[Federal Register Volume 74, Number 57 (Thursday, March 26, 2009)]
[Proposed Rules]
[Pages 13166-13170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6598]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2009-0014; FRL-8783-1]
Approval and Promulgation of Air Quality Implementation Plans;
Louisiana; Baton Rouge 1-Hour Ozone Nonattainment Area; Determination
of Attainment of the 1-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to determine that the Baton Rouge (BR) 1-hour
ozone nonattainment area is currently attaining the 1-hour ozone
National Ambient Air Quality Standard (NAAQS). This determination is
based upon certified ambient air monitoring data that show the area has
monitored attainment of the 1-hour ozone NAAQS for the 2006-2008
monitoring period. If this proposed determination is made final, the
requirements for this area to submit a severe attainment demonstration,
a severe reasonable further progress plan, applicable contingency
measures plans, and other planning State Implementation Plan (SIP)
requirements related to attainment of the 1-hour ozone NAAQS, shall be
suspended for so long as the area continues to attain the 1-hour ozone
NAAQS. EPA is proposing this action in accordance with section 110 and
part D of the Federal Clean Air Act (the Act or CAA) and EPA's
regulations and consistent with EPA's guidance.
DATES: Comments must be received on or before April 27, 2009.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0014, by one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at [email protected]. Please
also send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2009-0014. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or e-mail that you consider to be
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an anonymous access system, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material,
[[Page 13167]]
will be publicly available only in hard copy. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a fee of 15 cents per page for making photocopies
of documents. On the day of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas
75202-2733.
FOR FURTHER INFORMATION CONTACT: Ms. Sandra Rennie, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7367,
fax (214) 665-7263, e-mail address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA. This supplementary information section is
arranged as follows:
I. What Is the Background for This Action?
II. What Is the Impact of a United States Court of Appeals Decision
in the South Coast Case Regarding EPA's Phase 1 Ozone Implementation
Rule on This Proposed Rule?
III. Proposed Determination of Attainment
IV. What Action Is EPA Taking?
V. Statutory and Executive Order Reviews
I. What Is the Background for This Action?
The Act requires us to establish NAAQS for certain widespread
pollutants that cause or contribute to air pollution that is reasonably
anticipated to endanger public health or welfare (sections 108 and 109
of the Act). In 1979, we promulgated the revised 1-hour ozone standard
of 0.12 parts per million (ppm) (44 FR 8202, February 8, 1979). For
ease of communication, many reports of ozone concentrations are given
in parts per billion (ppb); ppb = ppm x 1000. Thus, 0.12 ppm becomes
120 ppb or 124 ppb when rounding is considered.
An area exceeds the 1-hour ozone standard each time an ambient air
quality monitor records a 1-hour average ozone concentration above 0.12
ppm in any given day. Only the highest 1-hour ozone concentration at
the monitor during any 24-hour day is considered when determining the
number of exceedance days at the monitor. An area violates the ozone
standard if, over a consecutive 3-year period, more than 3 days of
exceedances occur at the same monitor. For more information please see
``National 1-hour primary and secondary ambient air quality standards
for ozone'' (40 CFR 50.9) and ``Interpretation of the 1-Hour Primary
and Secondary National Ambient Air Quality Standards for Ozone'' (40
CFR part 50, Appendix H).
The fourth-highest daily ozone concentration over the 3-year period
is called the design value (DV). The DV indicates the severity of the
ozone problem in an area; it is the ozone level around which a state
designs its control strategy for attaining the ozone standard. A
monitor's DV is the fourth highest ambient concentration recorded at
that monitor over the previous 3 years. An area's DV is the highest of
the design values from the area's monitors.
The Act, as amended in 1990, required EPA to designate as
nonattainment any area that was violating the 1-hour ozone standard,
generally based on air quality monitoring data from the 1987 through
1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6,
1991). The Act further classified these areas, based on their ozone
DVs, as marginal, moderate, serious, severe, or extreme.
The control requirements and date by which attainment is to be
achieved vary with an area's classification. Marginal areas are subject
to the fewest mandated control requirements and had the earliest
attainment date, November 15, 1993, while severe and extreme areas are
subject to more stringent planning requirements and are provided more
time to attain the standard.
Baton Rouge's History
EPA first designated the Baton Rouge area as an ozone nonattainment
area in 1978. 43 FR 8964, 8998 (March 3, 1978). The BR 1-hour ozone
nonattainment area contains five parishes: East Baton Rouge; West Baton
Rouge; Ascension; Iberville; and Livingston Parishes (40 CFR 81.319).
In 1991, the BR area was designated nonattainment by operation of law
and EPA classified the BR area as a ``serious'' ozone nonattainment
area with a statutory deadline of November 15, 1999. 56 FR 56694
(November 6, 1991). EPA approved the serious attainment demonstration
SIP and its associated elements, e.g., attainment Motor Vehicle
Emissions Budgets (MVEB), the Reasonably Available Control Measures
(RACM) demonstration, on July 2, 1999. 64 FR 35930. The BR area,
however, did not attain by the serious area statutory deadline of
November 15, 1999. Before this deadline however, EPA had issued a
guidance memorandum that allowed an area to retain its existing
classification and receive a later attainment deadline if the EPA found
that area met all of its existing classification requirements, approved
a demonstration that the area would attain but for the transport from
another area, and approved the attainment demonstration SIP with its
associated elements. See EPA's ``Guidance on Extension of Attainment
Dates for Downwind Transport Areas'' (the Extension Policy) (Richard D.
Wilson, Acting Assistant Administrator for Air and Radiation) July 16,
1998. On October 2, 2002, EPA approved the revised attainment
demonstration SIP and its associated elements, found the area met all
of the serious area requirements, found there was transport from Texas
affecting the BR area reaching attainment, and extended the attainment
date for the BR area to November 15, 2005, without reclassifying the
area from serious to severe, consistent with the policy. 67 FR 61786
(October 2, 2002).
On December 11, 2002, the U.S. Court of Appeals for the Fifth
Circuit vacated EPA's Extension Policy used to extend the 1-hour ozone
attainment deadline for the Beaumont-Port Arthur, Texas, area without
reclassifying the area. Sierra Club v. EPA, 314 F.3d 735 (5th Cir.
2002). Thereupon, EPA on April 24, 2003, withdrew its approval of the
BR area's revised attainment demonstration and the granting of an
extended attainment deadline, finalized its finding of the area failing
to attain the standard by the serious area deadline and reclassified
the BR area by operation of law, to severe nonattainment. See 68 FR
20077 (April 24, 2003).\1\ Once reclassified to severe,
[[Page 13168]]
the statutory attainment date for BR was November 15, 2005. As a result
of the reclassification to severe, the State was required to submit an
attainment demonstration SIP with an attainment date of November 15,
2005. The April 24, 2003, action also set the dates by which Louisiana
was to submit SIP revisions addressing the CAA's pollution control
requirements for severe ozone nonattainment areas and to attain the 1-
hour NAAQS for ozone.
---------------------------------------------------------------------------
\1\ Petitions for review of the October 2, 2002, rulemaking were
filed in the U.S. Court of Appeals for the Fifth Circuit (Louisiana
Environmental Action Network (LEAN) v. EPA, No. 02-60991). The
issues raised concerned EPA's decision to approve Louisiana's
substitute contingency measures plan, the revised attainment
demonstration SIP with a later attainment deadline without
reclassifying the area to severe, and the associated precursor
trading provision of the NSR rules. On February 25, 2003, the court
granted EPA's partial voluntary remand to allow EPA the time to meet
the December 2002 court decision by withdrawing its approval of the
revised attainment demonstration SIP that extended the attainment
deadline without reclassifying the area and the associated NSR
precursor trading provision. The court also addressed the substitute
contingency measures claim, and vacated and remanded EPA's approval
of the contingency measures.
---------------------------------------------------------------------------
Under section 182(d) and section (i) of the Act, serious ozone
nonattainment areas reclassified to severe are required to submit SIP
revisions addressing the severe area requirements for the 1-hour ozone
NAAQS. Under section 182(d), severe area plans are required to meet all
the requirements for serious area plans and all the requirements for
severe area plans.
In 1997, EPA promulgated a new, more protective standard for ozone
based on an 8-hour average concentration (the 1997 8-hour ozone
standard). In 2004, EPA published the 1997 8-hour ozone designations
and classifications and a rule governing certain facets of
implementation of the 8-hour ozone standard (Phase 1 Rule) (69 FR 23858
and 69 FR 23951, respectively, April 30, 2004). The BR area was
designated as nonattainment for the 1997 8-hour ozone standard. The 8-
hour nonattainment area is composed of the same five parishes as the 1-
hour ozone nonattainment area. The area was classified as marginal
under the 1997 8-hour ozone standard. At the time of designation, the
five parishes remained in nonattainment for the 1-hour standard.
The Phase 1 Rule revoked the 1-hour ozone standard. See 69 FR
23951. The Phase 1 Rule also provided that 1-hour ozone nonattainment
areas are required to adopt and implement ``applicable requirements''
according to the area's classification under the 1-hour ozone standard
for anti-backsliding purposes. See 40 CFR 51.905(a)(i). On May 26,
2005, we determined that an area's 1-hour designation and
classification as of June 15, 2004 would dictate what 1-hour
obligations remain as ``applicable requirements'' under the Phase 1
Rule. 40 CFR 51.900(f). (70 FR 30592).\2\
---------------------------------------------------------------------------
\2\ As detailed in Section II below, various parties challenged
the Phase 1 rule. In particular, the Chamber of Baton Rouge
challenged EPA's authority to continue to enforce the 1-hour area
requirements.
---------------------------------------------------------------------------
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated the Phase 1 Rule. South Coast Air Quality
Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007,
in South Coast Air Quality Management Dist. v. EPA, Docket No. 04-1201,
in response to several petitions for rehearing, the DC Circuit
clarified that the Phase 1 Rule was vacated only with regard to those
parts of the rule that had been successfully challenged. With respect
to the challenges to the anti-backsliding provisions of the rule, the
court vacated three provisions that would have allowed States to remove
from the SIP or not to adopt three 1-hour obligations once the 1-hour
standard was revoked to transition to the implementation of the 8-hour
ozone standard: (1) Nonattainment area new source review (NSR)
requirements based on an area's 1-hour nonattainment classification;
(2) section 185 penalty fees for 1-hour severe or extreme nonattainment
areas that fail to attain the 1-hour standard by the 1-hour attainment
date; and (3) measures to be implemented pursuant to section 172(c)(9)
or 182(c)(9) of the Act, on the contingency of an area not making
reasonable further progress toward attainment of the 1-hour NAAQS or
for failure to attain that NAAQS. The court clarified that 1-hour
conformity determinations are not required for anti-backsliding
purposes.
The provisions in 40 CFR 51.905(a)-(c) concerning anti-backsliding
remain in effect and areas must continue to meet those requirements.
However, the court decision vacated the portions of Sec. 51.905(e)
that removed the obligations to meet the three provisions noted above.
As a result, states must continue to meet the obligations for 1-hour
NSR; 1-hour contingency measures; and, for severe and extreme areas,
the obligations related to a section 185 fee program. Currently, EPA
has proposed one rule and is developing other actions to address the
court's vacatur and remand with respect to these three requirements. We
address below how the 1-hour obligations that currently continue to
apply under EPA's anti-backsliding rule (as interpreted and directed by
the court) apply where EPA has made a determination that the area is
currently attaining the 1-hour NAAQS.
The Baton Rouge 1-hour nonattainment area was still classified as
severe on June 15, 2004, so the 1-hour ozone standard requirements
applicable to the five-parish area are those that apply to
nonattainment areas classified as severe. This includes meeting the
serious area requirements. Louisiana submitted and EPA approved all the
requirements for a 1-hour ozone area classified as serious. EPA's
approval of the serious area Contingency Measures was challenged in the
U.S. Court of Appeals for the Fifth Circuit (See footnote 1). The Court
vacated the serious area contingency measure and remanded it to EPA.
The severe area requirements include Reasonably Available Control
Technology (RACT) for both VOC and NOX, NSR Emissions Offset
Requirement, Vehicle Miles Traveled (VMT) Analysis, Post-1999 Rate of
Progress Plan, Contingency Measures, and an Attainment Demonstration.
The State has submitted many required severe area plan requirements,
including the severe area ROP Plan, but has not submitted others,
including the attainment demonstration and the contingency measures.
The VMT Analysis was approved November 21, 2006 (71 FR 67308).
Under the Phase 1 rule and as a result of the South Coast decision,
the requirement to provide a severe attainment demonstration SIP and
the serious and severe RFP/failure-to-attain contingency measures
remain in place. However, as discussed below, these requirements would
be suspended based on a finding of attainment of the 1-hour ozone
standard, and for so long as the area remains in attainment of the
standard in the future.
II. Proposed Determination of Attainment
EPA is proposing to determine that the Baton Rouge 1-hour ozone
nonattainment area is currently in attainment of the 1-hour standard
based on the most recent 3 years of quality-assured air quality data.
Certified ambient air monitoring data show that the area has monitored
attainment of the 1-hour ozone NAAQS for the 2006-2008 monitoring
period. Consistent with 40 CFR part 50, Appendix H, Table 1 contains
the 1-hour ozone data for the BR 1-hour ozone nonattainment area
monitors that show that the area is currently attaining the 1-hour
ozone NAAQS.
[[Page 13169]]
Table 1--1-Hour Ozone Data for the Baton Rouge 1-Hour Ozone Nonattainment Area
----------------------------------------------------------------------------------------------------------------
Design value Actual and expected number of 3-year
(ppb) exceedances \a\ exceedance
Site -------------------------------------------------------- average
-------------
2006-2008 2006 2007 2008 2006-2008
----------------------------------------------------------------------------------------------------------------
Plaquemine (22-047-0009).................. 114 0 0 0 0
Carville (22-047-0012).................... 113 0 0 0 0
Dutchtown (22-005-0004)................... 112 0 1 0 0.33
Baker (22-033-1001)....................... 111 1 0 0 0.33
LSU (22-033-0003)......................... 110 0 2 0 0.67
Grosse Tete (22-047-0007)................. 110 1 1 0 0.67
Port Allen (22-121-0001).................. 106 1 0 0 0.33
Pride (22-033-0013)....................... 101 0 0 0 0
French Settlement (22-063-0002)........... 100 1 0 0 0.33
Capitol (22-033-0009)..................... 97 0 0 0 0
----------------------------------------------------------------------------------------------------------------
\a\ The actual and expected number of exceedances were equal in all cases.
Pursuant to the interpretation set forth in the May 10, 1995
memorandum from John S. Seitz, Director, Office of Air Quality Planning
and Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone Ambient Air Quality Standard'' (Clean Data Policy),
EPA is proposing to make a finding of attainment based on current air
quality. Under this policy, if EPA determines through rulemaking that
the Baton Rouge 1-hour ozone nonattainment area is meeting the 1-hour
ozone standard, the requirements for the State to submit and have an
approved attainment demonstration, and related components such as
reasonably available control measures (RACM), a reasonable further
progress (RFP) demonstration, contingency measures for failure to
attain or make reasonable further progress are suspended as long as the
area continues to attain the 1-hour ozone NAAQS. EPA intends to address
the impact of a Clean Data determination on a CAA section 185 fees
program separately based on the outcome of a rulemaking to address the
South Coast decision with respect to this issue, discussed above. See
74 FR 2936, 2941 (January 16, 2009).
As stated above, the suspension of requirements continues for so
long as the area remains in attainment. If the area subsequently
violates the ozone NAAQS, EPA would initiate notice-and-comment
rulemaking to withdraw the determination of attainment, which would
result in reinstatement of the requirements for the State to submit
such suspended plans.
The Tenth, Seventh and Ninth Circuits have upheld EPA rulemakings
applying the Clean Data Policy. See Sierra Club v. EPA, 99 F. 3d 1551
(10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004) and
Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28,
2005) memorandum opinion.\3\ See also the discussion and rulemakings
cited in the Phase 2 Rule, 70 FR 71644-71646 (November 29, 2005).
---------------------------------------------------------------------------
\3\ The Clean Data Policy, as it is embodied in 40 CFR 51.918,
is being challenged in the context of the 8-hour ozone standard in
the Phase 2 Rule ozone litigation pending in the DC Circuit, NRDC v.
EPA, No. 06-1045 (DC Cir.).
---------------------------------------------------------------------------
IV. What Action Is EPA Taking?
EPA proposes to find that the BR 1-hour ozone nonattainment area
has attained the 1-hour ozone standard; thus the requirements for
submitting the severe attainment demonstration SIP with its RACM
demonstration and other associated elements, the severe RFP
requirements, and section 172(c)(9) and section 182(c)(9) serious and
severe contingency measures are suspended for so long as the area is
attaining the 1-hour ozone standard.
Thus, pursuant to our proposed determination of attainment and in
accordance with our Clean Data Policy, the effect of the finding is
that the following requirements to submit SIP measures under the 1-hour
anti-backsliding provisions (40 CFR 51.905) are suspended for so long
as the area continues to attain the 1-hour standard:
RFP reductions under sections 182(d) and 182(c)(2)(B) (for severe
areas). Attainment demonstration under sections 182(d) and 182(c)(2)
(for severe areas) and associated RACM demonstration.
Contingency measures for failure to meet RFP under section 172(c)(9)
and section 182(c)(9) (for serious and severe areas) and contingency
measures for failure to attain under sections 172(c)(9) and 182(c)(9)
(for severe areas).
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
action proposes to make a determination based on air quality data, and
would, if finalized, result in the suspension of certain Federal
requirements. Accordingly, the Administrator certifies that this rule
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et
seq.). Because this rule proposes to make a determination based on air
quality data, and would, if finalized, result in the suspension of
certain Federal requirements, it does not contain any unfunded mandate
or significantly or uniquely affect small governments, as described in
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed
rule also does not have tribal implications because it will not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This proposed action also does not have
Federalism implications because it 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
[[Page 13170]]
Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely
proposes to make a determination based on air quality data and would,
if finalized, result in the suspension of certain Federal requirements,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it proposes to determine that air quality in the
affected area is meeting Federal standards. The requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply because it would be inconsistent with
applicable law for EPA, when determining the attainment status of an
area, to use voluntary consensus standards in place of promulgated air
quality standards and monitoring procedures that otherwise satisfy the
provisions of the Clean Air Act. This proposed rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501, et seq.). Under Executive Order
12898, EPA finds that this rule involves a proposed determination of
attainment based on air quality data and will not have
disproportionately high and adverse human health or environmental
effects on any communities in the area, including minority and low-
income communities.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 5, 2009.
Lawrence Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E9-6598 Filed 3-25-09; 8:45 am]
BILLING CODE 6560-50-P