria for an
extension?
XI. What action is EPA taking regarding the Determination of
Nonattainment as of November 15, 1996, and Reclassification
published on March 19, 2001?
XII. What comments were received on the proposals covered by
this final action, and on the March 25, 1999, publication of the
attainment date extension policy, and how has EPA responded to
those?
XIII. What action is EPA taking regarding the state submittals
addressed by this final rule?

I. What Illinois and Missouri SIP Revisions Are the Topic of This
Action?

The St. Louis ozone nonattainment area encompasses the interstate
area of Madison, Monroe, and St. Clair Counties in Illinois; and
Franklin, Jefferson, St. Charles, St. Louis Counties, and the City of
St. Louis in Missouri. The states of Illinois and Missouri made several
submittals to us relating to the ozone attainment demonstration and
their request for an extension of the attainment date for the St. Louis
ozone nonattainment area. The submittals listed below relate directly
to EPA's final action described in this document.
1. In November 1994, the Illinois Environmental Protection Agency
(IEPA) submitted a 15% Rate-Of-Progress Plan (ROPP) for the control of
volatile organic compound (VOC) emissions in the Illinois portion of
the St. Louis area. This 15% ROPP, as supplemented on January 31, 1995,
was approved by EPA in a final rulemaking on July 14, 1997 (62 FR
37494);
2. In October 1997, the Missouri Department of Natural Resources
(MDNR) submitted to EPA the contingency measures rules for the Missouri
portion of the St. Louis ozone nonattainment area. This contingency
measures SIP, as supplemented on April 5, 2001, is being approved as a
part of this final rulemaking;
3. In a submission dated November 10, 1999, MDNR submitted an ozone
attainment demonstration along with several additional SIP revisions.
The attainment demonstration, as supplemented on November 2, 2000, is

[[Page 33997]]

being approved today. Those additional SIP revisions submitted on
November 10, 1999, include:
i. Regulations and associated documentation for the control of VOC
emissions from various industries and existing major sources. These VOC
RACT rules were approved by EPA in a final rulemaking on May 18, 2000
(65 FR 31489);
ii. Regulations and associated documentation for the control of
NOX emissions intended to meet NOX RACT
requirements of the Act in the Missouri portion of the St. Louis
nonattainment area. This NOX RACT rule was approved by EPA
in a final rulemaking on May 18, 2000 (65 FR 31482);
iii. A 15% ROPP for the control of VOC emissions in the Missouri
portion of the St. Louis nonattainment area. EPA approved Missouri's
15% ROPP on May 18, 2000 (65 FR 31485); and
iv. An improved vehicle inspection and maintenance (I/M) program.
EPA approved Missouri's vehicle I/M program on May 18, 2000 (65 FR
31480).
4. On November 15, 1999, IEPA submitted a letter outlining the
ozone attainment strategy for the St. Louis area and the state's
emission control commitments. As explained in the March 18, 1999,
notice, Illinois had previously submitted a number of control measures
for its portion of the St. Louis area (64 FR 13384, 13388-13389).
5. On February 10, 2000, IEPA submitted its adopted ozone
attainment demonstration SIP. This SIP revision includes a petition for
an exemption from NOX RACT, NOX NSR, and certain
conformity NOX requirements for the Illinois portion of the
St. Louis ozone nonattainment area. This SIP revision also reflects the
emission modifications and attainment demonstration revisions resulting
from the emission controls contained in a January 19, 2000, submittal
from MDNR. EPA is taking final action on this SIP revision in today's
rulemaking;
6. On November 2, 2000, MDNR submitted an adopted attainment
demonstration revision. EPA is taking final action on this SIP revision
in today's rulemaking;
7. On November 15, 2000, MDNR submitted adopted regulations for
NOX emission controls for electricity generating units (EGU)
within the state. EPA approved those regulations in a final rulemaking
on December 28, 2000 (65 FR 82285);
8. On February 28, 2001, and April 13, 2001, respectively, Missouri
and Illinois submitted comparisons of estimated 2004 VOC and
NOX emissions for the St. Louis area with their previously
submitted 2003 emission estimates for all source sectors. The states
also accounted for expected changes in the 2003 and 2004 EGU
NOX emissions inventories for the states of Illinois,
Indiana, Kentucky, Ohio, and Tennessee. In addition, Missouri's 2004
EGU NOX emissions were analyzed with respect to both the
current statewide NOX control regulations and the
anticipated impacts of compliance with EPA's NOX SIP call.
The current Missouri NOX rules and anticipated potential
revisions to the Missouri NOX rules are explained in our
April 3, 2001, supplemental proposed rulemaking (66 FR 17653). The
February 28, 2001, and April 13, 2001, attainment demonstration SIPs
are being approved as a part of today's rulemaking;
9. On February 28, 2001, and April 13, 2001, respectively, Missouri
and Illinois submitted emissions inventory and transportation
conformity budgets in final form, revised to reflect an attainment date
of 2004. EPA is approving these emission budgets in today's rulemaking;
10. On March 7, 2001, and April 30, 2001, respectively, Missouri
and Illinois committed to revise and resubmit their MVEBs within two
years of the release of MOBILE6. EPA is approving these supplemental
commitments as a part of the states' SIPs in today's rulemaking; and
11. On May 8, 2001, IEPA submitted a final NOX rule for
EGUs needed to support the ozone attainment demonstration for the St.
Louis area. On June 8, 2001, EPA signed a final rule approving the
Illinois NOX EGU regulations.

II. What Previous Actions Have Been Taken Regarding the St. Louis
Area Attainment Demonstrations and Attainment Dates?

On March 18, 1999 (64 FR 13384), EPA proposed in the Federal
Register to find that the St. Louis ozone nonattainment area had not
attained the 1-hour ozone national ambient air quality standard (NAAQS)
by the attainment date (November 15, 1996) for moderate nonattainment
areas. Also in that notice, EPA issued a notice of the St. Louis area's
potential eligibility for an attainment date extension, pursuant to
EPA's, ``Guidance on Extension of Air Quality Attainment Dates for
Downwind Transport Areas'' (hereinafter referred to as the attainment
date extension policy) (Richard D. Wilson, Acting Assistant
Administrator for Air and Radiation) issued on July 16, 1998. In the
March 18, 1999, Federal Register, EPA proposed to finalize the
reclassification of the St. Louis nonattainment area only after the
area had an opportunity to qualify for an attainment date extension
under the attainment date extension policy.
On April 17, 2000 (65 FR 20404), EPA proposed to approve, or in the
alternative, disapprove, Illinois' and Missouri's 1-hour ozone
attainment demonstration SIPs for the St. Louis ozone nonattainment
area. In that notice, we stated that we would disapprove the attainment
demonstration if the states did not submit specific revisions to the
attainment demonstration and other associated documents. These
revisions and documents were necessary to provide or support fully
approvable ozone attainment demonstrations SIPs and to meet the
criteria of EPA's attainment date extension policy. Also, in that
notice we proposed to approve an extension of the ozone attainment date
for the St. Louis area to November 15, 2003, while retaining the area's
classification as a moderate ozone nonattainment area, if EPA took
final action to approve the states' ozone attainment demonstrations.
EPA also proposed other related actions in the April 17, 2000,
proposal.
Subsequent to the April 17, 2000, proposed rulemaking, relevant
court decisions affecting the proposed extended attainment date for the
St. Louis area were issued. First, on August 30, 2000, the United
States Court of Appeals for the District of Columbia Circuit issued an
Order (Michigan v. EPA, No. 98-1497, August 30, 2000), extending the
source compliance date for the state rules resulting from the
NOX SIP call from May 1, 2003, to May 31, 2004. The effect
of this ruling is that the regional NOX emission reductions
relied on in the attainment demonstration cannot be assumed to occur
before the Court-ordered compliance date. As such, EPA requested that
Illinois and Missouri consider the impacts of this ruling on the St.
Louis area ozone attainment demonstrations.
Second, on January 29, 2001, the United States District Court for
the District of Columbia ordered EPA to make a determination, no later
than March 12, 2001, to be published not later than March 20, 2001, as
to whether the St. Louis area attained the requisite 1-hour ozone
standard. (Sierra Club v. Browner, 130 F. Supp. 2d 78 (D.D.C. 2001)).
In compliance with the Court's Order, on March 19, 2001 (66 FR 15578),
we published in the Federal Register our determination that the St.
Louis ozone nonattainment area did not attain the 1-hour ozone standard
by November 15, 1996. By operation of

[[Page 33998]]

law, that determination would result in the St. Louis ozone
nonattainment area being reclassified from a moderate to a serious
nonattainment area on the effective date of that rule, which was
originally May 18, 2001, but which was subsequently modified to June
29, 2001, 66 FR 27036 (May 16, 2001). In the March 19, 2001,
rulemaking, EPA also set forth its intent to withdraw the final
determination and reclassification, if EPA granted the states an
attainment date extension before the effective date of the
determination and reclassification rule.
The Sierra Club and Missouri Coalition for the Environment filed a
Petition for a Writ of Prohibition in the United States Court of
Appeals for the D.C. Circuit (No. 01-1141) to prevent EPA from granting
an attainment date extension to the St. Louis area and from withdrawing
EPA's determination of nonattainment. EPA filed an opposition to this
petition, and the Court, in an Order filed June 8, 2001, denied the
petition. In addition, three separate appeals by the Sierra Club and
Missouri Coalition for the Environment, the state of Illinois, and the
state of Missouri, of the Court's Order issued January 29, 2001, as
modified on February 15, 2001 (130 F. Supp. 2d 78 (D.D.C. 2001) have
been consolidated in the U.S. Court of Appeals for the D.C. Circuit
Sierra Club v. Whitman (D.C. Cir. No. 01-5123, 01-5061, 01-5063).
Finally, Illinois and Missouri petitioned for review of EPA's final
agency action published March 19, 2001 (66 FR 15578). Missouri filed
its petition in the 8th Circuit (No. 01-2162) and Illinois filed in the
7th Circuit Illinois v. EPA, No. 01-2257. EPA has moved to transfer the
Illinois petition to the 8th Circuit. EPA and the states have also
filed a joint motion to stay proceedings in the 8th Circuit pending
EPA's rulemaking with respect to withdrawal of the nonattainment
determination and reclassification.
On April 3, 2001 (66 FR 17647), EPA published in the Federal
Register a supplement to our April 17, 2000, proposed rule. In that
supplemental notice, EPA addressed supplemental state submittals
relating to corrections to the 1996 emissions inventory and the
Missouri transportation conformity budget called for in the April 17,
2000, proposed rule, and additional submissions by the states relevant
to the modeled attainment demonstration and MVEBs. Also, in our April
3, 2001, supplemental notice, we proposed to extend the attainment date
for the St. Louis area to November 15, 2004, and to withdraw the March
19, 2001, Determination of Nonattainment and Reclassification if EPA
approved an attainment date extension prior to the effective date of
the Determination of Nonattainment. At the time the initial attainment
demonstrations were prepared and submitted for the St. Louis area, the
states were using an attainment date of 2003 based on the October 1998
NOX SIP call (62 FR 60318), consistent with the attainment
date extension policy. As noted above, a subsequent August 30, 2000,
decision in Michigan v. EPA, delayed the NOX SIP call source
compliance date to May 31, 2004. Because the attainment demonstration
for the St. Louis area relies on the upwind, NOX emission
reductions resulting from the NOX SIP call, the attainment
deadline cannot be earlier than the date by which upwind states must
have controls in place to address NOX emissions. (See, 66 FR
17647, 17649, April 3, 2001.)
On April 19, 2001 (66 FR 20122), EPA published a supplemental
notice in which we proposed to find that Missouri and Illinois have met
the RACM requirements of the Act and that the contingency measures
identified by the states are adequate to meet the requirements of the
Act. Finally, on May 16, 2001, EPA published a final rule delaying the
effective date of the nonattainment determination and reclassification
(66 FR 27036).
EPA has received comments on portions of our March 18, 1999; April
17, 2000; April 3, 2001; and April 19, 2001, proposed rules. The Sierra
Club and the Missouri Coalition for the Environment jointly submitted
adverse comments on portions of the March 18, 1999; April 17, 2000; and
April 3, 2001, proposed rules. EPA received no adverse comments on the
April 19, 2001, proposal. EPA also received no adverse comments on its
April 3, 2001, proposed withdrawal of the March 19 rulemaking if it
granted an extension of the attainment date. All other comments on the
proposals supported EPA's proposed actions. In this final rule, EPA
responds to the adverse comments received in response to the relevant
proposals. EPA also responds to the relevant adverse comments on its
March 25, 1999, notice of interpretation regarding the attainment date
extension policy (64 FR 12221).

III. What MVEBs Are We Approving?

Illinois and Missouri have submitted MVEBs for the 2004 attainment
year for their respective portions of the St. Louis ozone nonattainment
area. The emissions budgets are shown in Table 1.

Table 1.--St. Louis Area 2004 Attainment MVEB
------------------------------------------------------------------------
2004
State Pollutant tons/
day
------------------------------------------------------------------------
Missouri....................... VOC............................ 43.74
NOX............................ 91.90
Illinois....................... VOC............................ 26.62
NOX............................ 35.52
------------------------------------------------------------------------

EPA did not receive any adverse comments on the proposal to approve
the emissions budgets. EPA is approving these MVEBs because they are
consistent with the control measures in the SIPs, and the SIPs as a
whole demonstrate attainment of the 1-hour ozone standard. The
rationale for our approval is detailed in the April 3, 2001,
supplemental proposal (66 FR 17647, 17652) and in the April 17, 2000,
proposal (65 FR 20404, 20416). Missouri has committed to revise its
2004 MVEBs within two years after the release of MOBILE6. Missouri has
committed that if it does not revise its budgets within the first year
after release of MOBILE6, no conformity determinations will be made
during the second year unless adequate MOBILE6 derived budgets are in
place. Illinois has committed to revise its 2004 MVEBs within two years
of the release of MOBILE6. No conformity determinations may be made in
either Missouri or Illinois during the second year unless adequate
MOBILE6 derived budgets are in place.
All states whose attainment demonstrations include the effects of
the Tier 2/sulfur program must commit to revise and resubmit their
MVEBs after EPA releases MOBILE6. If a state fails to meet its
commitment to submit revised budgets using MOBILE6, EPA could make a
finding of failure to implement the SIP, which would start a sanctions
clock under section 179 of the Act.
The final approval action we are taking today will be effective for
conformity purposes only until revised MVEBs are submitted and we have
found them adequate. In other words, the budgets we are approving today
will apply for conformity purposes only until there are new, adequate
budgets consistent with the states' commitments to revise the budgets.
The new budgets will apply for conformity purposes after we find them
adequate.
We are limiting the duration of our approval in this manner because
we are only approving the attainment demonstrations and their budgets
because the states have committed to revise them. Therefore, once we
have confirmed that the revised budgets are adequate, they will be more
appropriate

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than the budgets we are approving for conformity purposes now.
If the revised budgets raise issues about the sufficiency of the
attainment demonstration, EPA will work with states on a case-by-case
basis. If the revised budgets show that motor vehicle emissions are
lower than the budgets we are approving today, a reassessment of the
attainment demonstration's analysis will be necessary before
reallocating the emission reductions or assigning them to the MVEB as a
safety margin. In other words, the states must assess how their
original attainment demonstration is impacted by using MOBILE6 vs.
MOBILE5 before they reallocate any apparent motor vehicle emission
reductions resulting from the use of MOBILE6.

IV. How Did Illinois Fulfill the Requirements for an Exemption From
NOX Emission Control Requirements for RACT for the
Illinois Portion of the St. Louis Ozone Nonattainment Area?

On February 10, 2000, IEPA submitted its adopted ozone attainment
demonstration SIP. This SIP revision submittal included a petition for
an exemption from NOX RACT, NOX NSR, and certain
conformity NOX requirements for the Illinois portion of the
St. Louis ozone nonattainment area. This petition is based on Illinois'
conclusion that it has demonstrated attainment of the 1-hour ozone
standard without the need to implement these additional NOX
emission controls. Accordingly, under section 182(f)(2), these
additional NOX emission reductions may be considered ``in
excess'' of reductions needed to attain the 1-hour ozone standard. The
NOX emission reductions in the attainment demonstration and
control strategy submitted by Illinois are limited to NOX
emission reductions from EGUs needed to support the ozone attainment
demonstration or other Act-required emission controls not included in
their exemption petition. The ozone impacts in the St. Louis area
resulting from NOX emissions are dominated by the impacts of
regional NOX emissions from EGUs, and further controlling
local NOX emissions for other source categories in the
Illinois portion of the nonattainment area would not significantly
impact ozone levels or advance the attainment date.
The ozone attainment demonstration shows that application of the
specific section 182(f)(1) NOX control requirements in the
Illinois portion of the nonattainment area would not be required to
attain the 1-hour ozone standard by May 31, 2004. (See 65 FR 20402,
20419, April 17, 2000.) In addition, as explained in EPA's proposed
rule relating to RACM and contingency measures (66 FR 20122, 20124-
20125), sensitivity analyses performed by both states show that
substantial local NOX reductions would not accelerate
attainment. In our April 17, 2000, document, EPA proposed to approve
Illinois' petition with regard to an exemption from NOX
RACT, but to deny their petition for an exemption from NOX
NSR and NOX conformity. The attainment demonstration
indicated that additional NOX emission reductions that could
be expected to result from the implementation of RACT were not needed
to achieve the ozone standard. The attainment demonstration, however,
failed to demonstrate that attainment would also occur even if
NOX emissions significantly increased (the type of
demonstration needed to support a waiver for NOX NSR and
NOX conformity requirements). Our reasons for denying parts
of Illinois' petition are explained in more detail in the April 17,
2000, proposed rule (see, 65 FR 20404, 20409-20410). We received no
adverse comments with regard to this particular part of our proposal.
We are granting Illinois' request for an exemption from the
NOX RACT requirements, pursuant to section 182(f)(2) of the
Act, for Madison, Monroe, and St. Clair Counties. We are denying
Illinois' request for an exemption from the NOX NSR and
certain NOX conformity requirements. Illinois has an
approved NSR program covering, in part, NOX, and has, as
noted elsewhere in this rulemaking, submitted a motor vehicle
NOX emissions budget for the Illinois portion of the St.
Louis ozone nonattainment area. Therefore, our denial of the Illinois
request with respect to NOX NSR and conformity does not
result in any SIP deficiencies.

V. What Contingency Measures Are We Approving for the St. Louis
Area?

Section 172(c)(9) of the Act requires that SIPs contain additional
measures that will take effect without further action by the state or
EPA if an area fails to attain the standard by the applicable date. In
our April 19, 2001, Federal Register, we provide our interpretation of
this requirement of the Act (66 FR 20122, 20125). According to EPA
guidance referenced in that Federal Register, we indicate that states
with moderate and above ozone nonattainment areas should include
sufficient contingency measures so that, upon implementation of such
measures, additional emissions reductions of up to 3 percent of the
emissions in the adjusted base year inventory (or such lesser
percentage that will cure the identified failure) would be achieved in
the year following the year in which the failure has been identified.
As explained in the April 19, 2001, proposal, EPA has also determined
that Federal measures can be used to analyze whether the contingency
measure requirements of section 179(c)(9) have been met. While these
Federal measures are not SIP-approved contingency measures which would
apply if an area fails to attain, EPA believes that existing Federally
enforceable measures can be used to provide the necessary substantive
relief. Therefore, Federal measures may be used in the analysis, to the
extent that the attainment demonstration does not rely on them or take
credit for them.
Missouri's 1990 adjusted base year inventory of VOC emissions is
315.70 tons per day (TPD). Per EPA's guidance, Missouri's contingency
measures must achieve VOC reductions equivalent to 3 percent of the
adjusted base year inventory, or 9.47 TPD. Implementation of Missouri's
solvent cleaning rule, 10 CSR 10-5.300, will provide for VOC emissions
reductions of 8.36 TPD, and implementation of the Federal Tier 2/Low
Sulfur Gasoline rule will provide for VOC emissions reductions of 1.59
TPD, for a combined emissions reduction of 9.95 TPD, which exceeds the
required reductions of 9.47 TPD.
The total amount of reduction needed for Illinois to meet the
contingency measure requirement in the Metro-East St. Louis
nonattainment area is 3 percent of the adjusted base year emissions
inventory or 4.96 TPD. Illinois has identified emissions reductions of
6.54 TPD from the Federal rules regarding On-Board Diagnostics, Tier 2/
Low Sulfur Gasoline, Non-Road Engine Standards, and other mobile source
measures which exceed the required reductions of 4.96 TPD. EPA did not
receive any adverse comments on our proposal to approve the states'
contingency measures. EPA finds that the measures identified in Table 2
below meet the requirements in section 172(c)(9). EPA is also hereby
approving the contingency measures element of Missouri's SIP, as
submitted in October 1997 and supplemented by a letter dated April 5,
2001.

Table 2.--St. Louis Area Approved Contingency Measures
------------------------------------------------------------------------
State Control measures
------------------------------------------------------------------------
Missouri........................... Solvent Metal Cleaning Rule 10 CSR
10-5.300.
Tier 2/Low Sulfur Fuel Program.
Illinois........................... Mobile Source Measures.

[[Page 34000]]

Tier 2/Low Sulfur Fuel Program.
On-Board Diagnostics.
Non-Road Engine Standards.
------------------------------------------------------------------------

VI. Implementation of RACM

Section 172(c)(1) of the Act requires that SIPs provide for the
implementation of all RACM as expeditiously as practicable. EPA has
previously provided guidance interpreting the RACM requirements of
172(c)(1). (See 57 FR 13498, 13560.) We also discussed the RACM
requirements in our April 19, 2001, Federal Register proposal. EPA has
reviewed the states' submitted sensitivity analyses, the process used
by the metropolitan planning organization (MPO) to review and select
transportation control measures, the states' evaluation of potential
stationary source control measures, and the attainment year emissions
inventories for the St. Louis area. While the Act requires
nonattainment areas to implement available RACM measures, EPA does not
believe that section 172(c)(1) requires implementation of potential
RACM measures that either require costly implementation efforts or that
produce relatively small emissions reductions that will not accelerate
attainment of the ozone standard.
Sensitivity modeling for the St. Louis area indicates that the
ozone benefits expected to be achieved from regional NOX
reductions (such as the NOX SIP call) are far greater than
the ozone benefit that could be achieved by local implementation of the
measures which have been rejected as possible RACM. Therefore, EPA
believes that the reductions from such measures would not accelerate
attainment of the ozone NAAQS.
EPA did not receive any adverse comments on our proposed finding
that the states had satisfied the RACM requirements of the Act. Based
upon the above, and upon the explanation provided in our April 19,
2001, proposed rule (66 FR 20122, 20123-20125), EPA is finding that the
St. Louis nonattainment area SIPs adequately provide for RACM.

VII. What Are the Requirements for Full Approval of the Attainment
Demonstration?

The attainment demonstration SIP must meet applicable criteria as
detailed in the Act. The specific requirements of the Act for moderate
ozone nonattainment areas are found in section 182(b)(1), and
requirements for attainment demonstrations in multistate areas are
found in section 182(j)(1)(B). Section 172 provides the general
requirements for nonattainment plans. Refer to 65 FR 20404, 20406 in
our April 17, 2000, proposal for further details of requirements for
attainment demonstrations.

VIII. Did Illinois and Missouri Fulfill These Requirements for Full
Approval?

EPA guidance published in 1996 suggests that states may rely on a
modeled attainment demonstration supplemented with additional weight of
evidence (WOE) to demonstrate attainment (``Guidance on the Use of
Modeled Results to Demonstrate Attainment of the Ozone NAAQS,'' EPA-
454/B-95-007, June 1996). In our April 17, 2000, Federal Register we
listed documents containing EPA's guidelines affecting the content and
review of ozone attainment demonstration submittals. (65 FR at 20406-
20407.) In that notice, we also described in detail the modeling
requirements for an attainment demonstration as well as the additional
analyses that may be considered when the deterministic approach, as
described in EPA guidance, does not show attainment. (65 FR at 20407-
20408.) In our April 3, 2001, Federal Register document, EPA details
the statistical and modeling data presented in the states' attainment
demonstration, as well as additional graphical and statistical data the
states have provided to support the validity of the ozone modeling
results and the adequacy of the adopted ozone attainment strategies.
See, 66 FR at 17649-17652.\1\ 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. EPA also finds that
the appropriate attainment date is November 15, 2004, based on the
attainment demonstrations. EPA received adverse comments regarding the
states' modeled attainment demonstrations, but no comments were
received on the WOE analysis by the states and EPA. These comments and
our responses are summarized elsewhere in this notice.
---------------------------------------------------------------------------

\1\ On page 17651, the narrative incorrectly cites the ozone
standard at 124 parts per million and predicted ozone design values
at or below 124 parts per million. The correct values are 124 parts
per billion.
---------------------------------------------------------------------------

IX. What Are the Criteria for an Attainment Date Extension?

EPA's policy regarding an extension of the ozone attainment date
for the St. Louis area was set forth in EPA's initial notice of
proposed rulemaking dated March 18, 1999 (64 FR 13384, 13387-13388). On
July 16, 1998, a guidance memorandum entitled ``Extension of Attainment
Dates for Downwind Transport Areas'' was issued by EPA and was
published in a notice of interpretation on March 25, 1999 (64 FR
12221). In it, EPA set forth its interpretation of the Act regarding
the extension of attainment dates for ozone nonattainment areas that
have been classified as moderate or serious for the 1-hour ozone
standard, and which are downwind of areas that have interfered with the
moderate and serious nonattainment areas's attainment of the ozone
standard by dates prescribed in the Act. EPA stated that it will
consider extending the attainment date for an area or a state that:
1. Has been identified as a downwind area affected by transport
from either an upwind area in the same state with a later attainment
date or an upwind area in another state that significantly contributes
to downwind ozone nonattainment;
2. Has submitted an approvable attainment demonstration with any
necessary, adopted local measures, and with an attainment date that
shows it will attain the 1-hour standard no later than the date that
the emission reductions are expected from upwind areas in the final
NOX SIP call and/or the statutory attainment date for upwind
nonattainment areas, i.e., assuming the boundary conditions reflecting
those upwind emission reductions;
3. Has adopted all applicable local measures required under the
area's current ozone classification and any additional emission control
measures demonstrated to be necessary to achieve attainment, assuming
the emission reductions occur as required in the upwind areas; and
4. Has provided that it will implement all adopted measures as
expeditiously as practicable, but no later than the date by which the
upwind reductions needed for attainment will be achieved.

[[Page 34001]]

X. How Did Illinois and Missouri Satisfy the Criteria for an
Extension?

The states of Illinois and Missouri satisfied the criteria for an
attainment date extension as follows:
1. The states have cited EPA's NOX SIP call modeling and
analyses documented in the Ozone Transport Assessment Group (OTAG)
process to demonstrate that the St. Louis area is affected by an upwind
area in another state that significantly contributes to ozone
nonattainment in the St. Louis area. In our April 17, 2000, notice (65
FR 20404), we explained how the OTAG modeling and the attainment
demonstration for the St. Louis area submitted by Missouri and Illinois
show the impacts of transport, specifically noting that the sources in
Kentucky make significant contributions to the St. Louis nonattainment
area. On this basis, EPA finds that this criterion of the attainment
date extension policy has been met;
2. As explained elsewhere in this notice, the states of Illinois
and Missouri have submitted approvable attainment demonstrations.
Furthermore, all of the control measures needed for attainment have
been adopted. These measures include all moderate area requirements
under section 182(b) and the statewide NOX controls for EGUs
discussed in this final rule and the April 3, 2001, proposal (66 FR
17647, 17653-17655).
3. Both Missouri and Illinois have adopted local measures required
by the Act for the area's current classification as a moderate
nonattainment area. (See, 66 FR 17647, 17654 (April 3, 2001) and
references cited therein for a discussion of the local measures adopted
by the states.) Elsewhere in today's notice, EPA explains why we are
approving an exemption from the NOX RACT requirements for
the state of Illinois which exempts Illinois from the obligation to
adopt the NOX RACT requirements for the metro-East portion
of the St. Louis area; and
4. With respect to implementation of all adopted measures as
expeditiously as practicable but no later than the time upwind controls
are expected, Missouri and Illinois have demonstrated that all control
measures would be in place by the start of the ozone season in 2003,
which at the time of our April 17, 2000, proposal was the compliance
date for the NOX SIP call. The attainment demonstration also
relies on reductions from the NOX SIP call to reduce
transported ozone precursors, and the source compliance date for the
NOX SIP call has been extended to May 31, 2004.\2\ Since the
local measures adopted by Illinois and Missouri necessary for
attainment will be implemented no later than 2003, the states have
shown that this element of the attainment date extension policy has
been met.
---------------------------------------------------------------------------

\2\ EPA is extending the attainment date for the St. Louis area
to November 15, 2004, to allow the reductions in transport to occur
before attainment is required. This does not affect the states'
obligations to implement the remaining local measures as
expeditiously as practicable.
---------------------------------------------------------------------------

Therefore, EPA concludes that, consistent with the attainment date
extension policy, the states have met the criteria for an attainment
date extension. EPA received comments regarding the basis for and
application of the extension policy in granting the St. Louis ozone
nonattainment area an attainment date extension. Those comments and our
responses to comments are summarized elsewhere in this document.

XI. What Action Is EPA Taking Regarding the Determination of
Nonattainment as of November 15, 1996, and Reclassification
Published on March 19, 2001?

On January 29, 2001, the United States District Court for the
District of Columbia ordered EPA to make a determination, no later than
March 12, 2001, as to whether the St. Louis nonattainment area attained
the requisite 1-hour ozone standard. (Sierra Club v. Browner, cited
previously.) On March 8, 2001, EPA informed the Court of the actions
that EPA intended to take in response to its Order. The Court, in a
limited review to determine whether EPA's planned course of action
would contravene the Court's Order, indicated that EPA, by signing a
determination by March 12, 2001, and publishing the required document
by March 20, would comply with the Court's Order. The Court noted that
it lacked jurisdiction to assess the propriety of the remainder of
EPA's planned course of action. (Memorandum Opinion and Order, March 9,
2001.)
On March 19, 2001, EPA published its ``Determination of
Nonattainment as of November 15, 1996, and Reclassification of the St.
Louis Ozone Nonattainment Area; States of Missouri and Illinois; Final
Rule'' (66 FR 15578). The effective date of that Determination and
Reclassification was initially set at May 18, 2001. However, in a
separate notice the same day (66 FR 15591), EPA proposed to delay the
effective date of the Determination and Reclassification until June 29,
2001. On May 16, 2001 (66 FR 27036), EPA finalized the modification of
the effective date of the Determination of Nonattainment as of November
15, 1996, and Reclassification of the St. Louis Ozone Nonattainment
Area, extending it until June 29, 2001.
In our April 3, 2001, Federal Register document (66 FR 17647), EPA
proposed to withdraw the Notice of Determination of Nonattainment and
Reclassification if we approved an attainment date extension prior to
the effective date of the Determination of Nonattainment. EPA did not
receive any adverse comments relating to our proposal to withdraw the
nonattainment determination and consequent reclassification in the
event we granted an attainment date extension. Since we are today
granting an extension until November 15, 2004, for attainment of the 1-
hour ozone standard, EPA's obligation to determine attainment is
thereby shifted into the future. As a result, we are hereby withdrawing
the published nonattainment determination and the consequent
reclassification, which have not yet gone into effect.
Therefore, the St. Louis area retains its classification as a
moderate ozone nonattainment area. (As stated previously, comments on
our proposal to extend the attainment date are addressed below.) In
today's action, we are withdrawing the Notice of Nonattainment
Determination and Reclassification, prior to their becoming effective.

XII. What Comments Were Received on the Proposals Covered by This
Final Action, and on the March 25, 1999, Publication of the
Attainment Date Extension Policy, and How Has EPA Responded to
Those?

EPA received comments from the public on the Notices and
Supplemental Notices of Proposed Rulemaking published on March 19,
1999; April 17, 2000; April 3, 2001; and April 19, 2001, for the
proposed approval of the St. Louis area's ozone attainment
demonstration and attainment date extension. EPA received adverse
comments from the Sierra Club and the Missouri Coalition for the
Environment (on the March 18, 1999; April 17, 2000; and April 3, 2001,
proposals). EPA also received comments in support of the proposals from
IEPA and MDNR, and from various industries and industrial associations.
EPA sets forth below in this section our responses to adverse
comments received on these notices which are relevant to this
rulemaking. EPA also received comments relating to the proposal to
determine that the St. Louis area did not attain the ozone standard by
November 15, 1996. These comments relate primarily to the necessity of
making the nonattainment

[[Page 34002]]

determinations, the appropriate attainment date if the area were
reclassified, and the SIP submission date for the area. In EPA's March
19, 2001, final rule, EPA responded to adverse comments on the proposed
determination that the area did not attain the standard by November 15,
1996, and proposed reclassification to serious nonattainment. (66 FR
15578, 15585-15588.)
Finally, some of the comments received in Docket A-98-47 on EPA's
notice regarding ``Extension of Attainment Dates for Downwind Transport
Areas'' 64 FR 12221 (March 25, 1999), are relevant to this rulemaking.
EPA incorporates its responses to those comments, set forth in 66 FR
586, 66 FR 634, 66 FR 666 (January 3, 2001), and 66 FR 26913 (May 15,
2001), insofar as herein relevant.
The following discussion summarizes and responds to all adverse
comments:

I. Comments Received in Response to the March 18, 1999 (64 FR 13384),
Proposal

Comment 1. The commenter argued that, although EPA's March 18,
1999, notice of proposed rulemaking proposed to find that the St. Louis
area has failed to attain the 1-hour ozone standard by November 15,
1996, EPA had already made this ``determination'' in various
correspondence with the state of Missouri, in public, and in various
rulemakings. The commenter contends that, pursuant to section 181(b) of
the Act, the St. Louis area had thus already been reclassified by
operation of law to a serious ozone nonattainment area, and that EPA's
notice should report that this reclassification has already occurred.
The commenter alleges that EPA's duty under section 181(b), as EPA
acknowledged in reclassifying the Phoenix area, ``involves little more
than a rote review of available ambient air quality data,'' and the
commenter argues that EPA has no flexibility to deviate from its duty.
In addition, the commenter argued that EPA's proposal was
procedurally flawed because EPA lacked authority to propose a finding
(of nonattainment as of November 15, 1996) based on the occurrence of
subsequent events (additional state submissions to qualify for an
attainment date extension).
Response to Comment 1. EPA has already addressed these arguments
raised in this comment in EPA's Cross Motion for Summary Judgment on
Remedy Under Count I, filed in Sierra Club v. Browner, cited
previously, filed April 28, 1999 (see, e.g., pages 13-20), and EPA's
reply brief in support of its Cross Motion, filed June 16, 1999. Copies
of these documents have been placed in the docket and EPA incorporates
them herein by reference. For the reasons stated therein, EPA disagrees
with the commenter's contention that EPA had previously issued a
determination of failure to attain within the meaning of section 182(b)
of the Act. In addition, the Court in that case agreed with EPA, and
concluded in its opinion that EPA had not already made the
determination of failure to attain, and as a consequence that the area
had not, as Sierra Club contended, been reclassified by operation of
law. See Court Opinion dated January 29, 2001, Sierra Club v. Browner
130 F. Supp. 2d 78, 89-94. A copy of the Court's opinion has been
placed in the docket, and EPA incorporates it herein by reference. In
its order of January 29, 2001, as modified on February 15, 2001, the
Court thus ordered EPA to issue a determination as part of a final
notice-and-comment rulemaking process. On March 19, 2001, EPA published
its final determination and notice, with a delayed effective date (66
FR 15578). That notice is being withdrawn before it becomes effective,
and thus EPA has not issued any final, effective determination of
nonattainment requiring the area to be reclassified as a matter of law.
With respect to the contention that EPA's actions are at odds with
its observations in the Phoenix rulemaking, EPA addressed this issue in
its Cross-Motion for Summary Judgment, which explained the complexity
of the finding required for evaluating attainment, as well as the need
for notice-and-comment rulemaking. The comment made in the Phoenix
rulemaking, when put in context, indicates that the statement was aimed
at distinguishing between air quality findings and efforts to adopt
controls. The Phoenix rulemaking itself, which, unlike the St. Louis
area, did not involve issues of transported pollution, reveals that the
determination was controversial, and involved issues of whether data
from special purpose monitors should be included in the data considered
in making the determination. EPA believes that its position in the St.
Louis area is consistent with the requirements of the statute and its
notice-and-comment rulemakings in other areas where EPA's attainment
date extension policy has applied.
With respect to the comment that EPA's proposal was procedurally
flawed, EPA notes that the only proposed action set forth by EPA in the
March 18, 1999, notice was its proposal to find that the St. Louis area
had not attained the standard by November 15, 1996, and to determine
that if the finding was finalized, the area would be reclassified from
a moderate to a serious ozone nonattainment area by operation of law
(64 FR 13384). In terms of the timing of the final action on the
proposed determination, EPA also proposed to take final action only
after the states had an opportunity to qualify for an attainment date
extension. However, EPA was not proposing to modify a finding based on
subsequent events, but merely providing notice that if Missouri and
Illinois made certain additional submissions and EPA determined,
through subsequent rulemaking, to grant an attainment date extension,
the nonattainment determination would not be finalized and the area
would not be reclassified (64 FR 13384-13385). EPA explained that this
result follows because once an attainment date is extended for an area,
the area is no longer subject to reclassification under section
181(b)(2) for failure to attain by the original attainment date (64 FR
at 13388). A more detailed discussion of EPA's proposals and final
action relating to the attainment date extension and its interplay with
the requirements of section 181(b) is contained elsewhere in this final
rule, and in EPA's response to comments on the relevant proposals.
Comment 2. The commenter alleges that EPA has no authority to grant
an attainment date extension, but even assuming it does have such
authority, EPA's exercise here is improper and unlawful. The commenter
contends that in order to grant an extension, the states must have
applied for and obtained an extension prior to May 15, 1997. EPA is
relying on the mere possibility of an extension to relieve it of its
statutory duty pursuant to section 181(b)(2). Once EPA has made a
finding, EPA has no authority to refuse to ``finalize'' it.
Response to Comment 2. EPA has now acted, pursuant to Court Order,
to make a determination under section 181(b), but this determination is
not yet effective, and thus EPA still has an opportunity to grant an
attainment date extension for reasons discussed at length elsewhere in
these responses to comments. Moreover, EPA is not relying on the mere
possibility of an attainment date extension in order to withdraw the
determination of nonattainment before it becomes effective. Rather, EPA
is now granting the extension based on actual, complete submissions
from Missouri and Illinois demonstrating that the St. Louis area fully
qualifies for the attainment date extension, a conclusion EPA has
reached in a final rulemaking action after conducting notice and
comment rulemaking. Once this

[[Page 34003]]

extension is granted, the area's attainment date shifts to the future,
and EPA no longer has an extant obligation to make a determination of
attainment. For reasons set forth elsewhere in these responses to
comments, EPA believes that it is not too late to grant an attainment
date extension, and that EPA has ample authority and basis on which to
do so.
Comment 3. The commenter argues that EPA has no authority to extend
attainment deadlines, except in circumstances set forth in section
181(a)(5). EPA is prohibited from granting attainment date extensions
by sections 172(a)(2)(D) and 182(i). Sections 184, 110, and 126,
although they address interstate pollution transport, do not provide
for attainment date extensions.
Response to Comment 3. EPA has authority to grant a transport-based
attainment date extension. The basis for this policy is set forth in
EPA's Guidance, and EPA has responded to the issues raised by this
comment in its rulemaking actions on Washington D.C., 66 FR 586, 591-
600, January 3, 2001; Greater Connecticut, 66 FR 6314, January 3, 2001;
Springfield, Massachusetts, 66 FR 666, January 3, 2001; and Beaumont,
Texas, 66 FR 26913, 26916-26927, May 15, 2001. EPA incorporates these
responses by reference.
Comment 4. The commenter asserts that EPA does not explain how a
policy adopted in 1998 has relevance to events that occurred in 1996
and 1997. EPA's duty to determine whether the area had attained the
standard was to have been made no later than May 15, 1997. There is no
authority for EPA's ``retroactive'' application of EPA's extension
policy'' (citing Bowen v. Georgetown University Hospital, 488 U.S. 204
(1988)) and no statutory basis for that policy.
Response to Comment 4. The statutory basis for EPA's attainment
date extension policy has been explained elsewhere in responses to
comments in this notice and in EPA's other rulemaking actions on
Washington D.C., 66 FR 586, January 3, 2001; Greater Connecticut, 66 FR
6314, January 3, 2001; Springfield, Massachusetts, 66 FR 666, January
3, 2001; and Beaumont, Texas, 66 FR 26913, 26924-26 May 15, 2001.
EPA disagrees with the commenter's contention that EPA's
application of the attainment date extension policy constitutes
unauthorized retroactive rulemaking. As EPA has explained in the
Beaumont, Texas, rulemaking, the information and analyses necessary to
formulate EPA's attainment date extension policy did not become
available until 1998. At that time, EPA had not yet acted to make a
determination that would trigger a reclassification of the St. Louis
area. EPA, before taking action on the determination, found itself in a
position to consider whether the area qualified for an attainment date
extension based on being affected by transport. In contexts such as
these, EPA, in taking rulemaking action, is entitled to take into
account the best possible information at the time it takes action to
implement Congressional intent. Consistent with its interpretation of
the Act, EPA also proposed to apply its policy to other moderate
nonattainment areas with 1996 attainment dates, including Louisville,
Kentucky, and Beaumont, Texas. The final attainment date extension for
Beaumont was issued on May 15, 2001 (66 FR 26913). EPA's actions with
respect to these moderate areas should not be deemed ``retroactive,''
but rather as the application of a current policy contemporaneous with
taking action to perform its duties under the Act. The fact that EPA's
actions occurred after the statutory deadline does not render them
``retroactive.'' EPA is not precluded from considering the best
available information and existing legal interpretations when it acts
after a statutory deadline has passed. To conclude otherwise would
frustrate Congressional intent and deny the St. Louis area and its
citizens the benefit of EPA's and the states' improved understanding of
the role of transport in causing nonattainment problems, on the grounds
that they must remain in the state of ignorance that existed at the
time of the original deadline. As EPA has noted, its attainment date
extension policy and an adequate understanding of ozone transport were
not developed until after the attainment date for moderate areas had
passed. Nevertheless, EPA believes that to deny eligibility for the
attainment date extension to moderate areas affected by transport
because the policy was not available earlier would thwart Congressional
intent and cause an injustice. Moreover, EPA believes that applying the
policy to these areas is consistent with the Congressional approach of
applying other types of attainment date extensions after an area has
been unable to reach attainment. See, for example, Section 181(a)(5).
Under Section 181(a)(5), EPA may determine that an area has
qualified for an extension after it has failed to attain in its
attainment year. Section 181(a)(5) provides that EPA may grant an
extension of one year [``the Extension Year''] if in relevant part,
``no more than 1 exceedance of the [ozone standard] has occurred in the
area in the year preceding the Extension Year.'' This procedure
presumes that the area did not attain in its attainment year, and
requires a review of data to determine the number of exceedances in the
original attainment year prior to the granting of the extension. Thus,
Congress knew and approved of a system for granting extensions after an
area had already failed to attain according to its original schedule.
EPA's granting of an extension to the St. Louis area after its original
date for attainment has lapsed is therefore consistent with
Congressional intent and the statutory scheme that Congress established
in the Act.
In addition, while the deadline in section 181(b)(2) sets a
deadline for EPA to make a determination, failure to observe the
deadline does not preclude EPA from extending the attainment date prior
to making the determination. The six-month deadline, though intended to
spur the Agency to act, does not place a limit on the Agency's
authority to consider information and developments critical to a sound
decision. See Brock v. Pierce County, 476 U.S. 253, 260 (1986) (``We
would be most reluctant to conclude that every failure of an agency to
observe a procedural requirement voids subsequent agency action,
especially when important public rights are at stake. When, as here,
there are less drastic remedies available for failure to meet a
statutory deadline, courts should not assume that Congress intended the
agency to lose its power to act.'' (Footnote omitted.) Indeed, to take
the contrary view, as the commenter advocates, and require EPA to
disregard relevant data about the impact of transport, data that reveal
the causes of an area's nonattainment problems and affect the equitable
allocation of the burden of controls, would be an absurd result. It
would be contrary to the public interest to require EPA to take final
action in a matter that affects the public interest while compelling it
to disregard the best available information. EPA is engaged in applying
its attainment date extension policy in areas throughout the country.
It would be contrary to Congressional intent and a disservice to the
citizens of St. Louis to deny them the benefits of a policy that became
available after EPA missed a procedural deadline, but before EPA
performs its statutory duty under the Act. The Bowen case cited by
commenters is inapposite. It involved a retroactive application of cost
limitations to hospital expenditures that had occurred

[[Page 34004]]

in the past. By contrast, EPA's action is remedial and curative, and
affects future controls.
Comment 5. The commenter stated that the notice indicated that
documents relevant to the nonattainment determination and
reclassification proposal were available for public inspection at the
EPA regional offices for Region V in Chicago and Region VII in Kansas
City. The commenter stated that EPA did not indicate whether the
documents supported its belief that the area might qualify for an
attainment date extension. The commenter further stated that EPA was
``concealing the documents'' in areas ``at great distances'' from the
St. Louis area, in violation of its ``duty to encourage public
participation in the administration of'' the Act.
Response to Comment 5. As indicated above in the response to
Comment 1, the March 18, 1999, notice did not propose to extend the
attainment date for the St. Louis area, so EPA did not include a
detailed discussion of documents showing how the area qualified for an
attainment date extension. In fact, EPA stated its belief that Missouri
and Illinois would make subsequent submissions in an effort to qualify
for an attainment date extension, and EPA would conduct subsequent
rulemaking on those submissions. (The subsequent proposals published
April 17, 2000, and April 3, 2001, which are described elsewhere in
this action, and the final action which is the subject of today's
action, contain detailed discussion of the states' submissions and the
documents on which EPA is relying to determine that the area qualifies
for an attainment date extension.)
With respect to the comment that EPA violated a ``duty'' to provide
adequate opportunity for public participation by stating in its notice
that the documents would be available for public inspection at the EPA
regional offices, the proposal specified the locations of the documents
comprising the record for the rulemaking and names, addresses, and
telephone numbers of individuals to be contacted for additional
information. This procedure is consistent with the process which EPA
ordinarily uses to make information available concerning a proposed
rulemaking of this kind. EPA clearly did not ``conceal'' any of the
documents relevant to the rulemaking. The commenter and any other group
or individual had the opportunity to inspect the record or to contact
EPA to request copies of documents comprising the record, and to
request other information relating to the proposed determination and
reclassification. The commenter did not inspect the record or request
additional information or documents during the comment period.
In the March 18, 1999, proposal, EPA set out the factual basis for
its proposed finding that the St. Louis area did not attain the ozone
standard, including tables summarizing the data on which the proposal
was based (64 FR 13386-13387). As discussed previously, EPA also stated
that subsequent state submissions relating to the attainment date
extension (which were not the subject of the March 18, 1999, proposal)
would be, and in fact were, subject to future notice-and-comment
rulemaking. The commenter did not raise issues concerning the locations
of the docket for EPA's initial proposal (and supplemental proposal) of
the attainment date extension (the April 17, 2000, and April 3, 2001
proposals). EPA met its obligation to make the basis for its proposed
determination and supporting documentation available for public comment
during the comment period.
Comment 6. The commenter stated that EPA had not shown how the St.
Louis area qualifies for an attainment date extension. Specifically,
the commenter stated that the proposal did not show how the area is
affected by transport, that Missouri had not submitted an approvable
attainment demonstration, and that Missouri had not adopted all local
measures required under the area's current moderate classification. The
commenter also stated that EPA had failed to explain the basis for the
statement in its notice that Illinois and Missouri would be able to
meet the local measure requirement for NOX controls
(``NOX RACT'') by meeting EPA's NOX SIP call.
Response to Comment 6. As discussed in response to Comments 1 and 5
above, the March 18, 1999, proposal did not include a proposal to
extend the attainment date, and therefore did not include a detailed
analysis of how the St. Louis area qualifies for an attainment date
extension. EPA stated that the analysis would be the subject of future
rulemaking after the states made additional submissions to support
their requests for an attainment date extension. The March 18, 1999,
proposal listed the submissions which the states had to make for EPA to
determine whether the area qualified for an attainment date extension
(64 FR at 13388). The analysis of the subsequent submissions addressing
these elements is contained in the April 17, 2000, proposal on the
attainment demonstration and attainment date extension (65 FR 20404)
and in the April 3, 2001, supplemental proposal (66 FR 17647). EPA's
conclusions with respect to the state submissions and how they meet all
of the elements of the attainment date extension policy are detailed in
the proposals and in this final rulemaking.
With respect to the comment concerning the local NOX
RACT requirements, EPA did not propose to find, in the March 18, 1999,
proposal on the attainment determination, that the states had met the
local NOX control requirements, and therefore was not
obligated to analyze whether the states' anticipated NOX SIP
call rules would meet the local control requirements. In the March 1999
notice, EPA merely stated its belief that the Missouri and Illinois
NOX SIP call rules, when adopted, could also be used to
satisfy the NOX RACT requirements. (As a result of the
Court's ruling in Michigan v. EPA, 215 F. 3d 663 (D. C. Cir. 2000),
Missouri is not currently subject to the NOX SIP call.) This
issue was the subject of subsequent rulemaking after the states made
their submissions for the attainment demonstration and attainment date
extension. As noted in the April 17, 2000, proposal, Missouri
subsequently adopted and EPA approved specific local NOX
RACT measures for the Missouri portion of the St. Louis area, and
Illinois requested a waiver of the requirement to impose additional
local NOX controls in the Illinois portion of the St. Louis
area (65 FR at 20417). EPA is taking final action to approve a portion
of the Illinois waiver request in connection with today's final
rulemaking. Therefore, neither state is relying on regional
NOX SIP call controls to meet the local NOX RACT
requirements for the St. Louis area.
Comment 7. The commenter stated that EPA's proposal was ``an
attempt to extend the submittal deadlines'' for the required local
measures.
Response to Comment 7. The commenter did not explain how EPA's
proposal would have the effect of extending the statutory deadlines for
submittal of local measures. However, EPA's proposal to determine that
the area did not attain the standard and its notice that the area might
be able to qualify for an attainment date extension had no relationship
to the independent obligations of the states to make submissions
required for the St. Louis area by the specified statutory deadlines.
Nor did the proposal affect the consequences, if any applied, to the
states (sanctions for failure to submit under section 179 of the Act)
and to EPA (obligation to promulgate Federal plans under section 110(c)
of the Act). Section 179 provides certain sanctions for state planning
failures in connection

[[Page 34005]]

with SIP submissions required under the Act, including sanctions for
failure to make a required submission. Section 110(c) requires EPA to
promulgate a plan, under specified circumstances, where a state has
failed to make a required submission or EPA has disapproved a required
submission. If, for example, a state fails to make a required submittal
by a statutory deadline and EPA issues a finding of failure to submit,
then, after 18 months, the state would be subject to mandatory
sanctions until the state makes the required submittal and EPA finds
the submittal complete. In this example, within two years of the
finding, EPA is obligated to promulgate a Federal plan and that
obligation can only be lifted by the state submitting and EPA approving
the plan. EPA has made various findings of planning failures relating
to the St. Louis area, based on state failures to submit by the
applicable statutory deadlines SIP revisions required by section
182(b). EPA imposed section 179(b)(2) offset sanctions in the Missouri
portion of the St. Louis area for failure of the state to submit
NOX RACT controls by the statutory deadline. (The sanction
was subsequently lifted when the state corrected the deficiency.) These
actions have not been dependent on the attainment date for the area.
The proposal did not purport to establish plan submission
deadlines, but merely noted that the states might be able to qualify
for an extension of their attainment date and needed to make certain
plan submissions in order to do so. No other statutory dates were
implicated by the notice. The extension of an attainment date does not
impact an area's obligation to meet other applicable statutory
deadlines. In any event, had EPA's determination of nonattainment and
reclassification become effective, the attainment date for the area
would have been November 15, 2004 (see, 66 FR 15578, 15584-15585, March
19, 2001) which is the same date as established in this rulemaking for
attainment of the ozone standard. Also, as noted previously, an
attainment date extension cannot be given unless the area has
submitted, and EPA has approved, all local measures applicable to the
area under its current classification.
Comment 8. The commenter asserts that EPA's application of its
attainment date extension policy rewards Missouri for its
recalcitrance. EPA has no authority to allow Missouri to delay
implementation of its local measures.
Response to Comment 8. EPA is not rewarding Missouri for its
recalcitrance, nor has it ``invented a policy'' that ``gets [Missouri]
off the hook.'' The goal of the attainment date extension policy is to
give effect to Congressional intent and to equitably distribute the
burdens of controlling pollution according to the source of that
pollution. The responsibility for controlling local pollution remains
firmly with the states where that pollution originates; but EPA's
policy seeks to implement Congressional intent to redress the
unfairness of requiring a local area to pay the costs of curing
problems created by pollution transported from outside the state. EPA's
policy still requires Missouri and Illinois to implement local measures
as expeditiously as practicable. As EPA and the states have
demonstrated in qualifying for the policy, implementing those local
measures sooner would not bring about attainment. The basis for the
timing of the requirement for implementation of local measures is
further set forth in EPA's responses to comments in the Washington,
D.C., Greater Connecticut, Springfield, Massachusetts, and Beaumont,
Texas, rulemakings.

II. Comments Received in Response to the April 17, 2000 (65 FR 20404),
proposal

Comment 1. The commenter contends that EPA lacks statutory
authority to approve the request for an attainment date extension based
on EPA's attainment date extension policy. The commenter asserts that
the current classification for the St. Louis area is ``serious'' and
not ``moderate.'' The commenter contends that EPA has already
determined that the area failed to attain the ozone standard within the
meaning of section 181(b)(2)(A) of the Act, and that, therefore, the
St. Louis area was reclassified by operation of law, despite EPA's
refusal to acknowledge this. The commenter incorporates by reference
its arguments as to the legality of the attainment date extension
policy contained in its briefs in Sierra Club v. Whitman, No. 98-02733,
as well as those submitted in response to EPA's March 18, 1999, notice
(64 FR 13384) and in response to EPA's proposal to approve Missouri's
15% ROPP, set forth at 65 FR 8083 (February 17, 2000).
The commenter also argued that EPA's proposal to extend the
attainment date for the St. Louis area is ``contingent'' on approval of
the Missouri 15% ROPP, and stated that it was also incorporating by
reference its comments on the February 17, 2000, proposed approval of
the 15% Plan (65 FR 8083). In summary, Sierra Club's comments on the
proposed approval of the 15% ROPP were: (1) That EPA should review the
ROPP plan against the serious area requirements of section 182(c) of
the Act; (2) that EPA failed to give notice of its statutory authority
to approve a plan which relies on reductions occurring after November
15, 1996; (3) that EPA lacks authority to approve a plan relying on
reductions after 1996; (4) that EPA lacks authority to approve a plan
which does not contain contingency measures; (5) that EPA was engaging
in unauthorized retroactive rulemaking in approving a plan relying on
15% ROPP reductions after 1996; (6) that the Missouri 15% ROPP
improperly fails to account for growth in emissions after 1996; and (7)
that EPA should have used actual rather than projected 1996 emissions
in determining the required reductions.
Response to Comment 1. EPA has responded to the contentions
regarding the legality of EPA's attainment date extension policy in its
responses to comments on the March 18, 1999, proposed rulemaking. As to
the assertion that the classification of the St. Louis area is
``serious'' and not ``moderate,'' EPA also has responded to the
attainment date in its response to Comment 1 on the March 18, 1999,
proposal. EPA and the Court agree that EPA, prior to the Court-ordered
rulemaking published March 19, 2001, had issued no final rulemaking
determining that the St. Louis area had not attained the standard by
November 1996. Therefore, the St. Louis area was not reclassified to
``serious.'' Moreover, since EPA is today issuing a final attainment
date extension and in a separate final rulemaking withdrawing its March
19, 2001, determination prior to that determination taking effect, the
St. Louis area remains classified as a moderate area. EPA incorporates
by reference its responses to the comments submitted on the March 18,
1999, rulemaking, and those contained in its briefs in Sierra Club v.
Browner. EPA also incorporates its Response to Comments on the February
17, 2000, proposal on the Missouri 15% ROPP, published in its final
rule of May 18, 2000 (65 FR 31485, 31485-31487). With respect to the
contention that EPA's action is inconsistent with earlier
reclassifications of Dallas-Fort Worth, Texas, and Santa Barbara,
California, these rulemakings occurred prior to the issuance of EPA's
attainment date extension policy, and therefore do not undermine EPA's
application of its policy to the St. Louis area.
With respect to its incorporation by reference of the comments on
the 15% ROPP, EPA fully responded to all of the Sierra Club comments on
the proposed approval when it took final action to approve the 15%
ROPP, and

[[Page 34006]]

incorporates those responses here (65 FR 31485, May 18, 2000). Sierra
Club petitioned for review of EPA's approval, primarily arguing that
the Plan improperly failed to consider growth after 1996, and that it
improperly failed to use actual 1996 emissions to calculate the
required 15% reduction. EPA responded to the issues raised by Sierra
Club in its brief. (Copies of the briefs are included in the docket for
this rulemaking.) EPA also identified the issues which Sierra Club had
waived in the petition for review. Sierra Club's petition for review
was denied by the Court of Appeals for the 8th Circuit (Sierra Club v.
Environmental Protection Agency (No. 00-2744), decided June 8, 2001).
The issues raised by the commenter regarding the 15% Plan approval are
not reopened for consideration by virtue of the commenter's
incorporation of them in connection with the current rulemaking.
Moreover, the comment that the Missouri 15% Plan was deficient because
it lacked contingency measures (which Sierra Club waived in its 8th
Circuit brief) is also no longer relevant because, as explained
elsewhere, EPA is approving Missouri's contingency measures SIP in this
final rulemaking.
Comment 2. The commenter argued that the St. Louis area has already
been reclassified to serious nonattainment by operation of law, so that
the ``required components'' of the attainment demonstration are those
in section 182(c) of the Act, rather than the section 182(b)
requirements suggested in EPA's proposal. The commenter stated that,
because Missouri's Plan does not address the serious area requirements,
the attainment demonstration must be disapproved.
Response to Comment 2. The argument that the St. Louis area has
already been reclassified by operation of law was cited previously in
our response to Comment 1 on the March 18, 1999, proposal and Comment 1
on the April 17, 2000, proposal. In Sierra Club v. Browner, Sierra Club
requested that the Court find that a determination of nonattainment had
already been made, and order EPA to publish the determination nunc pro
tunc as of May 15, 1997. (See also EPA's Cross Motion on Summary
Judgement and Reply, and EPA's Opposition to Plaintiff's Motion for
Summary Judgement on Count I.) In its January 29, 2001, decision, the
Court held that ``EPA has not yet issued the formal determination that
section 7511(b)(2)(A) requires.'' (130 F. Supp. 2d at 92.) In addition,
in rejecting Sierra Club's request for retroactive relief, the Court
determined that granting Sierra Club's request ``would effectively
create an injustice with regard to the state'' and the St. Louis
nonattainment area, in part because it would carry with it the
potential to ``expose the State of Missouri to a variety of sanctions
for failing to comply promptly and adequately.'' (130 F. Supp. 2d at
94.) Therefore, EPA properly used the applicable requirements in
section 182(b) to evaluate the states' attainment demonstration.
In addition, although EPA issued a determination and
reclassification notice published March 19, 2001, which, if it had
become effective, would have resulted in reclassification of the area
to serious nonattainment, that determination did not and will not
become effective, and is being withdrawn in today's action. For reasons
explained in detail elsewhere in this final rule, the St. Louis area
retains its current moderate classification, and the requirements of
section 182(b) of the Act apply.
In any event, with respect to the Act requirements for the modeling
to be used in an attainment demonstration, there is no significant
difference between the requirements of section 182(b) and 182(c) as
applied to the St. Louis area. Section 182(c)(2)(A) states that an
attainment demonstration for serious areas must be based on
photochemical grid modeling or other modeling determined by EPA to be
equivalent. Although this modeling is not generally required for
moderate area attainment demonstrations, it is required for ``multi-
State ozone nonattainment areas'' (i.e., any single nonattainment area
comprising more than one state) under section 182(j)(1)(B). Therefore,
the St. Louis area was subject to the same modeling requirement as
serious areas. In any event, the attainment demonstration for the area,
as described elsewhere, used photochemical grid modeling, or the
equivalent.
Comment 3. The commenter questioned EPA's authority to propose
approval of ``Missouri's attainment demonstration'' contingent on
submission of corrections to the attainment demonstration submitted
initially in November 1999, which was the subject of the April 2000
proposal. The commenter argues that EPA's ``failure'' to identify a
legal basis for its authority ``violates'' section 307(d)(3)(C) of the
Act and section 553 of the Administrative Procedure Act. The commenter
states that the only authority for this ``unusual procedure'' would be
the conditional approval procedure in section 110(k)(4) of the Act,
which would not, according to its argument, be available as an
appropriate action on an attainment demonstration.
Response to Comment 3. As a preliminary matter, EPA notes that this
rulemaking is not subject to the provisions of section 307(d), because
it does not involve any of the categories of actions described in
section 307(d)(1) to which the requirements of section 307(d) are
applicable. See generally, Missouri Limestone Producers Association v.
EPA, 165 F.3d 619, 621 (8th Cir. 1999). In addition, contrary to the
commenter's assertion, there is nothing unusual about EPA's contingent
proposal, and EPA routinely proposes action with final action
contingent on additional state submissions. (See, e.g., the discussion
of additional measures which had been necessary for approval of the
Washington, D.C., attainment demonstration in 66 FR 586, 587-88
(January 3, 2001) for a recent example of EPA's use of the same
procedure.) EPA also routinely undertakes rulemaking on SIP submittals
through ``parallel processing,'' in which it proposes action based on
draft or proposed state submissions, and takes final action after the
state has adopted, in final form, plan elements which are substantially
similar to the draft on which EPA's proposal is based. (See generally,
Connecticut Fund for the Environment, Inc. v. EPA, 672 F.2d 998, 1005
(2d Cir. 1982) for a discussion of EPA's parallel processing policy,
which is now codified in 40 CFR part 51, appendix V, paragraph 2.3.1.)
EPA stated in the proposal that it would not take final action to
approve the attainment demonstration until the states made the
submissions called for in the proposal (and in fact would disapprove
the attainment demonstration if the submissions were not made). (65 FR
20404). After the states made the necessary submissions, EPA published
a supplemental proposal to allow additional public comment on the
subsequent submissions (66 FR 17647, April 3, 2001) to satisfy the
public participation requirements of section 553 of the Administrative
Procedure Act. Therefore, the commenter's premise that this was an
``unusual procedure'' requiring some express statutory authorization is
incorrect. EPA's rulemaking on the attainment demonstration is fully
consistent with the requirements of section 553 of the APA, and Sierra
Club has not shown any inconsistencies with those requirements.
With respect to the commenter's statement that the conditional
approval provision in section 110(k)(4) of the Act does not apply to
actions on attainment demonstrations, EPA disagrees with the

[[Page 34007]]

comment. However, the comment is not relevant to this action, because
EPA is fully approving the attainment demonstration under section
110(k)(3), and is not relying on its authority in section 110(k)(4).
Comment 4. The commenter argues that EPA ``lacks the authority to
engage in retroactive rulemaking.'' The commenter states that the
attainment date extension policy was not proposed until 1998, two years
after the St. Louis area's attainment date, and that even if the
attainment date extension policy were legal, EPA ``could only extend a
deadline that had not yet passed.'' The commenter characterizes EPA's
extension of the attainment deadline for the St. Louis area as
``retroactive rulemaking.'' Citing Bowen v. Georgetown University
Hospital, 488 U.S. 204 (1988), the commenter contends that the Act does
not authorize retroactive rulemaking, and that absent an express grant
of such authority, none will be implied.
Response to Comment 4. EPA has responded to this argument in its
response to Comment 4 on the March 18, 1999, notice of proposed
rulemaking.
Comment 5. The commenter argues that EPA's April 2000 proposal
``unlawfully extends'' the date by which the measures called for by
section 182(b) are required to be adopted and implemented ``by the
state of Missouri.'' The commenter states that transported pollution
does not affect the ability of states to adopt necessary local
measures, and that ``an extension of these implementation requirements
is not justified.''
Response to Comment 5. With respect to the extension of other
statutory deadlines for submittal of required measures, EPA addressed
this issue generally in response to Comment 7 on the March 18, 1999,
proposal. EPA explained in that response that an extension of an
attainment date does not extend other statutory deadlines. Although the
commenter does not identify the ``implementation requirements'' to
which it refers, EPA notes that, as explained in the April 17, 2000,
proposal, one of the criteria for granting an extension of the
attainment date under the attainment date extension policy is that
states must show that they will implement all adopted local measures as
expeditiously as practicable, ``but no later than'' the date by which
the upwind reductions are expected to be achieved (65 FR at 20409). As
EPA further explained in the April 3, 2001, supplemental proposal, all
of the local measures relied on by Missouri and Illinois for the
attainment demonstration are to be implemented no later than 2003 (66
FR at 17654). EPA catalogued the various moderate area control measures
which the states had already adopted and implemented in the March 18,
1999, proposal (64 FR at 13389). The remainder of the local controls
relied on in the attainment demonstration (for example, the regional
NOX controls for Missouri and Illinois sources) are to be
implemented by 2003. The new attainment date for the St. Louis area is
November 15, 2004, which, as explained in more detail elsewhere in this
final rulemaking and in the April 3, 2001, proposal (66 FR 17647), is
based on the implementation date for the upwind controls necessary for
attainment in the area. The implementation date for the local controls
is not dependent on the implementation date for upwind controls (except
that, as stated above, it cannot be any later than the upwind controls
implementation date). Therefore, the extension of the attainment date
does not, as argued by the commenter, extend the date for submission
and implementation of local controls. (See also EPA's responses to
comments in the Washington D.C., Greater Connecticut, Springfield,
Massachusetts, and Beaumont, Texas, rulemakings.)

III. Comments Received in Response to the April 3, 2001 (66 FR 17647),
Proposal

Comment 1. The commenter reiterates its belief that the proposal to
extend the attainment date would violate the Act, as pointed out in the
briefs filed in Sierra Club v. Browner, supra.
Response to Comment 1. EPA has responded to this comment elsewhere
in its Responses to Comments in this notice, and incorporates by
reference those responses.
Comment 2. The commenter argues that, if EPA had the authority to
extend attainment dates by eight years, this proposal would violate the
Act, because it constitutes unlawful retroactive rulemaking.
Response to Comment 2. EPA has responded to the commenter's
allegation of illegal retroactive rulemaking elsewhere in its Responses
to Comments. (Response 4 to March 18, 1999, proposal and Response 4 to
April 17, 2000, proposal.)
Comment 3. The commenter stated that since final action on the
proposal is dependent on submission by the states of additional
documents, this deprives the public of the opportunity to comment on
documents relevant to the final rulemaking.
Response to Comment 3. In the April 3, 2001, proposal, EPA stated
that Missouri had made all final submissions necessary for EPA to take
final action on the matters proposed in the April 3 notice. EPA also
stated that Illinois had submitted proposed revisions to the attainment
demonstration and MVEB, and was expected to submit its final revisions
in the near future (66 FR 17647). The Illinois submissions were
processed through the ``parallel processing'' procedure described in
response to Comment 3 on the April 17, 2000, proposal. The draft
Illinois submissions were made available to the public for review
during the public comment period, and the public had an opportunity to
comment on the adequacy of those documents and on the adequacy of EPA's
review of those documents (66 FR 17647). The documents were also made
available to the public by IEPA during its adoption process. The final
documents submitted by the state were substantially similar to the
draft documents on which EPA based its proposal. Therefore, the public
had an adequate opportunity to comment on the documents relevant to
EPA's proposal and relevant to this final rulemaking.
Comment 4. A commenter asserts that testing an elaborate airshed
model on only three brief episodes cannot demonstrate that the model is
of general validity. The commenter asserts that a valid model must
predict ambient concentrations accurately in a much greater variety of
weather conditions.
Response to Comment 4. The commenter challenges the validity of the
conclusion drawn from the modeling analyses on grounds that they are
premised on an application that is too limited. At the outset, it
should be noted that the model, the Urban Airshed Model, used by
Illinois and Missouri has been successfully applied in many urban areas
for many high ozone days and over a wide range of meteorological
conditions. The model has undergone continual development for nearly 30
years. EPA and its peer reviewers have judged the modeling approach
feasible, practical, and technically sound. As described in the
``User's Guide to the Variable-Grid Urban Airshed Model (UAM-V),''
Systems Applications International, Inc., SYSAPP-96-95/27r, October
1996, numerous evaluations have been performed and documented in
scientific literature. The version applied for the St. Louis attainment
demonstration includes further enhancements that allow for more refined
analyses.
With respect to the number of episodes modeled, EPA issued, and

[[Page 34008]]

Missouri and Illinois correctly applied, the ``Guideline For Regulatory
Application Of The Urban Airshed Model,'' EPA-450/4-91-013, July 1991.
The July 1991 guidance specifically addresses the selection of high
ozone episodes for the purposes of ozone modeling and the ozone
attainment demonstration. This guidance does not require the states to
model all high ozone episode days. In it, EPA recommends that states
model a minimum of three episode days covering multiple meteorological
conditions/regimes. This can be achieved by modeling three
meteorological regimes with each scenario consisting of one ``primary''
episode day, or modeling two meteorological regimes with one scenario
consisting of two ``primary'' episode days and a second consisting of
one primary episode day. States were given the flexibility to consider
other episode selection techniques considering a host of factors
including the availability of air quality, emissions, and
meteorological data bases, the availability of supporting regional
modeling analyses, the number of monitors recording daily maximums
greater than the NAAQS, the number of hours for which ozone in excess
of the NAAQS is observed, the frequency with which the observed
meteorological conditions correspond with observed exceedances, and
model performance. In a recent instance, EPA has approved other states'
reliance on modeling two episodes in performing the attainment
demonstrations. ``Proposed Rule: Approval and Promulgation of Air
Quality Implementation Plans,'' 64 FR 70460, 70470 (December 16, 1999)
(Washington, DC).
The states' final attainment demonstrations were based on two
episodes consisting of six ``primary'' episode days covering two
meteorological regimes, i.e., stagnant conditions and transport
conditions. As such, the states have met and in some aspects exceeded
our minimum recommendations.
Comment 5. A commenter notes that the model did not work in one of
the three episodes modeled, and that the states and EPA simply
discarded the episode in which they admitted the model was inadequate.
The commenter believes that a process that simply discards and ignores
the tests that prove that the model does not work is not a scientific
process.
Response to Comment 5. As noted in our April 17, 2000, proposed
rule (65 FR 20412), the states originally selected a third high ozone
episode, June 27-29, 1996, for ozone modeling. Subsequent modeling and
monitoring data analyses showed that the modeling results for this
episode failed to comply with the model's statistical validation
criteria specified in our July 1991 guidelines (see ``Guideline For
Regulatory Application Of the Urban Airshed Model,'' July 1991, page
57). Illinois and Missouri conducted many analyses to determine the
causes of the poor model performance for the June 1996 episode in an
attempt to correct possible problems with model input data. No
acceptable input data changes could be found which would allow the
modeling system to perform within acceptable parameters (consistent
with model performance parameters specified in EPA's July 1991
guidance, EPA-450/4-91-013).
The July 1991 guidance clearly anticipates that the modeling
results for some episodes will not ultimately pass recommended
statistical tests and should be rejected or replaced by an alternate
episode. This was the basis for the rejection of the July 1996 episode.
Since the states were already modeling an acceptable number of high
ozone days and since the modeled days represented the highest ozone
days available for consideration under several meteorological
regimes,\3\ the states did not replace the rejected July 1996 episode
with an alternate episode. As noted in the April 17, 2000, proposed
rule, EPA accepted this approach.
---------------------------------------------------------------------------

\3\ The July 16-19 and June 27-29, 1996, episodes occurred under
conditions controlled by a high pressure system centered over
Pennsylvania, with similar wind directions in the St. Louis area.
The July 10-14, 1995, episode was more influenced by stagnation
conditions with relatively low wind speeds and variable wind
directions.
---------------------------------------------------------------------------

Contrary to the assertion of the commenter, rejection of modeling
for episodes with ``poor'' modeling results is not poor science. As
explained in the response to the previous comment, episode selection is
based upon many factors. The goal of the modeling process is to
identify and focus on those episodes for which the most robust data
bases exist and for which the model appropriately simulates historical
observed ozone concentrations and patterns with emphasis on the
meteorological conditions that most commonly result in elevated levels
of ozone. This ensures that the final control strategies will be
effective for the most frequently occurring ozone episodic conditions.
Comment 6. A commenter notes that for the two nondiscarded episodes
modeled, the model altogether failed to predict realistic
concentrations. For the July 1995 episode, the model very substantially
underpredicted the recorded ozone concentrations on three of the five
days selected. Therefore, the results summarized in our proposed
rulemaking demonstrate the inadequacy of the model as a predictive
tool.
Response to Comment 6. As noted in Table 3 of the April 17, 2000,
proposed rule (65 FR 20404, 20413), for two days (July 13 and 14,
1995), the 1996 base case modeled peak ozone concentrations (131 and
125 parts per billion (ppb), respectively) were lower than the peak
monitored ozone concentrations (154 and 139 ppb, respectively) for the
ozone modeling domain. The modeling system did underestimate the peak
ozone concentrations for these days. Nonetheless, the modeling
statistics for these days and for the modeled ozone episodes as a whole
met our minimum ozone model performance statistical criteria. (See 66
FR 17647, 17650, April 3, 2001.) Therefore, the results for these days
are acceptable for purposes of the ozone attainment demonstration. The
modeling system performed acceptably in reproducing the spatial and
temporal patterns observed in the monitored ozone concentrations.
In addition, it is noted that, as discussed in our April 17, 2000,
proposed rule (65 FR 20404, 20414), the states also relied on WOE
determinations to further support the attainment demonstration. The
states considered the relative impacts of emission changes on the
predicted peak ozone concentrations (referred to as a relative
reduction factor approach) to show that future, post-2003 ozone design
values should be below the 1-hour ozone standard. Considering the ozone
modeling results and ozone design values for the 1995 through 1997
period, the states determined that the projected ozone design values
for the attainment year (2003 in the analyses addressed in the April
17, 2000, proposed rule) should be substantially lower than the 1-hour
ozone standard. See Table 4 of the April 17, 2000, proposed rule. The
states and EPA have concluded that the use of a relative reduction
factor approach is less sensitive to problems caused by modeling
uncertainty than are the deterministic and statistical approaches. The
WOE determinations support the adequacy of the ozone attainment
demonstration.
As also discussed in the April 17, 2000, proposal, trends analyses
also support the results of the modeled ozone attainment demonstration
(65 FR 20404, 20415). The trends data and the anticipated reduction in
regional NOX emissions resulting from EPA's NOX
SIP

[[Page 34009]]

call both support the conclusion of the adequacy of the states' ozone
attainment demonstration as modified in the April 3, 2001, supplement
(66 FR 17647) to that proposed rule.
Comment 7. A commenter contends that, even if the model had
predicted reasonably accurate ozone concentrations for the 1991 and
1995 episodes selected and had not failed altogether with respect to
the 1996 episode, and even if reasonable accuracy in two episodes could
demonstrate the validity of the model, these results would not be
persuasive in this instance. The commenter believes that emissions have
significantly changed inside and outside of the nonattainment area
since 1995 and weather patterns have changed, in part because of global
warming. As such, the commenter asserts that weather patterns of six
and ten years ago have little, if any, relevance to what is experienced
today or will be experienced in 2004. The commenter suggests that more
recent episodes should have been analyzed and believes that such work
could easily be developed, but has not been publicized. The commenter
contends that approval of the modeled attainment demonstration on the
basis of older evidence is irrational.
Response to Comment 7. The commenter has provided no emission or
meteorological data to support the contention that the area's emissions
have increased since 1995, that emissions will increase in the future,
or that new, unmodeled meteorological conditions are (or will be)
responsible for ozone standard exceedances inadequately addressed by
the states' ozone attainment demonstration. However, the states have
provided specific evidence to the contrary in their attainment
demonstrations.
With respect to emissions increases, the states are required to and
have correctly applied acceptable techniques to account for changes in
emissions that are expected to occur between the dates of the modeled
episodes and the attainment date. These expected changes include both
emissions increases and decreases. Emissions data provided by both
states show in their respective attainment demonstrations a significant
downward trend in the nonattainment area NOX emissions from
approximately 600 TPD in 1998 to a projected level of approximately 480
TPD in 2003. The data also show a significant downward trend in the
nonattainment area VOC emissions from approximately 440 TPD in 1995 to
a projected level of approximately 360 TPD in 2003. In addition, as
addressed in the April 3, 2001, proposed rule supplement, the
nonattainment area VOC and NOX emissions will continue to
decline between 2003 and 2004. On the other hand, statewide
NOX emissions in Illinois, Indiana, Kentucky, Missouri,
Ohio, and Tennessee have, in total, trended significantly upward
between 1990 and 1998. Therefore, local emissions are trending downward
while regional NOX emissions (emissions from outside the
nonattainment area) have trended upward (at least through 1998).
However, EPA's NOX SIP call and other upwind control
measures are designed to reverse the regional NOX emissions
trend.
In any case, the objective of the attainment demonstration is to
identify and implement a control strategy that demonstrates through air
quality modeling and other analyses that the ozone NAAQS will be
attained. The states have applied acceptable methods to estimate what
future emissions would be in the absence of a control strategy,
performed numerous sensitivity analyses to determine the most effective
ozone precursor reduction strategies, and ultimately identified and
adopted a set of control measures which demonstrates attainment for the
meteorological conditions that most frequently result in elevated ozone
levels in the St. Louis area.
With respect to meteorology, the commenter implies that attainment
may not have been demonstrated had the states considered more recent
episodes or accounted for alleged changes in weather patterns. The
actual data provided by both states indicate otherwise.
The states analyzed the meteorological conditions associated with
ozone over a 21-year period of time (1977-1998) and compared the number
of ozone conducive days in the St. Louis area to the number of days on
which the NAAQS was exceeded. During that time, the number of ozone
conducive days has oscillated, but remained between 21 and 47 per year.
During the same time frame, the number of exceedance days has been
trending steadily downward. The number of days exceeding the standard
has gone from a peak of over 50 days in 1978 to less than 5 in 1998.
While no two ozone episodes are identical, the data strongly suggest
that weather patterns that result in elevated ozone in the St. Louis
area are cyclical but consistent over time. This evidence, in
combination with the states' evaluation of the recurrence intervals of
the episodes relied upon for the attainment demonstration, contradicts
the commenter's assertions. In short, the historical data indicate that
elevated ozone levels in the St. Louis area occur under a limited set
of weather patterns. As noted elsewhere, they include elements of
stagnant and transport conditions. The episodes relied upon for the
attainment demonstration encompass these patterns. There is no
indication that weather patterns will change significantly in the near
future, and the commenter has not provided any such information.
Therefore, the attainment demonstration modeling has utilized the
meteorological conditions which most frequently occur in the St. Louis
area.
Comment 8. The commenter contends that the emissions data put into
the model do not adequately reflect the conditions the St. Louis area
will experience in 2004. For example, they do not include the ``huge''
increase in NOX emissions, and significant increases in VOC
emissions, which are expected to be brought about by three new or
expanded cement plants on the southern boundary of the nonattainment
area. Further, the input data do not include the substantial ``vehicle
miles travelled'' increase anticipated to result from the development
of a regional shopping mall in St. Louis County. The commenter contends
that none of these increases were included in the estimates furnished
by the East-West Gateway Coordinating Council for the purpose of this
modeling.
Response to Comment 8. As alluded to in an earlier response, the
states are required to and have applied the appropriate techniques to
estimate and account for potential emissions changes in an 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 the attainment demonstration.
Both the states of Illinois and Missouri implement Prevention of
Significant Deterioration and NSR permitting regulations. These
regulations address the air quality impacts of new sources and existing
expanding 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 cement plants referenced by the commenters are
potential sources in Missouri which are currently in the process of
completing construction permit applications under

[[Page 34010]]

state permitting requirements. None of the cement plant construction
and modification projects have received the preconstruction permits
necessary for construction and operation. Before any such projects 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 ``[i]nterfere with the attainment or maintenance of ambient
air quality standards'' (10 CSR 10-6.010(6)(A)). (Missouri regulation
10 CSR 10-6.060, Missouri's construction permitting rule, is part of
the Federally approved SIP.) EPA believes that it is the function of
the state's air permitting rules, rather than the attainment
demonstration, to ensure that specific potential new sources do not
create emissions which would interfere with attainment of the ozone
standard.
In addition, the states, in partnership with the local MPO, are
required to implement the states' transportation conformity regulations
to ensure that transportation-related ozone precursor emissions
``conform'' to levels consistent with their respective SIPs. Specific
increases and decreases associated with transportation-related projects
are evaluated through the process. The fact that an attainment
demonstration does not specifically account for possible new sources of
ozone precursors does not render the attainment demonstration
deficient.
Comment 9. The commenter incorporates by reference the comments
made with respect to the rulemaking of January 3, 2001, reported at 66
FR 585.
Response to Comment 9. EPA incorporates by reference the responses
made with respect to the January 3, 2001, rulemaking cited by
commenters, as well as the Beaumont, Texas, rulemaking (66 FR 26193,
May 15, 2001).

XIII. What Action Is EPA Taking Regarding the State Submittals
Addressed by This Final Rule?

EPA is taking the following actions on the state submittals address
by this final rule:
1. EPA is approving the ground-level 1-hour ozone attainment
demonstration SIPs for the St. Louis, Missouri, and Illinois ozone
nonattainment area.
2. EPA is granting the states' requests for extension, and
extending the date for attaining the 1-hour ozone standard to November
15, 2004, while retaining the area's current classification as a
moderate ozone nonattainment area.
3. EPA is approving the 2004 on-road MVEBs for both Illinois and
Missouri. Both Illinois and Missouri have committed to revise their
2004 MVEBs based on MOBILE6 within two years of its release. No
conformity determinations will be made during the second year following
the release of MOBILE6 unless and until the MVEBs have been
recalculated using MOBILE6 and approved by EPA.
4. EPA is finding that the Contingency Measures identified by both
Illinois and Missouri are adequate to meet the requirements of the Act.
We are also approving the contingency measures SIP submitted by
Missouri in October 1997, as supplemented by a letter dated April 5,
2001.
5. EPA finds that the St. Louis area meets the requirements
pertaining to RACM under the Act.
6. EPA is granting an exemption to the state of Illinois from the
NOX RACT requirements of the Act and disapproving the
request for an exemption from the NOX NSR and certain
NOX conformity requirements for Madison, Monroe, and St.
Clair Counties.
7. EPA is withdrawing our March 19, 2001, rulemaking action
entitled ``Determination of Nonattainment as of November 15, 1996, and
Reclassification.''
For the reasons stated above in the ``Background'' portion of this
notice, EPA is making this final action immediately effective.

Administrative Requirements

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. This action,
in relevant part, 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 preexisting requirements under
state law and does not impose any additional enforceable duty beyond
that required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same
reason, this rule also does not significantly or uniquely affect the
communities of tribal governments, as specified by Executive Order
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial
direct effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because, in
relevant part, it merely approves a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Act. This rule also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
In reviewing SIP submissions, our role is to approve state choices,
provided that they meet the criteria of the Act. In this context, in
the absence of a prior existing requirement for the state to use
voluntary consensus standards (VCS), we have no authority to disapprove
a SIP submission for failure to use VCS. It would thus be inconsistent
with applicable law for EPA, when it reviews a SIP submission, to use
VCS in place of a SIP submission that otherwise satisfies the
provisions of the Act. Thus, the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) do not apply. As required by section 3 of Executive Order 12988
(61 FR 4729, February 7, 1996), in issuing this rule, we have taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March
15, 1988) by examining the takings implications of the rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive Order. This 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. We will submit a report containing this rule and other
required information to the United States Senate, the United States
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal

[[Page 34011]]

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 Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 27, 2001. 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,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Ozone, Wilderness areas.

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

Dated: June 14, 2001.
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 O--Illinois

2. Section 52.726 is amended by adding paragraph (bb) to read as
follows:

Sec. 52.726 Control strategy: Ozone.

* * * * *
(bb) Approval--Revisions to the SIP submitted by Illinois on
November 15, 1999; February 10, 2000; April 13, 2001; and April 30,
2001. The revisions are for the purpose of satisfying the attainment
demonstration requirements of section 182(c)(2)(A) of the Act for the
Metro-East St. Louis area. The revision establishes an attainment date
of November 15, 2004, for the St. Louis moderate ozone nonattainment
area. This revision establishes MVEBs for 2004 of 26.62 TPD of VOC and
35.52 TPD of NOX to be used in transportation conformity in
the Metro-East St. Louis area until revised budgets pursuant to MOBILE6
are submitted and found adequate. In the revision, Illinois commits to
revise its VOC and NOX transportation conformity budgets
within two years of the release of MOBILE6. No conformity
determinations will be made during the second year following the
release of MOBILE6 unless and until the MVEBs have been recalculated
using MOBILE6 and found adequate by EPA. EPA is granting a waiver for
the Metro East St. Louis area to the state of Illinois from the
NOX RACT requirements of the Act and disapproving the
request for a waiver from the NOX NSR and NOX
general conformity requirements. EPA is finding that the Contingency
Measures identified by Illinois are adequate to meet the requirements
of the Act. EPA finds that the Illinois SIP meets the requirements
pertaining to RACM under the Act for the Metro-East St. Louis area.

Subpart AA--Missouri

4. In Sec. 52.1320(e) the table is amended under Chapter 6 by
adding two entries at the end of the table as follows:

Sec. 52.1320 Identification of Plan.

* * * * *
(e) * * *

EPA-Approved Missouri Nonregualtory SIP Provisions
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SIP geographic or State submittal EPA approval Explanation
provision nonattainment area date date
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
Contingency Plan including St. Louis......... 10/6/97,.......... June 26, 2001.....
letter of April 5, 2001. 4/5/01............
Ozone 1-Hour Standard St. Louis......... 11/10/99, 11/2/00, June 26, 2001.....
Attainment Demonstration Plan 2/28/01, 3/7/01.
for November 2004 including
2004 On-Road Motor Vehicle
Emissions Budgets.
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

2. The amendments to Secs. 81.314 and 81.326 which published on
March 19, 2001 (66 FR 15578) and were revised on May 16, 2001 (66 FR
27036) to become effective on June 29, 2001, are withdrawn.
[FR Doc. 01-15842 Filed 6-25-01; 8:45 am]
BILLING CODE 6560-50-P