02-24339. Approval and Promulgation of Air Quality State Implementation Plans (SIP); Louisiana: Substitute Contingency Measures

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Louisiana for the Baton Rouge ozone non-attainment area for the purpose of replacing the previously approved contingency measures in the Demonstration of Attainment. These replacement measures meet the requirements in sections 172(c)(9) and 182(c)(9) of the Clean Air Act (the Act) as amended in 1990. We are approving replacement of the State's current contingency measures with contingency measures that require emission reductions from the Trunkline Gas Company—Patterson Compressor Station in St. Mary Parish. The State's current contingency measure requirement is that it hold 5.7 tons per day (tpd) of VOC emission reductions “on deposit” in the State of Louisiana Emission Reduction Credit Bank (ERC Bank). The replacement contingency measure that the EPA is approving would require that the Trunkline facility permanently reduce its volatile organic compound (VOC) emissions by 6.1 tpd from 1990 emission levels. These reductions are surplus and federally enforceable.

Pursuant to section 553(d) of the Administrative Procedure Act, EPA finds good cause to make this action effective immediately.

DATES:

This final rule is effective September 26, 2002.

ADDRESSES:

Copies of the documents relevant to this action are available for public inspection during normal business hours at the following locations. Persons interested in examining these documents should make an appointment with the appropriate office at least 24 hours before the visiting day.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

Louisiana Department of Environmental Quality, Air Quality Compliance Division, 7290 Bluebonnet, 2nd Floor, Baton Rouge, Louisiana.

FOR FURTHER INFORMATION CONTACT:

Ms. Sandra G. Rennie, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” means EPA.

What Action Is EPA Taking Today?

We are granting final approval of Louisiana's substitute contingency measures SIP revision, which substitutes 6.1 tpd in VOC emission reductions from the Trunkline Gas Company for the previously approved measure. We are approving this revision to the Louisiana SIP to meet the requirements of sections 172(c)(9) and 182(c)(9) of the Act.

Section 553(d) of the Administrative Procedure Act generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register. However, if an Agency identifies a good cause, section 553(d)(3) allows a rule to take effect earlier, provided that the Agency publishes its reasoning in the final rule. EPA is making this action effective immediately because this rule is related to the Baton Rouge 1-hour ozone Attainment Plan and Transport State Implementation Plan, on which the EPA intends to take imminent action (see 67 FR 50391, August 2, 2002). In conjunction with its August 2, 2002, proposed approval of the attainment demonstration, EPA proposed to extend the ozone attainment date for the BR area to November 15, 2005, while retaining the area's current classification as a serious ozone nonattainment area and to withdraw EPA's June 24, 2002, rulemaking determining nonattainment and reclassification of the BR area (67 FR 42687). The effective date of EPA's June 24, 2002, nonattainment determination and reclassification is imminent. Furthermore, making this action effective immediately does not impose any additional requirements, because the underlying regulations are already effective under state law.

What Are the Clean Air Act Requirements?

Sections 172(c)(9) and 182(c)(9) of the Act require that SIPs contain additional measures that will take effect without further action by the state or EPA if an area fails to attain the standard by the applicable date, or to meet Rate-of-Progress Plan (ROPP) deadlines. The Act does not specify how many contingency measures are needed or the magnitude of emissions reductions that must be provided by these measures. However, EPA provided guidance interpreting the control measure requirements of sections 172(c)(9) and 182(c)(9) in the April 16, 1992, General Preamble for Implementation of the Act (see 57 FR 13498, 13510, April 16, 1992). In that guidance, EPA indicated that states with moderate and above ozone nonattainment areas, such as the Baton Rouge area, should include sufficient contingency measures so that, upon implementation of such measures, additional emission reductions of up to three percent of the emissions in the adjusted base year inventory (or such lesser percentage that will cure the identified failure) would be achieved in the year following the year in which the failure has been identified. The State must show that the contingency measures can be implemented with minimal further action on their part and with no additional rulemaking actions.

Why Is EPA Taking This Action?

We are taking this action because the State submitted an adequate demonstration to show that the substitute contingency measure provides the necessary reductions to meet the requirement.

What Does the State's Substitute Contingency Measure Include?

The Trunkline Gas Company—Patterson Compressor Station in St. Mary Parish facility installed a flare in 1998 to dispose of flash gases from several storage containers to comply with Louisiana's waste gas disposal rule and comprehensive toxic air pollutant control program. This was an alternative to combustion in a furnace or closed combustion chamber. The destruction efficiency of the open air flare is estimated at 99 percent.

After the installation of the flare, VOC emissions changed from 13.4 tpd to 0.4 tpd. The resulting 13 tpd of emission reductions are creditable. To ensure that these emission reductions are permanent and federally enforceable, the revised emission limit is reflected in the permit issued to Trunkline by the State. The permit makes the additional emission reductions available for SIP purposes, i.e., the reductions are surplus, permanent, and enforceable. 6.1 tpd of this 13 tpd reduction will be credited to contingency measures and will no longer be available for any other use. Because the 6.1 tpd reduction from the Trunkline facility is greater than the 5.7 tpd in the prior contingency measure, this SIP revision will result in lower emissions and thus also complies with section 110(l) of the Act.

The Trunkline facility is located approximately 40 kilometers from the Baton Rouge ozone nonattainment area. In 1997, EPA issued a policy allowing 1-hour ozone nonattainment areas to take credit in their Post-1996 ROPP ^[1] for emission reductions obtained from sources outside the designated nonattainment area, provided the sources are no farther away than 100 km (for VOC sources) or 200 km (for NO_X sources) from the nonattainment area.^[2]

The Trunkline Gas Company had not initially accounted for 13.4 tpd of VOC emissions. As a result, the VOC emissions from this facility had not been included in the point source emissions inventory for 1990. Emissions reported in a corrected 1992 annual emissions inventory submitted to LDEQ June 6, 1997, are the best estimate of the source's 1990 base year emissions. These emissions were added back to the 1990 base year emissions inventory. The revised 1990 VOC base year inventory that included these Trunkline emissions would result in a 204.6 tpd revised 1990 base year inventory.

An additional 2.0 tpd of emission reductions required to meet CAA requirements were identified in the 15% ROPP revisions. The additional 2.0 tpd were provided by using a 1.4 tpd “surplus” 9% ROPP reduction from the Trunkline permit plus 0.6 tpd of point source reductions (163 tons per year or 0.45 tpd of VOCs from the Dow Chemical permit and 56 tons per year or 0.15 tpd of VOCs from the BASF Corporation permit).

There were an additional 1.2 tpd of reductions required to meet the 9% ROPP identified in the revisions. These were also taken from the 13.0 tpd Trunkline emissions reductions that were netted from the post-90 emissions growth, leaving a remainder of 10.4 tpd, of which 6.1 tpd will be used as the contingency measure EPA is now approving.

In a separate action, EPA has proposed approval of the revised 1990 Base Year Emissions Inventory to include the Trunkline emissions, the 15% Rate-of-Progress Plan, and the 9% Rate-of-Progress Plan submitted as part of the December 31, 2001, Attainment Plan/Transport SIP (see 64 FR 50391, August 2, 2002.)

What Comments Did EPA Receive in Response to the May 20, 2002, Proposed Rule?

EPA received comments on the Notice of Proposed Rulemaking (NPR) from the Louisiana Chemical Association (LCA), the Louisiana Environmental Action Network (LEAN), the Louisiana Mid-Continent Oil and Gas Association (LMCOGA), and the Baton Rouge Ozone Task Force Steering Committee. A summary of the comments received and EPA's response is presented below.

Three commenters (LCA, LMCOGA, and the Steering Committee) support EPA's finding, agreeing that EPA's analysis is reasonable and consistent with EPA guidance.

LEAN opposes this action with the following comments:

Comment 1: This contingency measure does not meet EPA guidelines, or the Clean Air Act. This measure is not a contingency measure because it has already been implemented. Because the measure cannot be triggered for a failure to attain, it cannot be used.

Response 1: In the General Preamble, EPA provided guidance interpreting the control measure requirements of 172(c)(9) and 182(c)(9) of the Act. A contingency measure should, at a minimum, ensure that an appropriate level of emissions reduction progress continues to be made if attainment or Reasonable Further Progress is not achieved and additional planning by the State is needed. We followed our General Preamble interpretation in taking this final action.

Although the emissions reductions from the Trunkline facility first occurred in 1998, the reductions are continuing on an annual basis and are surplus, permanent and federally enforceable. In other words, the 13 tpd reduction is realized at the facility on a continuing basis. Thus, if the reductions were not used for a contingency measure, the facility could, for example, apply the reduction toward the State's Emissions Credit Bank (see, 67 FR 48083, July 23, 2002). However, the Trunkline credits are not available for any other use while they are identified in the approved SIP as contingency measures. A failure to attain will trigger these credits to be applied toward making progress to attain. Even though the measure is already implemented, the continuing reduction credits from the Trunkline facility are, in effect, set aside to be applied in the event that attainment is not achieved. These credits are immediately available, without further action by the State, which is another necessary feature for a measure to be used as a contingency measure.

Comment 2: EPA has made no factual or rational argument as to why the original contingency plan should be changed. Therefore, the original, approved contingency plan should remain in place. This change to the SIP was initiated because EPA recognized that the general offset requirement program in section 182(c)(10) of the Act was not being implemented correctly.

Response 2: As explained in our proposal (67 FR 35468, May 20, 2002), EPA previously approved a contingency measures plan as satisfying sections 172(c)(9) and 182(c)(9) of the Act (64 FR 35930, July 2, 1999). The contingency plan consisted of 5.7 tpd of VOC ERCs held in escrow in the Louisiana ERC Bank that would be confiscated by the State and no longer available for use in the event of a milestone failure or if attainment was not achieved in a timely manner. In August 1999, a petition for review was filed in the United States Court of Appeals for the Fifth Circuit challenging our July 2, 1999, SIP approval. Louisiana Environmental Action Network v. EPA, No. 99-60570. In response to the litigation, we requested a partial voluntary remand to reconsider that final approval of the State's contingency measures plan for the Baton Rouge area. On October 19, 2000, the Fifth Circuit Court of Appeals granted a Joint Motion for a Partial Voluntary Remand.

The State has submitted this contingency measure as a substitute for the ERC bank contingency measure. This final action serves as EPA's response to the voluntary remand. EPA believes that this is a reasonable basis for approving the reductions from the Trunkline facility as Louisiana's contingency measure to substitute for the previously remanded contingency measures.

It is the State's responsibility to demonstrate how the measures in its SIP revision meet the requirements of the Act. EPA's role in approving measures for the SIP is to evaluate the State's submittal. The State has the option to replace approved measures in the SIP at its discretion, provided that the SIP continues to meet all applicable Clean Air Act requirements. The Act does not specify the nature of the contingency measures a State must submit. As long as the substitute measures meet the requirements of the Act and do not weaken the SIP, EPA can and must approve the revision.

Comment 3: There is no factual argument given in the proposed rule that indicates or demonstrates that the proposed contingency rule will have any impact on the ozone problem in the Baton Rouge ozone nonattainment area. The emission reductions do not come from the nonattainment area, and they were not included in the assessment for the currently approved SIP.

Response 3: As noted above, EPA has proposed approval of an adjustment of Louisiana's 1990 baseline to include the Trunkline emissions (see 64 FR 50391, August 2, 2002). Once these emissions are included in the baseline, which will occur prior to any milestone date, reducing them will lower emissions in the area on a continuing basis.

Furthermore, EPA's basis for approving the Trunkline credits for contingency measures lies in our 1997 guidance ^[3] that allows credits from outside a nonattainment area (within defined boundaries) to be used to meet its annual Rate of Progress emission reductions, provided that such emissions are included in the baseline.

Comment 4: This is the same contingency measure as that proposed in the revised SIP that is currently being reviewed by EPA. This implies that the same contingency measure could potentially be implemented twice.

Response 4: The commenter is correct that this is the same contingency measure proposed in the revised SIP that is currently under review. This measure is being acted on now as a separate rule apart from the main SIP rulemaking action, in response to the voluntary remand noted in Response 1, above. The measure will not be approved again to meet any different purpose. EPA believes this contingency measure does satisfy the requirements of sections 172(c)(9) and 182(c)(9) of the Act. In the event that this contingency measure is “triggered” by a formal EPA finding that the area failed to meet an applicable milestone, Louisiana will then be required to submit a “backfilling” contingency measure, according to a schedule established by EPA, to ensure that adequate emission reductions continue to be available to serve as contingency measures to cover any future applicable milestone failures.

Comment 5: The proposed contingency measures are simply a paper change that should not be allowed. The reductions were not included in the 1990 baseline or the subsequent demonstration modeling, and therefore, should not be allowed as a contingency measure.

Response 5: As noted in Response 1, above, EPA does not believe this is a “paper change.” The emissions reductions from the Trunkline facility are continuing, real, surplus, permanent, and enforceable. The 6.1 tpd set aside as contingency measures are not available for any other use while they are approved as contingency measures in the SIP. In addition, as noted above, EPA has proposed action to revise the 1990 baseline to include these emissions.

EPA's Rulemaking Action

We are granting final approval pursuant to sections 110 and sections 172(c)(9) and 182(c)(9) of the Act because we find that the State has adequately demonstrated that the substitute contingency measure provides the necessary reductions to meet the requirements of the Act, and that these reductions are permanent, surplus and federally enforceable.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This 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 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 approves 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 (Public Law 104-4). This rule also does 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), nor will it 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 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 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. 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” issued under the executive order. This 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.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective September 26, 2002.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial revew of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 26, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Hydrocarbons
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

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

Dated: September 17, 2002.

Lynda F. Carroll,

Acting Regional Administrator, Region 6.

Part 52 of chapter I, title 40, Code of Federal Regulations, is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart T—Louisiana

2. In the table in § 52.970(e) entitled “EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures” the entry for “Contingency Measures” is revised to read as follow:

§ 52.970

Identification of plan.

* * * * *

(e) EPA approved nonregulatory provisions and quasi-regulatory measures.

* * * * *

EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures

Name of SIP provision	Applicable geographic or nonattainment area	State submittal date/effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Contingency Plan	Baton Rouge, LA	12/28/2001	September 26, 2002 [67 FR 60590]	Substitute measure to replace the measure approved on 07/02/99, 64 FR 35939.
*         *         *         *         *         *         *

Footnotes

1.  EPA has historically allowed a surplus emission reduction in ROPP to be credited towards meeting the section 172 and section 182 requirements. EPA's rationale is that not allowing excess emission reductions to be used as contingency measures discourages areas from reducing emissions “as expeditiously as practicable” and is, therefore, inconsistent with section 172 of the Act. EPA memorandum, “Early Implementation of Contingency Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas,” from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 13, 1993.

2.  EPA memorandum, “Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM₁₀ NAAQS,” from Richard D. Wilson, Acting Assistant Administrator for Air and Radiation, December 23, 1997.

3.  “Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM10 NAAQS” dated December 29, 1997, in the memorandum from Richard Wilson, Acting Assistant Administrator for Air and Radiation.