[Federal Register Volume 66, Number 90 (Wednesday, May 9, 2001)]
[Proposed Rules]
[Pages 23646-23652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11563]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[FRL-6975-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to find that the Baton Rouge serious ozone 
nonattainment area (hereinafter referred to as the Baton Rouge area) 
has failed to attain the one-hour ozone National Ambient Air Quality 
Standard (NAAQS) by November 15, 1999, the date set forth in the Clean 
Air Act (CAA or Act) for serious nonattainment areas. If EPA takes 
final action on this proposed finding, the area would be reclassified 
as a severe ozone nonattainment area.
    Alternatively, EPA is also issuing a notice of the Baton Rouge 
area's potential eligibility for an attainment date extension, pursuant 
to EPA's ``Guidance on Extension of Attainment Dates for Downwind 
Transport Areas'' (hereinafter referred to as the extension policy) 
(Richard D. Wilson, Acting Assistant Administrator for Air and 
Radiation) issued July 16, 1998. The extension policy provides that a 
nonattainment area, such as the Baton Rouge area, may be eligible for 
an attainment date extension if it meets certain conditions. The 
extension policy applies where pollution from upwind areas interferes 
with the ability of a downwind area to demonstrate attainment with the 
one-hour ozone standard by the dates prescribed in the Act. Louisiana 
is working to comply with the conditions for receiving an extension. If 
Louisiana makes a submittal in response to the extension policy, we 
will address the adequacy of the submittal in a subsequent supplemental 
proposal. If the submittal meets the criteria for an extension, the 
attainment date for the Baton Rouge area will be extended, and the area 
will not be reclassified. We do not intend to take final action on 
reclassification of the Baton Rouge area prior to allowing Louisiana an 
opportunity to qualify for an attainment date extension under the 
extension policy.

DATES: Comments must be received on or before June 8, 2001.

ADDRESSES: All comments should be addressed to Mr. Thomas H. Diggs, 
Chief, Air Planning Section, Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
    Copies of the Baton Rouge area monitored air quality data analyses, 
guidance on extension of attainment dates in downwind transport areas, 
State submittal requesting consideration for an attainment date 
extension, and other relevant documents used in support of this 
proposal are contained in the docket file, which is available at the 
following addresses for inspection during normal business hours: U.S. 
Environmental Protection Agency Region 6, Air Planning Section, 1445 
Ross Avenue, Suite 700, Dallas, Texas 75202; Louisiana Department of 
Environmental Quality, 7920 Bluebonnet Boulevard, Baton Rouge, 
Louisiana 70884. Please contact the appropriate office at least 24 
hours in advance.

FOR FURTHER INFORMATION CONTACT: Ms. Jeanne Schulze, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7254.

SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in 
this document refers to EPA.

Table of Contents

I. What action are we taking today?
II. What are the National Ambient Air Quality Standards?
III. What is the NAAQS for ozone?
IV. What is the Baton Rouge ozone nonattainment area?
V. Why is the Baton Rouge area currently classified as a serious 
nonattainment area?
VI. Why are we proposing to reclassify the Baton Rouge area?
VII. Has air quality improved in the Baton Rouge area in recent 
years?
VIII. What would a reclassification mean for the Baton Rouge area?
IX. Can an extension of the serious area attainment date be granted 
for the Baton Rouge area?

[[Page 23647]]

X. What is EPA's policy regarding extension of attainment dates for 
downwind transport areas?
XI. Is the Baton Rouge area eligible for an attainment date 
extension under the extension policy?
XII. What progress has Louisiana made to meet the extension policy 
so that an attainment date extension can be granted?
XIII. What actions has Louisiana taken to improve air quality in the 
Baton Rouge area?
XIV. If we finalize our proposed rulemaking reclassifying the Baton 
Rouge area, what would be the Baton Rouge area's new classification?
XV. If the Baton Rouge area is reclassified to severe, what would 
its new schedule be?
XVI. When will we make a final decision whether to reclassify or 
grant an extension to the Baton Rouge area?
XVII. Administrative requirements.

I. What Action Are We Taking Today?

    We are proposing to find that the Baton Rouge area has failed to 
attain the one-hour ozone NAAQS by the November 15, 1999, attainment 
deadline prescribed under the CAA for serious ozone nonattainment 
areas. EPA's authority to make this finding is discussed under section 
181(b)(2) of the CAA. Section 181(b)(2) explains the process for 
determining whether an area has attained the one-hour ozone standard 
and reclassification of the area if necessary. If we finalize this 
finding, the Baton Rouge area will be reclassified by operation of law 
from serious nonattainment to severe nonattainment.
    Alternatively, we are considering an extension of the Baton Rouge 
area's attainment date, provided that Louisiana submits, by August 31, 
2001, a State Implementation Plan (SIP) that qualifies for an extension 
pursuant to EPA's extension policy. If the State meets the extension 
policy criteria and we propose to approve the State's submittal, then a 
specific extended attainment date will be proposed in the same notice. 
We will take final action on the new attainment date at the time we 
take final action on the submittal. However, if Louisiana's SIP 
submittal fails to meet the criteria of the extension policy, we will 
finalize this proposed finding of failure to attain, and the Baton 
Rouge area will be reclassified to a severe ozone nonattainment 
area.\1\
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    \1\ On November 22, 2000, the Louisiana Environmental Action 
Network (LEAN) filed a complaint in the United States District Court 
for the Middle District of Louisiana regarding the attainment status 
and classification of the Baton Rouge area. If EPA needs to take any 
action as a result of this litigation, we will publish further 
notice in the Federal Register.
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II. What Are the National Ambient Air Quality Standards?

    Since the CAA's inception in 1970, EPA has set NAAQS for six common 
pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate 
matter, and sulfur dioxide. For most of these common air pollutants, 
there are two types of pollution limits referred to as the primary and 
secondary standards.\2\ The primary standard is based on health 
effects; the secondary standard is based on environmental effects such 
as damage to property, plants, and visibility. The CAA requires these 
standards to be set at levels that protect public health and welfare 
with an adequate margin of safety. These standards present state and 
local governments with the air quality levels they must meet to achieve 
clean air. Also, these standards allow the American people to assess 
whether the air quality in their communities is healthful.
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    \2\ EPA has established only a primary standard for carbon 
monoxide.
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III. What Is the NAAQS for Ozone?

    The NAAQS for ozone is expressed in two forms which are referred to 
as the one-hour and eight-hour standards. Table 1 summarizes the ozone 
standards.

                                      Table 1.--Summary of Ozone Standards
----------------------------------------------------------------------------------------------------------------
                                         Value (parts
               Standard                  per million)              Type                 Method of compliance
----------------------------------------------------------------------------------------------------------------
1-hour................................            0.12  Primary and secondary....  Must not be exceeded, on
                                                                                    average, more than one day
                                                                                    per year over any 3-year
                                                                                    period.
8-hour................................            0.08  Primary and secondary....  The 3-year average of the
                                                                                    annual fourth-highest maxima
                                                                                    8-hour average ozone
                                                                                    concentrations measured at
                                                                                    secondary each monitor
                                                                                    within an area.
----------------------------------------------------------------------------------------------------------------

    The 1-hour ozone standard of 0.12 ppm has existed since 1979. On 
July 18, 1997, EPA adopted the 8-hour ozone standard, which was 
intended to replace the one-hour standard in areas that were attaining 
the one-hour standard, (62 FR 38856).\3\ The one-hour ozone standard 
continues to apply to all areas, notwithstanding promulgation of the 8-
hour standard (40 CFR Sec. 50.9(b)). This document addresses the 
classification of the Baton Rouge area relative to the one-hour ozone 
standard.
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    \3\ EPA revoked the one-hour standard in areas that were 
attaining the standard on June 5, 1998 (63 FR 31051). However, on 
May 14, 1999, the U.S. Court of Appeals for the District of Columbia 
Circuit ruled that the 8-hour ozone standard could not be enforced 
by EPA. Although the Court of Appeals determined that the 8-hour 
standard could not be enforced, it did not vacate the standard. 
Hence, the 8-hour standard remained in effect. While appealing this 
decision to the United States Supreme Court, EPA reinstated the one-
hour standard in areas where it had been revoked. (65 FR 45181, 
dated July 20, 2000). On February 27, 2001, the Supreme Court upheld 
the 8-hour standard and instructed EPA to develop an implementation 
plan for the 8 hour standard that is consistent with the Supreme 
Court's opinion. Whitman v. American Trucking Assoc., Inc., 531 U.S. 
____ (2001), Nos. 99-1257 and 99-1426.
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IV. What Is the Baton Rouge Ozone Nonattainment Area?

    The Baton Rouge serious ozone nonattainment area, located in 
southern Louisiana, consists of East Baton Rouge, West Baton Rouge, 
Ascension, Iberville, and Livingston Parishes.

V. Why Is the Baton Rouge Area Currently Classified as a Serious 
Nonattainment Area?

    Under section 107(d)(1)(C) of the CAA, each ozone area designated 
nonattainment for the one-hour standard prior to enactment of the 1990 
CAA amendments, such as the Baton Rouge area, was designated 
nonattainment by operation of law upon enactment of the amendments. 
Under section 181(a) of the Act, each ozone area designated 
nonattainment under section 107(d) was also classified by operation of 
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or 
``extreme,'' depending on the severity of the area's air quality 
problem. The design value for an area, which characterizes the severity 
of the air quality problem, is represented by the highest design value 
at any individual

[[Page 23648]]

ozone monitoring site (i.e., the highest of the fourth highest one-hour 
daily maximum monitored ozone levels in a given three-year period with 
complete monitoring data). Table 2 provides the design value ranges for 
each nonattainment classification. Ozone nonattainment areas with 
design values between 0.160 and 0.180 ppm, such as the Baton Rouge area 
(which had a design value of 0.164 ppm in 1989), were classified as 
serious. These nonattainment designations and classifications were 
codified in 40 CFR Part 81 (see 56 FR 56694, November 6, 1991).

              Table 2.--Ozone Nonattainment Classifications
------------------------------------------------------------------------
                                Design value
         Area class                (ppm)            Attainment date
------------------------------------------------------------------------
Marginal....................  0.121 up to      November 15, 1993.
                               0.138.
Moderate....................  0.138 up to      November 15, 1996.
                               0.160.
Serious.....................  0.160 up to      November 15, 1999.
                               0.180.
Severe......................  0.180 up to      November 15, 2005.
                               0.280.
Extreme.....................  0.280 and above  November 15, 2010.
------------------------------------------------------------------------

    In addition, states containing areas that were classified as 
serious nonattainment were required to submit SIPs to provide for 
certain controls, to show progress toward attainment, and to provide 
for attainment as expeditiously as practicable, but not later than 
November 15, 1999. Serious area SIP requirements are found primarily in 
section 182(c) of the CAA.

VI. Why Are We Proposing To Reclassify the Baton Rouge Area?

    Regarding reclassification for failure to attain, section 
181(b)(2)(A) of the Act provides that:
    Within 6 months following the applicable attainment date (including 
any extension thereof) for an ozone nonattainment area, the 
Administrator shall determine, based on the area's design value (as of 
the attainment date) whether the area attained the standard by that 
date. Except for any Severe or Extreme area, any area that the 
Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law in accordance with table 1 of 
subsection (a) to the higher of--
    (i) The next higher classification for the area, or
    (ii) The classification applicable to the area's design value as 
determined at the time of the notice required under subparagraph (B).
    No area shall be reclassified as Extreme under clause (ii).
    Furthermore, section 181(b)(2)(B) of the Act provides that:

    The Administrator shall publish a notice in the Federal Register 
no later than 6 months following the attainment date, identifying 
each area that the Administrator has determined under subparagraph 
(A) as having failed to attain and identifying the reclassification, 
if any, described under subparagraph (A).

    Table 3 lists the average number of days when ambient ozone 
concentrations exceeded the one-hour ozone standard at each monitoring 
site in the Baton Rouge area for the period 1997-1999. The ozone design 
value for each monitor is also listed for the same period. A complete 
listing of the ozone exceedances for each monitoring site, as well as 
EPA's calculations of the design values, can be found in the docket 
file. The data in Table 3 show that, for 1997-1999, two monitoring 
sites in the Baton Rouge area averaged more than one exceedance day per 
year. Therefore, pursuant to section 181(b)(2)(B) of the CAA, we 
propose to find that the Baton Rouge area did not attain the one-hour 
standard by the November 15, 1999, deadline.

                         Table 3.--Air Quality Data for the Baton Rouge Area (1997-1999)
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                                                                     Number of    Average number
                                                  Number of days   expected days    of expected     Site design
                      Site                         over standard   over standard    exceedance      value (ppm)
                                                    (1997-1999)     (1997-1999)    days per year
----------------------------------------------------------------------------------------------------------------
Site (Parish):
    Pride (East Baton Rouge)....................               1             1.1             0.4           0.116
    Baker (East Baton Rouge)....................               3             3.0             1.0           0.123
    Capitol (East Baton Rouge)..................               3             3.1             1.0           0.122
    LSU (East Baton Rouge)......................               4           a 4.1           a 1.4         b 0.126
    Carville (Iberville)........................               2             2.0             0.7           0.120
    Plaquemine (Iberville)......................               2             2.0             0.7           0.120
    Grosse Tete (Iberville).....................               5           a 5.3           a 1.8         b 0.126
    Port Allen (West Baton Rouge)...............               3             3.0             1.0           0.119
    Dutchtown (Ascension).......................               3             3.0             1.0           0.123
    French Settlement (Livingston)..............               3             3.0             1.0          0.123
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a A violation occurs when the number of expected exceedances is greater than 3.1 over a 3-year (rolling) period
  (or a 3-year (rolling) average greater than 1.04). The statistical term ``expected exceedances'' is an
  arithmetic average explained at 40 CFR Part 50, Appendix H.
b Represents the 1997-1999 design value for the Baton Rouge area.
 Raw data source: U.S. EPA Aerometric Information Retrieval System (AIRS) database.

    As discussed later in this document, because the EPA interprets the 
CAA to allow for an extension of the attainment date based on EPA's 
findings on the effects of ozone transport, we believe it is fair to 
allow Louisiana an opportunity to apply and qualify for an attainment 
date extension before we finalize our finding and the area is 
reclassified.
    This proposal details the following reasons which support our 
decision to proceed in this manner:
    1. EPA has concluded that this is the best way to reconcile the 
Act's

[[Page 23649]]

requirements under section 110(a)(2)(D)(i)(I) as applied to ozone 
transport with the attainment dates and graduated control scheme in 
sections 181 and 182 of the Act. EPA's extension policy represents a 
reasonable effort to avoid thwarting Congressional intent that upwind 
areas be responsible for preventing interference with timely downwind 
attainment and that downwind areas not be unfairly burdened. The Act 
shows Congressional intent that transport be considered when EPA acts 
to reclassify an area and a reluctance to subject an area to more 
burdensome controls than necessary to bring local sources into 
compliance.
    2. Louisiana has submitted analyses indicating that Baton Rouge may 
be affected by ozone transport from an upwind area.
    3. Based on current monitored air quality, if the Baton Rouge area 
was newly designated ozone nonattainment today, it would be classified 
as a marginal nonattainment area. However, if the area were to be 
reclassified, it would be required to impose the controls which are 
normally demanded only for an area with severe levels of air pollution.
    4. By a letter from the Governor, dated May 10, 2000, Louisiana has 
committed to submit by August 31, 2001, a SIP that meets the criteria 
of the extension policy.
    Furthermore, in this proposal, our recognition that the area should 
be given an opportunity to qualify for an extension is balanced by our 
action in moving forward with the process of reclassification in the 
event that the state is unsuccessful in demonstrating that it can 
satisfy the criteria for an extension.

VII. Has Air Quality Improved in the Baton Rouge Area in Recent 
Years?

    The air quality in the Baton Rouge area has improved significantly 
since the area was designated nonattainment following enactment of the 
1990 CAA amendments, when the area's (1987-1989) ozone design value was 
0.164 ppm. The most recent (i.e. 1997-1999) areawide ozone design 
values had shown a continued downward trend measuring 0.139, 0.127, and 
0.126 ppm, respectively \4\--very closely approaching the one-hour 
NAAQS design value of 0.124 ppm. However, based on exceedances 
registered in the Baton Rouge area in 2000, the area's preliminary 
(1998-2000) ozone design value has now risen to 0.135 ppm.\5\
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    \4\ A listing of the ozone exceedances (1995-1999) and 3-year 
design values (95-97, 96-98, 98-00) by monitoring site can be found 
in the docket file for this proposed rulemaking.
    \5\ A listing of the preliminary ozone exceedances and design 
values can be found in the docket file for this proposed rulemaking.
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VIII. What Would a Reclassification Mean for the Baton Rouge Area?

    If reclassified, the Baton Rouge area would need to attain the one-
hour ozone NAAQS as expeditiously as practicable, but no later than 
November 15, 2005. Louisiana would also need to submit SIP revisions 
addressing the severe area requirements for the one-hour standard in 
section 182(d) of the Act. The requirements for severe ozone 
nonattainment areas include, but are not limited to, the following:
    1. Attainment and reasonable further progress demonstrations.
    2. A 25 ton-per-year major source threshold for volatile organic 
compounds.
    3. More stringent new source review requirements.
    4. Enforceable transportation control strategies and measures to 
offset projected growth in vehicle miles traveled or number of vehicle 
trips.
    5. Contingency provisions.
    6. A plan for assessing fees to major stationary sources in the 
event the Baton Rouge area fails to meet the severe attainment date.
    7. On-road mobile emissions budget for transportation conformity 
purposes.

IX. Can an Extension of the Serious Area Attainment Date Be Granted 
for the Baton Rouge Area?

    The attainment date specified in the Act for serious nonattainment 
areas, such as Baton Rouge, is November 15, 1999. Two separate 
mechanisms exist for an area to obtain an extension of this date. 
First, pursuant to section 181(a)(5) of the CAA, the state may request, 
and EPA may grant, up to two one-year attainment date extensions. EPA 
may grant an extension if: (1) The state has complied with the 
requirements and commitments pertaining to the applicable 
implementation plan for the area, and (2) the area has measured no more 
than one exceedance of the ozone standard at any monitoring site in the 
nonattainment area in the year in which attainment is required.
    As indicated in Table 4, one or fewer actual exceedances occurred 
at any given monitoring site in the area in 1999. However, because a 
significant amount of air quality data was invalidated due to 
malfunctioning equipment at the Grosse Tete site in 1999,\6\ the number 
of expected exceedances for that monitor in 1999 was greater than 1.04 
(i.e., 1.3). Louisiana did not submit a request for a one-year 
extension of the attainment date under section 181(a)(5) of the CAA 
based on these 1999 monitoring results.
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    \6\ ``Review of the Grosse Tete Ozone Monitor and Data in 
Iberville Parish: May 12, 1999--August 6, 1999,'' U.S. EPA Region 6, 
Multimedia Planning and Permitting Division, final report dated June 
29, 2000.

       Table 4.--Ozone Exceedances in the Baton Rouge Area (1999)
------------------------------------------------------------------------
                                                             Number of
                                          Number of days   expected days
                  Site                     over standard   over standard
                                              (1999)          (1999)
------------------------------------------------------------------------
Site (Parish):
    Pride (East Baton Rouge)............               0             0.0
    Baker (East Baton Rouge)............               1             1.0
    Capitol (East Baton Rouge)..........               0             0.0
    LSU (East Baton Rouge)..............               0             0.0
    Carville (Iberville)................               0             0.0
    Plaquemine (Iberville)..............               1             1.0
    Grosse Tete (Iberville).............               1             1.3
    Port Allen (West Baton Rouge).......               1             1.0
    Dutchtown (Ascension)...............               0             0.0
    French Settlement (Livingston)......               0            0.0
------------------------------------------------------------------------
 Raw data source: U.S. EPA Aerometric Information Retrieval System
  (AIRS) database.


[[Page 23650]]

    Instead, Louisiana is seeking an extension of its attainment date 
under the second mechanism for obtaining an extension of the attainment 
date: EPA's extension policy for areas which are affected by downwind 
transport of ozone and ozone precursors. This extension policy 
reconciles section 181(b)(2) with other provisions of the CAA to 
authorize attainment date extensions for downwind transport areas that 
can make appropriate showings. The section that follows discusses the 
extension policy in detail.

X. What Is EPA's Policy Regarding Extension of Attainment Dates for 
Downwind Transport Areas?

    A number of areas in the country that have been classified as 
``moderate'' or ``serious'' are affected by pollutants that have 
traveled downwind from other areas. For these downwind areas, transport 
of pollutants from upwind areas has interfered with their ability to 
meet the ozone standard by the dates prescribed by the Act. As a 
result, many of these areas, such as Baton Rouge, find themselves 
facing the prospect of being reclassified, or ``bumped up'' to a higher 
classification for failing to meet the ozone standard by the specified 
date.
    In consideration of these factors and the realization that many 
areas are unable to meet the mandated attainment dates due to transport 
\7\, on July 16, 1998, EPA issued a policy memorandum entitled, 
``Guidance on Extension of Air Quality Attainment Dates for Downwind 
Transport Areas.'' This policy outlines the criteria by which the 
attainment date for an area may be extended.
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    \7\ Through a two-year effort known as the Ozone Transport 
Assessment Group (OTAG), the EPA worked in partnership with the 37 
easternmost states and the District of Columbia, industry 
representatives, academia, and environmental groups to develop 
recommended strategies to address transport of ozone-forming 
pollutants across state boundaries.
    On November 7, 1997, the EPA acted on OTAG's recommendations and 
issued a proposal (the proposed NOX SIP call, 62 FR 
60318) requiring 22 states and the District of Columbia to submit 
SIPs addressing the regional transport of ozone. These SIPs will 
decrease the transport of ozone across state boundaries in the 
eastern half of the United States by reducing emissions of nitrogen 
oxides (a precursor to ozone formation known as NOX). The 
EPA took final action on the NOX SIP call on October 27, 
1998 (63 FR 57356). The EPA expects the final NOX SIP 
call will assist many areas in attaining the one-hour ozone 
standard. Louisiana was a member of the OTAG, but was not included 
in the NOX SIP call.
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    The extension policy offers an opportunity for Louisiana to request 
an extension of the attainment date for the Baton Rouge area. This 
policy draws on other provisions of the Act (beyond CAA section 
181(a)(5)) to authorize attainment date extensions for downwind 
transport areas.
    Under the policy, EPA may extend the attainment date for an area 
that: (1) Has been identified as a downwind area affected by transport 
from either an upwind area in the same state with a later attainment 
date or an upwind area in another state that significantly contributes 
to downwind nonattainment (by ``affected by transport,'' EPA means an 
area whose air quality is affected by transport from an upwind area to 
a degree that affects the area's ability to attain); (2) has submitted 
an approvable attainment demonstration with any necessary, adopted 
local measures and with an attainment date that shows that it will 
attain the one-hour standard no later than the date that the reductions 
are expected from upwind areas under the final NOX SIP call 
and/or the statutory attainment date for upwind nonattainment areas, 
i.e., assuming the boundary conditions reflecting those upwind 
reductions; (3) has adopted all applicable local measures required 
under the area's current classification and any additional measures 
necessary to demonstrate attainment, assuming the reductions occur as 
required in the upwind areas; and (4) has provided that it will 
implement all adopted measures as expeditiously as practicable, but not 
later than the date by which the upwind reductions needed for 
attainment will be achieved.

XI. Is the Baton Rouge Area Eligible for an Attainment Date 
Extension Under the Extension Policy?

    It is premature to say whether or not the Baton Rouge area will 
qualify for an attainment date extension under the extension policy. We 
believe that the area may be affected by upwind transport. However, 
before the Baton Rouge area can qualify for an attainment date 
extension under the extension policy, all the criteria specified in the 
policy must be met.
    On May 10, 2000, the Governor of Louisiana submitted a letter to 
EPA committing to meet the requirements of the extension policy by 
August 31, 2001.\8\ (The Governor's commitment letter and EPA's 
response to the letter are included in the docket for this proposed 
rulemaking.) The steps we believe Louisiana will need to take in order 
for us to consider extending the Baton Rouge area attainment date under 
the extension policy include:
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    \8\ To support the Governor's request that EPA consider an 
attainment date extension for the Baton Rouge area based on 
transported air pollution, the Louisiana Department of Environmental 
Quality (LDEQ) submitted to EPA a report entitled, ``Assessment of 
the Contribution of Emissions from the Houston Area to Ozone 
Concentrations in the Five-Parish Baton Rouge Nonattainment Area,'' 
dated May 3, 2000, indicating that pollution transported from Texas 
may have impeded attainment of the 1-hour ozone standard in Baton 
Rouge. A copy of this report can be found in the docket for this 
proposed rulemaking.
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    1. Demonstrate that the Baton Rouge area's air quality is affected 
by transport from (a) an upwind area in Louisiana with a later 
attainment date, or (b) an upwind area in another State, which 
significantly contributes to Baton Rouge's continued ozone 
nonattainment.
    2. Submit to EPA an approvable attainment demonstration by August 
31, 2001. This demonstration must show that the Baton Rouge area will 
attain as expeditiously as practicable, but no later than the 
attainment date of the upwind area.
    3. Submit any additional local control measures needed for 
expeditious attainment. Any additional measures must be adopted prior 
to August 31, 2001.
    4. Submit proof that all applicable local control measures required 
under the serious classification have been adopted. As part of this 
demonstration, Louisiana's August 31, 2001 SIP submittal must include 
at least the following:
    (a) Any changes to Louisiana's Nonattainment New Source Review 
program necessary to ensure that the State's rules meet EPA's 
nonattainment new source review requirements.
    (b) Contingency measures that meet the requirements of section 
182(c)(9) of the Act.\9\
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    \9\ On July 2, 1999, EPA issued final approval of Louisiana's 
revised SIP for the Baton Rouge area, which contained a contingency 
measures plan using Emission Reductions Credits (``ERCs'') held in 
escrow in Louisiana's ERC ``bank'' (64 FR 35930). On August 30, 
1999, LEAN, the North Baton Rouge Environmental Association, Save 
Our Lakes and Ducks, and the Southern University Environmental Law 
Society filed a petition for review in the United States Court of 
Appeals for the Fifth Circuit challenging EPA's July 2, 1999 SIP 
approval. In response to the litigation, EPA performed a preliminary 
investigation and became concerned that Louisiana's application of 
its ERC banking rule might not be consistent with EPA regulations 
and guidance. As a result, EPA requested a partial voluntary remand 
to reconsider its July 2, 1999 final approval of Louisiana's 
contingency measures plan for the Baton Rouge area. On October 19, 
2000, the Fifth Circuit Court of Appeals granted a Joint Motion for 
a Partial Voluntary Remand in Louisiana Environmental Action 
Network, et al. v. United States Environmental Protection Agency, 
No. 99-60570 (5th Cir.). EPA expects to propose further action and/
or rulemaking to address Louisiana's contingency measures plan 
before taking further action on this notice.
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    (c) Any revisions to the vehicle inspection and maintenance (I/M) 
program necessary to meet the applicable federal I/M program 
requirements. Any such changes must be adopted prior to August 31, 
2001.

[[Page 23651]]

    5. Provide that all newly adopted control measures will be 
implemented as expeditiously as practicable. All measures must be 
implemented no later than the date that the upwind reductions needed 
for attainment will be achieved.
    We contemplate that, when we act to approve such an area's 
attainment demonstration, we will, as necessary, extend that area's 
attainment date to the date appropriate for that area in light of the 
schedule for achieving the necessary upwind reductions. The area would 
no longer be subject to reclassification or ``bump-up'' for failure to 
attain by its original attainment date under section 181(b)(2).

XII. What Progress Has Louisiana Made To Meet the Extension Policy 
So That an Attainment Date Extension Can Be Granted?

    A local task force comprised of stakeholders has been formed and is 
working closely with the LDEQ to develop a submittal that meets the 
requirements of the extension policy. Modeling efforts are well 
underway, and the State has solicited public input on numerous 
potential control measures.

XIII. What Actions Has Louisiana Taken To Improve Air Quality in 
the Baton Rouge Area?

    EPA has approved, and Louisiana has implemented, VOC emission 
reductions as part of the State's 15 Percent Rate-of-Progress Plan (see 
61 FR 54737, dated October 22, 1996), and Post-1996 Rate-of-Progress 
Plan (see 64 FR 35390, dated July 2, 1999). In addition, Louisiana is 
in the process of implementing a low enhanced vehicle inspection and 
maintenance program in the Baton Rouge area, which should further 
reduce VOC emissions. EPA has proposed to conditionally approve the I/M 
program (see 63 FR 71807, dated December 30, 1998).

XIV. If We Finalize Our Proposed Rulemaking Reclassifying the Baton 
Rouge Area, What Would Be the Area's New Classification?

    As stated previously, section 181(b)(2)(A) of the Act requires 
that, when an area is reclassified for failure to attain, its 
reclassification must be the higher of the next higher classification 
or the classification applicable to the area's ozone design value at 
the time the notice of reclassification is published in the Federal 
Register. The official design value of the Baton Rouge area at the time 
of the proposed finding of failure to attain is based on quality-
assured ozone monitoring data from 1997-1999. This design value is 
0.126 ppm, and the classification of ``marginal'' nonattainment would 
be applicable to it. By contrast, the next higher classification for 
the Baton Rouge area is ``severe'' nonattainment. Since ``severe'' is a 
higher nonattainment classification than ``marginal,'' under the 
statutory scheme, the area would be reclassified to severe 
nonattainment. Refer to Table 3 above.

XV. If the Baton Rouge Area Is Reclassified to Severe, What Would 
Its New Schedule Be?

    If the Baton Rouge area is reclassified, Louisiana would be 
required to submit a SIP that adopts the severe area requirements. 
Under section 181(a)(1) of the Act, the new attainment deadline for 
serious areas reclassified to severe under section 181(b)(2) would be 
as expeditious as practicable, but no later than the date applicable to 
the new classification, i.e., November 15, 2005.
    If we reclassify the Baton Rouge area, we must also address the 
schedule by which Louisiana will be required to submit a SIP revision 
meeting the severe area requirements. We propose to have Louisiana 
submit this SIP within one year after a final action on the 
reclassification is taken. If the submission shows that the area can 
attain the one-hour ozone NAAQS sooner than the attainment date 
established in the final reclassification notice, we would adjust the 
attainment date to reflect the earlier date, consistent with the 
requirement in section 181(a)(1) that the NAAQS be attained as 
expeditiously as practicable. We solicit comments on this proposed 
schedule.

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

    We will review Louisiana's proposed SIP submittal during the 
State's public comment period. We expect to receive the SIP submittal 
by August 31, 2001 and will publish thereafter a document in the 
Federal Register to address the approvability of the SIP submittal and 
the Baton Rouge area's eligibility for a extension of its attainment 
date pursuant to the extension policy. If we propose approval, we would 
also propose to extend the attainment date for the Baton Rouge area to 
an appropriate expeditious date. However, if Louisiana fails to meet 
the requirements of the extension policy by August 31, 2001, we will 
finalize the finding of failure to attain, and the Baton Rouge area 
will be reclassified to severe ozone nonattainment.

XVII. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et. seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Public Law 104-4). This rule also does not have a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal government and Indian 
Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000). This proposed rule will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and

[[Page 23652]]

Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The proposed 
rule does not include environmental justice related issues that require 
consideration under Executive Order 12898 (59 FR 7629, February 16, 
1994). As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, 
March 15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order. This proposed rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

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

    Dated: April 19, 2001.
Jerry Clifford,
Acting Regional Administrator, Region 6.
[FR Doc. 01-11563 Filed 5-8-01; 8:45 am]
BILLING CODE 6560-50-P