2011-16881. Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Determination of Termination of Section 185 Fees

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA has determined that the State of Louisiana is no longer required to submit a section 185 fee program State Implementation Plan (SIP) revision for the Baton Rouge ozone nonattainment area to satisfy anti-backsliding requirements for the 1-hour ozone standard. This determination (“Termination Determination”) is based on complete, quality-assured monitoring data showing attainment of the 1-hour ozone National Ambient Air Quality Standard (NAAQS), which is due to permanent and enforceable emission reductions implemented in the area.

DATES:

This rule is effective August 8, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket No. EPA-R06-OAR-2010-0404. All documents in the docket are listed in the http://www.regulations.gov index. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Planning Section (6PDL), 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 [phone], fax [phone], e-mail address [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

I. What action is EPA taking?

II. What is the background and legal rationale for this final action?

III. What is the effect of this final action?

IV. What is EPA's final analysis?

a. Attainment of the 1-Hour Ozone Standard

b. Permanent and Enforceable Emission Reductions

V. What comments did EPA receive?

VI. Final Action

VII. Statutory and Executive Order Reviews

I. What action Is EPA taking?

EPA has determined that Louisiana is no longer required to submit a Clean Air Act section 185 fee program SIP revision for the Baton Rouge 1-hour ozone nonattainment area to satisfy anti-backsliding requirements associated with the transition from the 1-hour ozone standard to the 1997 8-hour ozone standard. This Termination Determination is based on EPA's determination that the area is attaining the 1-hour ozone standard due to permanent and enforceable emission reductions implemented in the area. EPA's determination terminates the area's obligation to submit a section 185 fee program SIP revision for the 1-hour ozone standard.

II. What is the background and legal rationale for this final action?

For a detailed description of the background and legal rationale for this final action, see our proposed approval, published March 29, 2011 (76 FR 17368).

III. What is the effect of this final action?

By finalizing this action, we are terminating the requirement for the State of Louisiana to submit a CAA section 185 penalty fee 1-hour ozone anti-backsliding SIP revision, which would have required major stationary sources in the Baton Rouge area to pay fees as a penalty for failure to attain the 1-hour ozone standard by the area's 1-hour ozone attainment date.^[1]

IV. What is EPA's final analysis?

EPA's final Termination Determination is based upon EPA's determination that the BR area is attaining the 1-hour ozone standard due to permanent and enforceable emission reductions implemented in the area, as detailed in our proposal for this final action.

a. Attainment of the 1-Hour Ozone Standard

As noted above, EPA determined that the Baton Rouge 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS. For the details of that determination see our final action at 75 FR 6570 (February 10, 2010). As discussed in our proposal, EPA has also determined that the area continues to monitor attainment of the 1-hour ozone standard, based on complete, quality-assured data for 2010. 76 FR 17368, March 29, 2011.

EPA notes that, on September 9, 2010, EPA determined that the Baton Rouge 1997 8-hour ozone nonattainment area also attained the 1997 8-hour ozone NAAQS. For the details of that determination see our final action at 75 FR 54778 (September 9, 2010).^[2]

b. Permanent and Enforceable Emission Reductions

EPA is finalizing its determination that the BR area demonstrated that the observed air quality improvements with respect to the 1-hour ozone standard are due to permanent and enforceable emission reductions through the implementation of emission controls contained in the SIP and in federal control measures. For a detailed analysis of these permanent and enforceable measures, please see our proposal at 76 FR 17371-17372.

V. What comments did EPA receive?

EPA received thirteen comment letters in response to the proposed rulemaking. The comment letters are available for review in the docket for this rulemaking. All commenters expressed support for our proposed action, and no adverse comments were received. Comments were submitted by American Chemistry Council, American Petroleum Institute or “API”, BASF, Entergy Gulf State Louisiana L.L.C, National Petrochemical & Refiners Association (“NPRA”), PCS Nitrogen Fertilizer, Shell Chemical LP, Syngenta Crop Protection LLC, Williams Olefins, LLC (Williams), ExxonMobil, Calpine Corporation (Calpine), Louisiana Chemical Association, the Baton Rouge Area Chamber, and the Louisiana Mid-Continent Oil and Gas Association, (collectively, the Associations), and Baker Botts (through the Section 185 Working Group (the “Group”). In addition to expressing support, some comments also addressed additional points relating to requirements under section 185 and triggers for applicability, as well as other issues which EPA considers to be outside the scope of this Termination Determination rulemaking, which-addresses only the circumstances relating to termination of the section 185 SIP obligation, and thus EPA need not address such comments here.

VI. Final Action

For the reasons set forth in the proposed rulemaking and in this final rulemaking, EPA is finalizing its determination to terminate (Termination Determination) the section 185 fee penalty requirement for the Baton Rouge area for the 1-hour ozone standard. This final determination is based on EPA's determination that the area has attained and continues to attain the 1-hour ozone standard due to permanent and enforceable emissions reductions.

VII. Statutory and Executive Order Reviews

This action makes a determination of termination of the CAA section 185 penalty fee requirement based on attainment of the 1-hour ozone standard due to permanent and enforceable emission reductions, and results in the termination of the section 185 fee requirements for the 1-hour standard, and does not impose any additional requirements. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Ιs not subject to the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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 rules 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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of these actions must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2011. Filing a petition for reconsideration by the Administrator of these final rules does not affect the finality of this action 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: June 23, 2011.

Al Armendariz,

Regional Administrator, Region 6.

40 CFR part 52 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. Section 52.977 is amended by adding paragraph (c) to read as follows:

§ 52.977

Control strategy and regulations: Ozone.

* * * * *

(c) Determination to Terminate the Clean Air Act Section 185 Penalty Fee Requirement. Effective September 6, 2011 EPA has determined that the State of Louisiana is no longer required to submit a section 185 fee program State Implementation Plan (SIP) revision for the Baton Rouge ozone nonattainment area to satisfy anti-backsliding requirements for the 1-hour ozone standard. This determination is based on EPA's determination that the area has attained the 1-hour ozone standard due to permanent and enforceable emissions reductions.

Footnotes

1.  For the reasons set forth in the proposal to this final action, a final approval of the Termination Determination for the 1-hour standard section 185 measures will not be rescinded based on subsequent monitored nonattainment for the 1-hour ozone standard.

2.  A final determination that attainment for the 8-hour standard is due to permanent and enforceable emissions reductions would provide an additional basis for a Termination Determination for Baton Rouge, but EPA has not yet made such a determination and therefore does not rely on that ground here.