[Federal Register Volume 67, Number 191 (Wednesday, October 2, 2002)]
[Rules and Regulations]
[Pages 61786-61802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24763]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[FRL-7387-5]


Approval and Promulgation of Implementation Plans; Louisiana; 
Baton Rouge Nonattainment Area; Ozone; 1-Hour Ozone Attainment 
Demonstration; Attainment Date Extension, and Withdrawal of 
Nonattainment Determination and Reclassification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Clean Air Act (Act), EPA is approving the 
Louisiana 1-hour ozone attainment demonstration State Implementation 
Plan (SIP) for the Baton Rouge serious ozone nonattainment area. In 
conjunction with its approval of the attainment demonstration, EPA is: 
approving Louisiana's transport demonstration and extending the ozone 
attainment date for the Baton Rouge ozone nonattainment area to 
November 15, 2005, while retaining the area's current classification as 
a serious ozone nonattainment area; withdrawing EPA's June 24, 2002, 
rulemaking determining nonattainment and reclassification of the Baton 
Rouge ozone nonattainment area; finding that the Baton Rouge ozone 
nonattainment area meets the reasonably available control measures 
(RACM) requirements of the Act; approving the State's enforceable 
commitment to perform a mid-course review and submit a SIP revision to 
EPA by May 1, 2004; approving the motor vehicle emissions budget (MVEB) 
and an enforceable commitment to submit revised budgets using MOBILE6; 
and approving an enforceable transportation control measure (TCM).
    This action also approves SIP submittals relating to corrections to 
the 1990 Base Year Emissions Inventory, the 9% Rate-of-Progress Plan 
(ROPP), and the 15% ROPP.

DATES: This rule is effective October 2, 2002. The amendment to Sec.  
81.319 which published on June 24, 2002 (67 FR 42688) and were revised 
on August 20, 2002 (67 FR 53882) are withdrawn.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection during normal business hours at the following 
addresses: U.S. Environmental Protection Agency, Region 6, Air Planning 
Section, 1445 Ross Avenue, Dallas, Texas 75202-2733; Louisiana

[[Page 61787]]

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. Maria L. Martinez, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-2230.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Background

    A notice of proposed rulemaking was published on this action on 
August 2, 2002 (67 FR 50391). EPA has also published a notice regarding 
the Baton Rouge area's potential eligibility for an attainment date 
extension on May 9, 2001 (66 FR 23646). EPA received comments on these 
proposals. EPA has also published a related notice: the ``Extension of 
Attainment Dates for Downwind Transport Areas,'' 64 FR 14441 (March 25, 
1999). That notice announced EPA's interpretation of the Act regarding 
the possibility of extending attainment dates for ozone nonattainment 
areas that had been classified as moderate or serious for the 1-hour 
ozone standard and which are downwind of areas that have interfered 
with their ability to demonstrate attainment. In that notice EPA also 
noted that we intended to finalize our interpretation only when we 
applied this policy in the context of individual rulemakings addressing 
specific attainment demonstrations and requests for attainment date 
extensions. We have received comments on our application of this policy 
to the Baton Rouge area. Therefore, in this final rule, EPA responds to 
adverse comments on these proposed rulemakings and notices. For details 
on the SIP submittals and EPA's analysis of the submittals, refer to 
the notices of the proposed rules referenced above in this paragraph, 
and the technical support documents for the August 2, 2002, and May 9, 
2001, proposals.
    EPA is making this final rulemaking effective immediately. 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 the effective date of the 
nonattainment determination and reclassification (which is being 
withdrawn as a result of this final rule) is imminent. In addition, EPA 
finds good cause for making this action effective immediately because, 
in part, it relieves a restriction that would otherwise go into effect.

Information

    This section provides additional information by addressing the 
following questions:

I. What Louisiana SIP revisions are the topic of this action?
II. What previous actions have been taken regarding the Baton Rouge 
area attainment demonstration and attainment date?
III. What MVEBs are we approving?
IV. What revisions concerning the 1990 Base Year Emissions 
Inventory, the 9% ROPP, and the 15% ROPP are we approving?
V. Implementation of RACM.
VI. What are the requirements for full approval of the attainment 
demonstration?
VII. Did Louisiana fulfill these requirements for full approval?
VIII. What are the criteria for an attainment date extension?
IX. How did Louisiana satisfy the criteria for an attainment date 
extension?
X. What action is EPA taking regarding the Determination of 
Nonattainment as of November 15, 1999, and Reclassification 
published on June 24, 2002?
XI. What comments were received on the proposals covered by this 
final action, and on the March 25, 1999, publication of the 
attainment date extension policy, and how has EPA responded to 
those?
XII. What action is EPA taking regarding the State submittals 
addressed by this final rule?

I. What Louisiana SIP Revisions Are the Topic of This Action?

    The Baton Rouge ozone nonattainment area encompasses the East Baton 
Rouge, West Baton Rouge, Ascension, Iberville, and Livingston Parishes 
(40 CFR 81.319). The State of Louisiana made several submittals to us 
relating to the ozone attainment demonstration and their request for an 
extension of the attainment date for the Baton Rouge ozone 
nonattainment area. The submittals listed below relate directly to 
EPA's final action described in this document:
    (a) On December 31, 2001, LDEQ submitted an ozone attainment 
demonstration and transport SIP revision. The SIP revision included:
    i. A revision to the 15% ROPP for the control of Volatile Organic 
Compounds (VOC) emissions in the Baton Rouge area. The 15% Rate ROPP 
was approved by EPA on October 22, 1996 (61 FR 54737).
    ii. Revisions to the 1990 base year emissions inventory. The 
inventory was approved on July 2, 1999 (64 FR 35930).
    iii. Revisions to the Post-1996 ROPP. The Post-1996 ROPP, also 
referred to as the 9% ROPP, was approved on July 2, 1999 (64 FR 35930).
    iv. Revisions to the Inspection and Maintenance (I/M) program.
    v. Attainment MVEBs for 2005 for VOCs and Nitrogen Oxides 
(NOX).
    vi. An enforceable commitment to submit revised MVEBs within 24 
months after the release of MOBILE6.
    vii. An enforceable commitment for mid-course review.
    viii. An enforceable transportation control measure referred to as 
the Advanced Transportation Management System.
    ix. An emissions control strategy that incorporates federal, state, 
and local control measures.
    x. Revisions to Louisiana's New Source Review (NSR) rules.
    xi. Substitute contingency measures.
    (b) On February 27, 2002, LDEQ submitted final rules for the 
emission reductions credit banking program.
    (c) On February 27, 2002, LDEQ also submitted final revisions to 
the contingency measures proposed in the December 31, 2002, SIP 
submittal.
    (d) On May 20, 2002, LDEQ submitted a letter concerning the 
revisions to the rulemaking dealing with VOC emissions from industrial 
wastewater.
    (e) On July 25, 2002, the Governor submitted Louisiana's final rule 
for the control of emissions of nitrogen oxides. Prior to that, on 
February 1, 2002, LDEQ had submitted changes to the proposed rule for 
control of NOX emissions and on April 8, 2002, LDEQ had 
submitted a letter requesting parallel processing of revisions to the 
State's NOX regulations.
    EPA has taken separate final actions on other parts of the Baton 
Rouge SIP, including the I/M Program, NOX regulations, NSR, 
emissions reductions credit banking, and Contingency Measures. EPA also 
approved SIP revisions dealing with VOC emissions from industrial 
wastewater which are published at 67 FR 41840 (June 20, 2002). In this 
final rulemaking the following are considered: The ozone attainment 
demonstration plan and its associated MVEBs; the transport SIP related 
materials; the RACM analysis; the revisions to the 1990 base year 
inventory, the 15% ROPP, and the Post-1996 ROPP, the attainment date 
extension, and a withdrawal of nonattainment determination and 
reclassification.

[[Page 61788]]

II. What Previous Actions Have Been Taken Regarding the Baton Rouge 
Area Attainment Demonstration and Attainment Date?

    On May 9, 2001 (66 FR 23646), EPA proposed to find that the Baton 
Rouge ozone nonattainment area had not attained the 1-hour ozone 
national ambient air quality standard (NAAQS) by the attainment date 
for serious nonattainment areas (November 15, 1999). Also in that 
notice, EPA issued a notice of the Baton Rouge area's potential 
eligibility for an attainment date extension, pursuant to EPA's, 
``Guidance on Extension of Air Quality Attainment Dates for Downwind 
Transport Areas' (hereinafter referred to as the attainment date 
extension policy) (Richard D. Wilson, Acting Assistant Administrator 
for Air and Radiation) issued on July 16, 1998. In the May 9, 2001, 
Federal Register, EPA proposed to finalize the reclassification of the 
Baton Rouge nonattainment area only after the area had an opportunity 
to qualify for an attainment date extension under the attainment date 
extension policy.
    Subsequent to our May 9, 2001, proposed rulemaking, a relevant 
court decision was issued which affected EPA's proposed rulemaking for 
the Baton Rouge area. EPA was in the process of reviewing the 
Attainment Plan/Transport SIP when the United States District Court for 
the Middle District of Louisiana entered a Judgment on March 7, 2002, 
ordering EPA to determine, by June 5, 2002, whether the Baton Rouge 
area had attained the applicable ozone standard under the CAA. LEAN v. 
Whitman, No. 00-879-A. In compliance with the Court's Order, EPA signed 
on June 5, 2002, and published in the Federal Register on June 24, 
2002, (67 FR 42688) our determination that the Baton Rouge area did not 
attain the 1-hour ozone standard by November 15, 1999 in the Federal 
Register (67 FR 42688). By operation of law, that determination would 
result in the Baton Rouge area being reclassified from a serious to a 
severe nonattainment area on the effective date of that rule. EPA 
concurrently proposed to extend the effective date of our determination 
from August 23, 2002, to October 4, 2002 (67 FR 42697, June 24, 2002). 
On August 20, 2002, we published an action finalizing the modification 
of the effective date of our June 24, 2002, final reclassification from 
August 23, 2002, until October 4, 2002.
    In the June 24, 2002, proposed rulemaking, EPA also set forth its 
intent to withdraw the final determination and reclassification, if EPA 
granted the State an attainment date extension before the effective 
date of the determination and reclassification rule.
    On August 2, 2002 (67 FR 50391), EPA proposed to approve 
Louisiana's 1-hour ozone attainment demonstration SIP for the Baton 
Rouge ozone nonattainment area. Also, in that notice we proposed to 
approve an extension of the ozone attainment date for the Baton Rouge 
area to November 15, 2005, while retaining the area's classification as 
a serious ozone nonattainment area if EPA took final action to approve 
the State's ozone attainment demonstrations. EPA also proposed other 
related actions in the August 2, 2002, proposal.
    Additionally, EPA has taken separate actions on other related 
revisions to the Baton Rouge SIP, including the I/M Program (proposed 
at 67 FR 44410, July 2, 2002), NOX regulations (proposed at 
67 FR 30638, May 7, 2002, and 67 FR 48095, July 23, 2002), NSR 
(proposed at 67 FR 48090, July 23, 2002), emissions reductions credit 
banking (proposed at 67 FR 48083, July 23, 2002), Contingency Measures 
(proposed at 67 FR 35468, May 20, 2002), and SIP revisions dealing with 
VOC emissions from industrial wastewater (67 FR 41840, June 20, 2002). 
Please see the related final actions which published in the Federal 
Register on September 26, September 27, and September 30, 2002.
    EPA has received comments on portions of our May 9, 2001; June 24, 
2002; and August 2, 2002, proposed rules. The Tulane Environmental Law 
Clinic and the Louisiana Environmental Action Network (LEAN) submitted 
adverse comments on portions of the May 9, 2001; June 24, 2002; and 
August 2, 2002, proposed rules. Earthjustice submitted adverse comments 
on portions of the August 2, 2002, proposed rule. Louisiana Generating, 
LLC and Big Cajun I and II (LAGen), submitted adverse comments on 
Section 4.2.1 of the SIP in response to our August 2, 2002, proposed 
approval. All other comments on the proposals supported EPA's proposed 
actions. In this final rule, EPA responds to the adverse comments 
received in response to the relevant proposals. EPA also responds to 
relevant adverse comments on its March 25, 1999, notice of 
interpretation regarding the attainment date extension policy (64 FR 
14441).

III. What MVEBs Are We Approving?

    On December 31, 2001, Louisiana submitted motor vehicle emissions 
budgets for the 2005 attainment year for the Baton Rouge area in their 
SIP. The attainment year MVEBs established by this plan that we are 
approving are 15.48 tons per day for VOC and 34.26 tons per day for 
NOX for the Baton Rouge area. These budgets were posted on 
the EPA website for public comment. No comments were received by EPA 
(67 FR 46970). EPA is approving these MVEBs because they are consistent 
with the control measures in the SIP, and the SIP as a whole 
demonstrates attainment of the 1-hour ozone standard. The rationale for 
our approval is detailed in the August 2, 2002, proposed action. 
Louisiana has committed to revise its 2005 MVEBs within two years after 
the release of MOBILE6. Louisiana has committed to not performing 
transportation conformity determinations during the second year 
following the release of MOBILE6 unless and until the State submits an 
MVEB which is developed using MOBILE6 and which we find adequate.
    All States whose attainment demonstrations include the effects of 
the Tier 2/sulfur program have committed to revise and resubmit their 
MVEBs after we release MOBILE6. If a state fails to meet its commitment 
to submit revised budgets using MOBILE6, EPA could make a finding of 
failure to implement the SIP, which would start a sanctions clock under 
section 179 of the Act.
    The final approval action we are taking today will be effective for 
conformity purposes only until revised MVEBs are submitted and we have 
found them adequate. In other words, the budgets we are approving today 
will apply for conformity purposes only until there are new, adequate 
budgets consistent with the State's commitments to revise the budgets. 
The new budgets will apply for conformity purposes after we find them 
adequate.
    We are limiting the duration of our approval in this manner because 
we are only approving the attainment demonstration and the budgets 
based on the State's commitment to revise them. Therefore, if we 
confirm that the revised budgets are adequate, they will be more 
appropriate than the budgets we are approving for conformity purposes 
now.
    If the revised budgets raise issues about the sufficiency of the 
attainment demonstration, we will work with the State to address the 
issues. If the revised budgets show that motor vehicle emissions are 
lower than the budgets we approve, a reassessment of the attainment 
demonstration's analysis will be necessary before reallocating the 
emission reductions or assigning them to the MVEB as a safety margin. 
In other words, the State must assess how its original attainment 
demonstration is impacted by using MOBILE6 v MOBILE5 before they 
reallocate any apparent motor vehicle emission

[[Page 61789]]

reductions resulting from the use of MOBILE6.

IV. What Revisions Concerning the 1990 Base Year Emissions Inventory, 
the 9% ROPP, and the 15% ROPP Are We approving?

    Under the 1990 Clean Air Act Amendments (CAAA), States have the 
responsibility to inventory emissions contributing to NAAQS 
nonattainment, to track these emissions over time, and to ensure that 
control strategies are being implemented that reduce emissions and move 
areas towards attainment. The CAAA require ozone nonattainment areas 
designated as moderate, serious, severe, and extreme to submit a plan 
within three years of 1990 to reduce VOC emissions by 15 percent within 
six years after 1990. The baseline level of emissions, from which the 
15 percent reduction is calculated, is determined by adjusting the base 
year inventory to exclude biogenic emissions and to exclude certain 
emission reductions not creditable towards the 15 percent. The 1990 
base year emissions inventory is the primary inventory from which the 
periodic inventory, the Reasonable Further Progress projection 
inventory, and the modeling inventory are derived.\1\ The base year 
inventory plays an important role in modeling demonstrations for areas 
classified as moderate and above.
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    \1\ Further information on these inventories and their purpose 
can be found in the ``Emission Inventory Requirements for Ozone 
State Implementation Plans,'' U.S. Environmental Protection Agency, 
Office of Air Quality Planning and Standards, Research Triangle 
Park, North Carolina, March 1991.
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    States containing ozone nonattainment areas classified as marginal 
to extreme were required under section 182(a)(1) of the 1990 CAAA to 
submit a final, comprehensive, accurate, and current inventory of 
actual ozone season, weekday emissions from all sources by November 15, 
1992. This inventory is for calendar year 1990 and is denoted as the 
base year inventory. It includes both anthropogenic and biogenic 
sources of VOC, NOX, and carbon monoxide (CO).
    Section 182(c)(2)(B) of the Act requires each State having one or 
more ozone nonattainment areas classified as serious or higher to 
develop a plan by November 15, 1994, that provides for additional 
actual VOC reductions of at least three percent per year, averaged over 
each consecutive three year period, beginning six years after enactment 
of the Act, until such time as these areas have attained the NAAQS for 
ozone. EPA approved the revisions to the 9% ROPP for the Baton Rouge 
area on July 2, 1999 (64 FR 35930).
    The revisions we are approving today consist of revisions to the 
1990 Base Year Emissions Inventory, the 15% ROPP, and the 9% ROPP, 
which were submitted as part of the December 31, 2001, Attainment Plan/
Transport SIP. Specifically, they were submitted as part of the 
substitute contingency measures. The substitute contingency measures 
are the subject of a separate EPA rulemaking action which published in 
the Federal Register on September 26, 2002.
    The revisions consisted of emission reductions resulting from the 
installation of VOC emission controls at the Trunkline Gas Company--
Patterson Compressor Station (hereinafter referred to as Trunkline or 
Trunkline facility) in St. Mary Parish. 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 \2\ 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) away from 
the nonattainment area.\3\
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    \2\ 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 CAA.
    \3\ 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 29, 
1997.
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    The Trunkline Gas Company had not accounted for 13.4 tons per day 
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 on 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 (i.e., 13.4 tons per 
day) would result in a total of 204.6 tons per day revised 1990 base 
year inventory.
    An additional 2.0 tons per day of emission reductions required were 
identified in the 15% ROPP revisions. The additional 2.0 tons per day 
were offset by 1.4 tons per day ``surplus'' 9% ROPP reduction from the 
Trunkline permit plus 0.6 tons per day of point source reductions (163 
tons per year or 0.45 tons per day of VOCs from the Dow Chemical permit 
and 56 tons per year or 0.15 tons per day of VOCs from the BASF 
Corporation permit).
    There were also an additional 1.2 tons per day of reductions 
required for the 9% ROPP identified in the revisions. These were taken 
from the 13.0 tons per day Trunkline emissions reductions that were 
netted from the post-90 emissions growth.
    For additional detailed discussions on the above mentioned 
revisions please see our August 2, 2002, rulemaking (67 FR 50396). EPA 
received adverse comments concerning these revisions. Those comments 
are addressed elsewhere in this notice.

V. Implementation of RACM

    Section 172(c)(1) of the Act requires attainment demonstration SIPs 
to provide for the implementation of all RACM as expeditiously as 
practicable. EPA has previously provided guidance interpreting the RACM 
requirements of 172(c)(1). (See 57 FR 13498, 13560.) We also discussed 
the RACM requirements in our August 2, 2002, Federal Register proposal. 
EPA has reviewed the state's submitted analyses, the process used to 
review and select transportation control measures, the state's 
evaluation of potential stationary source control measures, and the 
attainment year emissions inventories for the Baton Rouge area. While 
the Act requires nonattainment areas to implement available RACM 
measures, EPA does not believe that section 172(c)(1) requires 
implementation of potential RACM measures that either require intensive 
and costly implementation efforts or that produce relatively small 
emissions reductions that will not accelerate attainment of the ozone 
standard.
    Analyses conducted by LDEQ concluded that the additional set of 
evaluated measures are not reasonably available for the Baton Rouge 
area, because: (a) Some would require an intensive and costly effort 
for numerous small area sources, and (b) the measures would not produce 
emission reductions sufficient to advance the attainment date in the 
Baton Rouge area. Therefore, the measures were rejected as possible 
RACM.
    EPA received adverse comments on our proposed finding that 
Louisiana has satisfied the RACM requirements of the Act. Those 
comments are addressed below. EPA believes that the reductions from the 
measures rejected by the State would not accelerate attainment of the 
ozone NAAQS. Based upon EPA's

[[Page 61790]]

review of the State's analysis and submission, the explanation provided 
in our August 2, 2002, proposed rule (67 FR 50391) and our 
interpretation of the Act, EPA is approving Louisiana's RACM analysis.

VI. What Are the Requirements for Full Approval of the Attainment 
Demonstration?

    The attainment demonstration SIP must meet applicable criteria as 
detailed in the Act. The specific requirements of the Act for serious 
ozone nonattainment areas are found in section 182(c). Section 172 
provides the general requirements for nonattainment plans. Refer to our 
August 2, 2002, proposal (67 FR 50391) for further details of 
requirements for attainment demonstrations.

VII. Did Louisiana Fulfill These Requirements for Full Approval?

    EPA guidance published in 1996 provides that states may rely on a 
modeled attainment demonstration supplemented with additional weight of 
evidence (WOE) to demonstrate attainment (``Guidance on the Use of 
Modeled Results to Demonstrate Attainment of the Ozone NAAQS,'' EPA-
454/B-95-007, June 1996). In our August 2, 2002, Federal Register 
notice we listed documents containing many of EPA's guidelines 
affecting the content and review of ozone attainment demonstration 
submittals. (67 FR 50394.) In that notice, we also described in detail 
the modeling requirements for an attainment demonstration as well as 
the additional analyses that may be considered when the deterministic 
approach, as described in EPA guidance, does not show attainment (67 FR 
50394-50395). In the same Federal Register document, EPA details the 
statistical and modeling data presented in the state's attainment 
demonstration that support the validity of the ozone modeling results 
and the adequacy of the adopted ozone attainment strategies. The State 
concludes, and EPA concurs, that the modeling system performs at an 
acceptable level because it satisfactorily reproduces peak ozone 
concentrations relative to the monitored peak ozone concentrations. The 
modeling system adequately simulates the observed magnitude and spatial 
and temporal patterns of monitored ozone concentrations. Furthermore, 
the modeling results accurately differentiate between days with 
marginal ozone levels and days with elevated ozone concentrations. 
Therefore, based on the modeling and WOE results presented by the State 
which confirm the adequacy of the adopted emission control strategy, 
EPA is approving the State's attainment demonstration. EPA also finds 
that the appropriate attainment date is November 15, 2005, based on the 
attainment demonstration. EPA received adverse comments regarding the 
State's modeled attainment demonstration. These comments and our 
responses are summarized elsewhere in this notice.

VIII. What Are the Criteria for an Attainment Date Extension?

    EPA's policy regarding an extension of the ozone attainment date 
for the Baton Rouge area was set forth in EPA's notice of proposed 
rulemakings dated May 9, 2001 (66 FR 23646, 23650-23651) and August 2, 
2002 (67 FR 50391). On July 16, 1998, a guidance memorandum entitled 
``Extension of Attainment Dates for Downwind Transport Areas'' was 
issued by EPA and was published in a notice of interpretation on March 
25, 1999 (64 FR 12221). In it, EPA set forth its interpretation of the 
Act regarding the extension of attainment dates for ozone nonattainment 
areas that have been classified as moderate or serious for the 1-hour 
ozone standard, and which are downwind of areas that have interfered 
with the moderate and serious nonattainment areas's attainment of the 
ozone standard by dates prescribed in the Act. EPA stated that it will 
consider extending the attainment date for an area or a state 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 ozone nonattainment;
    2. Has submitted an approvable attainment demonstration with any 
necessary, adopted local measures, and with an attainment date that 
shows it will attain the 1-hour standard no later than the date that 
the emission reductions are expected from upwind areas in the final 
NOX SIP call and/or the statutory attainment date for upwind 
nonattainment areas, i.e., assuming the boundary conditions reflecting 
those upwind emission reductions;
    3. Has adopted all applicable local measures required under the 
area's current ozone classification and any additional emission control 
measures demonstrated to be necessary to achieve attainment, assuming 
the emission reductions occur as required in the upwind areas; and
    4. Has provided that it will implement all adopted measures as 
expeditiously as practicable, but no later than the date by which the 
upwind reductions needed for attainment will be achieved.

IX. How Did Louisiana Satisfy the Criteria for an Attainment Date 
Extension?

    Louisiana satisfied the criteria for an attainment date extension 
as follows:
    1. EPA finds that Louisiana has demonstrated that it is a downwind 
area affected by transport from the Houston area and that Houston 
contributes to the Baton Rouge area's ozone nonattainment;
    2. As explained elsewhere in this notice, EPA finds that the State 
of Louisiana has submitted an approvable attainment demonstration that 
provides for attainment no later than the date emissions reductions are 
expected from the upwind area. Furthermore, all of the control measures 
needed for attainment have been adopted and submitted to EPA. These 
measures include all serious area requirements under section 182(c).
    3. EPA has determined that Louisiana has adopted local measures 
required by the Act for the area's current classification as a serious 
nonattainment area. See Louisiana's SIP submittals and 67 FR 50391 
(August 2, 2002) and the references cited therein for a discussion of 
the local measures adopted by the State.
    4. With respect to implementation of all adopted measures as 
expeditiously as practicable but no later than the time upwind controls 
are expected, Louisiana has demonstrated to EPA that all control 
measures would be in place by November 15, 2005. This is two years in 
advance of the Houston, Texas, upwind area that is contributing to the 
Baton Rouge area's nonattainment. Since the local measures adopted by 
Louisiana necessary for attainment will be implemented no later than 
2005 and EPA finds that they will be implemented as expeditiously as 
practicable, the State has shown that this element of the attainment 
date extension policy has been satisfied.
    EPA therefore concludes, consistent with the attainment date 
extension policy, the State has met the criteria for an attainment date 
extension. EPA is thus extending the attainment date for the Baton 
Rouge area to November 15, 2005, to allow the upwind reductions to 
occur before attainment is required. Additional background information 
on EPA's attainment date extension policy can be found in the following 
Federal Register notices:

64 FR 14441 (March 25, 1999)
64 FR 12284 (March 18, 1999)
64 FR 18864 (April 16, 1999)
64 FR 27734 (May 21, 1999)
64 FR 70459 (December 16, 1999)
65 FR 20404 (April 17, 2000)
66 FR 585 (January 3, 2001)

[[Page 61791]]

66 FR 634 (January 3, 2001)
66 FR 666 (January 3, 2001)
66 FR 17647 (April 3, 2001)
66 FR 20122 (April 19, 2001)
66 FR 26913 (May 15, 2001)
66 FR 33996 (June 26, 2001)
67 FR 30574 (May 7, 2002)

    EPA received comments regarding the basis for and application of 
the extension policy in granting the Baton Rouge ozone nonattainment 
area an attainment date extension. Those comments and our responses to 
comments are summarized elsewhere in this document.

X. What Action Is EPA Taking Regarding the Determination of 
Nonattainment as of November 15, 1999, and Reclassification Published 
on June 24, 2002?

    On May 10, 2000, the Governor of Louisiana requested an attainment 
date extension for the Baton Rouge area. On May 9, 2001, EPA proposed 
its finding that the Baton Rouge area did not attain the 1-hour ozone 
NAAQS by the applicable attainment date (66 FR 23646). In that proposed 
action, we also stated that Louisiana was seeking an extension of its 
attainment date pursuant to EPA's attainment date extension policy. EPA 
proposed to take final action on the determination of nonattainment and 
reclassification of the Baton Rouge area only after the area had 
received an opportunity to qualify for an attainment date extension 
under the attainment date extension policy. Louisiana submitted an 
Attainment Plan/Transport SIP on December 31, 2001, for the Baton Rouge 
area. EPA was in the process of reviewing the Attainment Plan/Transport 
SIP when, on March 7, 2002, the United States District Court for the 
Middle District of Louisiana entered a Judgment ordering EPA to 
determine, by June 5, 2002, whether the Baton Rouge area had attained 
the applicable ozone standard under the CAA. LEAN v. Whitman, No. 00-
879-A. In compliance with the Court's Order, EPA signed on June 5, 
2002, and published in the Federal Register on June 24, 2002, (67 FR 
42688) our determination that the Baton Rouge area did not attain the 
1-hour ozone standard by November 15, 1999.
    On June 24, 2002, EPA published its ``Determination of 
Nonattainment as of November 15, 1999, and Reclassification of the 
Baton Rouge Ozone Nonattainment Area; State of Louisiana; Final Rule'' 
(67 FR 42688). The effective date of that Determination and 
Reclassification was initially set at August 23, 2002. However, in a 
separate notice the same day (67 FR 42697), EPA proposed to extend the 
effective date of the Determination and Reclassification until October 
4, 2002. On August 20, 2002 (67 FR 53882), EPA finalized the 
modification of the effective date of the Determination of 
Nonattainment as of November 15, 1999, and Reclassification of the 
Baton Rouge Ozone Nonattainment Area, extending it until October 4, 
2002.
    In our August 2, 2002, Federal Register document (67 FR 50391), EPA 
proposed to withdraw the Notice of Determination of Nonattainment and 
Reclassification if we approved an attainment date extension prior to 
the effective date of the Determination of Nonattainment. As noted in 
our August 2, 2002, proposal, EPA believes this is appropriate for a 
number of reasons.
    Since we are today granting an extension until November 15, 2005, 
for attainment of the 1-hour ozone standard, EPA's obligation under 
section 181(b)(2)(A) of the Act to determine attainment is thereby 
shifted into the future. As a result, we are hereby withdrawing the 
published nonattainment determination and the consequent 
reclassification, which has not yet gone into effect. Therefore, the 
Baton Rouge area retains its classification as a serious ozone 
nonattainment area. As stated previously, comments on our proposal to 
extend the attainment date are addressed below. In today's action, we 
are withdrawing the Notice of Nonattainment Determination and 
Reclassification, prior to its becoming effective. EPA received adverse 
comments relating to our proposal to withdraw the nonattainment 
determination and consequent reclassification in the event we granted 
an attainment date extension. Those adverse comments are addressed 
below in this document.

XI. What Comments Were Received on the Proposals Covered by This Final 
Action, and on the March 25, 1999, Publication of the Attainment Date 
Extension Policy, and How Has EPA Responded to Those?

    EPA received comments from the public on the Notices of Proposed 
Rulemaking published on May 9, 2001; June 24, 2002; and August 2, 2002, 
for the proposed approval of the Baton Rouge's ozone attainment 
demonstration and attainment date extension. EPA received adverse 
comments from Tulane and LEAN for our May 9, 2001 and the August 2, 
2002, proposals. We received adverse comments from Earthjustice on our 
August 2, 2002, proposal. EPA also received comments in support of the 
proposals from 24 commenters.
    EPA sets forth below in this section our responses to adverse 
comments received on these notices which are relevant to this 
rulemaking. EPA also received comments relating to the proposal to 
determine that the Baton Rouge area did not attain the ozone standard 
by November 15, 1999. These comments relate primarily to the necessity 
of making the nonattainment determinations, and the appropriate 
attainment date if the area were reclassified. In EPA's June 24, 2002, 
final rule, EPA responded to adverse comments on the proposed 
determination that the area did not attain the standard by November 15, 
1999, and finalized the reclassification to severe nonattainment. (67 
FR 42688, 42693-42695). The effective date of that action was extended 
to October 4, 2002. Today we are withdrawing our June 24, 2002, final 
rule.
    Finally, some of the comments received in Docket A-98-47 on EPA's 
notice regarding ``Extension of Attainment Dates for Downwind Transport 
Areas'' 64 FR 12221 (March 25, 1999), are relevant to this rulemaking. 
EPA incorporates its responses to those comments, set forth in 66 FR 
586, 66 FR 634, 66 FR 666 (January 3, 2001), and 66 FR 26913 (May 15, 
2001), 66 FR 33996 (June 26, 2001), 66 FR 33996 (June 26, 2001), and 67 
FR 30574 (May 7, 2002), insofar as herein relevant.
    The following discussion summarizes and responds to all adverse 
comments:

Comments Received in Response to the May 9, 2001 (67 FR 23646), 
Proposal

    Comment 1: Eleven comment letters were received with statements of 
support for EPA's proposed eligibility for a transport-based attainment 
date extension. Two comment letters were received in opposition to the 
transport-based attainment date extension. The commenters in support 
believed that the Baton Rouge area was affected by the transport of 
ozone from the Houston-Galveston, Texas, nonattainment area 
(hereinafter referred to as Houston). The commenters in opposition 
believed that either the Baton Rouge area did not meet the conditions 
under EPA's transport-based attainment date extension policy, that the 
time for making an attainment determination was overdue, and/or the Act 
did not give EPA the authority to grant the transport-based attainment 
date extension.
    Response 1: In this final rule, EPA responds to the relevant 
adverse comments on EPA's legal authority to extend the Baton Rouge 
area's attainment date received in response to

[[Page 61792]]

that proposal. The responses to comments in a number of prior 
rulemakings concerning the attainment date extensions granted in 
Washington, DC, Springfield, Massachusetts, Greater Connecticut, 
Beaumont, Texas, the St. Louis area, and Atlanta, Georgia, are relevant 
and responsive to the comments received on Baton Rouge. In those prior 
rulemakings, EPA responded to similar challenges to the legality of the 
attainment date extension policy, and EPA therefore incorporates its 
responses to those comments, set forth in 66 FR 586, 66 FR 634, 66 FR 
666 (January 3, 2001), 66 FR 26913 (May 15, 2001), 66 FR 33996 (June 
26, 2001), and 67 FR 30574 (May 7, 2002), insofar as herein relevant.
    Many of the legal arguments and other issues raised in the comments 
addressing the attainment date extension proposed in Baton Rouge have 
also been addressed in the briefs EPA has filed in litigation 
concerning the extensions in Washington, DC Sierra Club v. Whitman, 
Nos. 01-1070 (DC Cir.), St. Louis, Sierra Club v. EPA 01-2844, No. 01-
2845 (7th Cir.), Sierra Club v. Whitman, Nos. 01-5123 and 01-5299 (DC 
Cir.), and Beaumont, Sierra Club v. EPA, No. 01-60537 (5th Cir.). These 
briefs have been placed in the docket for this rulemaking and are 
incorporated herein by reference.
    Commenters cite to prior case law in support of such propositions 
as: a list of specific remedial provisions excludes the possibility of 
inferring that Congress intended any additional forms of relief; an 
agency cannot substitute its policy choices for those of Congress; the 
attainment deadlines are central to the CAA and cannot be adjusted. EPA 
has previously set forth its views on these issues in its prior 
responses and in its briefs. None of the cases or arguments cited by 
the commenters alters these views, or undermines EPA's authority to 
interpret the text of the statute in its full context so as to give 
effect to Congressional intent. EPA is implementing the attainment date 
extension not as a mere Agency policy preference, but in order to 
fulfill Congressional intent. Moreover, even in the absence of explicit 
statutory authority, EPA may grant extensions of time under the CAA 
where it concludes that Congress would have done the same had it 
foreseen the circumstances presented. NRDC v. EPA, 22 F.3d 1125 (D.C. 
Cir. 1994).
    Please see the responses to related comments concerning Baton 
Rouge's eligibility for an extension in the comment section below.

Comments Received in Response to the August 2, 2002 (67 FR 50391), 
Proposal

    Twenty-seven comment letters were received on our August 2, 2002, 
proposed approval rulemaking. Of these twenty-seven letters, we 
received four comment letters with adverse comments dealing with our 
proposed action.
    Comment 2: One commenter contends that EPA lacks statutory 
authority to approve the request for an attainment date extension based 
on EPA's attainment date extension policy. The commenter asserts that 
the current classification for the Baton Rouge area is ``severe'' and 
not ``serious.'' The commenter contends that EPA has already determined 
that the area failed to attain the ozone standard within the meaning of 
section 181(b)(2)(A) of the Act, and that, therefore, the Baton Rouge 
area was reclassified by operation of law, despite EPA's refusal to 
acknowledge this. The commenter incorporates by reference its arguments 
as to the legality of the attainment date extension policy contained in 
its briefs in Sierra Club v. EPA, 294 F.3d 155, 160-162 (DC Cir. 2002); 
Opening and Reply Briefs of Sierra Club in Sierra Club v. EPA, DC Cir. 
01-1070, at Part I; Earthjustice Comments dated April 26, 1999, 
addressing EPA's proposal entitled ``Extension of Attainment Dates for 
Downwind Transport Area.'' 64 Fed. Reg. 14441 (March 25, 1999); 
Transcript of Oral Argument in Sierra Club v. EPA, DC Cir. 01-1070 
(February 4, 2002).
    Response 2: EPA has responded to the contentions regarding the 
legality of EPA's attainment date extension policy in its responses to 
comments on the May 9, 2001, proposed rulemaking. As to the assertion 
that the classification of the Baton Rouge area is ``severe'' and not 
``serious,'' EPA, prior to the Court-ordered rulemaking published on 
June 24, 2002, had issued no final rulemaking determining that the 
Baton Rouge area had not attained the standard by November 1999. 
Therefore, the Baton Rouge area was not reclassified to ``severe.'' 
Moreover, since EPA is today issuing a final attainment date extension 
and withdrawing its June 24, 2002, determination prior to that 
determination taking effect, the Baton Rouge area remains classified as 
a serious area. EPA incorporates its responses to the comments 
contained in its briefs in the cases cited above.
    Comment 3: One commenter argues that the DC Circuit has decided 
adversely to the attainment date extension, and that similar cases are 
pending before the Seventh Circuit and before the Fifth Circuit, which 
is considering this issue in the Sierra Club v. EPA, (No. 01-60537), 
argued September 4, 2002. EPA should await the outcomes of those cases. 
The fact that the Louisiana SIP provides for RACM and ROPP does not fix 
the proposed rules shortfalls. The area should still be reclassified.
    Response 3: While the DC Circuit has issued a decision concerning 
Washington, DC, EPA nevertheless believes that its approach is 
justified and is currently continuing to litigate the pertinent legal 
issues in two other Circuits. The Seventh Circuit has yet to rule on 
the attainment date extension issue with regard to the St. Louis area, 
and the Fifth Circuit, which would have jurisdiction to review EPA's 
rulemaking regarding Baton Rouge, has yet to rule on the attainment 
date extension issue in the context of Beaumont, Texas. When these 
Circuits issue their decisions in these cases, EPA will reevaluate its 
position with respect to Baton Rouge.
    Comment 4: Commenters claim that on two occasions--on separate 
amendments offered by Senator Kasten in 1990 and Senator Levin in 1994, 
Congress rejected amendments to the Clean Air Act providing for 
attainment date extensions.
    Response 4: Neither amendment cited by commenters corresponds with 
EPA's attainment date extension policy, and there is no evidence that 
either was acted upon by Congress. In its prior rulemaking notices and 
briefs EPA has answered the arguments that the commenters raised on the 
Kasten amendment. As to the Levin amendment cited by commenters, this 
bill did not address attainment date extensions, but rather a revision 
to section 182(h)(1) concerning rural transport areas that was aimed at 
original classifications. This proposed amendment did not propose 
attainment date extensions, but rather dealt with areas that made no 
significant contribution to their own ozone concentrations, and 
proposed to treat them as rural transport areas. In offering this 
amendment, Senator Levin expressly noted that EPA was grappling with 
the issue of other areas, whose air quality is affected by the area's 
own emissions as well as those from upwind areas. Senator Levin's bill 
did not address this situation, because he acknowledged EPA's plans 
``to issue a new policy on ozone transport that will hold areas 
responsible only for that portion of the ozone problem which they 
cause.'' However, this new policy is expected to only correct another 
inequity in the act, the fact that downwind areas suffering from 
significant ozone and other pollution

[[Page 61793]]

transported from more severely polluted areas have less time to achieve 
attainment. The change in attainment deadlines will not address the 
problem of areas inappropriately designated in the first place. 140 
Cong. Rec. S10538-05 (August 3, 1994).
    Comment 5: Commenters contend that it is too late for Louisiana to 
apply for a transport extension, and that any application for an 
extension should be denied on the failure of the state to submit a 
timely application for an extension and for failure to meet the 
requirements of the attainment date extension in a timely fashion.
    Response 5: EPA disagrees that it is too late to grant Louisiana an 
attainment date extension. First, Louisiana is not applying for an 
attainment date extension under section 181(a)(5), but in accordance 
with EPA's transport-based attainment date extension policy. EPA 
believes that the area timely applied for an attainment date extension 
pursuant to EPA's attainment date extension policy and that it has made 
the requisite showing for an extension based upon transport. In its 
notice of proposed rulemaking EPA set forth the history of this 
rulemaking action and also noted that EPA had provided additional time 
for the area to submit documentation in support of its request for an 
attainment date extension. 67 FR 50391 (August 2, 2002); 66 FR 23646 
(May 9, 2001), 66 FR 38608 (July 25, 2001) (supplemental proposed 
rule). As EPA noted in its final rulemaking of June 24, 2002 (67 FR 
42697), Footnote 3, EPA received no adverse comments on its 
supplemental proposal to extend Louisiana's transport SIP submission 
date to December 31, 2002.
    Comment 6: Congress foresaw the problem of ozone transport and 
provided a solution under sections 110 and 126. Louisiana never 
petitioned EPA under section 126 for a finding that sources in Texas 
significantly contributed to ozone problems in Baton Rouge.
    Response 6: As EPA has noted in prior rulemakings, because a 
functional understanding of transport was late in coming, the tools 
envisioned by Congress could not be deployed in time to provide the 
intended relief. The commenter's contention that EPA should not grant 
Baton Rouge an attainment date extension because Louisiana should have 
acted earlier to commence a section 126 petition proceeding to reduce 
emissions from upwind states ignores the fact that an adequate analysis 
and allocation of responsibility for transport did not exist in time to 
support relief by the area's original attainment date. EPA incorporates 
by reference its responses to the comments contained in its briefs in 
the cases cited above.
    Comment 7: Commenters argue that EPA should not approve the RACM 
analysis for the Baton Rouge area because it does not meet the 
requirements of the CAA. They also argue that the State and EPA cannot 
lawfully limit RACM analyses to only those measures likely to advance 
attainment dates, nor can they lawfully apply an ``intensive and costly 
effort'' test. Opening and Reply Briefs of Sierra Club in Sierra Club 
v. EPA, DC Cir. 01-1070, at Part II. The commenter adds that even if 
that were not the case, arguendo, the states and EPA must still 
consider a reasonable range of potential RACM measures, and to the 
extent that they reject measures as allegedly not constituting RACM, 
must offer a reasoned and statutorily permissible explanation for doing 
so. Another commenter argues that control measures are clearly 
available. The commenters go on to state that: (1) There are many 
stationary VOC emissions to work with, and (2) many industries in the 
nonattainment area are reducing their VOC emissions from stationary 
sources. Since these facilities are actually making these reductions, 
the commenter concludes that the SIP argument that VOC reductions at 
this time are deemed to be technologically infeasible is clearly 
incorrect. The commenter further states that the LDEQ refers to 
computer modeling results in the SIP to imply that the requirements of 
RACM in the CAA can be avoided.
    Response 7: Louisiana performed a RACM analysis for potential 
control of NOX and VOC emission sources not included in the 
attainment demonstration for the Baton Rouge 1-hour ozone attainment 
area. Each control measure option was evaluated according to: (1) The 
State's authority to implement controls; (2) the amount of 
NOX reductions created by the control measure; (3) the 
amount of VOC reductions created by the control measure; (4) whether a 
similar control measure is already being implemented in the SIP; (5) 
the cost effectiveness of the control; (6) whether SIP credit has 
already been taken for the measure; and (7) whether the measure can be 
implemented to advance the attainment date. LDEQ conducted analyses of 
the reductions available from control of VOC and NOX 
emissions from on-road and off-road mobile sources, major stationary 
sources of VOC and NOX, and VOC and NOX area 
sources.
    In our August 2, 2002, proposed approval, EPA referenced the 
methodology Louisiana employed to analyze transportation control 
measures (TCM) RACM for mobile sources. Louisiana's analysis is 
explained in Chapter 5 of the SIP. LDEQ analyzed a broad range of TCMs 
identified and listed in section 108(f) of the Act for RACM 
availability. As part of its analysis, LDEQ relied on the most recent 
and comprehensive TCM evaluation study that exists for the Baton Rouge 
area and reflects updated attainment year vehicle miles traveled (VMT) 
and emissions reduction estimates. Based on its analysis, LDEQ included 
in the SIP an enforceable TCM to implement an advanced transportation 
management system and a vehicle I/M program. Relative to the total 
NOX reductions required to demonstrate attainment of the 1-
hour ozone NAAQS in the Baton Rouge area, additional NOX 
reductions from other TCMs in the Baton Rouge area that might be 
implemented constitute a very small percentage (approximately 1%) of 
the total reductions required for attainment. Thus, LDEQ concluded, an 
EPA agrees, that for RACM purposes implementation of additional TCMs 
would not produce emissions reductions sufficient to the advance the 
attainment date.
    Louisiana also analyzed control options as RACM for major 
stationary sources of VOC and NOX. Louisiana has implemented 
Reasonable Available Control Technology (RACT) for major stationary 
sources of NOX and VOC. As the commenter notes, many 
industries in the Baton Rouge area are already reducing their VOC 
emissions from stationary sources to meet the VOC RACT requirements of 
the Act. The 24% rate-of-progress VOC emissions reductions required 
under the Act have already been achieved in the Baton Rouge area. 
Modeling analysis for the Baton Rouge area indicates that a 30% 
``across the board'' reduction in VOC emissions yields less than a 1 
ppb decrease in the ozone peak for all three modeled episodes. Based on 
its analysis, LDEQ concluded that VOC reductions beyond those already 
in place would not be sufficient to bring the area into attainment 
sooner than 2005 and were not technologically feasible or cost 
effective at this time. Furthermore, the modeled attainment 
demonstration shows that the Baton Rouge area relies upon emissions 
reductions from outside of the attainment area and from federal rules 
with implementation dates that will not occur until 2005. LDEQ 
performed a similar analysis for NOX RACM. EPA has reviewed 
and agrees with the State's RACM analysis. For further details 
concerning Louisiana's

[[Page 61794]]

RACM analysis please refer to the RACM TSD and LDEQ's RACM analysis.
    The EPA's approach toward the RACM requirement is grounded in the 
language of the CAA. Section 172(c)(1) states that a SIP for a 
nonattainment area must meet the following requirement: ``In general.--
Such plan provisions shall provide for the implementation of all 
reasonably available control measures as expeditiously as practicable 
(including such reductions in emissions from existing sources in the 
area as may be obtained through the adoption, at a minimum, of 
reasonably available control technology) and shall provide for 
attainment of the national primary ambient air quality standards.'' 
[Emphasis added.] The EPA interprets this language as tying the RACM 
requirement to the requirement for attainment of the national primary 
ambient air quality standard. The CAA provides that the attainment date 
shall be ``as expeditiously as practicable but no later than * * *'' 
the deadlines specified in the CAA. EPA believes that the use of the 
same terminology in conjunction with the RACM requirement serves the 
purpose of specifying RACM as the way of expediting attainment of the 
NAAQS in advance of the deadline specified in the CAA. As stated in the 
``General Preamble'' (57 FR 13498 at 13560, April 16, 1992), ``The EPA 
interprets this requirement to impose a duty on all nonattainment areas 
to consider all available control measures and to adopt and implement 
such measures as are reasonably available for implementation in the 
area as components of the area's attainment demonstration.'' [Emphasis 
added.] In other words, because of the construction of the RACM 
language in the CAA, EPA does not view the RACM requirement as separate 
from the attainment demonstration requirement. Therefore, EPA believes 
that the CAA supports its interpretation that measures are not RACM if 
they do not advance the attainment date. In addition, EPA believes that 
it would not be reasonable to require implementation of measures that 
would not in fact advance attainment (see 57 FR 13560). EPA has 
historically taken this interpretation and consistently implemented it 
through guidance since 1979 (see 44 FR 20372, 20375, April 4, 1979).
    The term ``reasonably available control measure'' is not actually 
defined in the CAA. Therefore, the EPA interpretation that potential 
measures are not to be RACM if they require an intensive and costly 
effort for numerous small area sources is based on the common sense 
meaning of the phrase, ``reasonably available.'' A measure that is 
reasonably available is one that is technologically and economically 
feasible and that can be readily implemented. Ready implementation also 
includes consideration of whether emissions from small sources are 
relatively small and whether the administrative burden, to the States 
and regulated entities, of controlling such sources was likely to be 
considerable. As stated in the General Preamble, EPA believes that 
States can reject potential measures based on local conditions 
including cost. 57 FR 13561.
    When EPA presented this statutory argument in support of its RACM 
policy to the U.S. Court of Appeals for the DC Circuit in defense of 
its approval of the Washington DC ozone SIP, the DC Circuit found 
reasonable EPA's interpretation that measures must advance attainment 
to be RACM. Sierra Club v. EPA, 294 F.3d 155, 162 (DC Cir. 2002). 
Specifically, the Court found that:

    EPA reasonably concluded that because the Act `use[s] the same 
terminology in conjunction with the RACM requirement' as it does in 
requiring timely attainment, compare 42 U.S.C. 7502(c)(1) (requiring 
implementation of RACM `as expeditiously as practicable but no later 
than' the applicable attainment deadline), with id. Sec.  7511(a)(1) 
(requiring attainment under same constraints), the RACM requirement 
is to be understood as a means of meeting the deadline for 
attainment.

Id. Moreover, the DC Circuit rejected, as a ``misreading of both text 
and context,'' Sierra Club's arguments that EPA's interpretation of 
RACM conflicts with the Act's text and purpose and lacks any rational 
basis.
    Also, LDEQ's analysis indicates that the development of rules for a 
large number of very different source categories of small sources for 
which little control information may exist will likely take much longer 
than development of rules for source categories for which control 
information exists or that comprise a smaller number of larger sources. 
It is less likely that the emission reductions from such additional 
rules in the nonattainment area would advance the attainment date more 
than emission reductions achieved from controls on major stationary 
sources, mobile sources, and federal rules in the Baton Rouge area. 
Thus, it is of greater value and more expeditious for the State to 
expend the administrative effort and costs to pursue larger reductions 
from a smaller number of sources.
    When EPA presented this statutory argument in support of its RACM 
policy to the DC Circuit in defense of its approval of the Washington 
DC ozone SIP, the DC Circuit also found reasonable EPA's interpretation 
that it could consider costs in a RACM analysis and that measures may 
be rejected if they would require an intensive and costly effort for 
regulation of many small sources. Sierra Club v. EPA, 294 F.3d at 162, 
163.
    Finally, the SIP does not, as the commenter claims, imply that the 
requirements of RACM in the CAA can be avoided in the nonattainment 
area based on the attainment modeling. The SIP merely notes that the 
attainment modeling along with the proposed NOX reductions 
from major stationary sources, mobile sources and federal rules are 
shown to be sufficient for the Baton Rouge area to meet the NAAQS for 
ozone by 2005, and that there are no additional RACM to advance the 
attainment date. We do not consider measures as RACM for the Baton 
Rouge area if they do not advance the attainment date, as recently 
upheld by the DC Circuit Court. We are still requiring the State to 
demonstrate that all local measures that are RACM are implemented as 
expeditiously as practicable.
    Comment 8: A commenter states that EPA cannot lawfully approve SIPs 
which lack rate of progress reductions for the full period by the CAA--
which includes not just the reductions required during the period up to 
November 15, 1999, but also 9% VOC reductions from November 15, 1999 to 
November 15, 2002, and another 9% reductions from November 15, 2002 to 
November 15, 2005. Another commenter states that the SIP must include 
reductions until the area achieves its attainment date. The commenter 
concludes that since the attainment date is extended, the reasonable 
further progress demonstration required in Section 182(c)(2)(B) must be 
included in any approvable SIP. A commenter asserts that the CAA does 
not allow for the revisions to the 15% ROPP, the 1990 Base Year 
Emission Inventory, nor the Post-1996 ROPP because the CAA does not 
allow ROPP reductions to occur outside the nonattainment area. 
Additionally, the commenter states that in order for Louisiana to take 
credit for the emission reductions outside the nonattainment area the 
State must prove that the reductions would result in actual reductions 
in ozone within the attainment area. The commenter concludes that LDEQ 
did not specifically model emissions reductions from Trunkline and 
therefore should not be allowed to include these credits in its ROPP. 
Finally, the commenter argues

[[Page 61795]]

that the reductions have already occurred and since the area remains in 
nonattainment after these reductions then the reductions obviously are 
not going to solve the ozone problem and can not be considered 
progress. The commenter also incorporates by reference comments 
submitted by LEAN on EPA's proposed approval of Louisiana's contingency 
measures dated May 20, 2002.
    Response 8: EPA's guidance did not interpret the period of time 
after granting the attainment date extension based on transport as 
requiring additional rate of progress increments from the downwind 
area, since we determined that the reason the area had not attained was 
due to upwind transport. Consistent with the purposes of the attainment 
date extension policy, EPA believes it would be inequitable to require 
areas in which attainment is affected by transport to meet additional 
local ROPP requirements. EPA believes it would be unreasonable to 
require the downwind area into such progress requirement reductions 
from local sources, when the combination of local reductions with 
upwind area source emission reductions is what will bring the area into 
attainment. In any event, to the extent that it should be determined 
otherwise, and that any ROPP required should be imposed on the downwind 
area, this would not be required until EPA grants the attainment date 
extension and provides the area with a later attainment date. Since the 
requirement was not previously due, fulfilling the requirement, if any 
is deemed to exist, is not a condition of receiving the attainment date 
extension. Responses to Louisiana's contingency measures are being 
addressed in the Federal Register final action for that component of 
the SIP.
    In reference to the comment concerning the modeling of the emission 
reductions from Trunkline, the commenter is referred to the above 
mentioned December 29, 1997, EPA guidance document. Pages 5 and 6 of 
the guidance document discuss EPA's guidance on ROPP. EPA's guidance 
``* * * only requires that an area in nonattainment for the 1-hour 
NAAQS should be allowed to take credit for emissions reductions 
obtained from sources outside the designated nonattainment area for the 
post-1999 ROP requirement as long as the sources are no farther than 
100 km (for VOC sources) or 200 km (for NOX sources) away 
from the nonattainment area.'' The guidance does not indicate that 
modeling of ROPP emissions should be conducted for EPA to allow the use 
of ROPP emissions within 100km (VOC) and 200km (NOX) of the 
nonattainment area. Trunkline's emissions changes are included in the 
overall modeling analysis, and the results show that emission 
reductions are necessary in the surrounding attainment parishes for the 
Baton Rouge nonattainment area to demonstrate attainment. Domain-wide 
modeling, rather than source specific modeling of facility emission 
changes such as Trunkline's, is used to tell us what level of 
reductions are needed for the nonattainment area to demonstrate 
attainment.
    Comment 9: One commenter asserts that EPA cannot lawfully approve 
SIPs that lack contingency measures. The commenter further states that 
as shown in the commenter's Sierra Club v. EPA briefs, contingency 
measures must be additional measures that activate in the event of a 
contingency, not surplus reductions from measures being implemented 
anyway (e.g., as part of the attainment rate-of-progress SIP). Sierra 
Club, 294 F.3d at 164; Opening and Reply Briefs of Sierra Club in 
Sierra Club v. EPA, DC Cir. 01-1070, at Part IV.
    Response 9: EPA has found the contingency measures in the SIP to be 
surplus, permanent and federally enforceable. EPA is approving these 
contingency measures in a separate action which published in the 
Federal Register on September 26, 2002. See EPA's final action on the 
contingency measures for responses to related comments.
    Comment 10: A commenter states that EPA should not withdraw its 
June 24, 2002, rulemaking determining that Baton Rouge was in 
nonattainment and reclassifying it from ``serious'' to ``severe'' 
because to do so would be against both the plain language of the CAA 
and Congressional intent.
    Response 10: EPA is withdrawing its June 24, 2002, rulemaking 
relating to the Baton Rouge reclassification based on Louisiana 
fulfilling EPA's attainment date extension policy and EPA's approval of 
their attainment demonstration and transport SIP. See related responses 
on EPA's attainment date extension policy above.
    Comment 11: The commenter indicates that it is a poor idea to adopt 
contingency measures that require emission reductions outside the 
nonattainment area.
    Response 11: The CAA gives the states considerable latitude and 
discretion in adopting state implementation plans. The CAA also 
recognizes that addressing ozone nonattainment within a given area may 
involve regulation of emissions from sources outside of the 
nonattainment area. See CAA sections concerning international pollution 
(42 U.S.C. 7415), interstate transport commissions (42 U.S.C. 7506a), 
and interstate pollution abatement (the so-called ``good neighbor'' 
section, 42 U.S.C. 7426). Since a state may petition the EPA to 
regulate sources beyond the state's boundaries in order to address a 
nonattainment area within the state, the state is certainly free to 
regulate precursor emissions outside the nonattainment area, but still 
within the state, that impact the nonattainment area. Furthermore, LDEQ 
did conduct a modeling sensitivity run (Run LA-1) to evaluate the 
effectiveness of a 30% NOX reduction in low-level and 
elevated sources in Grid D. This modeling sensitivity run demonstrated 
that additional reduction in the simulated ozone concentrations and 1-
hour ozone exceedance exposure within the 5 parish nonattainment area 
is obtained from NOX emission reductions within Grid D from 
parishes that are outside the nonattainment area.
    Comment 12: One commenter suggests that the Classification and 
Regression Tree (CART) analysis does not demonstrate that there is a 
significant problem with ozone transport. Another commenter indicated 
that the state used an insufficient amount of data (5 years vs. 20 
years) in determining the ranking system to calculate expected ozone 
exceedances (ExEx), leading to uncertainty about the reliability of the 
conclusions reached based on these data.
    Response 12: The CART analysis was conducted to support the episode 
selection portion of the Baton Rouge local modeling analysis. The CART 
analysis that was done for the local modeling analysis was not 
specifically designed to identify regional transport conditions. In 
addition to a transport analysis, the attainment demonstration must 
address whether or not local measures are needed for attainment. If the 
attainment demonstration indicates that local control measures are 
required, the demonstration must quantify the level of the needed local 
emission reductions. For the local portion of the attainment 
demonstration, the episodes modeled were to be primarily ``home-
grown,'' rather than dominated by transport. Thus, the meteorological 
and air quality data used in the CART analysis to characterize 
potential modeling episodes were all local Baton Rouge data. (The only 
non-Baton Rouge data was the upper air data obtained from near-by 
Slidell, Louisiana, which has the closest radar profiler.) This 
particular CART analysis did not consider other parameters that may 
have been more indicative of regional

[[Page 61796]]

transport (e.g. surface winds at Calcasieu, Lafayette, etc.).
    Although the use of local Baton Rouge data alone is not sufficient 
to fully characterize regional transport conditions in Louisiana and 
neighboring states, the CART analysis approach was a component relied 
upon, to demonstrate the frequency of transport. Meteorological and air 
quality data for a five-year period (1996-2000) were also characterized 
and analyzed. The results indicated that 7 percent of the Baton Rouge 
exceedance days (i.e., 2 out of 28 exceedance days) were potentially 
associated with transport of ozone and/or precursor pollutants from the 
Houston area. EPA believes these data demonstrate a sufficient impact 
from Houston to satisfy the criteria of our attainment date extension 
policy. Another CART analyses of frequently occurring meteorological 
conditions during ozone exceedances for a 10 year period (1989-1998) 
indicated that a ``Gulf-High'' regime was associated with 30% of the 
Baton Rouge exceedance days during that period. A ``Gulf-High'' existed 
in the modeled August 19, 1993 episode. This modeling demonstrated that 
transport of emissions from the Houston area to the Baton Rouge area. 
The impact from the Houston area upon the Baton Rouge area's ozone 
concentration was 2-6 ppb.
    We disagree that the State used insufficient data in determining 
the ranking system. The CART analysis approach to characterizing 
episodes and ranking them on the basis of severity is an alternate 
approach that has been accepted by EPA for other 1-hour ozone SIP 
modeling applications. These include Atlanta, Georgia, Birmingham, 
Alabama, and Louisville, Kentucky. The approach provided in EPA 
guidance (Cox and Chu) uses meteorological data of a twenty-year 
record. Under the same meteorological conditions, expected ozone 
concentrations would possibly be very different if the magnitude or 
ratios of the VOC and NOX emissions are different. Over the 
last 20 years the effect of Federal and state regulations have resulted 
in changes in ratios/quantities of VOC and NOX anthropogenic 
emissions in the Baton Rouge area. Thus, the CART approach applied in 
the Baton Rouge SIP modeling analysis takes into account only the most 
recent 5 years of data. This approach is followed in an attempt to 
avoid potential complications inherent in assessing correlations 
between meteorological conditions and the observed concentrations when 
a major influencing variable (i.e. emissions inventory) has likely 
changed over a longer period, such as twenty years.
    Comment 13: The ``gulf-high'' conditions associated with transport 
do not demonstrate that the Baton Rouge area is suffering from 
transport from the Houston-Galveston area.
    Response 13: We disagree. The August 19, 1993, episode was a 
``Gulf-High'' regime day, and the modeling results demonstrated that 
the Houston area significantly contributed to the Baton Rouge area. 
This modeling showed an impact of 2-6 ppb on ozone concentrations in 
the Baton Rouge area. CART analysis approach also characterized this 
episode as ``Gulf-High'' regime. We agree that the relative positioning 
of the center of the high pressure zone in the Gulf of Mexico as well 
as the strength of circulation winds determine whether or not transport 
from the Houston area occurs and the level of impact of the transported 
emissions when transport occurs. Because of these 
considerations,transport from Houston to Baton Rouge does not always 
occur under all conditions labeled ``gulf-high''.
    Even so, the important point is that on many exceedance days, the 
Baton Rouge and surrounding areas have experienced meteorological 
conditions under which transport from Houston could have contributed to 
the exceedance. Some 30% of the exceedances in a ten-year period, and 
some 7% of the exceedances in a 5-year period, were associated with 
``Gulf-High'' days. It is reasonable to conclude that some appreciable 
portion of the gulf-high days were conducive to transport from Houston.
    Similarly, other meteorological regimes may be conducive to 
transport from Houston. These include ``coastal return'' days and 
``continental high'' days as discussed further in the Technical Support 
Document. These meteorological regimes may also allow for transport 
from Houston. Because they are common regimes, it is reasonable to 
assume that some occurred on exceedance days. Further, it is reasonable 
to assume that on some of those days, transport from Houston occurred.
    This information concerning the meteorological regimes must be 
considered together with modeling that specifically identifies 
transport from Houston, as discussed elsewhere.
    Accordingly, although the data is insufficient to quantify 
specifically the number of exceedance days with meteorological regimes 
conducive to transport from Houston, and the number of days in which 
transport from Houston actually occurred, EPA believes that the data is 
sufficient to support a conclusion that transport from Houston occurred 
frequently enough, since the Baton Rouge area is only allowed 3 
exceedances in a 3-year period, to adversely affect the area's ability 
to attain. Thus for Baton Rouge to attain, controls in Houston area, as 
well as in Louisiana, are necessary. Louisiana has demonstrated that 
during some Baton Rouge area exceedances, ozone levels are influenced 
by emissions from the Houston area, and that the Houston area emissions 
affect the Baton Rouge area's ability to meet attainment of the 1-hour 
ozone standard by November 15, 1999.
    Comment 14: Modeling used by the State (based on August 19, 1993) 
does not demonstrate that the Baton Rouge area is suffering from ozone 
transport. Another commenter indicated that EPA's own data do not show 
a significant effect on Baton Rouge from Houston's air pollution.
    Response 14: We disagree. The August 19, 1993, modeling results 
demonstrated that the Houston area significantly contributed to the 
Baton Rouge area. This modeling showed an impact of 2-6 ppb on ozone 
concentrations in the Baton Rouge area when the Houston area emissions 
are zeroed out. A ``Gulf-High'' existed during the modeled August 19, 
1993 episode. The August 1993 episode occurred during the Gulf of 
Mexico Air Quality Study (GMAQS) field program and the modeling of that 
episode benefitted from intensive, enhanced ground level, upper-air, 
and aircraft measurements. The episode consisted of a ramp up day on 
August 18th and a primary episode day on August 19th. Due to the 
influence of the initial and boundary conditions, EPA guidance does not 
recommend the State to take the ramp-up day (i.e., August 18th) into 
consideration in developing a control strategy. The observed regional 
conditions, including the additional meteorology measurements from the 
field study, during this period were found to be conducive for 
potential transport of pollutants from the Houston area to the Baton 
Rouge 5-parish nonattainment area. CART analyses indicate that 
transport conditions have occurred historically and one episode (the 
August 19, 1993) has been modeled to demonstrate transport.
    In addition, a modeling run was conducted for a period in 1997 (8/
30-31) in which not only Houston area emissions, but also Beaumont 
Port-Arthur emissions were zeroed out. This run indicated impacts from 
the zero-out in a north-northeasterly direction from southeast Texas, 
with a 10 ppb impact in Little Rock which is approximately

[[Page 61797]]

twice the distance from southeast Texas to Baton Rouge. The run lends 
support to the conclusion that Houston contributes to exceedances in 
the Baton Rouge area. A relatively small shift in the direction of the 
winds during the period modeled may have resulted in a bigger impact in 
the Baton Rouge area, which supports the conclusion that some of the 
exceedances in the Baton Rouge area experienced contributions from 
Houston. The commenter refers to EPA's ``own data'' in the proposed 
notice where it states that 7% of the ozone exceedances in a five year 
period were associated with ``gulf-high'' met regime with high level 
westerly winds. This statement was derived from the Baton Rouge SIP's 
record. It is only one component of the information that EPA has looked 
at in determining that the Baton Rouge area is impacted by transport 
for Houston area emissions. EPA has made a judgement that the frequency 
of occurrence for transport of Houston's air pollution is significant 
enough to be of concern in Baton Rouge. Baton Rouge's ability to attain 
is affected by the impact on it from the Houston area, as documented 
above. For further information, see the Technical Support Document and 
the State's submittals.
    Comment 15: Table 1-3 of Louisiana's SIP shows that the model 
drastically over-predicts the amount of ozone that was actually formed 
on August 18 and 19, 1993, in the Baton Rouge area based upon the 
``Unpaired accuracy of the peak concentration'' metric.
    Response 15: The model does not drastically over-predict taking 
into account all of the metrics and graphics. Unpaired accuracy of the 
peak concentration is just one of the metrics used to evaluate model 
performance and the August 18 day is the only day outside the EPA 
guidance value of +/-20 percent. The August 18 day was the model ramp-
up day and the August 19 day was the primary episode day. As previously 
noted, due to the influence of the initial and boundary conditions, EPA 
guidance does not recommend the State to take the ramp-up day (i.e., 
August 18th) into consideration in developing a control strategy. The 
August 19 day is within the EPA guidance value for this metric. This 
metric is a domain wide peak and the model may be predicting for the 
August 18 day, a peak at a location that did not have a monitor. 
Another metric evaluated is the Normalized Bias, which measures the 
model's ability to replicate observed patterns during the times of day 
when available monitoring and modeled data are most likely to represent 
similar spatial scales. The EPA guidance value for Normalized Bias is 
+/-15 percent and the values for the August 18 and 19 days are -1.9% 
and -0.2%. This indicates that the model is doing a very good job in 
predicting concentrations similar to the observed monitored 
concentrations. For further analyses that support approval of this 
episode (without the zero out run), EPA utilized the Technical Support 
Document (June 1996) and submittals from LDEQ for the previous 
attainment demonstration SIP. EPA relied upon the complete package of 
analyses submitted by LDEQ in approving the Baton Rouge SIP.
    Comment 16: One commenter asserts that the model over predicts 
ozone and that this error could be due to errors in the models input 
that also produce a result of transport from Houston to Baton Rouge. 
The commenter then indicates that this is only one possible 
interpretation for the over-prediction of the modeled ozone values.
    Response 16: The August 1993 episode occurred during the Gulf of 
Mexico Air Quality Study (GMAQS) field program and the modeling of that 
episode benefitted from intensive, enhanced ground level, upper-air, 
and aircraft measurements. The observed regional conditions during this 
period were found to be conducive for potential transport of pollutants 
from the Houston area to the Baton Rouge 5-parish nonattainment area. 
It occurred in the ``Gulf-High'' regime, and the results demonstrate 
that emissions from the Houston area are to contributing significantly 
to the Baton Rouge area exceedances. The modeling runs removing all of 
the anthropogenic emissions in the Houston area showed significant 
changes in ozone concentration in the Baton Rouge area. The 
meteorological model showed that some air masses were coming from the 
Houston area. Therefore the meteorological modeling indicated that some 
air masses, and their pollution concentrations, were transported from 
the Houston area to the Baton Rouge area during this 1993 episode. The 
fact that the 1993 modeling is predicted ozone concentrations in the 
domain that are higher than the monitored values does not lead to a 
conclusion that there is an error in the modeling that would result in 
an erroneous determination in the magnitude of the impact of transport 
from Houston to Baton Rouge. Where there are monitors, the modeling has 
predicted comparable ozone concentrations for the overall Grid D 
domain. The modeling indicated ozone concentrations higher than values 
monitored in the Grid D domain in grid cells where monitors did not 
exist. It is not unusual for modeling to generate higher values in grid 
cells without monitors, since there are many more grid cells without 
corresponding ozone monitored values than there are grid cells with 
monitored values. This is an artifact of modeling and does not, in any 
way, mean that the transport modeling over-predicts the impacts.
    Comment 17: One commenter indicates that the SIP erroneously 
indicates that the modeling results indicate that the Houston area has 
an impact on the Baton Rouge design value as high as 6 parts per 
billion (ppb). The expected impact on the design value can only be the 
average impact contributing to transport not the maximum value.
    Another commenter said that even subtracting the State's estimate 
that between 2 and 6 parts per billion of ozone is being transported 
from Houston, the Baton Rouge area is still in nonattainment and 
therefore not sufficiently ``affected by transport'' to qualify for an 
extension. This commenter then went on to say that Louisiana has 
indicated that if the 2-6 ppb were taken into account that Baton Rouge 
would be in attainment, which is not correct.
    Response 17: The 2-6 ppb is a range of potential influence that was 
estimated based on one set of meteorological conditions. The effect of 
the 2-6 ppb from transport indicated by the August 19, 1993, modeling 
impacts upon the current 1-hour design value is difficult, if not 
impossible, to infer. To use the average impact, as the commenter 
indicates, or to analyze the exact impact of transport of Houston area 
emissions/ozone on the Baton Rouge design value would be misleading and 
inappropriate. The ozone design value is driven by the 4th high value 
recorded at a monitor within a 3 year period. The monitored values are 
impacted by transport some of the time, so it is safe to conclude that 
the monitored values that drive the design value also are affected by 
transport some of the time (Please see other related responses to 
comments for more details on the transport discussion). To this extent 
the design value is impacted. The commenter is correct that the Baton 
Rouge area showed it needed additional local NOX emission 
reductions to attain; therefore, even eliminating the transported 
emissions from Texas would not bring the Baton Rouge area into 
attainment. That the Baton Rouge area needs local emission reductions 
to attain, does not mean that the area is not impacted by transport 
from Houston or that the area does not satisfy the criteria of our 
attainment date extension policy.

[[Page 61798]]

    Comment 18: Louisiana shouldn't be using the BEIS2 data to set 
biogenic emissions. These data are known to be incorrect. Once the 
BEIS2 data are used the computer model will always give the result that 
controlling NOX will be preferable to controlling 
hydrocarbon emissions. This is an artifact of BEIS2 data and is not an 
accurate reflection of reality. The commenter included references to 
two reports and indicated that BEIS2 is inaccurate and should have not 
been used for the attainment demonstration. The commenter then 
requested that a new attainment demonstration be made using more 
accurate biogenics data.
    Response 18: BEIS2 is the EPA-approved method for estimating 
biogenic emissions. Louisiana followed EPA's guidelines while applying 
BEIS2. At the time that LDEQ conducted the modeling, the BEIS-2 model 
was (and remains) the EPA-recommended model for developing biogenic 
emission estimates for 1-hour attainment demonstration SIP modeling. 
The report Biogenic Sources Preferred Methods, May 1996, indicates that 
BEIS-2 is the model recommended to be used for estimating biogenic 
emissions at the time the emissions were being developed for the Baton 
Rouge SIP modeling. Although EPA is currently developing a third 
version of the model (BEIS-3), it has not been given to the public for 
use in formal SIP modeling applications. However, in recent discussions 
with EPA developers, all indications are that the magnitude of the 
emissions will likely change very little with BEIS-3 compared to the 
large changes encountered between BEIS and BEIS-2. Small changes in the 
magnitude of biogenic emission estimates would not significantly change 
the overall strategy contained in the Baton Rouge area ozone SIP. BEIS-
2 was also used to support the recent 1-hour ozone attainment 
demonstration SIP modeling for Atlanta, Georgia and Birmingham, 
Alabama. The two reports that the commenter lists seem to indicate some 
potential issues for refinement in the state-of-science of estimating 
biogenic emissions. The state-of-the-science continues to improve in 
multiple areas of ozone modeling, and the regulatory authorities have 
to use the best tools at the time to perform ozone modeling. It is 
unrealistic to require the use of modeling tools (i.e., BEIS3) that 
become available after the modeling was initially conducted and 
formally submitted for approval.
    Comment 19: On commenter states that Louisiana relies on computer 
modeling to determine that only NOX controls, and not 
stationary VOC source controls, will advance attainment in the Baton 
Rouge area. This position is a change from only six years ago when EPA 
approved Louisiana's SIP that relied on computer modeling results to 
avoid the very NOX control requirements of Section 182(c), 
that are now being touted as the only solution. While computer modeling 
can be used for general conclusions on potential strategies, it should 
not be relied upon to release industries with controllable emissions 
from the requirements of 172(c)1.
    Response 19: EPA disagrees with the commenter's assertion that LDEQ 
used computer modeling to release industries from the requirements of 
section 172(c)(1) of the Act. The state-of-the-science of ozone 
modeling, both the modeling tools and the understanding of how ozone is 
generated, continues to evolve. Louisiana's current SIP control 
strategy is a direct result of these types of improvements. Louisiana 
conducted numerous sensitivity runs and they showed that additional VOC 
controls were not very beneficial and that NOX controls were 
beneficial in reducing ozone concentrations in the Baton Rouge area. 
Computer modeling is routinely utilized to determine if control 
strategies are beneficial and also to rank control strategies based on 
resulting decreases in ozone.
    When EPA granted Louisiana NOX exemptions under section 
182(f) of the Act on January 26, 1996 (61 FR 2438), EPA reserved the 
right to reverse the approval of the exemptions if subsequent modeling 
data demonstrated an ozone attainment benefit from NOX 
emission controls. Photochemical grid modeling recently conducted for 
the Baton Rouge area SIP indicates control of NOX sources 
will help the area attain the ozone NAAQS. Louisiana therefore 
requested that the EPA rescind the NOX exemption based on 
this new modeling on September 24, 2001. In our proposed approval of 
the rescission of the NOX waiver (May 7, 2002, 67 FR 30638), 
we stated that we believed that the State had adequately demonstrated 
that additional NOX reductions would contribute to 
attainment of ozone NAAQS. Louisiana is not the only state that has 
requested that the EPA rescind its NOX waiver based on 
updated photochemical grid modeling information. Seven years elapsed 
between the LDEQ's previous modeling demonstration that additional 
NOX reductions would not contribute to area attainment, and 
the most recent modeling events demonstrating that additional 
NOX reductions would help the Baton Rouge area attain. As 
noted above, pollution control technology, including air modeling, is a 
dynamic and evolving field. The model used by LDEQ to support its 
request for approval of the NOX waiver in 1996 was Urban 
Airshed Model (UAM) IV, which was an EPA-approved photochemical grid 
model. The model used by LDEQ to support its recent request for 
rescission of the NOX waiver was UAM V, a more recently EPA-
approved Photochemical Grid Model. This represents a significant 
refinement in modeling technology.

Comments From LAGen

    Adverse comments on our proposed approval for the Baton Rouge SIP 
were also received from LAGen. The commenter supports EPA's proposal to 
approve the attainment demonstration, extend the attainment date and 
withdraw the reclassification, however, they take exception to the 
proposed Control Strategy Element in the SIP's Section 4.2.1., 
``Permitting of NOX Sources.'' The commenter contends that 
these SIP revisions could effectively and unnecessarily result in the 
imposition of the equivalent of a nonattainment rule in an attainment 
area without first promulgating a rule to establish and implement the 
new requirements. The commenter also provides detailed comments 
concerning the SIP revisions. The following are a summary of those 
detailed comments and EPA's responses.
    Comment 20: The commenter requests that EPA not approve Section 
4.2.1 of the SIP revisions, which describes the permitting of sources 
of NOX in Louisiana. Although the commenter fully supports 
Louisiana's newly promulgated NOX RACT regulations, the 
commenter contends that Section 4.2.1 results in the imposition of 
nonattainment rules in an attainment area without the required 
opportunity for notice and comment rulemaking. The commenter argues 
that EPA's rules applicable to approval of SIP revisions requires 
public notice of such provisions and prohibits EPA from approving 
components of SIP revisions that were neither noticed to the public nor 
prepared in accordance with state law. The commenter contends that 
Section 4.2.1 constitutes an unlawful delegation of legislative 
authority under state law because LDEQ did not provide proper 
opportunity for public notice and comment of this section of the SIP. 
The commenter also contends that approval of Section 4.2.1 would impose 
additional and significant requirements beyond those currently required 
by state law and that EPA's approval of this provision is an ``action 
concerning regulations that significantly affect

[[Page 61799]]

energy supply, distribution or use.'' The commenter also claims that 
EPA's approval of Section 4.2.1 constitutes a ``significant regulatory 
action'' and an ``unfunded mandate.'' Therefore, according to the 
commenter, EPA's approval of Section 4.2.1 requires review by the 
Office of Management and Budget.
    Response 20: EPA disagrees with the commenter's characterization of 
Section 4.2.1 of the SIP. As noted in its plain language, Section 4.2.1 
is not intended as new policy or guidance. We disagree with the 
commenter's interpretation that Section 4.2.1 of Louisiana's SIP 
imposes nonattainment rules in an attainment area. Section 4.2.1 
provides the State's acknowledgment of the requirements of sections 
110(j) and 165(a)(3) of the Act, which prohibit the permitting of 
emissions from the construction or operation of sources that will 
cause, or contribute to, air pollution in excess of any national 
ambient air quality standard in any air quality control region, or any 
other applicable emission standard or standard of performance under the 
Act. Thus, Section 4.2.1 is a recitation of existing requirements under 
state and Federal law. This action merely approves state law as meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by state law. This action is not a ``significant 
regulatory action,'' nor is it an ``unfunded mandate.'' Therefore EPA's 
approval of the SIP, including Section 4.2.1, 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, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).
    EPA also disagrees with the commenter regarding public 
participation. LDEQ provided notice of the SIP revisions in several 
area newspapers and in the Louisiana Register on October 20, 2001 
(Louisiana Register, Vol. 27, No. 10). LDEQ also conducted a public 
hearing November 26, 2001, at which a representative from LAGen was 
present. Any changes made to section 4.2.1 before LDEQ submitted the 
SIP to EPA for approval were made in response to comments LDEQ received 
on its proposed SIP revisions and do not add any new requirements under 
state or federal law. EPA believes LDEQ properly followed the 
requirements under state law and under 40 CFR Part 51 in promulgating 
these SIP revisions. For additional information about the permitting of 
NOX sources, please see EPA's recent approval of Louisiana's 
NOX RACT regulations and revisions to Louisiana's 
nonattainment New Source Review program. For these reasons, EPA is 
approving the SIP as submitted.
    Comment 21: LAGen indicated that it is very difficult to evaluate 
the UAM-V modeling in regard to emissions inputs rendering the 
regulated community without direct access to the inputs on a facility 
by facility basis prior to submission of the SIP revisions. Louisiana 
Generating indicated that they were not previously able to review 
emission values assigned to individual facilities to evaluate the 
inputs. Since the submission of the SIP Revisions, LAGen has been 
informed that the inputs, or base case inventory, included 
approximately 4,000 tons per year (TPY) of NOX emissions 
that did not exist during the base case year and much of which may not 
be available for use as emission reduction credits. In addition, the 
model inputs included an inflated value of approximately 6,600 TPY of 
VOC emissions and probably the majority of these will not be 
creditable. The use of inflated emissions values in the modeling raises 
the question of whether the results support all of the control 
strategies and especially permitting.
    In another section of its comment letter, LAGen indicated that the 
base year inventory used as emissions data inputs for modeling of the 
Baton Rouge area is believed to be considerably inflated (4,000 TPY of 
NOX and 6,600 TPY of VOC) through inclusion of emissions 
that were eliminated in years before the modeling took place. LAGen 
claims that the year chosen for inclusion of facility by facility 
emissions data resulted in inflated emissions values. Therefore, the 
results of modeling exercises are overestimated and the Control 
Strategies chosen are based on inflated episode values rendering 
portions of the SIP revisions more stringent than justified by the 
data. As submitted to EPA, the State's Attainment Plan/Transport SIP 
unnecessarily punishes primarily undeveloped parishes in the Region of 
Influence by limiting their economic development options through the 
requirement to provide offsets.
    Response 21: We disagree. The State provided public notice and a 
hearing to receive comments on all aspects of the attainment 
demonstration SIP modeling, including the inventories and approaches 
used to develop them. As required, the State must make all of these 
materials available to the public upon request. Moreover, all modeling 
inputs as well as modeling processes used in the State attainment 
demonstration SIP were presented and discussed at the monthly Technical 
Oversight Committee meetings, which included representatives from 
private industries, local citizens, State, EPA, etc. EPA understands 
that the State has made all model inputs available to the public for 
review and comment. In addition, the State instructed it's modeling 
contractor to provide the public access to this information.
    Comment 22: LAGen indicated that the inputs for the modeling 
include overestimated NOX emissions and VOC emissions. LaGen 
further stated that these ``excess'' emissions will not be available 
for use as offsets and should not have been included in the model.
    Response 22: LAGen did not provide any explanation of how the 
values provided were derived and what is the source of these 
``inflated'' emissions. The basecase emission inventory inputs, as well 
as the meteorological inputs, were utilized to replicate historical 
ozone exceedance episodes. The State used emission inventories that 
were acquired from the LDEQ annual emission inventory submittal from 
the industrial facilities themselves, and various local, state, and 
federal agencies. As required, the State has made all these information 
available to the public upon request. LDEQ also utilized other sources 
for the SIP modeling that were developed with EPA approved emission 
modeling tools or techniques. Once the base case UAM-V modeling were 
completed, these emission inventories were then projected to a future 
year for the development of an emission control strategy. As outlined 
by EPA guidance and procedures, LDEQ's projected emission inventories 
accounted for future growth and control. Specifically, LDEQ included 
the change in emissions due to emission offsets, emission controls, 
emission growth, and emission reduction credits. While the claimed 
4,000 TPY of NOX is a sizeable amount of emissions, it is 
only equivalent to approximately 2% of the Grid D domain total 
NOX emissions on a daily basis. Sensitivity modeling runs 
indicated that a decrease in VOC emissions of 30% domain wide, would 
only result in a few ppb change. The commenter indicated that the 
basecase inventory was inflated by 6,600 TPY of VOC, which corresponds 
to approximately 1% of the Grid D domain. Therefore, if excess 
emissions at the levels the commenter indicated were included in this 
modeling, the resulting change in the domain's ozone values would 
likely be in the ``noise'' of the model.
    Comment 23: LAGen also indicated that the inflated emission inputs 
resulted in overestimation in the model, which resulted in more 
NOX controls

[[Page 61800]]

than are actually needed and, therefore, LDEQ should not need to obtain 
offsets for ``new'' sources in the surrounding area.
    Response 23: The commenter's conclusion is based upon the 
underlying premise that the model overestimates emissions, and results 
in an over prediction of ozone concentrations. Furthermore, the 
commenter's remark that the year chosen for facility emissions in the 
basecase modeling is not representative of today's emission levels is 
inaccurate. The purpose of the basecase modeling is to use an emission 
inventory that reflects the facility's emissions during the ozone 
episode being modeled (1997 and 1999), not current day (2002) emission 
levels. To use 2002 emission levels would not be appropriate for 1997 
and 1999 episodes. The model inputs represent the best estimates that 
reflect actual emissions, taking into account requirements for 
``banked'' reductions potentially available for future offsets. The 
modeled results demonstrated attainment for two of the three episodes 
and the other episode used weight of evidence. For most of the days 
modeled in the three episodes the modeling seemed to under predict at 
paired monitor vs. observed values. The ``Average Accuracy of the 
Peak'' the ``Normalized Bias'' metrics seem to indicate that the model 
was either less that 3% over or was under predicting within the Grid D 
domain for most of the modeled days of the three episodes (20 out of 25 
days for the Average Accuracy of the Peak and 19 out of 25 days for the 
Normalized Bias). Both of these metrics compare monitored values with 
modeled values to evaluate the model performance. Model runs conducted 
by LDEQ clearly demonstrated the impact of large increases in ``new'' 
emissions in the area of influence. Such increases, without a one-to-
one offset, clearly impacted the attainment demonstration. Furthermore, 
the state is free to adopt a more stringent control strategy if the 
state wishes (Section 116 of the CAA).

XII. What Action Is EPA Taking Regarding the State Submittals Addressed 
by This Final Rule?

    EPA is taking the following actions on the state submittals 
addressed by this final rule:
    1. EPA is approving the ground-level 1-hour ozone attainment 
demonstration SIP for the Baton Rouge, Louisiana, ozone nonattainment 
area.
    2. EPA is approving the State's Transport Demonstration and is 
granting the State's request for extension, and extending the date for 
attaining the 1-hour ozone standard to November 15, 2005, while 
retaining the area's current classification as a serious ozone 
nonattainment area.
    3. EPA is approving the 2005 on-road MVEBs for Louisiana. EPA is 
also approving Louisiana's enforceable commitment to revise its 2005 
MVEBs based on MOBILE6 within two years of its release. No conformity 
determinations will be made during the second year following the 
release of MOBILE6 unless and until the MVEBs have been recalculated 
using MOBILE6 and approved by EPA.
    4. EPA is approving an enforceable TCM.
    5. EPA is approving the revisions to the 1990 base year emissions 
inventory, the 15% ROPP, and the Post-1996 ROPP.
    6. EPA finds that the Baton Rouge area meets the requirements 
pertaining to RACM under the Act.
    7. EPA is approving Louisiana's enforceable commitment for a mid-
course review.
    8. EPA is withdrawing our June 24, 2002, rulemaking action entitled 
``Determination of Nonattainment as of November 15, 1999, and 
Reclassification.'' For the reasons stated above in the ``Background'' 
portion of this notice, EPA is making this final action immediately 
effective.

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 tribal implications because it will 
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 action also does not have Federalism 
implications because it does 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). This action 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 CAA. 
This rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (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 CAA. 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 CAA. 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. 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).

[[Page 61801]]

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 2, 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

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides.

40 CFR Part 81

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

    Dated: September 24, 2002
Gregg A. Cooke,
Regional Administrator, Region 6.

    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. The table in Sec.  52.970(e) entitled ``EPA Approved Louisiana 
Nonregulatory and Quasi-Regulatory Measures'' is amended by:
    a. removing the entries for: ``Revision to SIP, 15% ROP Plan;'' 
``Post-1996 ROP Plan;'' ``Attainment Demonstration for the 1-Hour Ozone 
NAAQS;'' ``1999 Motor Vehicle Emissions Budgets;'' and ``Revised 1990 
Base Year VOC Emissions Inventory'' and
    b. adding entries to the end of the table.
    The additions read as follows:


Sec.  52.970  Identification of Plan.

* * * * *
    (e) * * *

                       EPA Approved Louisiana Nonregulatory and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
                                       Applicable           State
      Name of SIP provision          geographic or     submittal date/   EPA approval date       Explanation
                                   nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Attainment Demonstration for the  Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 1-Hour Ozone NAAQS.                                                    FR 61786].
Ozone Attainment Date Extension   Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 to 11/15/05.                                                           FR 61786].
2005 Motor Vehicle Emissions      Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 Budgets.                                                               FR 61786].
Enforceable Transportation        Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 Control Measure Appendix F.                                            FR 61786].
Enforceable commitment to         Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 perform a mid-course review and                                        FR 61786].
 submit a SIP and revision by 05/
 01/04.
Post 1996 Rate of Progress Plan   Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 Revisions.                                                             FR 61786].
15% Rate of Progress Plan         Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 Revisions.                                                             FR 61786].
1990 VOC Base Year Inventory      Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 Revisions.                                                             FR 61786].
Reasonable Available Control      Baton Rouge, LA....      12/31/2001  October 2, 2002 [67   ...................
 Measure Analysis.                                                      FR 61786].
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. The amendment to Sec.  81.319 which published on June 24, 2002 
(67 FR 42688) and were revised on August 20, 2002 (67 FR 53882) to 
become effective on October 4, 2002, are withdrawn. The table in Sec.  
81.319 entitled ``Louisiana--Ozone (1-Hour Standard)'' is amended by 
revising the entry for the Baton Rouge area to read as follows:


Sec.  81.319  Louisiana.

* * * * *

                                                 Louisiana-Ozone
                                                [1-Hour Standard]
----------------------------------------------------------------------------------------------------------------
                                                    Designation                            Classification
         Designated area         -------------------------------------------------------------------------------
                                    Date \1\                  Type                   Date \1\         Type
----------------------------------------------------------------------------------------------------------------
Baton Rouge area:
    Ascension Parish............     11/15/90  Nonattainment.....................     11/15/90  Serious.
    East Baton Rouge Parish.....     11/15/90  Nonattainment.....................     11/15/90  Serious.
    Iberville Parish............     11/15/90  Nonattainment.....................     11/15/90  Serious.
    Livingston Parish...........     11/15/90  Nonattainment.....................     11/15/90  Serious.
    West Baton Rouge Parish.....     11/15/90  Nonattainment.....................     11/15/90  Serious.
 

[[Page 61802]]

 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000, unless otherwise noted.

* * * * *
[FR Doc. 02-24763 Filed 10-1-02; 8:45 am]
BILLING CODE 6560-50-P