[Federal Register Volume 66, Number 95 (Wednesday, May 16, 2001)]
[Rules and Regulations]
[Pages 27036-27040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12353]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[FRL-6980-7]
Final Effective Date Modification for the Determination of
Nonattainment as of November 15, 1996, and Reclassification of the St.
Louis Ozone Nonattainment Area; States of Missouri and Illinois
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rulemaking; delay of effective date.
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SUMMARY: On March 19, 2001, EPA published a final rule entitled
``Determination of Nonattainment as of November 15, 1996, and
Reclassification of the St. Louis Ozone Nonattainment Area; States of
Missouri and Illinois'' (66 FR 15578). The effective date for the final
rule was May 18, 2001. At the same time, EPA also published its
proposal to delay the effective date of the determination and
reclassification until June 29, 2001. The 30-day comment period on our
March 19, 2001, proposal to extend the effective date has ended and EPA
received no adverse comments. Today EPA is finalizing the modification
of the effective date of our March 19, 2001, rule from May 18, 2001,
until June 29, 2001. 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 underlying nonattainment determination and
reclassification is imminent, and delaying the effective date of this
action would negate the purpose of this rule. In addition, EPA finds
good cause for making this action effective immediately because it
relieves a restriction that would otherwise go into effect.
DATES: The effective date of the final rule amending 40 CFR part 81
published at 66 FR 15578, March 19, 2001, is delayed for six weeks,
from May 18, 2001, to a new effective date of June 29, 2001. The
amendments in this final rule are effective June 29, 2001.
FOR FURTHER INFORMATION CONTACT: Lynn M. Slugantz, EPA Region 7, (913)
551-7883; or Edward Doty, EPA Region 5, (312) 886-6057.
[[Page 27037]]
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us,
or our'' is used, we mean EPA. Throughout this document, whenever ``St.
Louis Area,'' ``St. Louis Nonattainment Area,'' ``St. Louis NAA,'' or
``St. Louis Ozone Nonattainment Area'' is used, we mean the interstate
area which includes Madison, Monroe, and St. Clair Counties in
Illinois; and Franklin, Jefferson, St. Charles, St. Louis Counties and
the City of St. Louis in Missouri.
In November 1998, the Sierra Club and the Missouri Coalition for
the Environment filed a complaint in the United States District Court
for the District of Columbia against EPA ((Sierra Club v. Browner (now
Sierra Club v. Whitman), No. 98-2733 (CKK)), alleging, in part, that
EPA failed to publish a determination of nonattainment and notice of
the reclassification of the St. Louis Area to ``serious''
nonattainment. With respect to the reclassification issue, the Court in
an opinion and Order dated January 29, 2001, stated that it would
require EPA to ``reach its statutorily required determination
promptly,'' and ordered EPA to make its determination no later than
March 12, 2001, ``whether the St. Louis NAA attained the requisite
ozone standards.'' It also ordered EPA to publish a notice of the
determination, as required by the Act, by March 12, 2001. EPA
subsequently requested and the Court granted an extension to March 20,
2001, for publishing the notice. Court Order of February 14, 2001. EPA
published its determination on March 19, 2001, in response to the
Court's Order.
On March 8, 2001, in its Motion Re: Alternative Planned Response to
Comply with the Court's Order of January 29, 2001, EPA informed the
Court of its planned course of action to comply with the Court's Order,
should the Court deny a request for a stay filed by another party. This
course of action included issuing the ``Determination of Nonattainment
as of November 15, 1996, and Reclassification.'' EPA also advised the
Court that it intended to propose to postpone the effective date of
that Determination and Notice until June 29, 2001, and of EPA's intent
to withdraw the determination and reclassification if EPA approves an
attainment date extension for the St. Louis Area before the
determination becomes effective.
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, and publishing the
required Notice 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.
On March 19, 2001, EPA published its proposal to delay the
effective date of the determination and reclassification until June 29,
2001 (66 FR 15591). EPA received letters from 39 commenters in support
of the proposal to delay the effective date. We did not receive any
adverse comments. EPA has determined that the additional delay of the
effective date of the determination of nonattainment and
reclassification is necessary to allow regulated entities in the St.
Louis Area a period of time to prepare for the new requirements that
are applicable to serious nonattainment areas. In the March 19
proposal, EPA noted that on the effective date of the reclassification
to serious, the cutoff for ``major sources'' under the Illinois SIP
will be reduced from 100 tons of emissions on an annual basis to 50
tons. Thus, a number of facilities with volatile organic compound or
nitrogen oxide emission levels between 50 and 100 tons per year may
become subject to major source requirements for the first time.\1\ As
one commenter pointed out in support of EPA's proposal, extending the
date to June 29, 2001, will provide sufficient notice to the regulated
entities given that the reclassification proposal on which the March
19, 2001, rule was based was published two years ago (64 FR 13384,
March 18, 1999). In that proposal, EPA announced its intent not to
finalize the nonattainment determination and reclassification if it
granted an attainment date extension. EPA has determined that sources
possibly subject to these new requirements should have additional time
to prepare for the impact of these requirements.
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\1\ See section 182(c) in conjunction with section 182(f) of the
Act for the serious area major source thresholds for these
pollutants.
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In addition, as EPA stated in its March 19, 2001, proposal, we will
continue to work on completing a separate rulemaking on the issue of
whether the St. Louis Area should be granted an extension of its
attainment date pursuant to EPA's ``Guidance on Extension of Air
Quality Attainment Dates for Downwind Transport Areas'' (64 FR 14441,
March 25, 1999), and remain classified as a moderate nonattainment
area. By taking this final action to extend the effective date for the
nonattainment determination, EPA is in a position to take final action
on the proposal to extend the attainment date for the St. Louis Area
before the nonattainment determination becomes effective. Section
181(b)(2)(A) of the Act requires that EPA determine attainment within
six months of the attainment date. If the attainment date were
extended, there would be a new deadline for the determination that
would arise only in the future. See Guidance. Thus, if the attainment
date were extended, EPA's obligation to determine attainment would not
yet have occurred. If EPA were to extend the attainment date for the
St. Louis Area, EPA would withdraw the published nonattainment
determination and the consequent reclassification, which would not yet
have gone into effect.
In light of the fact that Missouri and Illinois have submitted
their final SIP submissions, EPA believes that it will be able to
complete rulemaking on the attainment date extension request by June
29, 2001. On April 3, 2001, EPA published its proposal to: (1) Approve
the St. Louis nonattainment area ozone attainment demonstration for
both Missouri and Illinois, contingent on Illinois' submittal of a
final attainment demonstration and motor vehicle emission budgets, and
of an adopted rule requiring EGUs to achieve a NOX emission
rate of 0.25 pounds per mmBtu of heat input or less. (The Illinois
NOX rule is the subject of a separate April 3, 2001,
proposed rulemaking, 66 FR 17641. Illinois submitted its final adopted
EGU rule to EPA on April 24, 2001); (2) find that the transportation
conformity motor vehicle emission budgets submitted by Illinois and
Missouri are adequate for conformity purposes; (3) extend the
attainment date to November 15, 2004. If, prior to the reclassification
delayed effective date of June 29, 2001, EPA finalizes an extension to
the attainment date for the St. Louis Area, pursuant to EPA's policy
regarding extension of attainment dates for downwind transport areas,
then EPA would rescind its determination of nonattainment and notice of
reclassification of the area and the area would retain its
classification as a moderate nonattainment area for ozone; and (4)
withdraw its March 19, 2001, rulemaking determining nonattainment and
reclassifying the St. Louis nonattainment area as a serious
nonattainment area for ozone (66 FR 15578).
Such a course would allow the Agency to fulfill its duty to take
into account upwind transport and allow an opportunity for the St.
Louis Area to qualify for an extension under the attainment date
extension policy which EPA has applied in other areas affected by
transport. EPA recently issued final
[[Page 27038]]
rulemakings granting requests for attainment date extensions based on
its policy in four ozone nonattainment areas: Washington, D.C.; Greater
Connecticut; Springfield, Massachusetts; 66 FR 568 (January 3, 2001),
66 FR 634 (January 3, 2001), 66 FR 666 (January 3, 2001) and Beaumont/
Port Arthur, Texas (rulemaking signed on April 30, 2001).\2\
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\2\ A petition for review of the Washington, D.C. rulemaking is
pending in the Court of Appeals for the District of Columbia (Sierra
Club v. EPA, No. 01-1070).
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Final Action
For the reasons stated above, and in the March 19, 2001, proposal,
EPA is taking final action to extend to June 29, 2001, the effective
date of the final rule entitled ``Determination of Nonattainment as of
November 15, 1996, and Reclassification of the St. Louis Ozone
Nonattainment Area; States of Missouri and Illinois'' (66 FR 15591).
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 underlying nonattainment determination and reclassification is
imminent, and delaying the effective date of this action would negate
the purpose of this rule. In addition, EPA finds good cause for making
this action effective immediately because it relieves a restriction
that would otherwise go into effect.
Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is
required to determine whether regulatory actions are significant and
therefore should be subject to Office of Management and Budget (OMB)
review, economic analysis, and the requirements of the Executive Order.
The Executive Order defines a ``significant regulatory action'' as one
that is likely to result in a rule that may meet at least one of the
four criteria identified in section 3(f), including, under paragraph
(1), that the rule may ``have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local, or tribal
governments or communities.''
The Agency has determined that this effective date modification
would result in none of the effects identified in section 3(f) of the
Executive Order. This final rulemaking merely delays the effective date
of EPA's determination of nonattainment and would not impose any new
requirements on any sectors of the economy, or on state, local, or
tribal governments or communities.
B. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed action is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866.
C. Executive Order 13175
On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date. This rulemaking does not affect the communities of Indian tribal
governments. Accordingly, the requirements of Executive Order 13175 do
not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rulemaking to delay the effective date of EPA's nonattainment
determination does not create any new requirements. Instead, this
rulemaking only delays the effective date of a factual determination,
and would not regulate any entities. Therefore, pursuant to 5 U.S.C.
605(b), I certify that today's proposal would not have a significant
impact on a substantial number of small entities within the meaning of
those terms for RFA purposes.
E. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary
impact statement to accompany any proposed or final rule that includes
a Federal mandate that may result in estimated annual costs to state,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
EPA believes, as discussed above, that the delay of the effective
date of a determination of nonattainment does not constitute a Federal
mandate, as defined in section 101 of the UMRA, because it does not
impose an enforceable duty on any entity.
F. Executive Order 13132
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by state and local governments, or EPA consults with
state and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that
[[Page 27039]]
preempts state law unless the Agency consults with state and local
officials early in the process of developing the proposed regulation.
This delay of the effective date of a nonattainment determination
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999), because this action does not impose any new requirements on
any sectors of the economy, and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
Thus, the requirements of section 6 of the Executive Order do not apply
to this final action.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final action does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
List of Subjects for Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: May 7, 2001.
William Rice,
Acting Regional Administrator, Region 7.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 81.314 is amended by revising the ozone table entry for
the St. Louis Area to read as follows:
Sec. 81.314 Illinois.
* * * * *
Illinois--Ozone
[1-hour standard]
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Designation Classification
Designated area -------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
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* * * * * * *
St. Louis Area:
Madison County.............. June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
Monroe County............... June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
St. Clair County............ June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.
* * * * *
3. Section 81.326 is amended by revising the ozone table entry for
the St. Louis area to read as follows:
Sec. 81.326 Missouri.
* * * * *
Missouri--Ozone
[1-hour standard]
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Designation Classification
Designated area -------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
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* * * * * * *
St. Louis Area:
Franklin County............. June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
Jefferson County............ June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
St. Charles County.......... June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
St. Louis................... June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
St. Louis County............ June 29, 2001...... Nonattainment...... June 29, 2001...... Serious.
* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.
[[Page 27040]]
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[FR Doc. 01-12353 Filed 5-15-01; 8:45 am]
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