[Federal Register: June 24, 2002 (Volume 67, Number 121)]
[Proposed Rules]               
[Page 42697-42699]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn02-29]                         



[[Page 42697]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[LA-58-1-7522; FRL-7236-1]

 
Proposed 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: 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, 1999, and 
Reclassification of the Baton Rouge Nonattainment Area,'' published 
elsewhere in today's Federal Register, until October 4, 2002. 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 October 4, 2002, is 
necessary, in part, to allow regulated entities in the Baton Rouge 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 Baton 
Rouge should be granted an extension of its attainment date pursuant to 
EPA's Guidance on ``Extension of Air Quality Attainment Dates for 
Downwind Transport Area,'' (64 FR 14441, March 25, 1999) (hereinafter 
referred to as extension policy) and continue to retain its serious 
classification. In this action, EPA is also stating its intent to 
propose to withdraw its final determination of nonattainment and notice 
of reclassification, published elsewhere in this issue if EPA approves 
an attainment date extension before the effective date of that final 
action.

DATES: Comments must be received on or before July 24, 2002.

ADDRESSES: Written comments should be mailed to Mr. Thomas H. Diggs, 
Chief, Air Planning Section, Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Ms. Maria L. Martinez, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-2230.

SUPPLEMENTARY INFORMATION:  

Background

    In a Judgment entered on March 7, 2002, the United States District 
Court for the Middle District of Louisiana Court, 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. EPA's final rulemaking notice responding to the 
Court's Judgment is published elsewhere in today's Federal Register. 
The Court also held that it was not acting to restrict the effective 
date that EPA selects for its action.
    Throughout this document whenever ``we, us, or our'' is used, we 
mean EPA.
    On May 10, 2000, the Governor of Louisiana submitted a request for 
an attainment date extension for the Baton Rouge area pursuant to EPA's 
extension policy. On November 22, 2000, LEAN filed a complaint in the 
United States District Court for the Middle District of Louisiana 
against EPA (LEAN v. Whitman, No 00-879-A), alleging that EPA failed to 
discharge its duty to make and publish a determination that the Baton 
Rouge Ozone Nonattainment Area, (as defined at 56 FR 56,694, 56,768), 
did not attain the National Ambient Air Quality Standard for ozone by 
November 15, 1999. The state of Louisiana, the City of Baton Rouge/
Parish of East Baton Rouge, Entergy Gulf States, Inc. and Entergy Gulf 
South, Inc., Louisiana Chemical Association, and Louisiana Mid-
Continent Oil & Gas Association were intervenors in the litigation. On 
May 9, 2001, EPA published a proposal to determine that the Baton Rouge 
area did not attain the 1-hour ozone NAAQS or in the alternative allow 
Louisiana an opportunity to qualify for an attainment date extension 
pursuant to EPA's extension policy.
    Additionally, Louisiana submitted its Attainment Plan and Transport 
State Implementation Plan (Attainment Plan/Transport SIP) on December 
31, 2001. Louisiana is in the concluding stage of a process that could 
culminate in EPA final action on the Attainment Plan/Transport SIP that 
was submitted on December 31, 2001, and on a possible attainment date 
extension. This extension, if granted, would allow the area to remain 
classified as a serious nonattainment area.
    During court proceedings, LEAN argued for the Court to order EPA to 
issue a determination with a restricted effective date. As part of its 
February 27, 2002, decision, the United States District Court for the 
Middle District of Louisiana acknowledged its limited authority under 
42 U.S.C. 7604, ruling that it lacked the authority to issue an order 
restricting the effective date that EPA selects for its action. LEAN v. 
Whitman, No. 00-879-A.\1\
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    \1\ For additional information on other court rulings on the 
issue of the effective date for such an 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 March 7, 2002, the Court entered a Judgment compelling EPA to 
determine, by June 5, 2002, whether the Baton Rouge area had attained 
the applicable ozone standard under the CAA. 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. Our rule entitled 
``Determination of Nonattainment as of November 15, 1999, and 
Reclassification of the Baton Rouge Ozone Nonattainment Area,'' 
published elsewhere in today's Federal Register is in response to the 
Court's Judgment.
    EPA believes that the proposed delay of the effective date 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. For example, on the effective date of the 
reclassification to severe, under the Baton Rouge SIP, the threshold 
for ``major sources'' will be reduced from 50 tons of emissions on an 
annual basis to 25 tons. Thus, a number of facilities with volatile 
organic compound (VOC) or nitrogen oxide (NOX) emission 
levels between 50 and 25 tons per year may become subject to major 
source requirements for the first time.\2\ Preliminary information 
provided by the Louisiana Department of Environmental Quality (LDEQ) 
indicates that approximately 20 to 50 sources will be subject to these 
new requirements for the first time. EPA believes it is reasonable to 
delay the effective date of our rule entitled ``Determination of 
Nonattainment as of November 15, 1999, and Reclassification of the 
Baton Rouge Ozone Nonattainment Area'' by six weeks to provide such 
sources

[[Page 42698]]

additional time to prepare for the impact of these new requirements.\3\
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    \2\ See section 182(d) in conjunction with section 182(f) of the 
Clean Air Act for the severe area major source thresholds for these 
pollutants.
    \3\ EPA has taken a similar action for the St. Louis 
Nonattainment Area (66 FR 27306, May 16, 2001).
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    EPA will continue to work on completing a separate rulemaking on 
the issue of whether Baton Rouge should be granted an extension of its 
attainment date pursuant to EPA's extension policy, and remain 
classified as a serious nonattainment area. Louisiana is in the final 
stages of completing the actions necessary to be considered for an 
attainment date extension under EPA's extension policy. EPA believes 
that it is in the public interest to move forward to complete a 
rulemaking regarding Louisiana's Attainment Plan/Transport SIP. 
Completion of the rulemaking prior to the effective date of today's 
action would allow EPA to assess and take into consideration the role 
of transported pollution in Baton Rouge's nonattainment problems, and 
to provide for an equitable distribution of responsibility for 
achieving attainment of the ozone standard in the area. 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 the attainment 
date extension policy which EPA has applied in other areas affected by 
transport to the Baton Rouge area. EPA has issued final rulemakings 
granting requests for attainment date extensions based on its policy in 
six ozone nonattainment areas: Washington, DC (66 FR 585, January 3, 
2001), Greater Connecticut (66 FR 633, January 3, 2001), Springfield, 
Massachusetts (66 FR 665, January 3, 2001), Beaumont, Texas (66 FR 
26913, May 15, 2001), St. Louis, Missouri (66 FR 33996, June 26, 2001), 
and Atlanta, Georgia (67 FR 30574, May 7, 2002).
    If EPA takes final action to delay the effective date for the 
nonattainment determination, EPA could be in a position to take action 
to approve an extension of the attainment date for Baton Rouge before 
the nonattainment determination becomes effective. Section 181(b)(2)(A) 
of the Act requires that EPA determine whether an area has attained 
within six months of its attainment date. If the attainment date were 
extended, there would be a new future attainment date. 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 Baton Rouge, 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 October 4, 2002, 
in order to allow area sources to prepare to meet new severe 
requirements. The public comment period on delaying the effective date 
will run for 30 days after publication of this document. EPA expects to 
propose an action with respect to this submission, and to take final 
action on this submission and an attainment date extension by October 
4, 2002, the delayed effective date proposed herein.

PROPOSED ACTION: For the reasons state above, EPA proposes to delay 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,'' 
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 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

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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.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 5, 2002.
Gregg A. Cooke,
Regional Administrator, Region 6.
[FR Doc. 02-15713 Filed 6-21-02; 8:45 am]
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