[Federal Register Volume 64, Number 137 (Monday, July 19, 1999)]
[Rules and Regulations]
[Pages 38577-38580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18037]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA52-1-7422a; FRL-6378-3]


Approval and Promulgation of Air Quality State Implementation 
Plans; Louisiana; Approval of Clean Fuel Fleet Substitution Program 
Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on approving Louisiana's 
State Implementation Plan (SIP) revision because it adequately 
demonstrates that the Louisiana Clean Fuel Fleet (CFF) substitute 
program achieves equivalent or better long term reductions in emissions 
of ozone producing and toxic air pollutants than the Federal CFF 
program. A detailed rationale for the approval is set forth in the 
accompanying Technical Support Document.

DATES: This rule is effective on September 17, 1999 without further 
notice, unless we receive adverse comment by August 18, 1999. If we 
receive such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 
6 Office listed below. Copies of the documents about 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 two 
working days in advance before the visiting day.
    Environmental Protection Agency, Region 6, Air Planning Section, 
(6PD-L), Multimedia Planning and Permitting Division, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733.
    Louisiana Department of Environmental Quality, Air Quality 
Division, 7290 Bluebonnet Blvd., Baton Rouge, Louisiana, 70810.
FOR FURTHER INFORMATION CONTACT: Mr. Paul Scoggins, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7354 or via e-mail at [email protected]. 
While information may be requested via e-mail, comments must be 
submitted in writing to the above Region 6 address.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

    What action is EPA taking?
    What is the background?
    What did the State submit?
    What is the process for EPA approval of this action?

What Action is EPA Taking?

    After review of the SIP revision request, we find the Louisiana's 
substitution plan for the Federal CFF program requirements to be 
approvable because the revision adequately demonstrated Volatile 
Organic Compounds (VOC) emission reductions that are sufficient to meet 
or exceed the

[[Page 38578]]

emission reductions of the Federal CFF program.
    The information submitted by Louisiana demonstrated that the 
substitution of the State's Clean Fuel Fleet program with above 
Reasonable Available Control Technology (RACT) VOC emission reductions 
achieved from tank fitting controls pursuant to Louisiana 
Administrative Code (LAC) 33:III.2103 will not result in new National 
Ambient Air Quality Standards (NAAQS) violations, nor increase the 
frequency or severity of existing NAAQS violations, nor delay 
attainment and maintenance of the NAAQS in the Baton Rouge Ozone 
nonattainment area.
    We believe the SIP revision submitted by Louisiana meets the 
requirements of a substitute program that achieves equivalent long term 
emission reductions of ozone precursors in the Baton Rouge ozone 
nonattainment area. The State surveyed nine storage tanks in Baton 
Rouge area which show, over a ten year period equivalent to the Federal 
CFF program, an estimated total VOC emission reduction of 2,010 tons. 
The emission reductions over the ten year period from the Federal CFF 
program were estimated to be 1,264 tons.

What is the Background?

    On November 15, 1990, Congress enacted amendments to the 1997 Clean 
Air Act; Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 
7401-7671q. Part C of Title II was added to the Act to establish two 
programs: a clean-fuel vehicle pilot program in the State of California 
(the California Pilot Test Program) and the Federal CFF program in 
certain ozone and carbon monoxide nonattainment areas. The CFF program 
is required by section 182(c)(4), 42 U.S.C., section 7511a(c)(4) and 
the underlying requirements are in sections 246 of the Act, 42 U.S.C., 
section 7586.
    On November 10, 1994, the Louisiana Department of Environmental 
Quality submitted a SIP revision to the EPA, Region 6, which contained 
provisions for a state CFF program. The SIP submittal was in response 
to publication of the EPA's final CFF program rule (58 FR 11888, March 
1, 1993) which established the 40 CFR part 88, subpart C regulations 
required by the Act. The Louisiana CFF program SIP revision was 
reviewed and subsequently approved by EPA on October 23, 1995 (60 FR 
54305). State regulations governing the CFF program are codified in LAC 
33:III.1951-1973. The Louisiana CFF program would have required covered 
vehicle fleet owners in the Baton Rouge ozone nonattainment area to 
purchase specified percentages of clean fuel vehicles beginning in 
September, 1998.
    Section 182(c)(4) of the Act, 42 U.S.C. 7511a, allows States to 
opt-out of the Federal CFF program by submitting, for EPA approval, a 
SIP revision consisting of a substitute program resulting in as much or 
greater long term emissions reductions in ozone producing and toxic air 
emissions as the Federal CFF program. We may approve such a revision 
``only if it consists exclusively of provisions other than those 
required under this Act for the area.''
    After a thorough evaluation of their CFF program's costs and 
marginal benefits, the State of Louisiana elected to opt-out of the CFF 
program requirements.

What did the State Submit?

    Louisiana submitted a SIP revision, on April 1, 1999, that 
substitutes the long term emissions reductions resulting from a CFF 
program for the Baton Rouge nonattainment area. The revision was 
adopted after reasonable public notice and public hearing as required 
by sections 110(a)(2) and 110(l) of the Act and 40 CFR 51.102(f). The 
submission was reviewed and determined to be administratively complete 
on April 6, 1999. The submittal was then reviewed for approvability by 
EPA Region 6 and EPA headquarters.
    The State of Louisiana is substituting emission reductions achieved 
from LAC 33:III.2103 which impose controls beyond the Act requirements 
(i.e., RACT) for storage tanks in the Baton Rouge nonattainment area. 
The VOC storage tank rule LAC 33:III.2103 goes beyond Act requirements 
by requiring guide pole and stilling well controls on external floating 
roof tanks. The resultant long term emission reductions were greater 
than the Louisiana CFF program emission reductions in the ozone 
nonattainment area.
    The SIP submittal contains: (1) Letter dated March 21, 1999, from 
Governor Mike Foster replacing the CFF program submitted on November 
10, 1994, and subsequently approved by EPA on October 23, 1995; (2) 
plan revision dated March 22, 1999, and received at EPA on April 1, 
1999; (3) documentation of the public notice dated December 21, 1998, 
and a transcript of the public hearing dated January 25, 1999; and (4) 
supplemental information dated January 22, 1999.
    The areas affected by this substitute program include the parishes 
of Ascension, Iberville, East Baton Rouge, Livingston, and West Baton 
Rouge. These five parishes comprise the Baton Rouge ozone nonattainment 
area.
    A more detailed discussion of the Louisiana CFF substitute program 
elements and control strategy can be found in the Technical Support 
Document available from the U.S. EPA Region 6 office.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

What is the Process for EPA Approval of this Action?

    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the action if adverse comments are 
received.
    This rule will be effective on September 17, 1999 without further 
notice unless we receive adverse comment by August 18, 1999. If EPA 
receives adverse comments, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. We will address all public comments in a subsequent final rule 
based on the proposed rule. We will not initiate a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a State, local or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, E.O. 12875 requires EPA to provide to the OMB a description 
of the extent of EPA's prior consultation with representatives of 
affected State, local and tribal governments, the nature of their 
concerns, copies of any written communications from the governments, 
and a statement supporting the need to

[[Page 38579]]

issue the regulation. In addition, E.O. 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local, or tribal 
governments. The rule does not impose any enforceable rules on any of 
these entities. Accordingly, the requirements of section 1(a) of E.O. 
12875 do not apply to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that EPA determines is: (1) ``economically 
significant,'' as defined under E.O. 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    The EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the order has the potential to 
influence the regulation.
    This final rule is not subject to E.O. 13045 because it approves a 
state program.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the OMB, in a separately identified section of the preamble 
to the rule, a description of the extent of EPA's prior consultation 
with representatives of affected tribal governments, a summary of the 
nature of their concerns, and a statement supporting the need to issue 
the regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 60 et seq., 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. This final rule will 
not have a significant impact on a substantial number of small entities 
because SIP approvals under section 110 and subchapter I, part D of the 
Act do not create any new requirements but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not create any new requirements, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of flexibility analysis 
would constitute Federal inquiry into the economic reasonableness of 
state action. The Act forbids EPA to base its actions concerning SIPs 
on such grounds. See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated annual costs to State, 
local, or tribal governments in the aggregate; or to private sector, of 
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated does 
not include a Federal mandate that may result in estimated annual costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action 
approves pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

G. Submission to Congress and the Comptroller General

    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. The 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 can 
not 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 17, 1999.

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 17, 1999. Filing a petition for 
reconsideration with 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 oxides, Ozone, 
Implementation plans, Reporting and recordkeeping requirements.


[[Page 38580]]


    Dated: July 7, 1999.
Jerry Clifford,
Acting Regional Administrator, Region 6.
    Part 52, chapter I, title 40 of the 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 Sec. 52.970(e) the second table is amended by revising the 
title to the table to read ``EPA approved Louisiana nonregulatory 
provisions and quasi-regulatory measures'', revising the first column 
title ``Control measures'' to read ``Name of SIP provision'', revising 
the last column title ``Comments'' to read ``Explanation'' and adding a 
new entry to the end of the table to read as follows:


Sec. 52.970  Identification of plan.

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

                  EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures
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                                                             State
                                                           submittal
     Name of SIP provision        Applicable geographic      date/     EPA approval date        Explanation
                                  or nonattainment area    effective
                                                              date
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*                  *                  *                  *                  *                  *
                                                        *
Clean Fuel Fleet Program         Baton Rouge, LA........     03/21/99  7/19/99 64 FR      Substituted above RACT
 Substitution.                                                          38580.             VOC emission
                                                                                           reductions from
                                                                                           storage tank rule LAC
                                                                                           33:III.2103
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[FR Doc. 99-18037 Filed 7-16-99; 8:45 am]
BILLING CODE 6560-50-P