[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Rules and Regulations]
[Pages 6570-6575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2961]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0014; FRL-9113-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Louisiana; Baton Rouge 1-Hour Ozone Nonattainment Area; Determination 
of Attainment of the 1-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA has determined that the Baton Rouge (BR) 1-hour ozone 
nonattainment area has attained the 1-hour ozone National Ambient Air 
Quality Standard (NAAQS). This

[[Page 6571]]

determination is based upon three years of complete, quality-assured 
and certified ambient air monitoring data that show the area has 
monitored attainment of the 1-hour ozone NAAQS for the 2006-2008 
monitoring period. Preliminary data for 2009 also indicate the area 
continues to attain the 1-hour ozone NAAQS.
    The requirements for this area to submit an attainment 
demonstration, a reasonable further progress plan, contingency 
measures, and other planning State Implementation Plan (SIP) 
requirements related to attainment of the 1-hour ozone NAAQS, are 
suspended for so long as the area continues to attain the 1-hour ozone 
NAAQS.

DATES: This final rule is effective March 12, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2009-0014. All documents in the docket 
are listed in the http://www.regulations.gov index. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays.
    Contact the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph below to make an appointment. If possible, please make the 
appointment at least two working days in advance of your visit. There 
will be a fee of 15 cents per page for making photocopies of documents. 
On the day of the visit, please check in at the EPA Region 6 reception 
area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Rennie, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7367, 
fax (214) 665-7263, e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA. This supplementary information section is 
arranged as follows:

I. What Action Is EPA Taking?
II. What Is the Effect of This Action?
III. Responses to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    We are determining that the BR 1-hour ozone nonattainment area is 
currently attaining the 1-hour ozone National Ambient Air Quality 
Standard (NAAQS). This determination is based upon complete, quality-
assured and certified ambient air monitoring data that show the area 
has monitored attainment of the 1-hour ozone NAAQS for the 2006-2008 
monitoring period. Preliminary data for 2009 also indicate that the 
area continues to attain the 1-hour ozone NAAQS and there were no 
monitored exceedances of the 1-hour standard at any monitor for this 
time period. Based on this determination, EPA is also determining that 
the requirements for this area to submit a severe attainment 
demonstration, a severe reasonable further progress plan (RFP), 
applicable contingency measures plans, and other planning State 
Implementation Plan (SIP) requirements related to attainment of the 1-
hour ozone NAAQS, are suspended for so long as the area continues to 
attain the 1-hour ozone NAAQS.
    The rationale for our action is explained in the Notice of Proposed 
Rulemaking (NPR) published on March 26, 2009 (74 FR 13166) and 
elaborated upon below in today's rulemaking. We received comments on 
the proposal which are addressed in this action.

II. What Is the Effect of This Action?

    Pursuant to our determination of attainment and in accordance with 
the interpretation of the Clean Air Act (CAA) set forth in our Clean 
Data Policy,\1\ the effect of the determination is that the following 
requirements to submit SIP measures under the 1-hour anti-backsliding 
provisions, addressed in 40 CFR 51.905 and in the Court's ruling in the 
South Coast case (See South Coast Air Quality Management District v. 
EPA, 472 F.3d 882 (DC Cir. 2006), are suspended for so long as the area 
continues to attain the 1-hour standard: a severe area attainment 
demonstration with its RACM demonstration and other associated 
elements; the severe RFP plan requirements; and serious and severe area 
contingency measures under sections 172(c)(9) and 182(c)(9).
---------------------------------------------------------------------------

    \1\ Our Clean Data Policy is set forth in a May 10, 1995 EPA 
memorandum from John S. Seitz, Director, Office of Air Quality 
Planning and Standards, entitled ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone Ambient Air Quality 
Standard.''
---------------------------------------------------------------------------

    If EPA subsequently determines, after notice-and-comment rulemaking 
in the Federal Register, that the BR area has violated the 1-hour ozone 
NAAQS, the basis for the suspension of the requirements would no longer 
exist, and EPA would take action to withdraw the determination and 
direct the area to address the suspended requirements.
    This action is limited to a determination that the BR area has 
attained the 1-hour ozone NAAQS, and the effect of such a determination 
on the obligation to submit specified 1-hour anti-backsliding 
requirements. It does not formally determine whether the area has 
attained the 8-hour ozone NAAQS. Nor does it address the 1-hour ozone 
anti-backsliding requirement for section 185 penalty fees or severe 
nonattainment new source (NNSR) review. In our proposal, we stated that 
EPA would address separately the status of 1-hour ozone anti-
backsliding requirements for section 185 penalty fees, based on the 
outcome of a future rulemaking in response to the South Coast decision. 
EPA has issued final guidance on 185 fees entitled ``Guidance on 
Developing Fee Programs Required by Clean Air Act Section 185 for the 
1-hour Ozone NAAQS'' (January 5, 2010). However, in today's rulemaking 
proceedings, EPA has not proposed and is not finalizing any action 
regarding the status of 1-hour section 185 fees requirements. As 
appropriate, EPA will undertake a separate action to address the status 
of 1-hour anti-backsliding requirements for section 185 fees program in 
the BR area. Regarding severe nonattainment new source review, the 
requirement may change after the area is redesignated and has an 
approved maintenance plan. Please note that the Louisiana PSD 
(Prevention of Significant Deterioration) SIP requirements would apply 
in the BR ozone area only upon the effective date of an EPA action 
approving the removal of the NNSR SIP program from the BR ozone SIP.

III. Responses to Comments

    EPA received five comment letters in response to the proposed 
rulemaking. The comment letters are available for review in the docket 
for this rulemaking. These comment letters were submitted by Tulane 
University's Environmental Law Clinic on behalf of the Louisiana 
Environmental Action Network (LEAN) (hereinafter LEAN), Louisiana 
Chemical Association (LCA),

[[Page 6572]]

BASF the Chemical Company (BASF), Shell Chemical Company (Shell), and 
the Baton Rouge Area Chamber (BRAC). LCA, Shell, BRAC and BASF 
expressed support for EPA's proposal to find BR is attaining the 1-hour 
standard and for EPA's proposal to suspend certain SIP requirements 
under EPA's Clean Data Policy. EPA summarizes and responds below to 
some additional comments submitted by LCA, and to adverse comments 
received from LEAN.
    LCA submitted the following additional comments:
    Comment: LCA asserted that the BR area also attained the 1-hour 
standard during the 2004-2006 time period, and EPA did not take action 
on the State's request that EPA make a clean data determination. LCA 
stated in its comments that it reserves the right to request a 
determination that the area actually attained the standard at an 
earlier time, contending that this would have potential consequences 
with respect to anti-backsliding measures that may be required.
    Response: The scope of this action is limited to a finding of 
attainment for the 1-hour ozone standard based on LDEQ's request for 
such a finding for the time period between 2006-2008, and continuing 
until the present. A determination of attainment for purposes of the 
clean data policy is based on the most recent three years of complete, 
quality-assured monitoring data, and its duration is conditioned on the 
area remaining in attainment. Any findings related to other historical 
periods are not relevant to today's rulemaking.
    Comment: LCA stated in its comments that it also reserves the right 
to request a determination that the BR area actually attained the 1-
hour ozone standard by the November 15, 2005 deadline.
    Response: The scope of this rulemaking is limited to a 
determination of attainment for the 1-hour ozone standard based on 
LDEQ's request for such a determination for the time period between 
2006-2008, and continuing until the present. In this rulemaking, EPA is 
not addressing the BR area's attainment status with respect to any 
other historical time period, or its status as of its 2005 attainment 
date.
    Comment: LCA contended that EPA can rely on a level of 90 ppb 
averaged on an 8-hour basis for ozone as being an equivalent level of 
protection to the 1-hour standard in the absence of any effective 1-
hour standard. LCA argues that, because the 1-hour standard was legally 
revoked during the time period at issue (as of November 2005) EPA 
rationally could look to the 8-hour data for the BR area and conclude 
that a design value of 90 ppb was equivalent to the revoked 1-hour 
standard.
    Response: LCA's comment addresses issues that are beyond the scope 
of this rulemaking. EPA has not made a finding that 90 ppb averaged on 
an 8 hour basis is equivalent to 120 ppb averaged on a 1-hour basis. 
This action considers only whether the area has attained the 1-hour 
ozone standard of 120 ppb (or 124 ppb when rounding is considered), 
based on monitoring data for that standard.
    Comment: LCA states that it reserves the right to request that the 
requirement for LDEQ to adopt additional antibacksliding requirements 
in the SIP, including but not limited to 185 fees, be suspended by the 
Clean Data Policy attainment determination. LCA asserts that it 
understands that EPA is in the process of developing a rulemaking and/
or guidance concerning whether achieving 1-hour standard attainment 
(and/or achieving 8-hour standard attainment) suspends the obligation 
to impose section 185 fees where such have not yet been required by a 
state for a severe nonattainment area.
    Response: The scope of today's action is limited to an attainment 
determination for the 1-hour ozone standard that suspends the 
requirements to submit an attainment demonstration, a severe reasonable 
further progress plan, and applicable contingency measures plans for 
that standard for so long as the area remains in attainment of the 
standard in the future. As we stated in the proposal, and in the 
section above on the effect of today's rulemaking, EPA will address the 
section 185 fees anti-backsliding requirements for the 1-hour ozone 
standard in a separate proceeding or rulemaking.
    Comment: LCA states that it believes it is fully consistent with 
the CAA to suspend the requirement to submit the 185 fees program or an 
equivalent program when an area is determined to be attaining the 1-
hour standard.
    Response: As stated above and in the previous response to comment, 
the scope of this action is limited to suspending the requirements to 
submit an attainment demonstration, a severe reasonable further 
progress plan, and applicable contingency measures plans for the 1-hour 
ozone standard for so long as the area remains in attainment of the 
standard in the future. EPA will address BR's 1-hour anti-backsliding 
requirements for CAA section 185 fees in a separate rulemaking action.
    LEAN made the following comments:
    Comment: LEAN asserts generally that EPA cannot suspend certain 1-
hour ozone requirements under EPA's Clean Data Policy.
    Response: As set forth in detail below, EPA's longstanding 
interpretation of the CAA under the Clean Data Policy is valid and 
reasonable, and has been upheld by every court in which it has been 
challenged. We respond to LEAN's specific comments below.
    Comment: LEAN asserts that the 1-hour standard is no longer 
relevant for determining whether an area's air quality is requisite to 
protect public health.
    Response: While EPA agrees that it has issued an 8-hour ozone 
standard that is more protective than the 1-hour standard, certain 1-
hour anti-backsliding requirements remain applicable to the BR area. 
Thus the issue of whether an area meets the 1-hour anti-backsliding 
requirements is still relevant. EPA's Clean Data Policy was originally 
directed at requirements under the 1-hour standard, and that 
interpretation has now been incorporated in the form of a regulation 
for implementation of the 8-hour ozone requirements. Under the Clean 
Data Policy, an attainment determination for the 1-hour standard has 
consequences for an area's obligation to submit certain regulatory 
requirements for that standard. For the reasons set forth in the 
proposal and in EPA's responses to comments here, a determination that 
the BR area has attained the 1-hour ozone standard suspends the 
requirement to submit 1-hour attainment demonstration, 1-hour 
reasonable further progress and 1-hour contingency measures for so long 
as the area continues to meet the 1-hour standard. This determination 
has no bearing on the requirements for the 8-hour ozone standard.
    Comment: LEAN asserts that BR has not attained the revised 1997 8-
hour ozone standard, which is 75 ppb (the 2008 8-hour standard). See 73 
FR 16435-16514 (March 27, 2008) \2\
---------------------------------------------------------------------------

    \2\ On September 16, 2009 we announced that we are reconsidering 
our 2008 decision setting national standards for ground-level ozone. 
The reconsidered standard was announced on January 6 and proposed on 
January 19, 2010 (75 FR 2938). We expect by August 2010 to have 
completed our reconsideration of the standard and designations to 
proceed thereafter. When and if EPA designates BR as nonattainment 
of the reconsidered standard, LDEQ will be required to prepare a new 
ozone plan that addresses that standard.
---------------------------------------------------------------------------

    Response: As set forth in responses to comments above, our action 
here is limited to a determination that the BR area has attained the 1-
hour ozone standard based on complete, quality-assured monitoring data 
for 2006-2008, and preliminary data for 2009. The preliminary 2009 data 
show the 1-hour

[[Page 6573]]

ozone design value continues to be 114 ppb. There were no monitored 
exceedances for this time period.
    While EPA agrees that compliance with the 1-hour standard is not 
equivalent to attainment of the more protective 1997 or 2008 8-hour 
standards, certain 1-hour requirements remain applicable to BR for 
anti-backsliding purposes. Under the Clean Data Policy, a determination 
of attainment for the 1-hour standard suspends the obligation to submit 
certain SIP measures, including the 1-hour attainment demonstration, 1-
hour reasonable further progress and 1-hour contingency measures for so 
long as the area continues to meet the 1-hour standard. EPA's 
longstanding interpretation, which Courts have upheld, is that for an 
area meeting the 1-hour standard, submissions for the reasonable 
further progress requirements are not necessary or meaningful, because 
the goal of the rate of progress reductions--attainment--has been met. 
Similarly, EPA believes--and Courts have agreed--that a plan to attain 
the 1-hour standard is unnecessary for an area that is meeting the 
standard. Moreover, contingency measures, which are tied to rate of 
progress and attainment plan requirements, are no longer needed where 
an area is meeting the standard. EPA's rationale for its interpretation 
is more fully explained in our Clean Data Policy, in EPA's 8-hour ozone 
implementation rulemaking and the 1-hour ozone rulemakings cited 
therein. See 70 FR 71612 (November 29, 2005) and in the cases that have 
upheld EPA's Clean Data Policy. As discussed in more detail below, the 
Clean Data Policy has been upheld in a number of court cases, including 
the DC, 7th, 9th and 10th Circuits. See NRDC v. EPA, 571 F.3d 1245 (DC 
Cir. 2009); Sierra Club v. EPA, 99 F. 3d 1551 (10th Cir. 1996); Sierra 
Club v. EPA, 375 F.3d 537 (7th Cir. 2004) and Our Children's Earth 
Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005) (memorandum 
opinion). The Courts have made clear that a determination of 
attainment, for either the 1-hour or 8-hour standard, is a valid, 
reasonable, and legitimate alternative way of satisfying the 
requirements to submit attainment demonstrations, reasonable further 
progress requirements, and contingency measures, for that standard. 
Upon EPA's final determination that the BR area is attaining the 1-hour 
standard, the submission of those measures is no longer legally 
required for as long as the area remains in attainment. Thus the 
commenter is incorrect in asserting that EPA is removing mandatory 
controls from the SIP. The Commenter's claim that the severe 1-hour 
measures are necessary is belied by the fact that the sole purpose of 
these measures is to bring about attainment of the 1-hour standard. EPA 
is determining that this attainment has already occurred and it 
continues, and that submission of measures designed to create 
attainment is not necessary for so long as the area continues to 
attain. Contrary to Commenter's assertion, no further reductions to 
bring about attainment of the 1-hour standard are necessary or 
required. The application of the Clean Data Policy for the 1-hour 
standard does not in any way hinder or interfere with attainment of the 
8-hour standard. Requirements for the 1997 8-hour ozone standard remain 
in place to address the 8-hour standard for which the area is currently 
designated nonattainment, and those requirements are not affected by 
this rulemaking. As discussed further below, the DC Circuit Court has 
upheld the regulation embodying the Clean Data Policy for the 8-hour 
ozone standard that suspends 8-hour requirements for attainment 
demonstrations, RFP, and contingency measures upon a determination of 
attainment for that standard. 40 CFR 51.918. The regulation upheld was 
based on EPA's interpretation of the Clean Data Policy under the 1-hour 
ozone standard. Moreover, since it is incontrovertible that a 
determination of attainment for the 8-hour ozone standard legally 
suspends certain 8-hour submission requirements, it would be 
inconsistent and nonsensical to adopt a contradictory interpretation 
for the identical requirements under the 1-hour standard.
    Comment: LEAN argues that Louisiana's five-parish BR area has never 
met minimum federal health-protection standards for ozone air 
pollution.
    Response: As set forth in the responses to comment above, EPA's 
rulemaking action today is limited to a determination that the BR area 
has attained the 1-hour ozone standard based on complete, quality-
assured 2006-2008 air monitoring data, and preliminary data for 2009 
that show the area continues in attainment of the 1-hour ozone 
standard. An area violates the 1-hour ozone standard if, over a 
consecutive 3-year period, more than 3 days of expected number of 
exceedances occur at the same monitor. See CAA, section 107(d)(4); 40 
CFR Part 50, App. H. The data show that during this three-year period, 
no single monitor recorded more than three expected number of 
exceedances. EPA did not receive any comments that challenge EPA's 
determination that the area has monitored attainment of the 1-hour 
ozone standard for 2006-2008, the most recent three-year period for 
which complete, quality-assured data are available. Nor is there any 
challenge to EPA's conclusion that preliminary data for 2009 also 
indicate that the area continues to be in attainment for the 1-hour 
ozone standard. While this rulemaking does not address any ozone 
standard other than the 1-hour standard, EPA notes that recent 
monitoring data suggest that the BR area is also currently attaining 
the 1997 8-hour ozone standard.
    Comment: LEAN argues that the Court's decision in South Coast Air 
Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006), 
prohibits BR from removing controls until it has attained the standard 
EPA has determined is requisite to public health, which they assert is 
the 75 ppb 2008 8-hour ozone standard. LEAN contends that the South 
Coast case made it clear that EPA cannot release an area from 
applicable controls until it has achieved ``safe'' air quality. They 
further assert that allowing BR to escape antibacksliding requirements 
because it attained the 1-hour standard would be ignoring Congress' 
intent when enacting the CAA that ``air quality should be improved 
until safe and never allowed to retreat thereafter.''
    Response: The suspension of the obligation to submit the attainment 
demonstration, RFP plan, and contingency measures for the 1-hour ozone 
standard does not remove any controls that are in place, or any 
controls that are required when the area is attaining the 1-hour 
standard. It is directed only at plan measures aimed specifically at 
attainment of the 1-hour standard, which are not necessary once the 
area has attained, and continues to attain that standard. The 
obligations for submissions being suspended here do not bear on any 
obligations linked to the revised 2008 8-hour ozone standards. We will 
address any new 8-hour requirements in a separate proceeding or 
rulemaking. Moreover, as set forth above, the DC Circuit upheld EPA's 
regulation embodying the Clean Data Policy in 40 CFR 51.918. That 
regulation provides that a determination of the 1997 8-hour standard 
will result in the suspension of requirements to submit requirements 
related to the 1997 8-hour standard. Thus, contrary to commenter's 
contention, the DC Circuit supports, and does not prohibit, EPA's 
application of the Clean Data Policy for purposes of the 1-hour 
standard. EPA's defense of the Clean Data Policy for the 1997 8-hour 
standard was identical to and

[[Page 6574]]

based upon its interpretation and practice with respect to the 1-hour 
ozone standard. See Phase 2 Rule, 70 FR 71644-71646 (November 29, 2005) 
and NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009). Thus the DC Circuit has 
rejected the arguments LEAN raises against the Clean Data Policy, and 
the Court has upheld EPA's interpretation as consistent with the Clean 
Air Act.
    As noted in footnote two, EPA is currently reconsidering the 2008 
8-hour ozone standard of 75 ppb. We expect by August 2010 to have 
completed our reconsideration of the standard and designations to 
proceed thereafter. When and if EPA designates BR as nonattainment of 
the reconsidered standard, LDEQ will be required to prepare a new ozone 
plan that addresses that standard.
    Comment: LEAN argues that EPA cannot lawfully suspend controls from 
a SIP without going through the comprehensive redesignation procedures 
of 42 U.S.C. 7407(d)(3).
    Response: This action does not constitute a redesignation to 
attainment pursuant to section 107(d)(3). Consequently, the criteria of 
section 107(d)(3) do not apply to this action. See 60 FR 36723. Nor 
does the existence of the separate statutory redesignation procedure 
prevent EPA from applying its interpretation of CAA requirements under 
the Clean Data Policy.
    Several Circuit Courts have upheld the use of the Clean Data Policy 
to suspend the requirement to submit certain SIP planning measures for 
the 1-hour ozone standard. The Tenth, Seventh and Ninth Circuits have 
upheld EPA rulemakings applying the Clean Data Policy. See Sierra Club 
v. EPA, 99 F. 3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 
537 (7th Cir. 2004) and Our Children's Earth Foundation v. EPA, No. 04-
73032 (9th Cir. June 28, 2005) memorandum opinion. See also the 
discussion and rulemakings cited in the Phase 2 8-Hour Ozone 
Implementation Rule, 70 FR 71644-71646 (November 29, 2005).
    The D.C. Circuit has also upheld the Clean Data Policy, as it is 
embodied in 40 CFR 51.918, which was challenged in the context of the 
8-hour ozone standard in the Phase 2 Rule ozone litigation in See NRDC 
v. EPA, 571 F.3d 1245 (DC Cir. 2009). The DC Circuit specifically 
rejected the arguments that the Clean Data Policy is inconsistent with 
the redesignation provisions of the CAA:

    We think the statute unclear as to whether those sections apply 
to an area that is already attaining the NAAQS. For the reasons 
below, we join the Tenth Circuit in holding the EPA's interpretation 
is reasonable. See Sierra Club v. EPA, 99 F.3d 1551 (10th Cir.1996). 
* * * The EPA's reasoning disposes as well of the NRDC's contentions 
that the Clean Data Policy unlawfully circumvents the redesignation 
requirements, CAA Sec.  107(d)(3)(E), 42 U.S.C. 7407(d)(3)(E), 
violates the mandate that all Part D requirements remain in force 
until an area has an approved maintenance plan in place, CAA Sec.  
175A(c), 42 U.S.C. 7505a(c), and disregards the Supreme Court's 
admonition that the EPA cannot ``render Subpart 2's carefully 
designed restrictions on EPA discretion utterly nugatory,'' Whitman 
v. Am. Trucking Ass'ns, 531 U.S. 457, 484, 121 S.Ct. 903, 149 
L.Ed.2d 1 (2001). The Clean Data Policy does not effect a 
redesignation; an area must still comply with the statutory 
requirements before it can be redesignated to attainment. 
Furthermore, Part D--including Subpart 2--remains in force insofar 
as it applies but, as we have just seen, the EPA has reasonably 
concluded the provisions of the Act requiring percentage reductions 
do not apply to an area that has attained the NAAQS.

See also Latino Issues Forum v. EPA, No. 0675831 (9th Cir.) Memorandum 
Opinion, March 2, 2009, in which the 9th Circuit upheld EPA's Clean 
Data Policy in the context of the PM-10 standard. In rejecting 
petitioner's challenge to the Clean Data Policy, the Court stated:

    As the EPA rationally explained, if an area is in compliance 
with PM-10 standards, then further progress for the purpose of 
ensuring attainment is not necessary.

Thus, the Courts have considered and rejected the commenter's arguments 
that the Clean Data Policy is at odds with the redesignation process, 
and have ruled in favor of EPA's interpretation of the Clean Data 
Policy, finding it consistent with the provisions of the CAA.
    Comment: LEAN contends that the Clean Data Policy is illegal and 
cannot be used to ignore the statutorily-required redesignation 
procedures of 42 U.S.C. 7407(d)(3).
    Response: See above response. As the Courts have recognized, EPA's 
interpretation under the Clean Data Policy does not circumvent or 
ignore the Act's redesignation provisions. Nor does the CAA indicate 
that Congress intended the redesignation provisions to preclude a 
determination of attainment from suspending requirements to submit that 
by their terms are inoperative if an area is attaining the NAAQS. Even 
after application of the Clean Data Policy, an area remains in 
nonattainment status until EPA redesignates the area after making the 
other findings required under Section 107(d). See 107(d)(3)(E)(i)-(v) 
(redesignation requirements); see also, e.g., 60 FR 37366 (July 20, 
1995) and 61 FR 31831 (June 21, 1996) (suspension of requirements was 
followed by separate redesignation rule). Applying the Clean Data 
Policy does not relax any control measures already in place, nor does 
it affect any other applicable requirements under Part D or other parts 
of the statute. See, e.g., 60 FR 36723, 36725 (July 18, 1995). In 
addition, until the area is redesignated, it faces the risk that the 
suspended obligations will be reimposed if the area lapses back into 
nonattainment, and the further risk that the area will be reclassified 
if the lapse causes it to miss its attainment deadline. Therefore, 
States in which areas attain the NAAQS have every incentive to ensure 
that those areas remain in attainment and to develop the long-term 
maintenance plan under Section 175A that is required, in part, to 
obtain redesignation. See CAA section 107(d)(3)(E)(v), Sierra Club v. 
EPA, 99 F. 3d 1551, 1558 (10th Cir. 1996).
    Comment: LEAN asserts that EPA has never identified a lawful 
contingency measure for the BR area or has yet to approve a lawful 
contingency measures plan. The effect of EPA's action is to reward 
delay tactics by canceling those pollution reductions it has unlawfully 
delayed.
    Response: While we agree with the Commenter that BR does not have 
serious or severe area contingency measures for the 1-hour standard in 
place, for the reasons set forth in the responses to comments above and 
in the proposal, the obligation to submit such measures is suspended 
upon a finding of attainment for the 1-hour standard per the Clean Data 
Policy. Since EPA is determining that the area is attaining the 1-hour 
standard, and for as long as the area continues to attain, the 
requirement to submit contingency measures is suspended and no 
additional reductions are necessary to attain that standard. EPA is not 
rewarding delay tactics, but rather is simply recognizing that it is 
unnecessary and not required at this time to compel the State to submit 
measures whose sole purpose is to bring about attainment that is 
already occurring.
    Comment: LEAN comments that, while EPA states in the proposed rule 
that the suspended requirements would be re-implemented if BR falls out 
of attainment for the 1-hour standard, the proposed rule makes no 
mention of how quickly the suspended requirements to submit would have 
to be put back in place if BR fell out of attainment. LEAN speculates 
that the requirements could be re-imposed and then re-suspended in an 
illegal manner.
    Response: EPA will make a future determination in notice-and-
comment rulemaking if the BR falls out of attainment for the 1-hour 
standard. The

[[Page 6575]]

Clean Data Policy lays out the process to implement a suspended 
measure:

[i]f EPA subsequently determines that an area has violated the 
standard, the basis for the determination that the area need not 
make the pertinent SIP revisions would no longer exist. The EPA 
would notify the State of that determination and would also provide 
notice to the public in the Federal Register. Such a determination 
would mean that the area would thereafter have to address the 
pertinent SIP requirements within a reasonable amount of time, which 
EPA would establish taking into account the individual circumstances 
surrounding the particular SIP submission at issue.\3\
---------------------------------------------------------------------------

    \3\ As referenced in footnote 1, see May 10, 1995 EPA memorandum 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone Ambient Air Quality Standard.'' See also 70 
FR 71644-71646 (November 29, 2005).

Thus EPA has undertaken to act reasonably and responsibly in the future 
to re-impose the obligation for the State to submit the measures should 
EPA determine that the area has fallen out of attainment. The Commenter 
is thus wrong to assume that EPA's exercise of its discretion with 
regard to timing of reinstatement of obligations would bring about 
absurd or illegal results. Any such concerns are entirely speculative 
and without foundation in fact.

IV. Final Action

    For the reasons set forth in the proposed rulemaking and in this 
final rulemaking, and based on complete, quality-assured data for 2006-
2008, and data for 2009 that are currently available, we are 
determining that the BR 1-hour ozone nonattainment area has attained 
and continues to attain the 1-hour ozone standard. Thus, the 
requirements for submitting the 1-hour ozone severe nonattainment area 
attainment demonstration SIP with its RACM demonstration and other 
associated elements, the severe RFP requirements, and section 172(c)(9) 
and section 182(c)(9) serious and severe contingency measures are 
suspended for so long as the area is attaining the 1- hour ozone 
standard.

V. Statutory and Executive Order Reviews

    This action merely makes a determination of attainment based upon 
air quality that results in suspensions of certain Clean Air Act 
requirements, and does not impose additional requirements. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because there is no federally recognized Indian country located in the 
states, and EPA notes that it will not impose substantial direct costs 
on tribal governments or preempt tribal law.
    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 action 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 rules 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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of these actions must be filed in the United States 
Court of Appeals for the appropriate circuit by April 12, 2010. Filing 
a petition for reconsideration by the Administrator of these final 
rules does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: January 29, 2010.
Al Armendariz,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart T--Louisiana

0
2. Section 52.977 is added to read as follows:


Sec.  52.977  Control strategy and regulations: Ozone.

    Determination of Attainment. Effective March 12, 2010 EPA has 
determined the Baton Rouge 1-hour ozone nonattainment area has attained 
the 1-hour ozone National Ambient Air Quality Standard (NAAQS). Under 
the provisions of EPA's Clean Data Policy, this determination suspends 
the requirements for this area to submit a severe attainment 
demonstration, a severe reasonable further progress plan, applicable 
contingency measures plans, and other planning Louisiana State 
Implementation Plan (SIP) requirements related to attainment of the 1-
hour ozone NAAQS for so long as the area continues to attain the 1-hour 
ozone NAAQS.

[FR Doc. 2010-2961 Filed 2-9-10; 8:45 am]
BILLING CODE 6560-50-P