[Federal Register Volume 66, Number 143 (Wednesday, July 25, 2001)]
[Proposed Rules]
[Pages 38608-38610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18534]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[FRL-7017-9]


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: Supplemental proposed rule.

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SUMMARY: On May 9, 2001 (66 FR 23646), EPA proposed to find that the 
Baton Rouge serious ozone nonattainment area (hereinafter referred to 
as the Baton Rouge area) had failed to attain the one-hour National 
Ambient Air Quality Standard (NAAQS) for ozone by November 15, 1999, 
the date set forth in the federal Clean Air Act (CAA or Act) for 
serious nonattainment areas. Alternatively, in the same action, EPA 
also issued 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'' (Richard 
D. Wilson, Acting Assistant Administrator for Air and Radiation) issued 
July 16, 1998, 64 FR 14441 (March 25, 1999) (hereinafter referred to as 
the ``extension policy''). 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.
    In the May 9, 2001, proposed rule, EPA indicated that, if Louisiana 
made a submittal in response to the extension policy by August 31, 
2001, EPA would address the adequacy of the submittal in a subsequent 
supplemental proposal. If the submittal met the criteria for an 
extension, EPA stated that the attainment date for the Baton Rouge area 
would be extended, and the area would not be reclassified. This 
proposed rule supplements the proposed rule published on May 9, 2001, 
for the Baton Rouge area. In today's action, EPA is proposing to extend 
the submittal deadline from August 31, 2001, to December 31, 2001.

DATES: Comments must be received on or before August 24, 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 comment letters referenced in this supplemental 
proposed rule, and other relevant materials, 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 
(LDEQ), 7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810. 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, e-mail address: [email protected].

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. Why are we proposing to extend the submittal date?
III. What is the status of the State's efforts to submit the SIP 
pursuant to the extension policy?
IV. When will we make a final decision whether to reclassify or 
grant an attainment date extension to the Baton Rouge area?
V. Administrative Requirements

I. What Action Are We Taking Today?

    We are proposing to extend the deadline, from August 31, 2001, to 
December 31, 2001, for Louisiana to submit a State Implementation Plan 
(SIP) that qualifies for an extension pursuant to EPA's extension 
policy. In our May 9, 2001, proposed rulemaking, we based the August 
31, 2001, submission deadline on a letter from the Governor of 
Louisiana to EPA, dated May 10, 2000, committing to submit, by that 
date, a SIP that meets the criteria of the extension policy.
    In today's proposal, EPA specifically requests comments on a 
revised submission date of December 31, 2001. EPA has previously 
received comments on other aspects of its May 9, 2001, proposal, and 
will address those comments in its final action on the SIP submittal 
and attainment date extension. EPA is not reopening or requesting 
comment on any other aspect of the May 9, 2001, proposal.

II. Why Are We Proposing To Extend the Submittal Date?

    In response to our May 9, 2001, proposed rulemaking, the Governor 
of Louisiana submitted a letter to EPA, dated June 7, 2001, requesting 
until December 31, 2001, to submit the transport extension SIP. To 
support the request for additional time, the Governor's letter 
references a June 1, 2001, comment letter submitted to EPA by Dale 
Givens, Secretary of the LDEQ. In his letter, Secretary Givens provides 
an extensive list of critical factors that

[[Page 38609]]

have changed or were added to the SIP development process, thereby 
necessitating a change in the submittal date committed to by the 
Governor in his May 10, 2000, letter to EPA.
    Secretary Givens' comment letter also clarifies that the Governor's 
August 31, 2001, commitment date was not driven by statute, rule, 
policy or any other legal requirement, but, rather, was selected based 
on discussions with EPA. This date was mutually determined by EPA and 
LDEQ to be, at the time, the most expeditious schedule practicable to 
prepare what was expected to be a relatively simple revision to the 
current attainment demonstration SIP.\1\ The assumption at the time--
based on the area's official design value, which was just a few parts 
per billion above the NAAQS--was that only a small additional reduction 
in ozone precursor emissions in the five-parish Baton Rouge ozone 
nonattainment area would be necessary to attain the one-hour ozone 
standard.
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    \1\ On July 2, 1999 (64 FR 35930), EPA issued a final approval 
of Louisiana's one-hour ozone attainment demonstration for the five-
parish Baton Rouge ozone nonattainment area.
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    The factors Secretary Givens cites as a basis for extending the 
submittal date include the following:

--The geographic area from which emission reductions are being 
considered for the attainment demonstration has expanded from the five-
parish Baton Rouge nonattainment area to a total of twelve parishes, 
necessitating new detailed emission inventories and additional 
sensitivity and control strategy modeling runs.
--The number of urban airshed modeling episodes increased from two to 
three episodes (each representing a different meteorological and 
pollutant transport regime) in order to ensure a more successful 
control strategy. Running each sensitivity/control strategy run three 
times has significantly increased the time and cost of the modeling 
effort.
--Required nitrogen oxide ( NOX) reductions are 
significantly greater than expected. Modeling conducted to date 
indicates that NOX reductions of approximately 35% may be 
needed in the 12-parish control region in order to demonstrate 
attainment. Approximately 74 individual facilities with 409 
NOX emission sources could be affected. The sources include 
categories of combustion equipment such as boilers, heaters, furnaces, 
turbines and internal combustion engines. Many of these sources are 
currently operating without any level of NOX control. LDEQ 
anticipates that the NOX controls required by the transport 
extension SIP could go well beyond the level of control required of 
states in the NOX SIP Call Region.\2\
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    \2\ 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 October 27, 1998 (63 FR 57356), EPA took final action on the 
OTAG's recommendations by issuing the NOX SIP call, 
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). 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 August 31, 2001, commitment date did not anticipate the 
proliferation of proposed merchant power plants. LDEQ has considered in 
its modeling analyses emissions increases from 20 proposed merchant 
power plants representing over 14,000 tons per year of NOX 
emissions. (These estimates are based on air permit applications 
received by LDEQ.) Since the status of these plants changes weekly, it 
has made the attainment planning process even more difficult.
--The LDEQ is also in the process of revising its emission reduction 
credit (ERC) banking regulations to conform with EPA's ``surplus when 
used'' policy. In conjunction with the rule revisions, LDEQ is nearing 
completion of a review of ERCs applied for and on deposit in the bank 
to ensure that the proper adjusted amount of ERCs is modeled as 
emissions ``in the air.''

    EPA believes that the State has made a compelling argument that the 
SIP development process has been as expeditious as practicable and that 
an extension until December 31, 2001, is warranted in order to develop 
a technically defensible and approvable submittal.\3\
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    \3\ It should be noted that, of the 16 entities submitting 
comments on EPA's May 9, 2001, proposed rulemaking, twelve expressly 
support an extension of the August 31, 2001, submittal deadline.
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III. What Is the Status of the State's Efforts To Submit the SIP 
Pursuant to the Extension Policy?

    As stated in our May 9, 2001, proposed rulemaking, a local task 
force comprised of stakeholders has been working closely with the LDEQ 
to develop a submittal that meets the requirements of the extension 
policy.\4\ Modeling efforts are nearing completion, and the State has 
begun the rulemaking process for several of the underlying regulations. 
All required rules are expected to be proposed by August 2001. The LDEQ 
plans to propose the entire SIP for public comment in October 2001.\5\
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    \4\ The specific criteria that Louisiana's plan will have to 
meet in order for EPA to consider extending the Baton Rouge area 
attainment date under the extension policy are outlined in the May 
9, 2001, proposed rulemaking (p. 23650).
    \5\ LDEQ's schedule for rulemaking on the various components of 
the SIP can be found in the docket for this proposed rulemaking.
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IV. When Will We Make a Final Decision Whether To Reclassify or 
Grant an Attainment Date Extension to the Baton Rouge Area?

    As discussed in our May 9, 2001, proposed rule, we do not intend to 
take final action on the reclassification prior to allowing Louisiana 
an opportunity to qualify for an attainment date extension under the 
extension policy.
    Therefore, if Louisiana submits, by December 31, 2001, a SIP that 
qualifies for an extension pursuant to the extension policy, we will 
propose to approve the State's submittal. In the same notice, we will 
propose to extend the attainment date for the Baton Rouge area to an 
appropriate expeditious date.
    We will take final action on the new attainment date at the time we 
take final action on the submittal. If we act to approve the attainment 
demonstration and extend the attainment date, the Baton Rouge 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) of the CAA.\6\ However, if Louisiana fails submit, by 
December 31, 2001, a plan that meets the requirements of the extension 
policy, we will finalize our May 9, 2001, proposed finding of failure 
to attain, and the Baton Rouge area will be reclassified to severe 
ozone nonattainment.
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    \6\ Section 181(b)(2) of the Act explains the process for 
determining whether an area has attained the one-hour ozone NAAQS 
and, if appropriate, reclassification by operation of law.
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V. 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. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply,

[[Page 38610]]

Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 (Pub. L. 104-4). For the same 
reason, this proposed rule also does not significantly or uniquely 
affect the communities of tribal governments, as specified by Executive 
Order 13084 (63 FR 27655, May 10, 1998). 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 Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. The proposed rule does 
not involve special consideration of environmental justice related 
issues as required by 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.'' 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: July 16, 2001.
Carl E. Edlund,
Acting Regional Administrator, Region 6.
[FR Doc. 01-18534 Filed 7-24-01; 8:45 am]
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