[Federal Register Volume 66, Number 53 (Monday, March 19, 2001)]
[Proposed Rules]
[Pages 15591-15593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6622]



  Federal Register / Vol. 66, No. 53 / Monday, March 19, 2001 / 
Proposed Rules  

[[Page 15591]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[MO 061-0161b; IL 187-3; FRL-6955-5]


Proposed 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: Proposed delay of effective date.

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SUMMARY: EPA is proposing to delay the effective date of its 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,'' published elsewhere in today's Federal 
Register, until June 29, 2001. As promulgated, the rule states that it 
is effective 60 days after publication in the Federal Register. EPA 
believes that the proposed additional delay of the effective date until 
June 29, 2001, is necessary, in part, to allow regulated entities in 
the St. Louis area to prepare for compliance with the new requirements 
that would become applicable in the area upon the effective date of the 
nonattainment determination and reclassification.
    During the pre-effective date period, EPA would also continue to 
work on completing a separate rulemaking on the issue of whether St. 
Louis 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,'' published March 25, 1999, and continue to 
retain a moderate classification. In this action, EPA is also stating 
its intent to propose to withdraw its final March 12 determination of 
nonattainment and notice of reclassification, if EPA approves an 
attainment date extension before the effective date of that final 
action.
    In an order issued January 29, 2001, and amended on February 14, 
2001, the United States District Court for the District of Columbia 
directed EPA to determine, by March 12, 2001, whether the St. Louis 
area had attained the applicable ozone standard under the Clean Air Act 
(CAA), and ordered EPA to publish any required notice resulting from 
its determination by March 20, 2001. Sierra Club v. Whitman, No. 98-
2733. 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 Intervenors. EPA's 
plans included issuing today's ``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 reclassification 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 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.

DATES: Comments must be received on or before April 18, 2001.

ADDRESSES: Written comments should be mailed to Royan W. Teter, Air 
Planning and Development Branch, U.S. Environmental Protection Agency, 
901 North 5th Street, Kansas City, Kansas 66101; and Edward Doty, 
Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Royan W. Teter, EPA Region 7, (913) 
551-7609; or Edward Doty, EPA Region 5, (312) 886-6057.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us, 
or our'' is used, we mean EPA.
    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, 
and alleging failure of EPA to act on a number of State Implementation 
Plan (SIP) revisions submitted by Missouri to control ozone precursors. 
The states of Missouri and Illinois and a group of Missouri industry 
associations were intervenors in the litigation.
    With respect to the reclassification issue, EPA acknowledged that 
it had a duty to make a determination on the attainment status of the 
area by May 15, 1997, and that it had not made a determination. EPA 
asked the Court for a schedule for a final resolution that would allow 
the states to make the necessary submissions, so that EPA could 
determine whether the area could qualify for an attainment date 
extension.
    The Court dismissed all of the claims relating to failure of EPA to 
act on the Missouri SIP revisions. On the reclassification issue, the 
Court in an opinion and Order dated January 29, 2001, rejected the 
Sierra Club request that the Court order EPA to publish a particular 
determination (that the area failed to attain the standard) and 
rejected Sierra Club's request to make the determination retroactive to 
May 1997. However, the Court noted that the Act required that EPA make 
an attainment determination. The Court also noted that a 
``determination of nonattainment'' would result in a higher 
classification by operation of law.
    The Court 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 notice. Court Order of 
February 14, 2001. Our rule entitled ``Determination of Nonattainment 
as of November 15, 1996, and Reclassification of the St. Louis Ozone 
Nonattainment Area; States of Missouri and Illinois,'' is published 
elsewhere in today's Federal Register in response to the Court's Order.
    EPA believes that the proposed additional delay of the effective 
date is necessary to allow regulated entities in St. Louis a period of 
time to prepare for the new requirements that are applicable to serious 
nonattainment areas. For example, on the effective date of the 
reclassification to serious, under the Illinois SIP, the cutoff for 
``major sources'' 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\ EPA believes that sources possibly subject to these new 
requirements should have additional

[[Page 15592]]

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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    EPA will continue to work on completing a separate rulemaking on 
the issue of whether St. Louis 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. If EPA takes final action to delay the effective date for the 
nonattainment determination, EPA could be in a position to take final 
action to approve the extended attainment date for St. Louis 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 St. Louis, EPA would withdraw 
the published nonattainment determination and the consequent 
reclassification, which would not yet have gone into effect.
    EPA is seeking public comment on whether it would be appropriate to 
delay the effective date of its final rulemaking until June 29, 2001, 
in order to allow sources to prepare to meet new requirements and also 
allow EPA and the states to complete rulemaking actions regarding the 
transport-based attainment date extension. In light of the fact that 
Missouri has submitted its final SIP submissions and Illinois has made 
draft submissions and is expected to submit its final SIP submissions 
by the end of April, EPA believes that it will be able to complete 
rulemaking on the attainment date extension request by June 29, 2001. 
The public comment period on delaying the effective date will run for 
30 days after publication of this document.
    As noted above, in an order issued January 29, 2001, and amended on 
February 14, 2001, the United States District Court for the District of 
Columbia directed EPA to determine, by March 12, 2001, whether the St. 
Louis area had attained the applicable ozone standard under the CAA, 
and ordered EPA to publish any required notice resulting from its 
determination by March 20, 2001. Sierra Club v. Whitman, No. 98-2733. 
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 Intervenors. This 
course of action included issuing today's rule of 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 Reclassification 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.
    EPA has now received Missouri's final SIP submittal which would 
allow it to be considered for an attainment date extension, and has 
also received submissions from Illinois for parallel processing. EPA 
expects shortly to sign a proposal with respect to these submissions, 
and to take final action on these submissions and an attainment date 
extension by June 29, 2001, the delayed effective date proposed herein. 
Such a course would harmonize the need to allow the Agency to fulfill 
its duty to take into account upwind transport, while adhering to a 
fixed and very near-term schedule. It would also allow EPA to apply to 
the St. Louis area the attainment date extension policy which EPA has 
applied in other areas affected by transport. Recently EPA issued three 
final rulemakings granting requests for attainment date extensions 
based on its policy in three ozone nonattainment areas: Washington, DC, 
Greater Connecticut, and Springfield, Massachusetts. 66 FR 586 (January 
3, 2001), 66 FR 634 (January 3, 2001), 66 FR 666 (January 3, 2001). In 
addition, EPA has proposed granting attainment date extensions to 
Louisville, Kentucky, and Beaumont, Texas. 64 FR 27734 (May 21, 1999), 
64 FR 12854 (April 16, 1999), 65 FR 81786 (December 27, 2000).

Proposed Action

    For the reasons stated above, EPA proposes to delay 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,'' 
published elsewhere in today's Federal Register.

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 proposed effective date 
modification would result in none of the effects identified in section 
3(f) of the Executive Order. This proposal would merely delay 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

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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 proposal 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 proposal to delay the effective date of EPA's nonattainment 
determination does not create any new requirements. Instead, this 
rulemaking would only delay 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 would not constitute a Federal 
mandate, as defined in section 101 of the UMRA, because it would 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 proposed delay of the effective date of a nonattainment 
determination would 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 proposed 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 proposed action does not involve technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.

    Dated: March 12, 2001.
William Rice,
Acting Regional Administrator, Region 7.
[FR Doc. 01-6622 Filed 3-16-01; 8:45 am]
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