[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 NO<INF>X</INF> emission 
rate of 0.25 pounds per mmBtu of heat input or less. (The Illinois 
NO<INF>X</INF> 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.

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                                                 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
----------------------------------------------------------------------------------------------------------------
 
                          *         *         *         *         *         *         *
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.


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[FR Doc. 01-12353 Filed 5-15-01; 8:45 am]
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