01-18534. Clean Air Act Reclassification and Notice of Potential Eligibility for Extension of Attainment Date, Louisiana; Baton Rouge Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Supplemental proposed rule.

SUMMARY:

On May 9, 2001 (66 FR 23646), EPA proposed to find that the Baton Rouge serious ozone nonattainment area (hereinafter referred to as the Baton Rouge area) had failed to attain the one-hour National Ambient Air Quality Standard (NAAQS) for ozone by November 15, 1999, the date set forth in the federal Clean Air Act (CAA or Act) for serious nonattainment areas. Alternatively, in the same action, EPA also issued a notice of the Baton Rouge area's potential eligibility for an attainment date extension pursuant to EPA's “Guidance on Extension of Attainment Dates for Downwind Transport Areas” (Richard D. Wilson, Acting Assistant Administrator for Air and Radiation) issued July 16, 1998, 64 FR 14441 (March 25, 1999) (hereinafter referred to as the “extension policy”). The extension policy provides that a nonattainment area, such as the Baton Rouge area, may be eligible for an attainment date extension if it meets certain conditions.

In the May 9, 2001, proposed rule, EPA indicated that, if Louisiana made a submittal in response to the extension policy by August 31, 2001, EPA would address the adequacy of the submittal in a subsequent supplemental proposal. If the submittal met the criteria for an extension, EPA stated that the attainment date for the Baton Rouge area would be extended, and the area would not be reclassified. This proposed rule supplements the proposed rule published on May 9, 2001, for the Baton Rouge area. In today's action, EPA is proposing to extend the submittal deadline from August 31, 2001, to December 31, 2001.

DATES:

Comments must be received on or before August 24, 2001.

ADDRESSES:

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

Copies of the comment letters referenced in this supplemental proposed rule, and other relevant materials, are contained in the docket file, which is available at the following addresses for inspection during normal business hours: U.S. Environmental Protection Agency Region 6, Air Planning Section, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202; Louisiana Department of Environmental Quality (LDEQ), 7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810. Please contact the appropriate office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT:

Ms. Jeanne Schulze, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

The use of “we,” “us,” or “our” in this document refers to EPA.

Table of Contents

I. What action are we taking today?

II. Why are we proposing to extend the submittal date?

III. What is the status of the State's efforts to submit the SIP pursuant to the extension policy?

IV. When will we make a final decision whether to reclassify or grant an attainment date extension to the Baton Rouge area?

V. Administrative Requirements

I. What Action Are We Taking Today?

We are proposing to extend the deadline, from August 31, 2001, to December 31, 2001, for Louisiana to submit a State Implementation Plan (SIP) that qualifies for an extension pursuant to EPA's extension policy. In our May 9, 2001, proposed rulemaking, we based the August 31, 2001, submission deadline on a letter from the Governor of Louisiana to EPA, dated May 10, 2000, committing to submit, by that date, a SIP that meets the criteria of the extension policy.

In today's proposal, EPA specifically requests comments on a revised submission date of December 31, 2001. EPA has previously received comments on other aspects of its May 9, 2001, proposal, and will address those comments in its final action on the SIP submittal and attainment date extension. EPA is not reopening or requesting comment on any other aspect of the May 9, 2001, proposal.

II. Why Are We Proposing To Extend the Submittal Date?

In response to our May 9, 2001, proposed rulemaking, the Governor of Louisiana submitted a letter to EPA, dated June 7, 2001, requesting until December 31, 2001, to submit the transport extension SIP. To support the request for additional time, the Governor's letter references a June 1, 2001, comment letter submitted to EPA by Dale Givens, Secretary of the LDEQ. In his letter, Secretary Givens provides an extensive list of critical factors that have changed or were added to the SIP development process, thereby necessitating a change in the submittal date committed to by the Governor in his May 10, 2000, letter to EPA.

Secretary Givens' comment letter also clarifies that the Governor's August 31, 2001, commitment date was not driven by statute, rule, policy or any other legal requirement, but, rather, was selected based on discussions with EPA. This date was mutually determined by EPA and LDEQ to be, at the time, the most expeditious schedule practicable to prepare what was expected to be a relatively simple revision to the current attainment demonstration SIP.^[1] The assumption at the time—based on the area's official design value, which was just a few parts per billion above the NAAQS—was that only a small additional reduction in ozone precursor emissions in the five-parish Baton Rouge ozone nonattainment area would be necessary to attain the one-hour ozone standard.

The factors Secretary Givens cites as a basis for extending the submittal date include the following:

—The geographic area from which emission reductions are being considered for the attainment demonstration has expanded from the five-parish Baton Rouge nonattainment area to a total of twelve parishes, necessitating new detailed emission inventories and additional sensitivity and control strategy modeling runs.

—The number of urban airshed modeling episodes increased from two to three episodes (each representing a different meteorological and pollutant transport regime) in order to ensure a more successful control strategy. Running each sensitivity/control strategy run three times has significantly increased the time and cost of the modeling effort.

—Required nitrogen oxide ( NO_X) reductions are significantly greater than expected. Modeling conducted to date indicates that NO_X reductions of approximately 35% may be needed in the 12-parish control region in order to demonstrate attainment. Approximately 74 individual facilities with 409 NO_X emission sources could be affected. The sources include categories of combustion equipment such as boilers, heaters, furnaces, turbines and internal combustion engines. Many of these sources are currently operating without any level of NO_X control. LDEQ anticipates that the NO_X controls required by the transport extension SIP could go well beyond the level of control required of states in the NO_X SIP Call Region.^[2]

—The August 31, 2001, commitment date did not anticipate the proliferation of proposed merchant power plants. LDEQ has considered in its modeling analyses emissions increases from 20 proposed merchant power plants representing over 14,000 tons per year of NO_X emissions. (These estimates are based on air permit applications received by LDEQ.) Since the status of these plants changes weekly, it has made the attainment planning process even more difficult.

—The LDEQ is also in the process of revising its emission reduction credit (ERC) banking regulations to conform with EPA's “surplus when used” policy. In conjunction with the rule revisions, LDEQ is nearing completion of a review of ERCs applied for and on deposit in the bank to ensure that the proper adjusted amount of ERCs is modeled as emissions “in the air.”

EPA believes that the State has made a compelling argument that the SIP development process has been as expeditious as practicable and that an extension until December 31, 2001, is warranted in order to develop a technically defensible and approvable submittal.^[3]

III. What Is the Status of the State's Efforts To Submit the SIP Pursuant to the Extension Policy?

As stated in our May 9, 2001, proposed rulemaking, a local task force comprised of stakeholders has been working closely with the LDEQ to develop a submittal that meets the requirements of the extension policy.^[4] Modeling efforts are nearing completion, and the State has begun the rulemaking process for several of the underlying regulations. All required rules are expected to be proposed by August 2001. The LDEQ plans to propose the entire SIP for public comment in October 2001.^[5]

IV. When Will We Make a Final Decision Whether To Reclassify or Grant an Attainment Date Extension to the Baton Rouge Area?

As discussed in our May 9, 2001, proposed rule, we do not intend to take final action on the reclassification prior to allowing Louisiana an opportunity to qualify for an attainment date extension under the extension policy.

Therefore, if Louisiana submits, by December 31, 2001, a SIP that qualifies for an extension pursuant to the extension policy, we will propose to approve the State's submittal. In the same notice, we will propose to extend the attainment date for the Baton Rouge area to an appropriate expeditious date.

We will take final action on the new attainment date at the time we take final action on the submittal. If we act to approve the attainment demonstration and extend the attainment date, the Baton Rouge 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) of the CAA.^[6] However, if Louisiana fails submit, by December 31, 2001, a plan that meets the requirements of the extension policy, we will finalize our May 9, 2001, proposed finding of failure to attain, and the Baton Rouge area will be reclassified to severe ozone nonattainment.

V. Administrative Requirements

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 proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, 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). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed rule will 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 it merely approves a state rule implementing a federal standard, 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 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, 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. The proposed rule does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings.” 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.).

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

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

Dated: July 16, 2001.

Carl E. Edlund,

Acting Regional Administrator, Region 6.

Footnotes

1.  On July 2, 1999 (64 FR 35930), EPA issued a final approval of Louisiana's one-hour ozone attainment demonstration for the five-parish Baton Rouge ozone nonattainment area.

2.  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 October 27, 1998 (63 FR 57356), EPA took final action on the OTAG's recommendations by issuing the NO_X SIP call, requiring 22 states and the District of Columbia to submit SIPs addressing the regional transport of ozone. These 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). The EPA expects the final NO_X SIP call will assist many areas in attaining the one-hour ozone standard. Louisiana was a member of the OTAG but was not included in the NO_X SIP call.

3.  It should be noted that, of the 16 entities submitting comments on EPA's May 9, 2001, proposed rulemaking, twelve expressly support an extension of the August 31, 2001, submittal deadline.

4.  The specific criteria that Louisiana's plan will have to meet in order for EPA to consider extending the Baton Rouge area attainment date under the extension policy are outlined in the May 9, 2001, proposed rulemaking (p. 23650).

5.  LDEQ's schedule for rulemaking on the various components of the SIP can be found in the docket for this proposed rulemaking.

6.  Section 181(b)(2) of the Act explains the process for determining whether an area has attained the one-hour ozone NAAQS and, if appropriate, reclassification by operation of law.