[Federal Register Volume 67, Number 187 (Thursday, September 26, 2002)]
[Rules and Regulations]
[Pages 60590-60594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24339]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA-61-1-7564; FRL-7382-6]


Approval and Promulgation of Air Quality State Implementation 
Plans (SIP); Louisiana: Substitute Contingency Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP) 
revision submitted by the State of Louisiana for the Baton Rouge ozone 
non-attainment area for the purpose of replacing the previously 
approved contingency measures in the Demonstration of Attainment. These 
replacement measures meet the requirements in sections 172(c)(9) and 
182(c)(9) of the Clean Air Act (the Act) as amended in 1990. We are 
approving replacement of the State's current contingency measures with 
contingency measures that require emission reductions from the 
Trunkline Gas Company--Patterson Compressor Station in St. Mary Parish. 
The State's current contingency measure requirement is that it hold 5.7 
tons per day (tpd) of VOC emission reductions ``on deposit'' in the 
State of Louisiana Emission Reduction Credit Bank (ERC Bank). The 
replacement contingency measure that the EPA is approving would require 
that the Trunkline facility permanently reduce its volatile organic 
compound (VOC) emissions by 6.1 tpd from 1990 emission levels. These 
reductions are surplus and federally enforceable.
    Pursuant to section 553(d) of the Administrative Procedure Act, EPA 
finds good cause to make this action effective immediately.

DATES: This final rule is effective September 26, 2002.

ADDRESSES: Copies of the documents relevant to 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 24 
hours before the visiting day.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
    Louisiana Department of Environmental Quality, Air Quality 
Compliance Division, 7290 Bluebonnet, 2nd Floor, Baton Rouge, 
Louisiana.

[[Page 60591]]


FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Rennie, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7367.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA.

What Action Is EPA Taking Today?

    We are granting final approval of Louisiana's substitute 
contingency measures SIP revision, which substitutes 6.1 tpd in VOC 
emission reductions from the Trunkline Gas Company for the previously 
approved measure. We are approving this revision to the Louisiana SIP 
to meet the requirements of sections 172(c)(9) and 182(c)(9) of the 
Act.
    Section 553(d) of the Administrative Procedure Act generally 
provides that rules may not take effect earlier than 30 days after they 
are published in the Federal Register. However, if an Agency identifies 
a good cause, section 553(d)(3) allows a rule to take effect earlier, 
provided that the Agency publishes its reasoning in the final rule. EPA 
is making this action effective immediately because this rule is 
related to the Baton Rouge 1-hour ozone Attainment Plan and Transport 
State Implementation Plan, on which the EPA intends to take imminent 
action (see 67 FR 50391, August 2, 2002). In conjunction with its 
August 2, 2002, proposed approval of the attainment demonstration, EPA 
proposed to extend the ozone attainment date for the BR area to 
November 15, 2005, while retaining the area's current classification as 
a serious ozone nonattainment area and to withdraw EPA's June 24, 2002, 
rulemaking determining nonattainment and reclassification of the BR 
area (67 FR 42687). The effective date of EPA's June 24, 2002, 
nonattainment determination and reclassification is imminent. 
Furthermore, making this action effective immediately does not impose 
any additional requirements, because the underlying regulations are 
already effective under state law.

What Are the Clean Air Act Requirements?

    Sections 172(c)(9) and 182(c)(9) of the Act require that SIPs 
contain additional measures that will take effect without further 
action by the state or EPA if an area fails to attain the standard by 
the applicable date, or to meet Rate-of-Progress Plan (ROPP) deadlines. 
The Act does not specify how many contingency measures are needed or 
the magnitude of emissions reductions that must be provided by these 
measures. However, EPA provided guidance interpreting the control 
measure requirements of sections 172(c)(9) and 182(c)(9) in the April 
16, 1992, General Preamble for Implementation of the Act (see 57 FR 
13498, 13510, April 16, 1992). In that guidance, EPA indicated that 
states with moderate and above ozone nonattainment areas, such as the 
Baton Rouge area, should include sufficient contingency measures so 
that, upon implementation of such measures, additional emission 
reductions of up to three percent of the emissions in the adjusted base 
year inventory (or such lesser percentage that will cure the identified 
failure) would be achieved in the year following the year in which the 
failure has been identified. The State must show that the contingency 
measures can be implemented with minimal further action on their part 
and with no additional rulemaking actions.

Why Is EPA Taking This Action?

    We are taking this action because the State submitted an adequate 
demonstration to show that the substitute contingency measure provides 
the necessary reductions to meet the requirement.

What Does the State's Substitute Contingency Measure Include?

    The Trunkline Gas Company--Patterson Compressor Station in St. Mary 
Parish facility installed a flare in 1998 to dispose of flash gases 
from several storage containers to comply with Louisiana's waste gas 
disposal rule and comprehensive toxic air pollutant control program. 
This was an alternative to combustion in a furnace or closed combustion 
chamber. The destruction efficiency of the open air flare is estimated 
at 99 percent.
    After the installation of the flare, VOC emissions changed from 
13.4 tpd to 0.4 tpd. The resulting 13 tpd of emission reductions are 
creditable. To ensure that these emission reductions are permanent and 
federally enforceable, the revised emission limit is reflected in the 
permit issued to Trunkline by the State. The permit makes the 
additional emission reductions available for SIP purposes, i.e., the 
reductions are surplus, permanent, and enforceable. 6.1 tpd of this 13 
tpd reduction will be credited to contingency measures and will no 
longer be available for any other use. Because the 6.1 tpd reduction 
from the Trunkline facility is greater than the 5.7 tpd in the prior 
contingency measure, this SIP revision will result in lower emissions 
and thus also complies with section 110(l) of the Act.
    The Trunkline facility is located approximately 40 kilometers from 
the Baton Rouge ozone nonattainment area. In 1997, EPA issued a policy 
allowing 1-hour ozone nonattainment areas to take credit in their Post-
1996 ROPP \1\ for emission reductions obtained from sources outside the 
designated nonattainment area, provided the sources are no farther away 
than 100 km (for VOC sources) or 200 km (for NOX sources) 
from the nonattainment area.\2\
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    \1\ EPA has historically allowed a surplus emission reduction in 
ROPP to be credited towards meeting the section 172 and section 182 
requirements. EPA's rationale is that not allowing excess emission 
reductions to be used as contingency measures discourages areas from 
reducing emissions ``as expeditiously as practicable'' and is, 
therefore, inconsistent with section 172 of the Act. EPA memorandum, 
``Early Implementation of Contingency Measures for Ozone and Carbon 
Monoxide (CO) Nonattainment Areas,'' from G. T. Helms, Chief, Ozone/
Carbon Monoxide Programs Branch, August 13, 1993.
    \2\ EPA memorandum, ``Guidance for Implementing the 1-Hour Ozone 
and Pre-Existing PM10 NAAQS,'' from Richard D. Wilson, 
Acting Assistant Administrator for Air and Radiation, December 23, 
1997.
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    The Trunkline Gas Company had not initially accounted for 13.4 tpd 
of VOC emissions. As a result, the VOC emissions from this facility had 
not been included in the point source emissions inventory for 1990. 
Emissions reported in a corrected 1992 annual emissions inventory 
submitted to LDEQ June 6, 1997, are the best estimate of the source's 
1990 base year emissions. These emissions were added back to the 1990 
base year emissions inventory. The revised 1990 VOC base year inventory 
that included these Trunkline emissions would result in a 204.6 tpd 
revised 1990 base year inventory.
    An additional 2.0 tpd of emission reductions required to meet CAA 
requirements were identified in the 15% ROPP revisions. The additional 
2.0 tpd were provided by using a 1.4 tpd ``surplus'' 9% ROPP reduction 
from the Trunkline permit plus 0.6 tpd of point source reductions (163 
tons per year or 0.45 tpd of VOCs from the Dow Chemical permit and 56 
tons per year or 0.15 tpd of VOCs from the BASF Corporation permit).
    There were an additional 1.2 tpd of reductions required to meet the 
9% ROPP identified in the revisions. These were also taken from the 
13.0 tpd Trunkline emissions reductions that were netted from the post-
90 emissions growth, leaving a remainder of 10.4 tpd, of which 6.1 tpd 
will be used as the contingency measure EPA is now approving.
    In a separate action, EPA has proposed approval of the revised 1990 
Base Year Emissions Inventory to include the Trunkline emissions, the 
15% Rate-of-Progress Plan, and the 9% Rate-of-Progress Plan submitted 
as part

[[Page 60592]]

of the December 31, 2001, Attainment Plan/Transport SIP (see 64 FR 
50391, August 2, 2002.)

What Comments Did EPA Receive in Response to the May 20, 2002, Proposed 
Rule?

    EPA received comments on the Notice of Proposed Rulemaking (NPR) 
from the Louisiana Chemical Association (LCA), the Louisiana 
Environmental Action Network (LEAN), the Louisiana Mid-Continent Oil 
and Gas Association (LMCOGA), and the Baton Rouge Ozone Task Force 
Steering Committee. A summary of the comments received and EPA's 
response is presented below.
    Three commenters (LCA, LMCOGA, and the Steering Committee) support 
EPA's finding, agreeing that EPA's analysis is reasonable and 
consistent with EPA guidance.
    LEAN opposes this action with the following comments:
    Comment 1: This contingency measure does not meet EPA guidelines, 
or the Clean Air Act. This measure is not a contingency measure because 
it has already been implemented. Because the measure cannot be 
triggered for a failure to attain, it cannot be used.
    Response 1: In the General Preamble, EPA provided guidance 
interpreting the control measure requirements of 172(c)(9) and 
182(c)(9) of the Act. A contingency measure should, at a minimum, 
ensure that an appropriate level of emissions reduction progress 
continues to be made if attainment or Reasonable Further Progress is 
not achieved and additional planning by the State is needed. We 
followed our General Preamble interpretation in taking this final 
action.
    Although the emissions reductions from the Trunkline facility first 
occurred in 1998, the reductions are continuing on an annual basis and 
are surplus, permanent and federally enforceable. In other words, the 
13 tpd reduction is realized at the facility on a continuing basis. 
Thus, if the reductions were not used for a contingency measure, the 
facility could, for example, apply the reduction toward the State's 
Emissions Credit Bank (see, 67 FR 48083, July 23, 2002). However, the 
Trunkline credits are not available for any other use while they are 
identified in the approved SIP as contingency measures. A failure to 
attain will trigger these credits to be applied toward making progress 
to attain. Even though the measure is already implemented, the 
continuing reduction credits from the Trunkline facility are, in 
effect, set aside to be applied in the event that attainment is not 
achieved. These credits are immediately available, without further 
action by the State, which is another necessary feature for a measure 
to be used as a contingency measure.
    Comment 2: EPA has made no factual or rational argument as to why 
the original contingency plan should be changed. Therefore, the 
original, approved contingency plan should remain in place. This change 
to the SIP was initiated because EPA recognized that the general offset 
requirement program in section 182(c)(10) of the Act was not being 
implemented correctly.
    Response 2: As explained in our proposal (67 FR 35468, May 20, 
2002), EPA previously approved a contingency measures plan as 
satisfying sections 172(c)(9) and 182(c)(9) of the Act (64 FR 35930, 
July 2, 1999). The contingency plan consisted of 5.7 tpd of VOC ERCs 
held in escrow in the Louisiana ERC Bank that would be confiscated by 
the State and no longer available for use in the event of a milestone 
failure or if attainment was not achieved in a timely manner. In August 
1999, a petition for review was filed in the United States Court of 
Appeals for the Fifth Circuit challenging our July 2, 1999, SIP 
approval. Louisiana Environmental Action Network v. EPA, No. 99-60570. 
In response to the litigation, we requested a partial voluntary remand 
to reconsider that final approval of the State'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.
    The State has submitted this contingency measure as a substitute 
for the ERC bank contingency measure. This final action serves as EPA's 
response to the voluntary remand. EPA believes that this is a 
reasonable basis for approving the reductions from the Trunkline 
facility as Louisiana's contingency measure to substitute for the 
previously remanded contingency measures.
    It is the State's responsibility to demonstrate how the measures in 
its SIP revision meet the requirements of the Act. EPA's role in 
approving measures for the SIP is to evaluate the State's submittal. 
The State has the option to replace approved measures in the SIP at its 
discretion, provided that the SIP continues to meet all applicable 
Clean Air Act requirements. The Act does not specify the nature of the 
contingency measures a State must submit. As long as the substitute 
measures meet the requirements of the Act and do not weaken the SIP, 
EPA can and must approve the revision.
    Comment 3: There is no factual argument given in the proposed rule 
that indicates or demonstrates that the proposed contingency rule will 
have any impact on the ozone problem in the Baton Rouge ozone 
nonattainment area. The emission reductions do not come from the 
nonattainment area, and they were not included in the assessment for 
the currently approved SIP.
    Response 3: As noted above, EPA has proposed approval of an 
adjustment of Louisiana's 1990 baseline to include the Trunkline 
emissions (see 64 FR 50391, August 2, 2002). Once these emissions are 
included in the baseline, which will occur prior to any milestone date, 
reducing them will lower emissions in the area on a continuing basis.
    Furthermore, EPA's basis for approving the Trunkline credits for 
contingency measures lies in our 1997 guidance \3\ that allows credits 
from outside a nonattainment area (within defined boundaries) to be 
used to meet its annual Rate of Progress emission reductions, provided 
that such emissions are included in the baseline.
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    \3\ ``Guidance for Implementing the 1-Hour Ozone and Pre-
Existing PM10 NAAQS'' dated December 29, 1997, in the memorandum 
from Richard Wilson, Acting Assistant Administrator for Air and 
Radiation.
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    Comment 4: This is the same contingency measure as that proposed in 
the revised SIP that is currently being reviewed by EPA. This implies 
that the same contingency measure could potentially be implemented 
twice.
    Response 4: The commenter is correct that this is the same 
contingency measure proposed in the revised SIP that is currently under 
review. This measure is being acted on now as a separate rule apart 
from the main SIP rulemaking action, in response to the voluntary 
remand noted in Response 1, above. The measure will not be approved 
again to meet any different purpose. EPA believes this contingency 
measure does satisfy the requirements of sections 172(c)(9) and 
182(c)(9) of the Act. In the event that this contingency measure is 
``triggered'' by a formal EPA finding that the area failed to meet an 
applicable milestone, Louisiana will then be required to submit a 
``backfilling'' contingency measure, according to a schedule 
established by EPA, to ensure that adequate emission reductions 
continue to be available to serve as contingency measures to cover any 
future applicable milestone failures.
    Comment 5: The proposed contingency measures are simply a paper 
change that should not be allowed. The reductions were not included in 
the 1990 baseline or the subsequent demonstration modeling, and 
therefore, should not be allowed as a contingency measure.

[[Page 60593]]

    Response 5: As noted in Response 1, above, EPA does not believe 
this is a ``paper change.'' The emissions reductions from the Trunkline 
facility are continuing, real, surplus, permanent, and enforceable. The 
6.1 tpd set aside as contingency measures are not available for any 
other use while they are approved as contingency measures in the SIP. 
In addition, as noted above, EPA has proposed action to revise the 1990 
baseline to include these emissions.

EPA's Rulemaking Action

    We are granting final approval pursuant to sections 110 and 
sections 172(c)(9) and 182(c)(9) of the Act because we find that the 
State has adequately demonstrated that the substitute contingency 
measure provides the necessary reductions to meet the requirements of 
the Act, and that these reductions are permanent, surplus and federally 
enforceable.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This 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 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 approves 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), nor will it 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 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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this 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. 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 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.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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 cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective September 26, 2002.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial revew of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 26, 2002. Filing a 
petition for reconsideration by 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 dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

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

    Dated: September 17, 2002.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.

    Part 52 of chapter I, title 40, 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 the table in Sec.  52.970(e) entitled ``EPA Approved 
Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures'' the 
entry for ``Contingency Measures'' is revised to read as follow:


Sec.  52.970  Identification of plan.

* * * * *
    (e) EPA approved nonregulatory provisions and quasi-regulatory 
measures.
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[[Page 60594]]



                  EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures
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                                      Applicable       State submittal
     Name of SIP provision          geographic or       date/effective    EPA approval date       Explanation
                                  nonattainment area         date
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                                                  * * * * * * *
Contingency Plan...............  Baton Rouge, LA....         12/28/2001  September 26, 2002   Substitute measure
                                                                          [67 FR 60590].       to replace the
                                                                                               measure approved
                                                                                               on 07/02/99, 64
                                                                                               FR 35939.
 
                                                  * * * * * * *
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[FR Doc. 02-24339 Filed 9-25-02; 8:45 am]
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