Clean Air Act Reclassification or Eligibility for Extension of Attainment Date, Texas; Beaumont/Port Arthur Ozone Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[TX-81-1-7350; FRL-6324-3]

Clean Air Act Reclassification or Eligibility for Extension of

Attainment Date, Texas; Beaumont/Port Arthur Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

[[Page 18865]]

ACTION: Proposed rule.

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SUMMARY: We propose to find that the Beaumont/Port Arthur moderate

ozone nonattainment area has failed to attain the one-hour ozone

National Ambient Air Quality Standard (NAAQS). This proposed finding is

based on the requirements of the Federal Clean Air Act (the Act), and

our review of monitored air quality data from the area. If we take

final action on this proposed finding, the area would be reclassified

as a serious ozone nonattainment area. Alternatively, we are proposing

to extend the area's attainment date, if Texas, by November 15, 1999,

submits a SIP that meets EPA's July 1998 transport policy. If Texas

submits a SIP meeting these requirements, we will issue a supplemental

proposal to extend the area's attainment date, as appropriate.

DATES: We must receive comments on or before May 17, 1999.

ADDRESSES: All comments should be addressed to: Lt. Mick Cote, EPA

Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202.

Copies of the Beaumont/Port Arthur monitored air quality data

analyses, guidance on extension of attainment dates in downwind

transport areas, our technical support document, and other relevant

documents used in support of this proposal, are available at the

following addresses for inspection during normal business hours:

Environmental Protection Agency, Air Planning Section, 1445 Ross

Avenue, Suite 700, Dallas, Texas 75202; Texas Natural Resource

Conservation Commission, 12124 Park 35 Circle, Austin, Texas 78753.

Please contact the appropriate office at least 24 hours in advance.

FOR FURTHER INFORMATION: Lt. Mick Cote at (214) 665-7219.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action are we taking today?

II. What are the National Ambient Air Quality Standards?

III. What is the NAAQS for ozone?

IV. What is the Beaumont/Port Arthur ozone nonattainment area?

V. Why is the Beaumont/Port Arthur area currently classified as

moderate?

VI. Why is EPA proposing to reclassify the Beaumont/Port Arthur

area?

VII. Has air quality improved in the Beaumont/Port Arthur area in

recent years?

VIII. What would a reclassification mean for Beaumont/Port Arthur?

IX. Can an extension of the attainment date be granted based on 1996

air quality data?

X. What is EPA's new policy regarding extension of attainment dates

for downwind transport areas?

XI. What does the July 1998 Transport policy require Texas to do?

XII. Can Beaumont/Port Arthur qualify for an attainment date

extension under the transport policy?

XIII. When will EPA make a final decision on whether to bump-up or

grant an extension for the Beaumont/Port Arthur area?

XIV. If the Beaumont/Port Arthur area is reclassified, what would

its new schedule be?

XV. Administrative Requirements.

I. What Action Are We Taking Today?

We are proposing to find pursuant to section 181(b)(2) of the Clean

Air Act that the Beaumont/Port Arthur area has failed to attain the

ozone one-hour NAAQS by the date prescribed under the Act for moderate

ozone nonattainment areas, or November 15, 1996. If we finalize this

finding, the Beaumont/Port Arthur area will be reclassified from

moderate nonattainment to serious nonattainment.

Alternatively, we are proposing to extend the attainment date,

providing that Texas meets the criteria of our July 16, 1998 transport

policy, Guidance on Extension of Attainment Dates for Downwind

Transport Areas. If Texas submits a SIP by November 15, 1999, that

meets the July 1998 transport policy, we will issue a supplemental

proposal in a Federal Register notice to extend the Beaumont/Port

Arthur area's attainment date as appropriate. If Texas does not submit

by November 15, 1999, a SIP that meets the July 1998 transport policy,

or fails to submit a SIP by this date, we would finalize this proposed

finding of failure to attain, and the Beaumont/Port Arthur area would

be reclassified as a serious ozone nonattainment area.

II. What Are the National Ambient Air Quality Standards?

We have set NAAQS for six air pollutants: Carbon Monoxide (CO),

Lead (Pb), Nitrogen Dioxide (NO2), Ozone (O3),

Particulate matter (PM), and Sulfur Dioxide (SO2). The Act

requires us to set these NAAQS at levels that protect public health and

welfare with an adequate margin of safety. These NAAQS provide

information to the American people about whether the air in their

community is healthful. Also, the NAAQS present state and local

governments with the minimum pollutant concentrations allowed to

achieve clean air.

For several pollutants, there are two types of NAAQS--primary and

secondary. Primary NAAQS protect against adverse health effects;

secondary NAAQS protect against welfare effects, such as damage to farm

crops and vegetation and damage to buildings. Because different

pollutants have varying effects, the form of NAAQS also varies. Some

pollutants have NAAQS for both long-term and short-term averaging

times. The short-term NAAQS are designed to protect against acute, or

short-term, health effects, while the long-term NAAQS were established

to protect against chronic health effects.

III. What Is the NAAQS for Ozone?

The NAAQS for ozone is expressed in two forms, which are referred

to as the one-hour and 8-hour standards. Table 1 summarizes the ozone

NAAQS.

Table 1.--Summary of Ozone NAAQS

----------------------------------------------------------------------------------------------------------------

Standard Value Type Method of compliance

----------------------------------------------------------------------------------------------------------------

One-hour............... 0.12 ppm.............. Primary and Secondary.................. Must not be exceeded

on average more than

one day per year over

any three-year

period.

8-hour................. 0.08 ppm.............. Primary and Secondary.................. The 3-year average of

the annual fourth-

highest daily maximum

8-hour average ozone

concentration

measured at each

monitor within an

area.

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The one-hour ozone NAAQS of 0.12 parts per million has existed

since 1979. The 8-hour ozone NAAQS was promulgated by EPA on July 18,

1997 (62 FR 38856). The one-hour ozone NAAQS continues to apply for

existing nonattainment areas until these areas attain the one-hour

ozone NAAQS (40 CFR 50.9(b)). It is the classification of the Beaumont/

Port Arthur area relative to the one-hour ozone NAAQS that is addressed

in this document.

[[Page 18866]]

IV. What Is the Beaumont/Port Arthur Ozone Nonattainment Area?

The Beaumont/Port Arthur moderate ozone nonattainment area is

located in Southeast Texas, and consists of Hardin, Jefferson, and

Orange Counties.

V. Why Is the Beaumont/Port Arthur Area Currently Classified as

Moderate?

Each ozone area designated nonattainment for the one-hour ozone

standard prior to enactment of the 1990 Act Amendments was designated

nonattainment by operation of law upon enactment of the 1990

Amendments. Under section 181(a) of the Act, each ozone area designated

nonattainment under section 107(d) was also classified by operation of

law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or

``extreme,'' depending on the severity of the area's air quality

problem. The design value for an area is represented by the fourth

highest one-hour daily monitored ozone level in a given three-year

period. Table 2 provides the design value ranges for each nonattainment

classification. Ozone nonattainment areas with design values between

0.138 and 0.160 parts per million (ppm), such as the Beaumont/Port

Arthur area, were classified as moderate.1 These

nonattainment designations and classifications were codified in 40 CFR

part 81 (see 56 FR 56694, November 6, 1991).

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\1\ The Beaumont/Port Arthur area (the area) was classified as a

serious ozone nonattainment area by EPA on November 6, 1991 (56 FR

56694). However, we corrected the ozone design value from 0.160 ppm

to 0.158 ppm. Pursuant to section 110(k)(6) of the Act, which allows

us to correct our actions, we corrected the classification of the

area from serious to moderate (61 FR 14496, April 2, 1996).

Table 2.--Ozone Nonattainment Classifications

------------------------------------------------------------------------

Attainment

Area class Design value (ppm) date

------------------------------------------------------------------------

Marginal..................... 0.121 up to 0.138............ 11/15/93

Moderate..................... 0.138 up to 0.160............ 11/15/96

Serious...................... 0.160 up to 0.180............ 11/15/99

Severe....................... 0.180 up to 0.280............ 11/15/05

Extreme...................... 0.280 and above.............. 11/15/10

------------------------------------------------------------------------

States containing areas that were classified as moderate

nonattainment were required to submit SIPs which required control

measures to reduce emissions, and to provide for attainment of the

ozone standard no later than November 15, 1996. Moderate area SIP

requirements are found primarily in section 182(b) of the Act.

VI. Why Is EPA Proposing To Reclassify the Beaumont/Port Arthur

Area?

Section 181(b)(2) of the Act provides that we determine, within 6

months following the applicable attainment date, whether an ozone

nonattainment area has attained the one-hour ozone standard. If we find

that the nonattainment area has failed to attain the one-hour ozone

standard by the applicable attainment date, then we are to publish a

notice in the Federal Register identifying the area that we have

determined has failed to attain, and the appropriate reclassification.

In the case of Beaumont/Port Arthur, we have yet to make the

determination as described above.

We make attainment determinations for ozone nonattainment areas

using quality-assured air quality data. In the case of the Beaumont/

Port Arthur area, the attainment determination is based on 1994-1996

air quality data. The data show that for 1994-1996 four monitoring

sites averaged more than one exceedance day per year. We propose to

determine that the Beaumont/Port Arthur area's air quality has not met

the one-hour ozone NAAQS by November 15, 1996, based upon all quality-

assured air quality data available to us for the years 1994-1996.

Our data includes all data available from the State and local/

national air monitoring (SLAM/NAMS) network as submitted to our

Aerometric Information Retrieval System, and all data available to us

from special purpose monitoring (SPM) sites that meet our monitor

siting criteria (40 CFR 58.13). Our policy on the use of ozone SPM data

is described in the August 22, 1997, Memorandum from John Seitz,

Director, Office of Air Quality Planning and Standards, to Regional Air

Directors, entitled, Agency Policy on the Use of Ozone Special Purpose

Monitoring Data.

Table 3 lists the number of recorded exceedances of the one-hour

ozone standard at each SLAMS/SPM monitoring site in the Beaumont/Port

Arthur area for the period 1994 through 1998, and each monitor's design

value for that period. A complete listing of the ozone exceedances at

each monitor as well as EPA's calculations of the design values can be

found in the technical support document.

Table 3: Ozone Exceedances in the Beaumont/Port Arthur Area

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Site Design Value (ppm)

Site Type 1994 1995 1996 1997 1998 -----------------------------

94-96 95-97 96-98

--------------------------------------------------------------------------------------------------------------------------------------------------------

Beaumont....................................... SLAMS 1 5 0 3 3 0.128 0.133 0.133

Port Arthur.................................... SLAMS 0 5 0 0 0 0.139 0.139 0.118

West Orange.................................... SLAMS 1 0 0 2 1 0.12 0.121 0.122

Sabine......................................... SPM 2 1 7 2 ....... 0.157 0.157 ........

Mauriceville................................... SPM 0 0 0 2 ....... 0.109 0.104 ........

Jefferson Co. Airport.......................... SPM 2 6 0 2 ....... 0.139 0.139 ........

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--We do not have any data for 1998 from the three SPMs. However, data from the SLAMS sites alone indicates continued violation of the one-hour ozone

NAAQS. Although our decision to propose reclassification does not depend on the SPM data for 1998, we have requested it from the State.

If we finalize this proposed action, the new classification will be

the higher of the next higher classification or the classification

appropriate to the design value at the time the notice of

reclassification is published. The next highest classification for the

Beaumont/Port Arthur area is serious. The design value of the Beaumont/

Port Arthur area at the time of the proposed finding of failure to

attain is based on air quality monitoring data from 1996 through 1998.

This design value is .133 ppm. This design value correlates with a

marginal classification, as taken from Table 2. Since the next higher

classification is greater than what the current design value indicates,

the correct classification would be serious nonattainment under the

statutory scheme.

[[Page 18867]]

VII. Has Air Quality Improved in the Beaumont/Port Arthur Area in

Recent Years?

The air quality in the Beaumont/Port Arthur area has not improved

in recent years. Two of the three SLAMS monitors listed in Table 3 have

design values that have increased since 1994. Likewise, two of the

three SPM monitors listed in Table 3 have design values that have

increased between 1994 and 1997.

VIII. What Would a Reclassification Mean for Beaumont/Port Arthur?

The Beaumont/Port Arthur area would need to reach the ozone NAAQS

as expeditiously as practicable, but no later than November 15, 1999.

Texas would also need to submit SIP revisions addressing the serious

area requirements for the one-hour ozone standard in section 182(c) of

the Act. The requirements for serious ozone nonattainment areas

include, but are not limited to, the following:2

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\2\ An enhanced vehicle Inspection and Maintenance (I/M) program

would normally be listed as a requirement for a serious ozone

nonattainment area. However, the Federal I/M Flexibility Amendments

of 1995 determined that urbanized areas with populations less than

200,000 for 1990 (such as Beaumont/Port Arthur) are not mandated to

participate in the I/M program (60 FR 48033, September 18, 1995).

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1. Attainment and Reasonable Further Progress demonstrations.

2. Clean-fuel vehicle programs.

3. A 50 ton-per-year major source threshold.

4. More stringent new source review requirements.

5. An enhanced monitoring program.

6. Transportation Control Measures.

7. Contingency provisions.

IX. Can an Extension of the Attainment Date Be Granted Based on

1996 Air Quality Data?

Two mechanisms exist for the Beaumont/Port Arthur area to obtain an

extension of its attainment date. First, a State may request, and at

our discretion we may grant, up to two one-year attainment date

extensions. We may grant an extension under section 181(a)(5) of the

Act only if:

1. The State has complied with the requirements and commitments

pertaining to the applicable implementation plan for the area.

2. The area has measured no more than one exceedance of the ozone

NAAQS at any monitoring site in the nonattainment area in the year in

which attainment is required.

On January 9, 1997, the Governor of the State of Texas submitted a

request for a one-year extension of the attainment date for the

Beaumont/Port Arthur area. The request was based on the absence of

exceedances from SLAMS data in the area in 1996. However, the area had

more than one exceedance at the Sabine SPM monitor in 1996, and

numerous exceedances at SLAMS and SPM sites in 1997. Since the 1996 and

1997 data show that the area failed to attain, and Texas has not

submitted a plan providing for attainment, we are exercising our

discretion to not grant a section 181(a)(5) extension. However, Texas

has another mechanism available for obtaining an extension. This

mechanism is discussed below.

X. What Is EPA's New Policy Regarding Extension of Attainment Dates

for Downwind Transport Areas?

A number of areas in the country that have been classified as

moderate or serious are affected by pollutants that have traveled

downwind from other areas. For these downwind areas, transport of

pollutants from upwind areas has interfered with their ability to meet

the ozone standard by the dates prescribed by the Act. As a result,

many of these areas, such as Beaumont/Port Arthur, find themselves

facing the prospect of being reclassified, or ``bumped up,'' to a

higher classification for failing to meet the ozone standard by the

specified date.

On July 16, 1998, in consideration of these factors and the

realization that many areas are unable to meet the mandated attainment

dates due to transport 3, we issued a policy memorandum

entitled Guidance on Extension of Air Quality Attainment Dates for

Downwind Transport Areas. This policy outlines the criteria by which

the attainment date for an area may be extended.

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\3\ Through a two-year effort known as the Ozone Transport

Assessment Group (OTAG), the EPA worked in partnership with the 37

easternmost states and the District of Columbia, industry

representatives, academia, and environmental groups to develop

recommended strategies to address transport of ozone-forming

pollutants across state boundaries.

On November 7, 1997, the EPA acted on OTAG's recommendations and

issued a proposal (the proposed NOx SIP call, 62 FR 60318) requiring

22 states and the District of Columbia to submit state plans

addressing the regional transport of ozone. These state plans, or

SIPS, will decrease the transport of ozone across state boundaries

in the eastern half of the United States by reducing emissions of

nitrogen oxides (a precursor to ozone formation known as NOx). The

EPA took final action on the NOx SIP call on October 27, 1998 (63 FR

57356). The EPA expects the final NOx SIP call will assist many

areas in attaining the 1-hour ozone standard.

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Our July 1998 transport policy offers another opportunity for Texas

to request an extension of the attainment date for the Beaumont/Port

Arthur area. This policy draws on other provisions of the Act to

authorize attainment date extensions for downwind transport areas.

XI. What Does the July 1998 Transport Policy Require Texas To Do?

This transport policy outlines the steps Texas will need to take in

order for us to consider extending the Beaumont/Port Arthur area's

attainment date. The steps we believe Texas will need to take include:

1. Demonstrate that the Beaumont/Port Arthur Area's air quality is

affected by transport from (a) an upwind area in Texas with a later

attainment date, or (b) an upwind area in another State, which

significantly contributes to Beaumont/Port Arthur's continued ozone

nonattainment.

2. Submit to us an approvable attainment demonstration by November

15, 1999. This demonstration must show that the Beaumont/Port Arthur

area will attain as expeditiously as practicable, but no later than the

attainment date of the upwind area.

3. Submit any additional local control measures needed for

expeditious attainment. Any additional measures must be adopted prior

to November 15, 1999.

4. Submit proof that all applicable local control measures required

under the moderate classification have been adopted and implemented. In

addition, submit any necessary changes to the State's existing rules

for control of emissions from industrial wastewater and Synthetic

Organic Chemical Industry batch processing operations. Some changes may

be needed to ensure that these rules meet our Reasonably Available

Control Technology requirements. Any necessary changes must be adopted

prior to November 15, 1999.

5. Provide that all newly adopted control measures will be

implemented as expeditiously as practical. All measures must be

implemented no later than the date that the upwind reductions needed

for attainment will be achieved.

We contemplate that when we act to approve an area's attainment

demonstration, we will, as necessary, extend that area's attainment

date to a date appropriate for that area in light of the schedule for

achieving the necessary upwind reductions. The area would no longer be

subject to reclassification or ``bump-up'' for failure to attain by its

original attainment date under section 181(b)(2).

[[Page 18868]]

XII. Can Beaumont/Port Arthur Qualify for an Attainment Date

Extension Under the Transport Policy?

It is premature to say whether or not the Beaumont/Port Arthur area

will qualify for an attainment date extension under the July 1998

transport policy. We believe that the area may be affected by upwind

transport. However, before the Beaumont/Port Arthur area can qualify

for an attainment date extension under the July 1998 transport policy,

all the criteria specified in the transport policy must be met.

In October 1998, we notified the Governor of Texas of the

availability of the July 1998 transport policy. We also requested that

the Governor respond to us with a letter committing Texas to meet the

requirements necessary to qualify for an attainment date extension

under the July 1998 transport policy by November 15, 1999. We received

the Governor's commitment letter on December 21, 1998.

We are aware that local representatives are working closely with

the TNRCC to meet the requirements of the July 1998 transport policy,

and to improve the area's air quality. Their efforts have already

resulted in the implementation of rules for oxides of nitrogen in the

Beaumont/Port Arthur area.

XIII. When Will EPA Make a Final Decision on Whether To Bump-Up or

Grant an Extension for the Beaumont/Port Arthur area?

We will review Texas' proposed SIP submittal during the State's

public comment period. If we receive it by November 15, 1999, we will

publish a document in the Federal Register to address the approvability

of the SIP submittal. If we propose approval, we would also propose to

extend the attainment date for the Beaumont/Port Arthur area to an

appropriate expeditious date. However, if Texas fails to meet the

requirements of the extension policy by November 15, 1999, we will

finalize the finding of failure to attain, and the Beaumont/Port Arthur

area will be reclassified to Serious nonattainment.

XIV. If the Beaumont/Port Arthur Area Is Reclassified, What Would

Its New Schedule Be?

If the Beaumont/Port Arthur area is reclassified, Texas would be

required to submit a SIP that adopts the serious area requirements.

Under section 181(a)(1) of the Act, the new attainment deadline for

moderate ozone nonattainment areas reclassified to serious under

section 181(b)(2) would be as expeditious as practicable but no later

than the date applicable to the new classification, i.e., November 15,

1999. However, for the reasons given above, we do not expect to take

final action on this proposed finding until after November 15, 1999.

This will allow Texas adequate time to make a demonstration that an

extension of the attainment date, instead of a reclassification, would

be appropriate under the transport policy. As a practical matter, there

would likely be insufficient time for Texas to submit a new attainment

demonstration and actually demonstrate attainment of the one-hour ozone

NAAQS by November 15, 1999.

If the Beaumont/Port Arthur area is reclassified, and if we do not

act until after its November submittal, it will plainly be too late for

the area to demonstrate attainment by a date that will have already

passed. We believe that the impossibility of meeting the November 15,

1999, deadline for serious areas requires us to establish a new

attainment date in the event that the area is reclassified to serious.

November 15, 1999, is a date that is impossible to set as a date

for the area to attain and for Texas to have made a SIP submission.

Since it is impossible, the principles underlying what we do for areas

that must submit 15 percent plans after the deadline for submission has

passed should apply here. Consistent with what we have done with

respect to setting new applicable deadlines for those plans, we believe

that a deadline that is expeditious as possible would be appropriate.

Section 182(i) states that the Administrator may adjust applicable

deadlines (other than attainment dates) to the extent such adjustment

is necessary or appropriate to assure consistency for submission of the

new requirements applicable to an area which has been reclassified.

Where an attainment date has already passed or is otherwise impossible

to meet, we believe that the Administrator may also adjust an

attainment date to assure fair and equitable treatment consistent with

the provisions in section 182(i), notwithstanding the parenthetical

clause.

We also note another provision of the Act in section 110(k)(5)

pertaining to findings of SIP inadequacy that allows the Administrator

to adjust attainment dates when such have passed. Although this latter

provision is not directly applicable to a reclassification, we believe

that the provision illustrates a recognition by Congress of limited

instances in which it becomes necessary to adjust attainment dates,

particularly where it is otherwise impossible to meet the statutory

date. For the Beaumont/Port Arthur area, we are proposing to construct

a schedule consistent with recent reclassifications of other areas.

We have recently reclassified other moderate ozone nonattainment

areas, including Santa Barbara, California; Phoenix, Arizona; and

Dallas-Fort Worth, Texas. In these cases, the new attainment date is

November 15, 1999. The most recent reclassification was for the Dallas-

Fort Worth area. We published the notice reclassifying this area on

February 18, 1998, thereby providing approximately 21 months for the

area to attain the standard. We concluded that 21 months was an

adequate period for a moderate attainment area to attain the standard

where the new attainment date had not yet lapsed, but where there was

less time remaining than the Act had contemplated. If we finalize this

proposed reclassification, we suggest an attainment date with a similar

time frame, and which would allow Texas an opportunity to make

submissions to meet the serious area requirements and implement

measures to attain the standard.

Applying this approach to the Beaumont/Port Arthur area would

result in a new attainment date 21 months from publication of the final

reclassification notice. We welcome any comments on the appropriateness

of this proposed time frame, and whether a shorter or later attainment

date would be more appropriate.

If we reclassify the Beaumont/Port Arthur area, we must also

address the schedule by which Texas will be required to submit a SIP

revision meeting the serious area requirements. We propose to have

Texas submit this SIP within one year after a final action on the

reclassification is taken. If the submission shows that the area can

attain the ozone NAAQS sooner than the attainment date established in

the final reclassification notice, we would adjust the attainment date

to reflect the earlier date, consistent with the requirement in section

181(a)(1) that the NAAQS be attained as expeditiously as practicable.

We solicit comments on this proposed schedule.

XIV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order (E.O.) 12866, entitled Regulatory Planning

and Review.

[[Page 18869]]

B. Executive Order 12875

Under E.O. 12875, Enhancing the Intergovernmental Partnership, the

EPA may not issue a regulation that is not required by statute and that

creates a mandate upon a State, local or tribal government, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by those governments, or EPA consults with

those governments. If EPA complies by consulting, E.O. 12875 requires

EPA to provide to the OMB a description of the extent of EPA's prior

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's proposals would not create a mandate on State, local, or

tribal governments. These proposals do not impose any enforceable rules

on any of these entities. The SIP submission requirements are not

judicially enforceable. Accordingly, the requirements of section 1(a)

of Executive Order 12875 do not apply to these proposals.

C. 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 E.O.

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, EPA 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.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. These proposals are not subject to E.O. 13045

because they are not economically significant regulatory actions as

defined by E.O. 12866. These proposals are not subject to E.O. 13045

because they implement a previously promulgated health or safety-based

Federal standard.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's proposals would not significantly or uniquely affect the

communities of Indian tribal governments. These proposed actions would

not impose any requirement that affects Indian tribes. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply to

these proposals.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act 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.

The proposal to reclassify will not have a significant impact on a

substantial number of small entities because a finding of failure to

attain under section 182(b)(2) of the Act, and the establishment of a

SIP submittal schedule for the reclassified area, do not, in and of

themselves, directly impose any new requirements on small entities. See

Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir.

1985)(agency's certification need only consider the rule's impact on

entities subject to requirements of the rule). Instead, this proposal

to reclassify proposes to make a determination and to establish a

schedule for States to submit SIP revisions, and does not propose to

directly regulate any entities.

The alternative proposal to extend the attainment date if Texas

meets the specified criteria does not directly impose any new

requirements on small entities. To the extent that the area must adopt

new regulations, we will review the effect of those actions at the time

the State submits those regulations. Therefore, I certify that these

proposed actions will not have a significant economic impact on a

substantial number of small entities.

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), 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 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.

Sections 202 and 205 do not apply to today's action because the

proposed determination that the Beaumont/Port Arthur area failed to

reach attainment does not, in-and-of-itself, constitute a Federal

mandate because it does not impose an enforceable duty on any entity.

In addition, the Act does not permit EPA to consider the types of

analyses described in section 202, in determining whether an area has

attained the ozone standard or qualifies for an extension. Finally,

section 203 does not apply to today's proposal because the SIP

submittal schedule and the extension of the attainment date would

affect only the state of Texas, which is not a small government.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, Area designations

and

[[Page 18870]]

classifications, National parks, Wilderness areas.

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

Dated: April 6, 1999.

Gregg A. Cooke,

Regional Administrator, Region 6.

[FR Doc. 99-9470 Filed 4-15-99; 8:45 am]

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