01-12353. 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.

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, [phone]; or Edward Doty, EPA Region 5, [phone].

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.

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_X emission rate of 0.25 pounds per mmBtu of heat input or less. (The Illinois NO_X 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 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]

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 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:

§ 81.314

Illinois.

* * * * *

Illinois—Ozone

[1-hour standard]

Designated area	Designation		Classification
	Date 1	Type	Date 1	Type
* * * * * * *
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.
* * * * * * *
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:

§ 81.326

Missouri.

* * * * *

Missouri—Ozone

[1-hour standard]

Designated area	Designation		Classification
	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.
* * * * * * *
1 This date is November 15, 1990, unless otherwise noted.

* * * * *

Footnotes

1.  See section 182(c) in conjunction with section 182(f) of the Act for the serious area major source thresholds for these pollutants.

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).