[Federal Register Volume 67, Number 161 (Tuesday, August 20, 2002)]
[Rules and Regulations]
[Pages 53882-53886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21195]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[FRL-7262-3]
Final Effective Date Modification for the Determination of
Nonattainment as of November 15, 1999, and Reclassification of the
Baton Rouge Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rulemaking; delay of effective date.
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SUMMARY: On June 24, 2002, EPA published a final rule entitled
``Determination of Nonattainment as of November 15, 1999, and
Reclassification of the Baton Rouge Ozone Nonattainment Area'' (67 FR
42688). The effective date for the final rule was August 23, 2002. At
the same time, EPA also published its proposal to delay the effective
date of the determination and reclassification until October 4, 2002.
The 30-day comment period on our June 24, 2002, proposal to extend the
effective date has ended and EPA received twenty-seven comment letters
of which twenty-six comment letters expressed support for the delayed
effective date. Today EPA is finalizing the modification of the
effective date of our June 24, 2002, rule from August 23, 2002, until
October 4, 2002. 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: As of August 20, 2002, the effective date of the final rule
amending 40 CFR part 81 published at 67 FR 42688, June 24, 2002, is
delayed for six weeks, from August 23, 2002, to a new effective date of
October 4, 2002. The amendment to 40 CFR part 81 in this final rule is
effective October 4, 2002.
ADDRESSES: Copies of documents relevant to this action area available
for public inspection during normal business hours at the Environmental
Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross
Avenue, Dallas, Texas 75202-2733; and the Louisiana Department of
Environmental Quality (LDEQ), 7920 Bluebonnet Boulevard, Baton Rouge,
Louisiana 70884. Please contact the appropriate office at least 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Ms. Maria L. Martinez, EPA Region 6,
1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2230.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us,
or our'' is used, we mean EPA. Throughout this document, whenever
``Baton Rouge Area,'' ``Baton Rouge Nonattainment Area,'' or ``Baton
Rouge Ozone Nonattainment Area'' is used, we mean the area which
includes the parishes of Ascension, East Baton Rouge, Iberville,
Livingston, and West Baton Rouge in the State of Louisiana.
Background
In a Judgment entered on March 7, 2002, the United States District
Court for the Middle District of Louisiana, ordered EPA to determine,
by June 5, 2002, whether the Baton Rouge area had attained the
applicable ozone standard under the Clean Air Act (hereinafter referred
to as the CAA or Act). Louisiana Environmental Action Network (LEAN) v.
Whitman, 00-879-A. The Court also ordered EPA to publish in the Federal
Register a notice of a final action reflecting both the determination
and any reclassification of the area required as a result of the
determination. The Court also held that it was not acting to restrict
the effective date that EPA selects for its action. See the Court's
February 27, 2002, Ruling.\1\ EPA published its determination on June
24, 2002, in response to the Court's order.
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\1\ For additional information on other court rulings on the
issue of an effective date for such action, see, Sierra Club v.
Browner, 130 F. Supp. 2d 78 (D.D.C. 2001), aff'd., 285 F. 3d 63
(D.C. Cir. 2002).
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On June 24, 2002, EPA concurrently published its proposal to delay
the effective date of the determination and reclassification from
August 23, 2002, until October 4, 2002 (67 FR 42697). EPA has
determined that the delay of the effective date of the determination of
nonattainment and reclassification is necessary to allow regulated
entities in the Baton Rouge area time to prepare for the new
requirements that are applicable to severe nonattainment areas. In the
June 24, 2002, proposal, EPA noted that on the effective date of the
reclassification to severe, the major stationary source threshold for
the Baton Rouge area will be reduced from 50 tons of emissions on an
annual basis to 25 tons. Thus a number of facilities with volatile
organic compounds (VOCs) or nitrogen oxide (NOX) emission
levels between 25 and 50 tons per year may become subject to major
source requirements for the first time.\2\ Extending the effective date
of our June 24, 2002, determination to October 4, 2002, will provide
adequate time for the facilities affected by the reclassification to
comply with the new technical requirements. EPA has determined that
sources possibly subject to these new requirements should have
additional time to prepare for the impact of these requirements. EPA's
decision to extend the effective date for this reason is supported by a
number of commenters.
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\2\ See section 182(d) in conjunction with section 182(f) of the
Act for the severe area major source thresholds for these
pollutants.
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In addition, as EPA stated in its June 24, 2002, proposal, we will
continue to work on completing a separate rulemaking on the issue of
whether the Baton Rouge 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'' Federal
Register document (64 FR 14441, March 25, 1999) (hereinafter referred
to as EPA's extension policy), and remain classified as a serious
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
Baton Rouge area before the nonattainment determination becomes
effective. Section 181(b)(2)(A) of the Act
[[Page 53883]]
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. 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 Baton Rouge
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 Louisiana has submitted its final SIP
submissions, EPA believes that it will be able to complete rulemaking
on the attainment date extension request by October 4, 2002. On August
2, 2002, EPA published its proposal to: (1) Approve the Baton Rouge
area's ozone attainment demonstration and transport SIP which proposes
an attainment date of November 15, 2005, (2) determine that the Baton
Rouge area meets the reasonably available control measures (RACM)
requirements of the Act, (3) approve the motor vehicle emission budgets
associated with the attainment demonstration, (4) approve the
enforceable commitments regarding MOBILE6 and to perform a mid-course
review and submit a SIP revision to EPA by May 1, 2004, (5) approve an
enforceable transportation control measure (TCM), (6) approve
corrections to the 1990 Base Year Emissions Inventory, the 9% Rate-of-
Progress Plan, and the 15% Rate-of Progress Plan and, (7) withdraw its
June 24, 2002 (67 FR 42688), rulemaking determining nonattainment and
reclassifying the Baton Rouge nonattainment area as a severe
nonattainment area for ozone. (67 FR 50391). EPA is taking separate
actions on other related revisions of the Baton Rouge SIP, including
the Inspection and Maintenance Program (67 FR 44410, July 2, 2002),
NOX regulations (67 FR 30638, May 7, 2002, and 67 FR 48095,
July 23, 2002), New Source Review (see 67 FR 48090, July 23, 2002),
emissions reductions credit banking (see 67 FR 48083, July 23, 2002),
Contingency Measures (see 67 FR 35468, May 20, 2002), and SIP revisions
dealing with VOC emissions from industrial wastewater (67 FR 41840,
June 20, 2002).
If, prior to the reclassification delayed effective date of October
4, 2002, EPA finalizes an extension of the attainment date for the
Baton Rouge area pursuant to EPA's extension policy, then EPA would
rescind its determination of nonattainment and notice of
reclassification of the area and the area would retain its
classification as a serious nonattainment area for ozone.
Such a course would allow the Agency to fulfill its duty to take
into account upwind transport and allow an opportunity for the Baton
Rouge 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 rulemakings granting requests for
attainment date extensions based on its policy in six ozone
nonattainment areas: Washington, DC,\3\ (66 FR 568, January 3, 2001);
Greater Connecticut, (66 FR 634, January 3, 2001); Springfield,
Massachusetts, (66 FR 666, January 3, 2001); and Beaumont/Port Arthur,
Texas (66 FR 26913, May 15, 2001); St. Louis, Missouri (66 FR 33996,
June 26, 2001).
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\3\ On July 2, 2002, the U.S. Court of Appeals for the District
of Columbia vacated EPA's approval of an attainment date extension
for the Washington, DC ozone nonattainment area. Sierra Club v. EPA,
2002 WL 1407009 (D.C. Cir. July 2, 2002). EPA is currently
evaluating this decision and considering what impact it may have on
EPA's future actions concerning the Baton Rouge area.
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What Comments Were Received on the Proposed Effective Date Modification
for the Determination of Nonattainment and How Has EPA Responded?
EPA received letters from twenty-six commenters in support of the
proposal to delay the effective date. We also received one letter
opposing the delayed effective date.
Comment 1: Twenty-six commenters supported delaying the effective
date of our June 24, 2002, determination to October 4, 2002.
Response 1: EPA has determined that the delay of the effective date
of the determination of nonattainment and reclassification is necessary
to allow regulated entities in the Baton Rouge area a period of time to
prepare for the new requirements that are applicable to severe
nonattainment areas.
Comment 2: A commenter contends that delaying the effective date is
not necessary for the purpose of allowing facilities to prepare for new
requirements applicable to severe nonattainment areas. The commenter
argues that the reclassification of the area should have occurred on
May 15, 2000, and that therefore regulated facilities in the Baton
Rouge area have had abundant time to prepare for the new requirements.
Response 2: Contrary to the commenter's contention, it was not
clear until the Court's March, 2002, Order that EPA would be required
to make an attainment determination prior to concluding its review of
whether the Baton Rouge area qualified for an attainment date
extension. Therefore, entities affected by a reclassification did not
have much notice of the new controls to which they would be subject. In
EPA's May 9, 2001 (66 FR 23646) and July 25, 2001 (66 FR 38608)
proposals on the Baton Rouge area, EPA proposed to finalize the
nonattainment determination and reclassification notice for the Baton
Rouge area only after the area had had an opportunity to qualify for an
attainment date extension under the extension policy. As a result, the
commenter is incorrect in its assertion that regulated entities were on
notice that the area would be reclassified. The commenter has not
identified any basis for questioning EPA's determination that regulated
entities require additional time to prepare for the impact of the June
24, 2002, final rulemaking. See also the comments submitted in support
of extending the effective date for this reason.
Comment 3: Several commenters strongly support EPA's proposal to
extend the effective date of its June 24, 2002, determination on the
basis that this action will allow EPA sufficient time to work on
completing a separate rulemaking on the issue of whether the Baton
Rouge area should be granted an extension of its attainment date
pursuant to EPA's extension policy, and remain classified as a serious
nonattainment area. One commenter takes issue with EPA's use of the
period of the delayed effective date to allow EPA to complete
consideration of Louisiana's request for an attainment date extension.
The commenter asserts that the attainment date extension violates the
Clean Air Act, and that a federal Court of Appeals found that EPA had
violated the CAA when it extended the attainment deadline for the
Washington, DC area. The commenter argues that since EPA cannot grant
an attainment date extension, it cannot delay the effective date of the
June 24, 2002, rule.
Response 3: On July 2, 2002, the U.S. Court of Appeals for the
District of Columbia vacated EPA's approval of an attainment date
extension for the Washington, D.C. ozone nonattainment area. Sierra
Club v. EPA, 2002 WL 1407009 (D.C. Cir. July 2, 2002). EPA is currently
evaluating this decision and considering what impact it may have on
EPA's future actions concerning the Baton Rouge area. Regardless of
whether EPA continues to process the attainment date extension during
the period prior to the effective date of the June 24, 2002, rule, EPA
has concluded that the need for regulated entities to have additional
time to prepare for reclassification
[[Page 53884]]
provides a sufficient, separate, and independent basis for extending
the effective date, and therefore EPA does not rely on the activities
relating to the attainment date extension in concluding that the
effective date should be extended until October 4, 2002.
Comment 4: A number of commenters note that a ``bump-up'' of the
Baton Rouge area from ``serious'' to ``severe'' ozone nonattainment
would ignore the efforts of the Baton Rouge Ozone Task Force and the
progress toward attainment already achieved by the Baton Rouge area,
would result in the implementation of emissions control measures that
will produce negligible air quality benefits for the cost, and would
cause great harm to economic development of the area. These commenters
contend that the revised State Implementation Plan (SIP) submitted to
EPA by Louisiana on December 31, 2001, provides the most reasonable,
effective and expeditious path to the attainment of the 1-hour ozone
NAAQS.
Response 4: The substance of Louisiana's revised SIP is the subject
of a separate rulemaking (67 FR 50391, August 2, 2002) and is not under
consideration is this action. EPA will address comments regarding
Louisiana's revised SIP, as appropriate, in that separate rulemaking.
EPA has acknowledged that during the period of the delayed effective
date, it will continue to work on completing a separate rulemaking on
the issue of whether the Baton Rouge area should be granted an
extension of its attainment date pursuant to EPA's extension policy,
and remain classified as a serious nonattainment area. However, as
noted above, EPA is currently evaluating the recent U.S. Court of
Appeals' decision and is considering what impact it may have on EPA's
future actions concerning the Baton Rouge area. Regardless of whether
EPA continues to process the attainment date extension during the
period prior to the effective date of the June 24, 2002, rule, EPA has
concluded that the need for regulated entities to have additional time
to prepare for reclassification provides a sufficient, separate, and
independent basis for extending the effective date, and therefore EPA
does not rely on the activities relating to the attainment date
extension in concluding that the effective date should be extended
until October 4, 2002.
Comment 5: A number of commenters base their support of EPA's
proposal on the grounds that the delayed effective date will alleviate
some of the supply impacts of the ``severe'' area requirement to use
and sell reformulated gasoline (RFG) in the Baton Rouge area.
Response 5: EPA believes that the need for regulated entities to
have additional time to prepare for reclassification provides a
sufficient, separate, and independent basis for extending the effective
date. EPA expresses no view as to other grounds of support for its
action. However, we note the commenters are correct that the Clean Air
Act requires mandatory participation in the federal RFG program for an
ozone non-attainment area which is reclassified as severe, effective
one year after the reclassification. See section 211(k)(10)(D) of the
CAA. This requirement under the Clean Air Act is implemented as a
matter of law; EPA does not have discretion to change, waive, or fail
to implement this requirement.
Final Action
For the reasons stated above, and in the June 24, 2002, proposal,
EPA is taking final action to extend to October 4, 2002, the effective
date of the final rule entitled ``Determination of Nonattainment as of
November 15, 1999, and Reclassification of the Baton Rouge Ozone
Nonattainment Area; State of Louisiana'' (67 FR 42688). 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
[[Page 53885]]
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 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 in 40 CFR Part 81
Environmental protection, Air pollution control, Carbon monoxide,
Nitrogen dioxides, Ozone, Reporting and recordkeeping requirements.
Dated: August 12, 2002.
Gregg A. Cooke,
Regional Administrator, Region 6.
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.319 the table for ``Louisiana--Ozone (1-hour
Standard)'' is amended by revising the entry for the Baton Rouge area
to read as follows:
Sec. 81.319 Louisiana.
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Louisiana-Ozone (1-Hour Standard)
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Designation Classification
Designated area -------------------------------------------------------------------------
1Date Type 1Date Type
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Baton Rouge Area:
Ascension Parish.................. 11/15/90 Nonattainment............ 10/04/02 Severe.
East Baton Rouge Parish........... 11/15/90 Nonattainment............ 10/04/02 Severe.
Iberville Parish.................. 11/15/90 Nonattainment............ 10/04/02 Severe.
Livingston Parish................. 11/15/90 Nonattainment............ 10/04/02 Severe.
West Baton Rouge Parish........... 11/15/90 Nonattainment............ 10/04/02 Severe.
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*
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1 This date is October 18, 2000, unless otherwise noted.
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[FR Doc. 02-21195 Filed 8-19-02; 8:45 am]
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