Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Determination of Termination of Section 185 Fees, 17368-17373 [2011-7325]
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For the reasons set forth in the
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PART 285—NATIONAL VOLUNTARY
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Authority: 15 U.S.C. 272 et seq.
2. Section 285.4 is amended by
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BILLING CODE 3510–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2010–0404; FRL–9287–4]
Approval and Promulgation of Air
Quality Implementation Plans;
Louisiana; Determination of
Termination of Section 185 Fees
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing to
determine 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 antibacksliding requirements for the 1-hour
ozone standard. This proposed
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: Written comments must be
received on or before April 28, 2011.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2010–0404, by one of the
following methods:
Federal Rulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
U.S. EPA Region 6 ‘‘Contact Us’’ Web
site: https://epa.gov/region6/
r6coment.htm. Please click on
‘‘6PD’’(Multimedia) and select ‘‘Air’’
before submitting comments.
SUMMARY:
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E-mail: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by e-mail 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–2010–
0404.
EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
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 https://www.regulations.gov or
e-mail that you consider to be CBI or
otherwise protected from disclosure.
The https://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 https://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 https://
www.regulations.gov index. Although
listed in the index, some information is
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not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
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
rennie.Sandra@epa.gov
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.
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I. What action is EPA taking?
II. Background
III. What is the legal rationale for this action?
IV. What is the effect of this action?
V. What is EPA’s analysis?
a. Attainment of the 1-Hour Ozone
Standard
b. Permanent and Enforceable Emission
Reductions
VI. Proposed Action
VII. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is proposing to determine 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 8hour ozone standard. This proposed
Termination Determination is based on
EPA’s belief that the area is attaining the
1-hour ozone standard due to
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permanent and enforceable emission
reductions implemented in the area. If
finalized, the effect of EPA’s
determination would be to terminate the
area’s obligation to submit a section 185
fee program SIP revision for the 1-hour
ozone standard.
II. Background
In 2003, EPA determined that the
Baton Rouge 1-hour ozone
nonattainment area had failed to meet
its 1-hour ozone serious area
nonattainment date, and consequently
the area was reclassified as a matter of
law to severe nonattainment of the 1hour ozone standard effective June 23,
2003. 68 FR 20077 (April 24, 2003). The
reclassification of the area as severe
required the State to adopt a SIP
revision creating a penalty fee program
under CAA section 185 that would
apply if the area failed to meet the
November 15, 2005 attainment date that
applied to severe 1-hour ozone areas.
But, by that date, EPA had revoked the
1-hour standard and designated the
Baton Rouge area for the new 1997 8hour standard as marginal
nonattainment.
Section 185 1-Hour Ozone Antibacksliding Requirements:
Although EPA revoked the 1-hour
standard on June 15, 2004, during the
transition from the 1-hour ozone to the
8-hour ozone standard, EPA required 1hour nonattainment areas to remain
subject to certain requirements
pertaining to the area’s previous 1-hour
classification.
The section 185 fee program
requirement applied to any ozone
nonattainment area classified as Severe
or Extreme under the NAAQS,
including any area that was classified
Severe or Extreme under the 1-hour
ozone NAAQS as of the effective date of
the area’s 8-hour designation. Initially,
in our rules to address the transition
from the 1-hour to the 8-hour ozone
standard, we did not include the 185 fee
penalty requirement as one of the
measures necessary to meet antibacksliding requirements.1 However, on
December 23, 2006, the United States
Court of Appeals for the District of
Columbia Circuit issued an opinion
determining that EPA improperly
removed from its anti-backsliding
requirements the application of the
section 185 fee provision for Severe and
Extreme nonattainment areas that failed
to attain the 1-hour ozone standard by
their attainment date. South Coast Air
Quality Management District v. EPA,
1 Final Rule to Implement the 8-Hour Ozone
National Ambient Air Quality Standard—Phase 1,
69 FR 23951 (April 30, 2004).
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17369
472 F.3d 882 (DC Cir. 2006). In light of
the Court’s decision, on January 5, 2010
EPA issued guidance on the application
of the 185 1-hour anti-backsliding
requirement. EPA’s guidance addressed,
among other matters, alternative
methods of satisfying the section 185
1-hour anti-backsliding requirement,
and the circumstances under which
EPA would determine that the
obligation was terminated.
After the 1-hour standard was
revoked, and in accordance with antibacksliding regulations that remained
unchallenged, EPA no longer
reclassified areas under section 181(b)
for the 1-hour standard or redesignated
1-hour nonattainment areas to
attainment for that standard 69 FR
23951 (April 30, 2004). EPA continued,
however to make determinations of
attainment for the 1-hour standard
under EPA’s Clean Data Policy. On
February 10, 2010 (75 FR 6570), EPA
determined, pursuant to the Clean Data
Policy, that the Baton Rouge area had
attained the 1-hour ozone standard.2
This determination suspended certain
attainment-related severe area 1-hour
ozone planning requirements for Baton
Rouge, but did not affect the area’s antibacksliding obligation under the 1-hour
ozone section 185 fee requirement.
III. What is the legal rationale for this
action? 3
As a result of the court decision in
South Coast Air Quality Management
District v. EPA, 472 F.3d 882 (DC Cir.
2006), States with areas classified as
Severe or Extreme nonattainment for the
1-hour ozone standard at the time of the
area’s initial nonattainment designation
for the 1997 8-hour standard are no
longer categorically exempt from antibacksliding requirements under section
185. As set forth in EPA’s January 5,
2010 guidance 4, EPA believes that
States can meet this obligation through
a SIP revision containing either the fee
program prescribed in section 185, or an
equivalent alternative program, as
further explained below. EPA believes
that an alternative program may be
acceptable if it is consistent with the
principles of section 172(e) of the CAA,
which allows EPA through rulemaking
to accept alternative programs that are
‘‘not less stringent’’ where EPA has
2 May 10, 1995, EPA 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.’’
3 Stephen D. Page, Director, Office of Air Quality
Planning and Standards. Guidance on Developing
Fee Programs Required by Clean Air Act Section
185 for the 1-Hour Ozone NAAQS. January 5, 2010.
4 Ibid.
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revised the NAAQS to make it less
stringent.
Section 172(e) is an anti-backsliding
provision of the CAA that requires EPA
to develop regulations to ensure that
controls are ‘‘not less stringent’’ than
those that applied prior to relaxing a
standard where EPA has revised a
NAAQS to make it less stringent. In the
Phase 1 ozone implementation rule for
the 1997 ozone NAAQS published on
April 30, 2004 (69 FR 23951), EPA
determined that although section 172(e)
does not directly apply where EPA has
strengthened the NAAQS, as it did in
1997, it was reasonable to apply the
same principle for the transition from
the 1-hour NAAQS to the 1997 8-hour
NAAQS. As part of applying the
principle in section 172(e) for purposes
of the transition from the 1-hour
standard to the 1997 8-hour standard,
EPA can either require States to retain
programs that applied for purposes of
the 1-hour standard, or alternatively can
allow States flexibility to adopt
alternative programs, but only if such
alternatives are determined through
rulemaking to be ‘‘not less stringent’’
than the mandated program.
EPA is electing to consider alternative
programs to satisfy the section 185 fee
program SIP revision requirement.
States choosing to adopt an alternative
program to the section 185 fee program
must demonstrate that the alternative
program is no less stringent than the
otherwise applicable section 185 fee
program and EPA must approve such
demonstration after notice and comment
rulemaking.
As set forth in EPA’s January 5, 2010
guidance, EPA believes that for an area
that we determine is attaining either the
1-hour ozone or 1997 8-hour ozone
NAAQS, based on permanent and
enforceable emissions reductions, the
area would no longer be obligated to
submit a fee program SIP revision to
satisfy the anti-backsliding requirements
associated with the transition from the
1-hour ozone standard to the 1997
8-hour ozone standard. In such cases, an
area’s existing SIP could be considered
an adequate alternative program. Our
reasoning follows from the fact that an
area’s existing SIP measures, in
conjunction with other enforceable
Federal measures, are adequate for the
area to achieve attainment, which is the
purpose of the section 185 program. The
section 185 fee program is an element of
an area’s attainment demonstration, and
its object is to bring about attainment
after a failure of an area to attain by its
attainment date. Thus, areas that have
attained the 1-hour ozone standard, the
standard for which the fee program was
originally required, as a result of
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permanent and enforceable emission
reductions, would have a SIP that is not
less stringent than the SIP required
under section 185. Therefore, EPA
concludes that the obligation to collect
fees terminates once EPA determines
that the area has attained the 1-hour
ozone standard based on permanent and
enforceable emissions reductions.
In addition, EPA’s guidance states
that once an area attains the 1997 8-hour
ozone standard, which replaced the now
revoked 1-hour ozone standard, the
purpose of retaining the section 185 fee
program as an anti-backsliding measure
would also be fulfilled as the area
would have attained the 8-hour ozone
standard for which the fee program was
retained as a transition measure. We
believe that it would unfairly penalize
sources in these areas to require that
fees be paid after an area has attained
the 8-hour ozone standard due to
permanent and enforceable emission
reductions because the fees were
imposed due to a failure to meet the
applicable attainment deadline for the
revoked 1-hour ozone standard, not any
failure to achieve the now applicable
8-hour ozone standard for which the fee
program was retained as a transition
matter by its attainment date.5
There is also an additional,
independent basis for EPA’s approach to
determining that the anti-backsliding
requirements associated with section
185 have been satisfied. Although
section 185 provides that fees are to
continue until the area is redesignated
for ozone, EPA no longer promulgates
redesignations for the 1-hour ozone
standard because that standard has been
revoked. Therefore, relief from the
1-hour section 185 fee program
requirement under the terms of the
statute is an impossibility, since the
conditions the statute envisioned for
relieving an area of its fee program
obligation no longer can exist. There is
thus a gap in the statute which must be
filled by EPA. We believe that under
these circumstances we must exercise
our discretion under Chevron USA, Inc.
v. Natural Resources Defense Council,
467 U.S. 837 (1984), to fill this gap, so
as to carry out Congressional intent in
the unique context of anti-backsliding
requirements for a revoked standard. We
believe that it is reasonable for the fee
program obligation that applies for
5 EPA notes that it has also finalized a
determination that the Baton Rouge area has
attained the 8-hour ozone standard. (75 FR 54778,
September 9, 2010). A final determination of 8-hour
attainment based on permanent and enforceable
emissions reductions could provide another ground
for termination of the section 185 1-hour antibacksliding requirements, but we have not yet made
such a determination and thus do not rely on it
here.
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purposes of anti-backsliding to cease
upon a determination, based on noticeand-comment rulemaking, that an area
has attained the 1-hour ozone standard
due to permanent and enforceable
measures. This determination centers on
the core criteria for redesignations
under CAA section 107(d)(3). We
believe these criteria provide reasonable
assurance that the purpose of the 1-hour
anti-backsliding fee program obligation
has been fulfilled in the context of a
regulatory regime where the area
remains subject to other applicable
1-hour anti-backsliding and 8-hour
measures. Under these circumstances,
retention of the fee program under the
anti-backsliding rule is no longer
necessary for the purpose of achieving
attainment of the 8-hour standard. See
EPA’s January 5, 2010 guidance.
(Footnote 3).
IV. What is the effect of this action?
If this proposed determination to
terminate the section 185 fee antibacksliding requirement for the 1-hour
ozone standard is finalized, the
requirement for the State of Louisiana to
submit a 185 penalty fee program SIP
revision, which would require major
stationary sources under the Baton
Rouge 1-hour severe nonattainment
classification to pay fees as a penalty for
a failure to attain the 1-hour ozone
standard by the area’s 1-hour ozone
attainment date, would be removed. A
final approval of the Termination
Determination for the 1-hour standard
section 185 measures will not be
rescinded based on subsequent
nonattainment for the 1-hour ozone
standard. After EPA has determined that
an area has attained the 1-hour standard
due to permanent and enforceable
emission reductions, EPA believes that
it would be unduly punitive, confusing,
and potentially destabilizing to reimpose the years-old penalty
requirements if at some point in the
future the area lapses back into 1-hour
nonanttainment. Moreover, EPA
believes that under current
circumstances, it would not be in
keeping with the intent of Congress.
First, we note that had the area attained
the 1-hour ozone standard prior to its
attainment date, no penalties at all
would have been imposed even if the
area subsequently lapsed into
nonattainment. Second, the statute
provides that penalties for failure to
attain by an area’s attainment date
would be terminated by redesigntion of
the area. Now that the 1-hour ozone
standard has been revoked and EPA is
no longer promulgating redesignations
for that standard, relief from the 1-hour
section 185 fee program requirements
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under the terms of the statute is an
impossibility—the mechanism the
statute envisioned for relief no longer
exists. As EPA explains in its January 5
guidance, we have reasonably
concluded in these circumstances that a
determination of attainment due to
permanent and enforceable emissions
reductions, along with the area’s
existing SIP and its continuing
obligations to meet ever more stringent
ozone standards, are a reasonable
alternative means for terminating these
unique antibacksliding penalty
provisions. EPA believes that, given the
gap in the statute, and the intent of
Congress as expressed in quite different
regulatory circumstances, it would be
counterproductive and in conflict with
that intent for EPA’s determination to
merely suspend rather than
permanently terminate the 1-hour
antibacksliding penalty fees. Requiring
areas to remain subject to the threat of
reviving stale penalty fees for an old
revoked standard, when these areas and
the sources subject to the penalties must
now muster their resources to focus on
meeting newer more stringent
standards, would be at odds with the
purposes of the act and in conflict with
the principle that penalty provisions
should be narrowly construed. This is
all more the case when the area is
subject to a host of ongoing obligations
for the 1997 8-hour ozone standard as
well as the future anticipated new 8hour ozone standard,6 and when it has
already shown great improvement in
meeting the 1-hour and 1997 8-hour
ozone standards.
V. What is EPA’s analysis?
EPA’s proposed Termination
Determination is based upon EPA’s
belief that the area is attaining the
1-hour ozone standard due to
permanent and enforceable emission
reductions implemented in the area.
EPA has issued guidance expressing its
views as to potential rationales for
terminating section 185 obligations for
1-hour ozone in its January 5, 2010
guidance. This notice formally sets forth
EPA’s legal interpretation concerning
the basis for terminating those
obligations.
a. Attainment of the 1-Hour Ozone
Standard
As noted above, EPA recently
determined that the Baton Rouge 1-hour
ozone nonattainment area attained the
1-hour ozone NAAQS. 75 FR 6570
(February 10, 2010). This determination
was based on three years of complete,
quality-assured and certified ambient air
monitoring data that showed monitored
attainment of the 1-hour ozone standard
for the 2006–2009 monitoring period.
EPA is proposing to determine that the
area continues in attainment, based on
complete, quality-assured data for 2010
and preliminary data available to date
for the 2011 ozone season.
In addition, on September 9, 2010,
EPA determined that the Baton Rouge
1997 8-hour ozone nonattainment area
has also attained the 1997 8-hour ozone
NAAQS. (75 FR 54778) This proposed
determination is based on four years of
complete, quality-assured and certified
ambient air monitoring data that show
the area monitoring attainment of the
1997 8-hour ozone standard for the
2006–2008, 2007–2009, and 2008–2010
monitoring periods. Preliminary data
available to date for the 2011 ozone
season are consistent with continued
attainment. Table 1 shows the fourth
high 8-hour ozone average
concentrations and design values for
monitors in the Baton Rouge area for the
2006–2010 monitoring period.7
TABLE 1—FOURTH HIGHEST 8-HOUR OZONE AVERAGE CONCENTRATIONS AND DESIGN VALUES (PPM) IN THE BATON
ROUGE AREA 1
4th Highest daily max
Design values
three year averages
Site
2006
Plaquemine (22–047–
0009) ............................
Carville (22–047–0012) ....
Dutchtown (22–005–0004)
Baker (22–033–1001) ......
LSU (22–033–0003) .........
Grosse Tete (22–047–
0007) ............................
Port Allen (22–121–0001)
Pride (22–033–0013) .......
French Settlement (22–
063–0002) ....................
Capitol (22–033–0009) ....
2007
2008
2009
2010
2006–2008
2007–2009
2008–2010
0.083
0.085
0.087
0.091
0.085
0.079
0.086
0.088
0.077
0.085
0.076
0.073
0.074
0.071
0.072
0.071
0.076
0.074
0.071
0.084
0.074
0.072
0.078
0.075
0.080
0.079
0.081
0.083
0.079
0.080
0.075
0.078
0.078
0.073
0.080
0.073
0.073
0.075
0.072
0.078
0.086
0.087
0.082
0.084
0.076
0.077
0.071
0.072
0.074
0.070
0.072
0.072
0.074
0.071
0.071
0.080
0.078
0.077
0.075
0.073
0.074
0.071
0.071
0.072
0.079
0.084
0.084
0.074
0.075
0.067
0.075
0.076
0.076
0.076
0.079
0.075
0.078
0.072
0.075
0.073
1 Unlike for the 1-hour ozone standard, design value calculations for the 1997 8-hour ozone standard are based on a rolling three-year average
of the annual 4th highest values (40 CFR Part 50, Appendix I).
wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
b. Permanent and Enforceable Emission
Reductions
EPA believes that the State has
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.
Subsequent to the 1990 CAA
amendments, Louisiana complied with
the planning requirements of the CAA
for a serious 1-hour ozone
nonattainment area (67 FR 61786,
October 2, 2002).8 But because the area
failed to attain that standard by the
attainment date for a serious 1-hour
ozone nonattainment area, in
anticipation of being reclassified to
6 EPA anticipates announcing the reconsidered 8hour ozone standard in July 2011.
7 As noted above, a final determination of
attainment for the 8-hour standard that 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.
8 A litigant challenged EPA’s approval of the
serious area contingency measures, but the
obligation related to these measures was later
suspended by EPA’s determination that the area has
attained the 1-hour standard (75 FR 6570, February
10, 2010).
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severe, and in response to EPA’s Clean
Air Interstate Rule (now vacated and
remanded), additional NOX emission
reductions were achieved through the
implementation of NOX control
measures for stationary sources which
were adopted by the State effective on
February 20, 2002, and approved by
EPA on September 27, 2002 (67 FR
60877). These rules were implemented
between February 20, 2002, and May 1,
2005. The Baton Rouge area was
reclassified as severe for the 1-hour
ozone standard on April 24, 2003. (68
FR 20077)
The rules established emission factors
(standards) for NOX sources within the
Baton Rouge nonattainment area. These
revisions achieved approximately 40
TPD of additional NOX reductions in the
Baton Rouge nonattainment area. The
specific standards are listed below.
NOX standard
NOX reduction measures 2002–2008
Electric Power Generating System Boilers:
Coal-fired > 40 to < 80 MMBtu/hr ..................................................................................
Coal-fired > 80 MMBtu/hr ...............................................................................................
No. 6 fuel oil-fired > 40 to < 80 MMBtu/hr .....................................................................
No. 6 fuel oil-fired > 80 MMBtu/hr .................................................................................
All others (gaseous or liquid) > 40 to < 80 MMBtu/hr ...................................................
All others (gaseous or liquid) > 80 MMBtu/hr ................................................................
Industrial Boilers > 40 to < 80 MMBtu/hr ..............................................................................
Industrial Boilers > 80 MMBtu/hr ...........................................................................................
Process Heater/Furnaces:
Ammonia reformers > 40 to < 80 MMBtu/hr ..................................................................
Ammonia reformers > 80 MMBtu/hr ..............................................................................
All others > 40 to < 80 MMBtu/hr ..................................................................................
All others > 80 MMBtu/hr ...............................................................................................
Stationary Gas Turbines:
Peaking Service, Fuel Oil-fired > 5 to < 10 MW ...........................................................
Peaking Service, Fuel Oil-fired > 10 MW ......................................................................
Peaking Service, Gas-fired > 5 to < 10 MW .................................................................
Peaking Service, Gas-fired > 10 MW ............................................................................
All Others > 5 to < 10 MW .............................................................................................
All Others > 10 MW .......................................................................................................
Stationary Internal Combustion Engines:
Lean-burn engines > 150 to < 320 Hp ..........................................................................
Lean-burn engines > 320 Hp .........................................................................................
Rich-burn engines > 150 to < 300 Hp ...........................................................................
Rich-burn engines > 300 Hp ..........................................................................................
In addition, Louisiana adopted and
implemented emission control rules
requiring existing sources of VOC to
meet, at minimum, RACT. These
requirements apply to sources in
categories covered by Control
Technology Guidelines (CTGs) and
other major non-CTG sources. These
rules were adopted and implemented
prior to 2002. (62 FR 63658, February 2,
1998; 63 FR 47429, November 8, 1998)
The Baton Rouge nonattainment area
0.50
0.21
0.30
0.18
0.20
0.10
0.20
0.10
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
0.30
0.23
0.18
0.08
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
0.37
0.30
0.27
0.20
0.24
0.16
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
lb/MMBtu.
10 g/Hp-hr.
4 g/Hp-hr.
2 g/Hp-hr.
2 g/Hp-hr.
control strategy is primarily NOXdriven, therefore no major VOC rules
have been adopted other than those
required to meet updated CTGs as
required by the Act.
Finally, implementation of the
phased-in Federal Tier II light-duty
vehicle rule was complete in 2006, with
100 percent of the vehicles
manufactured for that model year
meeting the more stringent standard.
This would have contributed some
small additional benefit to the Baton
Rouge area during the 2006–2008
monitoring period.
EPA believes that the progress made
to reduce emissions in the Baton Rouge
area during the 2002–2008 timeframe
resulting in achieving attainment of
both the 1-hour and 1997 8-hour ozone
standards is from permanent and
enforceable measures which achieved
significant reductions as summarized in
Table 2.
TABLE 2—SUMMARY OF EMISSION REDUCTIONS
NOX TPD
wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Adjusted Base Year (2002) Inventory .....................................................................................................................
2008 Emissions .......................................................................................................................................................
Emissions of both VOC and NOX have
been reduced during the time period
leading up to December 31, 2008, the
date when Baton Rouge reached
attainment for the 1-hour standard, to an
extent that there are currently excess
emission reductions for both ozone
standards. Even though the NOx rules
were fully implemented by May of 2005,
the area was prevented from attaining in
2005 by the four exceedances
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monitoring period.
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103.5
97.8
VI. Proposed Action
The preceding discussion
demonstrates that permanent and
enforceable emission reduction
measures adopted and implemented by
the State have been effective in reaching
attainment of both the 1-hour and 1997
8-hour ozone standards.
PO 00000
193.3
143.2
VOC TPD
EPA is proposing to make a
determination to terminate (Termination
Determination) the section 185 fee
penalty requirement for the Baton Rouge
area for the 1-hour ozone standard. For
the reasons set forth in this notice, this
proposed determination is based on
EPA’s determination that the area has
attained and continues to attain the 1-
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wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
hour ozone standard due to permanent
and enforceable emissions reductions.
VII. Statutory and Executive Order
Reviews
This action proposes to make 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 would, if finalized,
result in the termination of the section
185 fee requirements for the 1-hour
standard, and would not impose any
additional requirements. For that
reason, this proposed action:
Æ 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);
Æ Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
Æ 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.);
Æ 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);
Æ Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
Æ Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
Æ Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
Æ Is 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
Æ 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.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401, et seq.
Dated: March 19, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011–7325 Filed 3–28–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2011–0169; FRL–9286–9]
Approval and Promulgation of
Implementation Plans; Nevada;
Determination of Attainment for the
Clark County 8-Hour Ozone
Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA proposes to determine
that the Clark County (Nevada) 8-hour
ozone nonattainment area has attained
the 1997 8-hour ozone national ambient
air quality standards (NAAQS). This
proposed determination is based upon
complete, quality-assured, and certified
ambient air monitoring data that show
the area has monitored attainment of the
1997 8-hour ozone NAAQS for the 2007
to 2009 monitoring period. Preliminary
air quality monitoring data available for
2010 are consistent with continued
attainment. Based on this proposed
determination, the requirement for the
State of Nevada to submit an attainment
demonstration and associated
reasonably available control measures
(RACM), a reasonable further progress
(RFP) plan, contingency measures, and
other planning requirements related to
attainment of the 1997 8-hour ozone
NAAQS for the Clark County ozone
nonattainment area would be suspended
for as long as the nonattainment area
continues to meet the 1997 8-hour
ozone NAAQS. This action is being
taken under the Clean Air Act (CAA).
DATES: Written comments must be
received on or before April 28, 2011.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2011–0169, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
SUMMARY:
PO 00000
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17373
2. E-mail: kelly.johnj@epa.gov.
3. Fax: (415) 947–3579.
4. Mail: ‘‘EPA–R09–OAR–2011–0169,’’
Lisa Hanf, Chief, Air Planning Office,
Air Division, U.S. Environmental
Protection Agency, Region IX, 75
Hawthorne Street (Air-2), San Francisco,
California 94105.
5. Hand Delivery or Courier: At the
previously-listed EPA Region IX
address. Such deliveries are only
accepted during the Docket’s normal
hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Please see the direct final rule which
is located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
John
Kelly, (415) 947–4151, or by e-mail at
kelly.johnj@epa.gov.
FOR FURTHER INFORMATION CONTACT:
For
further information, please see the
direct final action, of the same title,
which is located in the Rules section of
this Federal Register. EPA is approving
the attainment determination and
related suspension of attainment
planning-related SIP submittal
requirements as a direct final rule
without prior proposal because EPA
views this as a noncontroversial action
and anticipates no adverse comments. A
detailed rationale for the determination
and suspension of attainment-related
SIP submittal requirements is set forth
in the preamble to the direct final rule.
If EPA receives no adverse comments,
EPA will not take further action on this
proposed rule.
If EPA receives adverse comments,
EPA will withdraw the direct final rule
and it will not take effect. EPA will
address all public comments in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period on this action.
Any parties interested in commenting
on this action should do so at this time.
Please note that if we receive adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment.
SUPPLEMENTARY INFORMATION:
Dated: March 15, 2011.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
[FR Doc. 2011–7222 Filed 3–28–11; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 76, Number 60 (Tuesday, March 29, 2011)]
[Proposed Rules]
[Pages 17368-17373]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7325]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0404; FRL-9287-4]
Approval and Promulgation of Air Quality Implementation Plans;
Louisiana; Determination of Termination of Section 185 Fees
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is proposing to determine 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 proposed 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: Written comments must be received on or before April 28, 2011.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2010-0404, by one of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov. Follow the
on-line instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/region6/r6coment.htm. Please click on ``6PD''(Multimedia) and select ``Air''
before submitting comments.
E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also
send a copy by e-mail 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-
2010-0404.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at https://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 https://www.regulations.gov or e-mail that you consider to be CBI or otherwise
protected from disclosure. The https://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 https://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 https://www.regulations.gov index. Although listed in the index, some
information is
[[Page 17369]]
not publicly available, e.g., CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
https://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 rennie.Sandra@epa.gov
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. Background
III. What is the legal rationale for this action?
IV. What is the effect of this action?
V. What is EPA's analysis?
a. Attainment of the 1-Hour Ozone Standard
b. Permanent and Enforceable Emission Reductions
VI. Proposed Action
VII. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is proposing to determine 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 proposed Termination
Determination is based on EPA's belief that the area is attaining the
1-hour ozone standard due to permanent and enforceable emission
reductions implemented in the area. If finalized, the effect of EPA's
determination would be to terminate the area's obligation to submit a
section 185 fee program SIP revision for the 1-hour ozone standard.
II. Background
In 2003, EPA determined that the Baton Rouge 1-hour ozone
nonattainment area had failed to meet its 1-hour ozone serious area
nonattainment date, and consequently the area was reclassified as a
matter of law to severe nonattainment of the 1-hour ozone standard
effective June 23, 2003. 68 FR 20077 (April 24, 2003). The
reclassification of the area as severe required the State to adopt a
SIP revision creating a penalty fee program under CAA section 185 that
would apply if the area failed to meet the November 15, 2005 attainment
date that applied to severe 1-hour ozone areas. But, by that date, EPA
had revoked the 1-hour standard and designated the Baton Rouge area for
the new 1997 8-hour standard as marginal nonattainment.
Section 185 1-Hour Ozone Anti-backsliding Requirements:
Although EPA revoked the 1-hour standard on June 15, 2004, during
the transition from the 1-hour ozone to the 8-hour ozone standard, EPA
required 1-hour nonattainment areas to remain subject to certain
requirements pertaining to the area's previous 1-hour classification.
The section 185 fee program requirement applied to any ozone
nonattainment area classified as Severe or Extreme under the NAAQS,
including any area that was classified Severe or Extreme under the 1-
hour ozone NAAQS as of the effective date of the area's 8-hour
designation. Initially, in our rules to address the transition from the
1-hour to the 8-hour ozone standard, we did not include the 185 fee
penalty requirement as one of the measures necessary to meet anti-
backsliding requirements.\1\ However, on December 23, 2006, the United
States Court of Appeals for the District of Columbia Circuit issued an
opinion determining that EPA improperly removed from its anti-
backsliding requirements the application of the section 185 fee
provision for Severe and Extreme nonattainment areas that failed to
attain the 1-hour ozone standard by their attainment date. South Coast
Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006). In
light of the Court's decision, on January 5, 2010 EPA issued guidance
on the application of the 185 1-hour anti-backsliding requirement.
EPA's guidance addressed, among other matters, alternative methods of
satisfying the section 185 1-hour anti-backsliding requirement, and the
circumstances under which EPA would determine that the obligation was
terminated.
---------------------------------------------------------------------------
\1\ Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
---------------------------------------------------------------------------
After the 1-hour standard was revoked, and in accordance with anti-
backsliding regulations that remained unchallenged, EPA no longer
reclassified areas under section 181(b) for the 1-hour standard or
redesignated 1-hour nonattainment areas to attainment for that standard
69 FR 23951 (April 30, 2004). EPA continued, however to make
determinations of attainment for the 1-hour standard under EPA's Clean
Data Policy. On February 10, 2010 (75 FR 6570), EPA determined,
pursuant to the Clean Data Policy, that the Baton Rouge area had
attained the 1-hour ozone standard.\2\ This determination suspended
certain attainment-related severe area 1-hour ozone planning
requirements for Baton Rouge, but did not affect the area's anti-
backsliding obligation under the 1-hour ozone section 185 fee
requirement.
---------------------------------------------------------------------------
\2\ May 10, 1995, EPA 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.''
---------------------------------------------------------------------------
III. What is the legal rationale for this action? \3\
As a result of the court decision in South Coast Air Quality
Management District v. EPA, 472 F.3d 882 (DC Cir. 2006), States with
areas classified as Severe or Extreme nonattainment for the 1-hour
ozone standard at the time of the area's initial nonattainment
designation for the 1997 8-hour standard are no longer categorically
exempt from anti-backsliding requirements under section 185. As set
forth in EPA's January 5, 2010 guidance \4\, EPA believes that States
can meet this obligation through a SIP revision containing either the
fee program prescribed in section 185, or an equivalent alternative
program, as further explained below. EPA believes that an alternative
program may be acceptable if it is consistent with the principles of
section 172(e) of the CAA, which allows EPA through rulemaking to
accept alternative programs that are ``not less stringent'' where EPA
has
[[Page 17370]]
revised the NAAQS to make it less stringent.
---------------------------------------------------------------------------
\3\ Stephen D. Page, Director, Office of Air Quality Planning
and Standards. Guidance on Developing Fee Programs Required by Clean
Air Act Section 185 for the 1-Hour Ozone NAAQS. January 5, 2010.
\4\ Ibid.
---------------------------------------------------------------------------
Section 172(e) is an anti-backsliding provision of the CAA that
requires EPA to develop regulations to ensure that controls are ``not
less stringent'' than those that applied prior to relaxing a standard
where EPA has revised a NAAQS to make it less stringent. In the Phase 1
ozone implementation rule for the 1997 ozone NAAQS published on April
30, 2004 (69 FR 23951), EPA determined that although section 172(e)
does not directly apply where EPA has strengthened the NAAQS, as it did
in 1997, it was reasonable to apply the same principle for the
transition from the 1-hour NAAQS to the 1997 8-hour NAAQS. As part of
applying the principle in section 172(e) for purposes of the transition
from the 1-hour standard to the 1997 8-hour standard, EPA can either
require States to retain programs that applied for purposes of the 1-
hour standard, or alternatively can allow States flexibility to adopt
alternative programs, but only if such alternatives are determined
through rulemaking to be ``not less stringent'' than the mandated
program.
EPA is electing to consider alternative programs to satisfy the
section 185 fee program SIP revision requirement. States choosing to
adopt an alternative program to the section 185 fee program must
demonstrate that the alternative program is no less stringent than the
otherwise applicable section 185 fee program and EPA must approve such
demonstration after notice and comment rulemaking.
As set forth in EPA's January 5, 2010 guidance, EPA believes that
for an area that we determine is attaining either the 1-hour ozone or
1997 8-hour ozone NAAQS, based on permanent and enforceable emissions
reductions, the area would no longer be obligated to submit a fee
program SIP revision to satisfy the anti-backsliding requirements
associated with the transition from the 1-hour ozone standard to the
1997 8-hour ozone standard. In such cases, an area's existing SIP could
be considered an adequate alternative program. Our reasoning follows
from the fact that an area's existing SIP measures, in conjunction with
other enforceable Federal measures, are adequate for the area to
achieve attainment, which is the purpose of the section 185 program.
The section 185 fee program is an element of an area's attainment
demonstration, and its object is to bring about attainment after a
failure of an area to attain by its attainment date. Thus, areas that
have attained the 1-hour ozone standard, the standard for which the fee
program was originally required, as a result of permanent and
enforceable emission reductions, would have a SIP that is not less
stringent than the SIP required under section 185. Therefore, EPA
concludes that the obligation to collect fees terminates once EPA
determines that the area has attained the 1-hour ozone standard based
on permanent and enforceable emissions reductions.
In addition, EPA's guidance states that once an area attains the
1997 8-hour ozone standard, which replaced the now revoked 1-hour ozone
standard, the purpose of retaining the section 185 fee program as an
anti-backsliding measure would also be fulfilled as the area would have
attained the 8-hour ozone standard for which the fee program was
retained as a transition measure. We believe that it would unfairly
penalize sources in these areas to require that fees be paid after an
area has attained the 8-hour ozone standard due to permanent and
enforceable emission reductions because the fees were imposed due to a
failure to meet the applicable attainment deadline for the revoked 1-
hour ozone standard, not any failure to achieve the now applicable 8-
hour ozone standard for which the fee program was retained as a
transition matter by its attainment date.\5\
---------------------------------------------------------------------------
\5\ EPA notes that it has also finalized a determination that
the Baton Rouge area has attained the 8-hour ozone standard. (75 FR
54778, September 9, 2010). A final determination of 8-hour
attainment based on permanent and enforceable emissions reductions
could provide another ground for termination of the section 185 1-
hour anti-backsliding requirements, but we have not yet made such a
determination and thus do not rely on it here.
---------------------------------------------------------------------------
There is also an additional, independent basis for EPA's approach
to determining that the anti-backsliding requirements associated with
section 185 have been satisfied. Although section 185 provides that
fees are to continue until the area is redesignated for ozone, EPA no
longer promulgates redesignations for the 1-hour ozone standard because
that standard has been revoked. Therefore, relief from the 1-hour
section 185 fee program requirement under the terms of the statute is
an impossibility, since the conditions the statute envisioned for
relieving an area of its fee program obligation no longer can exist.
There is thus a gap in the statute which must be filled by EPA. We
believe that under these circumstances we must exercise our discretion
under Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S.
837 (1984), to fill this gap, so as to carry out Congressional intent
in the unique context of anti-backsliding requirements for a revoked
standard. We believe that it is reasonable for the fee program
obligation that applies for purposes of anti-backsliding to cease upon
a determination, based on notice-and-comment rulemaking, that an area
has attained the 1-hour ozone standard due to permanent and enforceable
measures. This determination centers on the core criteria for
redesignations under CAA section 107(d)(3). We believe these criteria
provide reasonable assurance that the purpose of the 1-hour anti-
backsliding fee program obligation has been fulfilled in the context of
a regulatory regime where the area remains subject to other applicable
1-hour anti-backsliding and 8-hour measures. Under these circumstances,
retention of the fee program under the anti-backsliding rule is no
longer necessary for the purpose of achieving attainment of the 8-hour
standard. See EPA's January 5, 2010 guidance. (Footnote 3).
IV. What is the effect of this action?
If this proposed determination to terminate the section 185 fee
anti-backsliding requirement for the 1-hour ozone standard is
finalized, the requirement for the State of Louisiana to submit a 185
penalty fee program SIP revision, which would require major stationary
sources under the Baton Rouge 1-hour severe nonattainment
classification to pay fees as a penalty for a failure to attain the 1-
hour ozone standard by the area's 1-hour ozone attainment date, would
be removed. A final approval of the Termination Determination for the
1-hour standard section 185 measures will not be rescinded based on
subsequent nonattainment for the 1-hour ozone standard. After EPA has
determined that an area has attained the 1-hour standard due to
permanent and enforceable emission reductions, EPA believes that it
would be unduly punitive, confusing, and potentially destabilizing to
re-impose the years-old penalty requirements if at some point in the
future the area lapses back into 1-hour nonanttainment. Moreover, EPA
believes that under current circumstances, it would not be in keeping
with the intent of Congress. First, we note that had the area attained
the 1-hour ozone standard prior to its attainment date, no penalties at
all would have been imposed even if the area subsequently lapsed into
nonattainment. Second, the statute provides that penalties for failure
to attain by an area's attainment date would be terminated by
redesigntion of the area. Now that the 1-hour ozone standard has been
revoked and EPA is no longer promulgating redesignations for that
standard, relief from the 1-hour section 185 fee program requirements
[[Page 17371]]
under the terms of the statute is an impossibility--the mechanism the
statute envisioned for relief no longer exists. As EPA explains in its
January 5 guidance, we have reasonably concluded in these circumstances
that a determination of attainment due to permanent and enforceable
emissions reductions, along with the area's existing SIP and its
continuing obligations to meet ever more stringent ozone standards, are
a reasonable alternative means for terminating these unique
antibacksliding penalty provisions. EPA believes that, given the gap in
the statute, and the intent of Congress as expressed in quite different
regulatory circumstances, it would be counterproductive and in conflict
with that intent for EPA's determination to merely suspend rather than
permanently terminate the 1-hour antibacksliding penalty fees.
Requiring areas to remain subject to the threat of reviving stale
penalty fees for an old revoked standard, when these areas and the
sources subject to the penalties must now muster their resources to
focus on meeting newer more stringent standards, would be at odds with
the purposes of the act and in conflict with the principle that penalty
provisions should be narrowly construed. This is all more the case when
the area is subject to a host of ongoing obligations for the 1997 8-
hour ozone standard as well as the future anticipated new 8-hour ozone
standard,\6\ and when it has already shown great improvement in meeting
the 1-hour and 1997 8-hour ozone standards.
---------------------------------------------------------------------------
\6\ EPA anticipates announcing the reconsidered 8-hour ozone
standard in July 2011.
---------------------------------------------------------------------------
V. What is EPA's analysis?
EPA's proposed Termination Determination is based upon EPA's belief
that the area is attaining the 1-hour ozone standard due to permanent
and enforceable emission reductions implemented in the area. EPA has
issued guidance expressing its views as to potential rationales for
terminating section 185 obligations for 1-hour ozone in its January 5,
2010 guidance. This notice formally sets forth EPA's legal
interpretation concerning the basis for terminating those obligations.
a. Attainment of the 1-Hour Ozone Standard
As noted above, EPA recently determined that the Baton Rouge 1-hour
ozone nonattainment area attained the 1-hour ozone NAAQS. 75 FR 6570
(February 10, 2010). This determination was based on three years of
complete, quality-assured and certified ambient air monitoring data
that showed monitored attainment of the 1-hour ozone standard for the
2006-2009 monitoring period. EPA is proposing to determine that the
area continues in attainment, based on complete, quality-assured data
for 2010 and preliminary data available to date for the 2011 ozone
season.
In addition, on September 9, 2010, EPA determined that the Baton
Rouge 1997 8-hour ozone nonattainment area has also attained the 1997
8-hour ozone NAAQS. (75 FR 54778) This proposed determination is based
on four years of complete, quality-assured and certified ambient air
monitoring data that show the area monitoring attainment of the 1997 8-
hour ozone standard for the 2006-2008, 2007-2009, and 2008-2010
monitoring periods. Preliminary data available to date for the 2011
ozone season are consistent with continued attainment. Table 1 shows
the fourth high 8-hour ozone average concentrations and design values
for monitors in the Baton Rouge area for the 2006-2010 monitoring
period.\7\
---------------------------------------------------------------------------
\7\ As noted above, a final determination of attainment for the
8-hour standard that 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.
Table 1--Fourth Highest 8-Hour Ozone Average Concentrations and Design Values (ppm) in the Baton Rouge Area \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
4th Highest daily max Design values three year averages
Site -------------------------------------------------------------------------------------------------------
2006 2007 2008 2009 2010 2006-2008 2007-2009 2008-2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
Plaquemine (22-047-0009)........................ 0.083 0.079 0.076 0.071 0.074 0.079 0.075 0.073
Carville (22-047-0012).......................... 0.085 0.086 0.073 0.076 0.072 0.081 0.078 0.073
Dutchtown (22-005-0004)......................... 0.087 0.088 0.074 0.074 0.078 0.083 0.078 0.075
Baker (22-033-1001)............................. 0.091 0.077 0.071 0.071 0.075 0.079 0.073 0.072
LSU (22-033-0003)............................... 0.085 0.085 0.072 0.084 0.080 0.080 0.080 0.078
Grosse Tete (22-047-0007)....................... 0.086 0.084 0.071 0.070 0.074 0.080 0.075 0.071
Port Allen (22-121-0001)........................ 0.087 0.076 0.072 0.072 0.071 0.078 0.073 0.071
Pride (22-033-0013)............................. 0.082 0.077 0.074 0.072 0.071 0.077 0.074 0.072
French Settlement (22-063-0002)................. 0.079 0.084 0.075 0.075 0.076 0.079 0.078 0.075
Capitol (22-033-0009)........................... 0.084 0.074 0.067 0.076 0.076 0.075 0.072 0.073
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Unlike for the 1-hour ozone standard, design value calculations for the 1997 8-hour ozone standard are based on a rolling three-year average of the
annual 4th highest values (40 CFR Part 50, Appendix I).
b. Permanent and Enforceable Emission Reductions
EPA believes that the State has 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.
Subsequent to the 1990 CAA amendments, Louisiana complied with the
planning requirements of the CAA for a serious 1-hour ozone
nonattainment area (67 FR 61786, October 2, 2002).\8\ But because the
area failed to attain that standard by the attainment date for a
serious 1-hour ozone nonattainment area, in anticipation of being
reclassified to
[[Page 17372]]
severe, and in response to EPA's Clean Air Interstate Rule (now vacated
and remanded), additional NOX emission reductions were
achieved through the implementation of NOX control measures
for stationary sources which were adopted by the State effective on
February 20, 2002, and approved by EPA on September 27, 2002 (67 FR
60877). These rules were implemented between February 20, 2002, and May
1, 2005. The Baton Rouge area was reclassified as severe for the 1-hour
ozone standard on April 24, 2003. (68 FR 20077)
---------------------------------------------------------------------------
\8\ A litigant challenged EPA's approval of the serious area
contingency measures, but the obligation related to these measures
was later suspended by EPA's determination that the area has
attained the 1-hour standard (75 FR 6570, February 10, 2010).
---------------------------------------------------------------------------
The rules established emission factors (standards) for
NOX sources within the Baton Rouge nonattainment area. These
revisions achieved approximately 40 TPD of additional NOX
reductions in the Baton Rouge nonattainment area. The specific
standards are listed below.
------------------------------------------------------------------------
NOX reduction measures 2002-2008 NOX standard
------------------------------------------------------------------------
Electric Power Generating System Boilers:
Coal-fired > 40 to < 80 MMBtu/hr...... 0.50 lb/MMBtu.
Coal-fired > 80 MMBtu/hr.............. 0.21 lb/MMBtu.
No. 6 fuel oil-fired > 40 to < 80 0.30 lb/MMBtu.
MMBtu/hr.
No. 6 fuel oil-fired > 80 MMBtu/hr.... 0.18 lb/MMBtu.
All others (gaseous or liquid) > 40 to 0.20 lb/MMBtu.
< 80 MMBtu/hr.
All others (gaseous or liquid) > 80 0.10 lb/MMBtu.
MMBtu/hr.
Industrial Boilers > 40 to < 80 MMBtu/hr.. 0.20 lb/MMBtu.
Industrial Boilers > 80 MMBtu/hr.......... 0.10 lb/MMBtu.
Process Heater/Furnaces:
Ammonia reformers > 40 to < 80 MMBtu/ 0.30 lb/MMBtu.
hr.
Ammonia reformers > 80 MMBtu/hr....... 0.23 lb/MMBtu.
All others > 40 to < 80 MMBtu/hr...... 0.18 lb/MMBtu.
All others > 80 MMBtu/hr.............. 0.08 lb/MMBtu.
Stationary Gas Turbines:
Peaking Service, Fuel Oil-fired > 5 to 0.37 lb/MMBtu.
< 10 MW.
Peaking Service, Fuel Oil-fired > 10 0.30 lb/MMBtu.
MW.
Peaking Service, Gas-fired > 5 to < 10 0.27 lb/MMBtu.
MW.
Peaking Service, Gas-fired > 10 MW.... 0.20 lb/MMBtu.
All Others > 5 to < 10 MW............. 0.24 lb/MMBtu.
All Others > 10 MW.................... 0.16 lb/MMBtu.
Stationary Internal Combustion Engines:
Lean-burn engines > 150 to < 320 Hp... 10 g/Hp-hr.
Lean-burn engines > 320 Hp............ 4 g/Hp-hr.
Rich-burn engines > 150 to < 300 Hp... 2 g/Hp-hr.
Rich-burn engines > 300 Hp............ 2 g/Hp-hr.
------------------------------------------------------------------------
In addition, Louisiana adopted and implemented emission control rules
requiring existing sources of VOC to meet, at minimum, RACT. These
requirements apply to sources in categories covered by Control
Technology Guidelines (CTGs) and other major non-CTG sources. These
rules were adopted and implemented prior to 2002. (62 FR 63658,
February 2, 1998; 63 FR 47429, November 8, 1998) The Baton Rouge
nonattainment area control strategy is primarily NOX-driven,
therefore no major VOC rules have been adopted other than those
required to meet updated CTGs as required by the Act.
Finally, implementation of the phased-in Federal Tier II light-duty
vehicle rule was complete in 2006, with 100 percent of the vehicles
manufactured for that model year meeting the more stringent standard.
This would have contributed some small additional benefit to the Baton
Rouge area during the 2006-2008 monitoring period.
EPA believes that the progress made to reduce emissions in the
Baton Rouge area during the 2002-2008 timeframe resulting in achieving
attainment of both the 1-hour and 1997 8-hour ozone standards is from
permanent and enforceable measures which achieved significant
reductions as summarized in Table 2.
Table 2--Summary of Emission Reductions
------------------------------------------------------------------------
NOX TPD VOC TPD
------------------------------------------------------------------------
Adjusted Base Year (2002) Inventory..... 193.3 103.5
2008 Emissions.......................... 143.2 97.8
------------------------------------------------------------------------
Emissions of both VOC and NOX have been reduced during
the time period leading up to December 31, 2008, the date when Baton
Rouge reached attainment for the 1-hour standard, to an extent that
there are currently excess emission reductions for both ozone
standards. Even though the NOx rules were fully implemented by May of
2005, the area was prevented from attaining in 2005 by the four
exceedances experienced in the 2003-2004 monitoring period.
The preceding discussion demonstrates that permanent and
enforceable emission reduction measures adopted and implemented by the
State have been effective in reaching attainment of both the 1-hour and
1997 8-hour ozone standards.
VI. Proposed Action
EPA is proposing to make a determination to terminate (Termination
Determination) the section 185 fee penalty requirement for the Baton
Rouge area for the 1-hour ozone standard. For the reasons set forth in
this notice, this proposed determination is based on EPA's
determination that the area has attained and continues to attain the 1-
[[Page 17373]]
hour ozone standard due to permanent and enforceable emissions
reductions.
VII. Statutory and Executive Order Reviews
This action proposes to make 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 would, if finalized, result in the termination of the
section 185 fee requirements for the 1-hour standard, and would not
impose any additional requirements. For that reason, this proposed
action:
[cir] 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);
[cir] Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
[cir] 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.);
[cir] 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);
[cir] Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
[cir] Is not an economically significant regulatory action based on
health or safety risks subject to Executive Order 13045 (62 FR 19885,
April 23, 1997);
[cir] Is not a significant regulatory action subject to Executive
Order 13211 (66 FR
28355, May 22, 2001);
[cir] Is 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
[cir] 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401, et seq.
Dated: March 19, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-7325 Filed 3-28-11; 8:45 am]
BILLING CODE 6560-50-P
