[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Rules and Regulations]
[Page 23597-23604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-17]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA-60-1-7562; FRL-7492-9]
Approval and Promulgation of Implementation Plans; Louisiana;
Rescission of the Section 182(f) and 182(b)(1) Exemptions to the
Nitrogen Oxides Control Requirements for the Baton Rouge Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: We are approving revisions to the Louisiana State
Implementation Plan (SIP). In particular, we are finalizing our
proposal to rescind the section 182(f) and 182(b)(1) nitrogen oxides
(NOX) exemptions for the Baton Rouge (BR) ozone
nonattainment area, which proposal was published on May 7, 2002 (67 FR
30638). We are rescinding the NOX exemptions based on
revised photochemical grid modeling recently conducted for the BR area
SIP which indicates that control of NOX emissions will help
the area attain the National Ambient Air Quality Standard (NAAQS) for
ozone. The State of Louisiana requested that EPA rescind the
NOX exemption based on this new modeling. Upon rescission of
the NOX exemptions, the State will need to implement
NOX controls to meet the Clean Air Act's (the Act)
requirements for Reasonably Available Control Technology (RACT),
Nonattainment New Source Review (NNSR), vehicle Inspection/Maintenance
(I/M), and general and transportation conformity.
The EPA is finalizing the proposal to rescind the NOX
exemptions for the BR ozone nonattainment area as meeting the
requirements of the Act.
DATES: This rule will be effective on June 4, 2003.
ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
locations:
[[Page 23598]]
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite
700, Dallas, Texas 75202-2733.
Louisiana Department of Environmental Quality (LDEQ), 7290
Bluebonnet Boulevard, Baton Rouge, Louisiana, 70810.
Persons interested in examining these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section
(6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733,
telephone (214)665-6691, and Shar.Alan@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents:
1. What Action Are We Taking in This Document?
2. When Did the Public Comment Period for Our Proposal Expire?
3. Who Submitted Comments to Us?
4. How Do We Respond to the Submitted Written Comments?
5. Where Can I Find Background Information On the Exemptions?
6. What Areas In Louisiana Will Today's Action Affect?
7. Statutory and Executive Order Reviews:
A. Executive Order 12866, Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132, Federalism
F. Executive Order 13175, Coordination with Indian Tribal
Governments
G. Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211, Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
K. Petitions for Judicial Review
Throughout this document ``we,'' ``us,'' and ``our'' means EPA.
1. What Actions Are We Taking in This Document?
On May 7, 2002 we proposed to rescind the section 182(f) and
182(b)(1) NOX exemptions for the BR ozone nonattainment area
(67 FR 30638). The BR area consists of the 5 ozone nonattainment
parishes of Ascension, East Baton Rouge, Iberville, Livingston, and
West Baton Rouge. Photochemical grid modeling recently conducted for
the BR area SIP indicates that control of NOX emissions will
help the area attain the NAAQS for ozone. The State of Louisiana
requested that EPA rescind the NOX exemption based on this
new air modeling. In this action we are rescinding the section 182(f)
and 182(b)(1) NOX exemptions based on the State's
demonstration that control of NOX emissions will contribute
to the attainment of the ozone NAAQS in the BR area. Since the reason
for the exemptions (per section 182(f) and 182(b)(1)) was that control
of NOX exemptions would not contribute to attainment, it
follows that the exemptions must be rescinded. Our responses to the
written comments received on our May 7, 2002, proposal are in section 4
of this document.
On July 17, 2002 (67 FR 46970) we notified the public that the
NOX emissions budgets contained in the BR area's attainment
demonstration SIP are adequate for transportation conformity purposes.
These budgets are to be used for future conformity determinations in
the BR area, and are effective as of August 1, 2002.
On September 26, 2002 (67 FR 60594) we approved Louisiana's I/M
program for the BR ozone nonattainment area. See Louisiana
Administrative Code (LAC), Title 33, Chapter 14 (LAC 33:III, Chapter
14). Louisiana's I/M program is now in effect for the BR area.
On September 27, 2002 (67 FR 60877) we approved Louisiana's
NOX RACT for the BR ozone nonattainment area. See LAC
33:III, Chapter 22. The NOX RACT rules are now in effect for
the BR area.
On September 27, 2002 (67 FR 60871) we approved Louisiana's
emissions reduction credits banking program for the BR area. See LAC
33:III, Chapter 6. These rules are now in effect for the BR area.
On September 30, 2002 (67 FR 61260) we approved Louisiana's NNSR
procedures for the BR area. See LAC 33:III, Chapter 5. These rules are
now in effect for the BR area.
On October 2, 2002 (67 FR 61786) we approved Louisiana's attainment
demonstration plan and SIP for 1-hour ozone standard within the BR
area. This attainment demonstration plan and SIP are now in effect.
As stated in section V of our proposal (67 FR 30639) the section
182(f) NOX waiver exempted Federal projects from general
conformity determinations with respect to NOX. When the
exemption is rescinded, Federal agencies making future general
conformity determinations for Federal projects in the BR area will be
subject to the NOX requirements outlined in the State's
general conformity rules. The State will not need to revise its general
conformity rules if the section 182(f) NOX waiver is
rescinded. See LAC 33:III, Chapter 14, Subchapter A, and 40 CFR part
51, subpart W for more information. Existing federal projects will not
be affected by the rescission of the sections 182(f) and 182(b)(1)
NOX exemptions and will continue to be valid to the same
extent as generally allowed under the rules; however, new federal
projects will have to observe the NOX requirements outlined
in the State's general conformity rules.
Pursuant to the above-listed rulemaking actions concerning
Louisiana's SIP and this final action, the State will need to implement
the Act's NOX requirements for general conformity,
transportation conformity, vehicle I/M, RACT, banking, and NNSR
purposes.
2. When Did the Public Comment Period for Our Proposal Expire?
The public comment period for our proposal (67 FR 30638) expired on
June 7, 2002.
3. Who Submitted Comments to Us?
We received written comments on our May 2, 2002, proposal (67 FR
30638) from Parish of Ascension (PA), Parish of West Baton Rouge
(PWBR), Parish of Iberville (PI), Parish of Livingston (PL), Parish of
East Baton Rouge and City of Baton Rouge (PEB), Mc Daniel and
Associates (MDA) on behalf of the Baton Rouge Ozone Task Force, and the
Tulane Environmental Law Clinic (TELC) on behalf of the Louisiana
Environmental Action Network (LEAN).
4. How Do We Respond to the Submitted Written Comments?
Our responses to the written comments concerning the May 7, 2002
(67 FR 30638) proposal are as follows:
Comment #1: The PA, PWBR, PI, PL, PEB, and MDA all commented
favorably and stated that they support our proposed rescission of the
section 182(f) and 182(b)(1) NOX exemptions.
Response to comment #1: We appreciate the commenters' support
concerning our proposed action and have considered these comments in
our final determination.
Comment #2: LEAN expressed conditional support for the rescission
of the section 182(f) and 182(b)(1) NOX exemptions in our
proposal.
Response to comment #2: We appreciate the commenters' support and
will respond to the commenters' concerns in the following responses to
comments.
Comment #3: LEAN commented that the rescission should not be used
to increase emissions of Volatile Organic Compounds (VOCs) above
legally allowable levels.
Response to Comment #3: The EPA agrees that the rescission of the
NOX exemptions should not be used to increase VOC emissions
above legally allowable levels. We addressed similar concerns in our
approval of the
[[Page 23599]]
Louisiana attainment demonstration plan and SIP for the 1-hour ozone
standard for the BR area (67 FR 61786) published on October 2, 2002, as
well as in the approval of the State's NNSR procedures (67 FR 61260)
published on September 30, 2002. In the approval of the attainment
demonstration, we concluded that the State had adequately demonstrated
that additional NOX reductions will contribute to the
attainment of the ozone NAAQS, which is the basis for the approval of
this request from the State of Louisiana that EPA rescind the
NOX exemptions. Since the NOX exemptions were
granted to the State of Louisiana in 1996, modeling techniques and
emission inventory methodologies/tools have been enhanced and improved.
We reviewed and approved the new modeling for the BR area's ozone
attainment demonstration plan and SIP (67 FR 61786, October 2, 2002) as
leading to attainment of the standard and to overall benefit to
reducing ozone. This attainment demonstration plan and SIP are now in
effect. Louisiana conducted extensive Urban Airshed Modeling (UAM) in
support of its revised SIP. The UAM provides the technical basis to
support NOX emission credits used to offset VOC increases.
The LDEQ conducted approximately 100 UAM V simulations to determine the
emission control strategy direction, emission control strategy level,
and emission control region required to demonstrate attainment. The UAM
clearly demonstrated that NOX reductions are more effective
than VOC reductions at reducing ambient ozone concentrations in the BR
area. The UAM sensitivity simulations indicate that a 30 percent
``across the board'' reduction in VOC emission yielded less than a 1
part per billion decrease in the ozone peak for the 3 ozone episodes
modeled. Accordingly, a reduction of one ton of NOX
emissions was more beneficial than an equivalent reduction in VOC
emissions. On the basis of this modeling, Louisiana also determined
that VOC emission credits should not be allowed to offset
NOX increases.
The BR area is currently designated as a serious ozone
nonattainment area (40 CFR 81.319). A major stationary source in the BR
ozone nonattainment area will need to comply the new offset ratios as a
part of the NNSR procedures. The NNSR procedures allow an affected
source to implement the Lowest Achievable Emission Rate (LAER). For a
nonattainment area with a classification of serious for ozone, the
minimum offset ratio for VOCs and for NOX is 1.20 to 1 if
LAER technology is implemented, or 1.40 to 1 using internal offsets if
LAER is not used. For a nonattainment area classified severe for ozone,
the new minimum offset ratio for VOCs and for NOX is 1.30 to
1 with LAER, or 1.50 to 1 using internal offsets without LAER. As
defined by section 171 of the Act the term LAER refers to either the
most stringent emission limit contained in the state plan of any state
for the applicable category of sources, or the most stringent emission
limitation achieved in practice within an industrial category.
Adoption of offset ratios like 1.2 to 1, 1.4 to 1, or 1.5 to 1
(greater than 1 to 1), as a part of the NNSR procedures, will translate
into the environment becoming the beneficiary of additional twenty,
forty, or fifty percent reductions in emissions, as the case might be.
Under Louisiana's NNSR procedures, all emission reductions claimed as
offset credit for significant net NOX increases shall be
from decreases of NOX. The NOX credits will be
allowed to offset VOC increases, but not vice versa. Although
NOX credits may be allowed to offset VOC increases, we
believe there are several regulatory measures in place that limit the
ability of a source to exchange increases in VOCs with NOX
reductions. All emission reductions claimed as offset credit for
significant net VOC increases shall be from decreases of either
NOX or VOCs, or any combination of NOX and VOC
decreases. If NOX decreases are used for VOC increases, the
permit for which the offsets are required shall have been issued on or
before November 15, 2005. The LDEQ has identified, in its NNSR program,
November 15, 2005, as a ``sunset date'' after which no permits will be
issued or modified allowing NOX credits to offset VOC
increases. See 67 FR 61260. On September 30, 2002 (67 FR 61260) we
approved Louisiana's NNSR program.
Furthermore, VOC emissions are separately regulated under EPA's
Maximum Achievable Control Technology (MACT) standards for the major
sources of air toxics.
Rescission of the NOX exemptions and implementation of
additional NOX control requirements for point sources in the
BR ozone nonattainment area will have an environmental benefit.
Rescission of the NOX exemptions will require the State to
implement applicable NOX provisions for: RACT, NNSR,
banking, vehicle I/M, and general and transportation conformity. As a
result of the rescission of the NOX exemptions, Louisiana
will now have to meet all of the applicable NOX requirements
of the Act. The State has already adopted and promulgated these
applicable requirements. See section 1 of this document for a listing
of these regulatory measures.
Based on the above information, we support the State's request and
are rescinding the NOX exemptions.
Comment #4: LEAN commented that the State should not have been
granted the exemption, that EPA mistakenly granted the exemptions to
allow LDEQ to issue permits for emissions of NOX in amounts
far greater than would have been legal without the exemptions, and the
rescission will increase pollution in the area. The commenter suggests
the NOX exemptions were unjustified.
Response to Comment #4: We disagree with the commenter's contention
that the NOX exemptions were mistaken or unjustified,
although the issue is now moot in any case. We refer the commenter to
our rulemaking approving the NOX exemptions (61 FR 2438,
January 26, 1996, and 61 FR 7218, February 27, 1996), and response to
comment 3 above concerning our position for granting the
exemptions. The EPA also disagrees that the rescission will increase
pollution in the BR area and refer the commenter to our response to
comment 3 of this document.
In this action, EPA is rescinding the NOX exemptions.
Therefore, the commenter's concern about EPA's granting the exemptions
is misplaced. Seven years have elapsed since the LDEQ's previous
modeling demonstration which showed that additional NOX
reductions were not needed for BR area's attainment, and the most
recent modeling events demonstrating that control of NOX
emissions will contribute to attainment in the BR area. The pollution
control technology, including air modeling, is a dynamic and evolving
field. The model used by the LDEQ to support its request for approval
of the NOX waiver was Urban Airshed Model (UAM) IV, which
was an EPA-approved photochemical grid model. The model used by the
LDEQ to support its request for rescission of the NOX waiver
is UAM V, a more recently EPA-approved photochemical Grid Model. This
represents a significant refinement in modeling technology. In
addition, emission inventory methodologies/tools have been improved
during this seven year period from when the State initially requested
the NOX exemptions. The commenter also fails to present or
show any specific data corroborating the comment. In the absence of
specific data or information, and for the other reasons stated above,
we disagree with the commenter that the exemptions were mistakenly
granted and that the
[[Page 23600]]
rescission will cause an increase in air pollution in the BR area.
Comment #5: LEAN commented that the LDEQ's incorrect
representations to EPA have resulted in a rescission that will lead to
the generation of emission credits from NOX reductions that
could be used to avoid NNSR for VOCs and to offset VOC increases.
Response to Comment #5: The EPA disagrees with the commenter's
characterization of the impact of the rescission of the NOX
exemptions and Louisiana's offsets procedures. Our basis for this
action is governed by section 182(f) and 182(b)(1) of the Act and is
independent of any permitting procedures.
As stated in our response to comment 3 of this document, a
major stationary source in the BR ozone nonattainment area now will
need to comply with the new offset ratios (1.4 to 1 or 1.2 to 1) as a
part of the NNSR procedures. See Table 1, section III in 67 FR 61260
(September 30, 2002). The offset ratios are greater than 1 to 1 and
therefore will mean additional reductions in air emissions. In response
to a similar comment EPA received during its rulemaking on Louisiana's
revised NNSR regulations, EPA noted:
Under the CAA and the revised Louisiana rule, however, emissions
offsets do not serve to allow a facility to avoid new source review.
Instead, a facility that will exceed the emission thresholds in the
relevant attainment category (see Table 1) must obtain offsets as a
condition of receiving a new source review permit. The generation
and use of such emissions credits must be consistent with the
definition of ``Surplus Emission Reductions'' in LAC 33:III.605. The
LDEQ's nonattainment NSR procedures also require that emission
reductions claimed as offset credit shall be sufficient to ensure
``Reasonable Further Progress'' toward attainment, that emission
offsets provide a net air quality benefit, and that the offsets must
be federally enforceable, before commencement of construction of the
proposed new source or major modification. Offsets thus are a vital
part of the mechanism that ensures that new projects and
modifications will not harm the attainment status of the area in
question. The effect of each of the above scenarios would be a
reduction in overall emissions for the Baton Rouge area, because the
new sources would have to seek minimum offsets in excess of what the
new source is expected to release as emissions. Finally, the
commenter may have intended, with the reference to offsets used to
avoid NSR, to refer to the ``netting'' analysis conducted under part
504(A)(4) of the proposed rule. In this analysis, the net emissions
increase from the construction of a new major stationary source or
any major modification at a stationary source is compared to the
values in Table 1 [of 67 FR 61260] to determine whether a new source
review must be performed. The inter-precursor trading provision of
the revised rule, however, applies only to the use of emission
offsets, not to the netting analysis. See LAC 33:III.504.G.
(definition of major modification, providing that ``VOC and
NOX emissions shall not be aggregated for the purpose of
determining significant net emissions increase.''). LDEQ has
confirmed to the EPA that this interpretation of the rule is
correct. Accordingly, the potential harm the commenter cites --i.e.,
the use of NOX emission reductions to avoid new source
review for new VOC emissions cannot occur as a result of the revised
rule.
67 FR 61260 at 61264 (September 30, 2002).
Furthermore, EPA has stated on several occasions that any emission
reduction credits in Louisiana will have to be permanent, actual,
surplus, quantifiable, and federally enforceable at the time of use as
offsets. See 67 FR 60877 (September 27, 2002), 67 FR 60871 (September
27, 2002), and 67 FR 61260 (September 30, 2002). For the above reasons,
EPA disagrees with the commenter's characterization of the impact of
this final action.
Comment #6: LEAN commented that the LDEQ's intention is to allow
facilities to avoid reductions in VOCs to the detriment of the health
and welfare of residents of the BR area.
Response to Comment #6: We disagree with the commenter. The EPA
believes the revised NNSR rule will improve air quality for all
residents of the BR area. We refer the commenter to our responses to
comments 3 and 4 of this document with regard to our
position on the NOX exemptions and related modeling issues.
Our final action to rescind the NOX exemptions is made
pursuant to section 182(f) and 182(b)(1) of the Act. The commenter
fails to provide any specific data to substantiate the comment
concerning the health and welfare of residents of the BR area as a
result of EPA's actions regarding the NOX exemptions.
Furthermore, the State has adopted and is implementing NOX
control measures not previously in the Louisiana's SIP. See 67 FR 60877
(September 27, 2002) for more information. We believe that
implementation of these new NOX control measures will
strengthen Louisiana SIP, provide for additional safeguards to the
health and welfare of residents of the affected parishes, and
contribute to bringing the BR area into attainment with the ozone
NAAQS.
Comment #7: LEAN commented that many or most of the facilities that
benefitted from the NOX exemptions are located in lower
income communities with minority populations greater than the national
average and that many of the residents live near the fence line of
facilities or surrounded by multiple major polluters. The commenter
contends that increased VOC emissions resulting from emission trading
within the nonattainment area will result in environmental injustice
and disparate impacts.
Response to Comment #7: The EPA disagrees that this action will
result in environmental injustice or disparate impacts. We continue to
encourage and support fact-finding efforts that involve local
communities and the State of Louisiana. The EPA is committed to the
principles of environmental justice to ensure that all Americans have
equal access to the decision making process. We believe that the public
process for the 1996 NOX exemption document provided
everyone the opportunity for meaningful involvement and met all of the
legal requirements of section 110(a) of the Act and 40 CFR part 51. We
believe the recent revisions to the SIP will improve air quality for
all of the BR area.
We do not agree that the use of Inter-pollutant Trading (IPT) will
overburden minority communities in the area. Louisiana's recent SIP
revisions change only specific portions of the LDEQ regulations. The
regulations found at LAC 33:III.504 continue to require that emission
offsets provide a net air quality benefit, and that the offsets must be
federally enforceable before commencement of construction of the
proposed new source or major modification. The emission offsets must
meet all applicable state requirements, any applicable New Source
Performance Standard in 40 CFR part 60, and any National Emission
Standard for Hazardous Air Pollutants (NESHAPs) in 40 CFR part 61 or
part 63. Furthermore, LAC 33:III, Chapter 51 (Comprehensive Toxic Air
Pollutant Emission Control Program) established ambient toxic air
standards. Toxic Air Pollutants (TAPs) are a group of state-regulated
chemicals consisting mainly of VOCs. The majority of TAPs are also
Hazardous Air Pollutants (HAPs). Major sources of TAPs are regulated
under LAC 33:III, Chapter 51, Louisiana's comprehensive toxic air
pollutant emission control program. TAPs are categorized into three
groups (Class I, II, or III) based on their relative toxicities. If
emissions of a Class I or II TAP increase by an amount greater than its
minimum emission rate, a de minimis level established for each TAP in
LAC 33:III.5112, sources of such compounds must be controlled by means
of Maximum Achievable Control Technology (MACT). Furthermore, the
impact of all TAP emissions must be below their respective health-based
ambient air standards, which are also
[[Page 23601]]
set forth in section 5112. In this way, any increase in HAP emissions
will be minimized and therefore, any impact on minority communities
living close to industries involved in trades of VOC increases for
NOX reductions would also be minimized. The effect of IPT in
minority communities is most appropriately taken into account during
the proceedings on a particular proposed NNSR permit.
Analysis of impacts under existing authority and subsequent review
by EPA under Title V of the Act (Permits), help to ensure that these
rules will not result in disproportionately high and adverse
environmental or human health effects on minority or low-income
communities. As the Administrator stated in her Memorandum of August 9,
2001, ``Environmental statutes provide many opportunities to address
environmental risks and hazards in minority communities and/or low-
income communities.'' This includes the Act, particularly the
``alternative sites analysis.'' Under section 173(a)(5) of the Act, an
alternative sites analysis must be conducted for each NNSR permit,
which requires consideration of, among other things, the ``social
costs'' of the construction or modification, e.g., the disparate impact
on minority communities. The Louisiana regulation implementing this
requirement, LAC 33:III.504.D.7, contains the same requirement:
As a condition for issuing a permit to construct a major
stationary source or major modification in a nonattainment area, the
public record must contain an analysis * * * of alternate sites,
sizes, production processes, and environmental control techniques
and demonstrate that the benefits of locating the source in a
nonattainment area significantly outweigh the environmental and
social cost imposed.
The LDEQ is also subject to the ``IT'' requirements which were
articulated by the Louisiana Supreme Court in a case concerning the
decision to issue a hazardous waste permit to the IT Corporation. Save
Ourselves, Inc. v. Louisiana Environmental Control Comm'n, 452 So. 2d
1152 (La. 1984) (IT). Under the IT requirements, which would apply to
NNSR offsets, LDEQ addresses whether:
1. The potential and real adverse environmental effects of the
proposed project have been avoided to the maximum extent possible;
2. A cost-benefit analysis of the environment impact costs balanced
against the social and economic benefits of the project demonstrates
that the latter outweighs the former; and
3. There are alternative projects or alternative sites or
mitigating measures which would offer more protection to the
environment than the proposed project without unduly curtailing non-
environmental benefits to the extent applicable. In the Matter of
Rubicon, Inc., 670 So.2d 475, 483 (La. App. 1996).
While the weighing of costs and benefits required under the IT
decision has been interpreted as a ``rule of reasonableness,'' the IT
Court and subsequent courts have noted that ``[t]he DEQ's role as the
representative of the public interest does not permit it to act as an
umpire passively calling balls and strikes for adversaries appearing
before the Secretary; the rights of the public must receive active and
affirmative protection at the hands of DEQ.'' Matter of American Waste
and Pollution Control Co., 642 So.2d 1258, 1262 (La. 1994) (internal
punctuation omitted) (quoting IT, 452 So.2d at 1157).
In sum, we believe the disparate impacts alleged by LEAN will be
addressed in individual permit proceedings, at which time factual
information regarding the scope of the impact and the affected
community will be available. Moreover, EPA is entitled to review each
Title V permit, and thus can object even in the absence of a citizen
petition if a Title V permit fails to comply with applicable
requirements of the Act or SIP. For example, in this instance
environmental justice issues could be considered and addressed through
section 173(a)(5), as discussed above. Thus, we may address
environmental justice issues raised by NNSR permits as part of the
Title V permit review process. Even where the Agency does not have
authority to object to a Title V permit, it may consider environmental
justice issues raised by the permit. Such a review may lead to EPA
addressing such issues in another manner, such as investigation of
Title VI complaints or coordination with States on appropriate
resolutions. We are committed to ensuring compliance with the
applicable requirements of the Act and the State's SIP through the
permit review process, the State's standard for TAPs, which we believe
are protective of human health and the environment. Since any trade
would be linked to a nonattainment new source review permit, public
notice would be mandatory and the public would have the opportunity to
request a public hearing on the proposed project. Further, the
information in the LDEQ banking database, defined at LAC 33:III.605,
will be available to the public upon request. We believe that such
opportunities do provide for effective public participation, enhance
local communities' involvement, and address potential environmental
justice concerns.
The commenter makes a number of statements about the demographics
and health of poor and minority populations in the BR area. However,
the commenter does not provide EPA with any concrete references or
resources to support its position. For these reasons, we disagree with
the commenter that this final action will result in environmental
injustice or disparate impacts.
Comment #8: LEAN commented that delayed or incomplete
implementation of Louisiana's hazardous air pollutant program and the
proposed rescission of the NOX exemption are LDEQ's first
steps toward reducing the level of public protection from a wide array
of toxics and carcinogens which qualify as VOCs. LEAN continues by
commenting that recission of the NOX exemption will allow
inter-pollutant trading.
Response to Comment #8: We refer the commenter to our response to
comment 7 of this document.
In addition, section 112 of the Act requires EPA to regulate
emissions of HAPs from a published list of industrial sources referred
to as ``source categories.'' As required under the Act, EPA has
developed a list of source categories that must meet control technology
requirements for these toxic air pollutants. The EPA has developed (or
is developing) NESHAP regulations for all industries that emit one or
more of the pollutants in significant quantities. We believe these
efforts and the State's Chapter 51 rules have partly contributed to the
significant reductions of VOC and toxic emissions, within the BR area,
as presented in our response to comment 4 of this document.
The Table of completed toxics regulations and relevant information is
available at http://www.epa.gov/ttn/atw/mactfnl.html.
We are taking this final action pursuant to section 182(f) and
182(b)(1) of the Act. Although the rescission of the NOX
exemption may have implications for permitting, we are not taking
action on IPT in this rulemaking. Our approval of Louisiana's IPT
program was based on a recent photochemical grid modeling conducted for
the BR area and was a separate rulemaking. See 67 FR 61260 (September
30, 2002).
Comment #9: LEAN commented that LDEQ and its constituents in the
regulated community intended to ``scam'' EPA to avoid NNSR in the BR
area by requesting the NOX exemption, and that the State
produced inconsistent theories, using the same modelers, about the
cause of ozone nonattainment for approximately 8 years.
[[Page 23602]]
Response to Comment #9: We disagree with the commenter's
characterization of the State's request for a NOX exemption
as a ``scam.'' We refer the commenter to our rulemaking actions on the
NOX exemptions and our response to comment 3 of
this document for explanation of our bases for previously granting a
NOX exemption to Louisiana. We also refer the commenter to
response to comment 4 of this document for an explanation of
our position concerning the State's recently submitted air modeling.
The modeling protocol and scenarios were developed as a result of a
series of meetings and public involvement processes. The result of the
recent BR area modeling (showing that control of NOX
emissions contributes to attainment in the BR area) is consistent with
findings for numerous nonattainment areas across the country (e.g.,
Atlanta, Washington, DC, St. Louis, and Greater Connecticut). Based on
our review and approval of the BR area photochemical grid modeling
underlying the State's rescission request, EPA finds the State's
request reasonable. See October 2, 2002 (67 FR 61786).
The commenter fails to provide any specific data to substantiate
the concerns over presentation of the modeling theories or scenarios.
In the absence of specific data contradicting the photochemical grid
modeling that was recently conducted for the BR area, EPA considers the
commenter's statement unsubstantiated, and disagrees with the
commenter's position in this regard.
Comment #10: LEAN commented that the State intends to use credits
from easy reductions in unregulated NOX emissions to
abrogate NNSR requirements for VOCs.
Response to Comment #10: The EPA disagrees with the commenter's
interpretation that facilities which elect to implement NOX
RACT would generate reductions eligible for use as emission offsets and
abrogate NNSR for VOCs. We also refer the commenter to response to
comment 5 of this document with respect to its contention that
the rescission will allow facilities to avoid NNSR requirements.
Louisiana promulgated its revised NOX rules on February
20, 2002 (Louisiana Register, Vol. 28, No. 2). On February 27, 2002,
the State submitted to EPA the revised NOX rules for the BR
area and its Region of Influence. We approved the revised
NOX rules on September 27, 2002 (67 FR 60877). These
NOX rules require certain affected categories of
NOX-generating facilities to achieve RACT ``as expeditiously
as possible, but no later than May 1, 2005.'' This date takes into
consideration the time that affected categories of NOX-
generating facilities may need to procure, calibrate and implement
RACT. Section 173(c)(2) of the Act states that reductions otherwise
required by the Act are not creditable as offsets. Although the rule
permits affected categories of NOX-generating facilities to
achieve compliance with NOX RACT no later than May 1, 2005,
the rule became effective when promulgated. Therefore, facilities
achieving NOX RACT compliance before May 1, 2005, are
creating emission reductions as required by law. Therefore, such
facilities will not obtain Emission Reduction Credits (ERCs) and cannot
offset VOC emissions by early NOX RACT implementation.
Furthermore, emissions decreased by a voluntary action must be
permanent in order to meet the surplus ERC criteria. Because the
NOX RACT rule provides for compliance no later than May 1,
2005, reductions made before that date could not be considered
permanent, and therefore could not be surplus.
The State has adopted and we have approved new NOX
control measures not previously in the Louisiana's SIP. See September
27, 2002 (67 FR 60877). These NOX control measures meet the
Act's requirements for RACT. See also, our July 23, 2002 (67 FR 48095),
and July 31, 2002 (67 FR 49647) proposed rulemaking documents. The EPA
defines RACT as the lowest emission limitation that a particular source
can meet by applying a control technique that is reasonably available
considering technological and economic feasibility. See 44 FR 53761,
September 17, 1979. We believe that implementation of these
NOX control measures will strengthen the Louisiana SIP. As
previously noted in this document, any ERCs must be permanent, actual,
surplus, quantifiable, and federally enforceable at the time of use as
an offset. For these reasons, we disagree with the commenter.
Comment #11: LEAN commented that rescission of the NOX
exemption should not be used to create NOX ERCs or offsets
that would not have existed if EPA had not granted the NOX
exemption.
Response to Comment #11: As stated previously, in our May 7, 2002
(67 FR 30638) proposal, in granting the NOX exemption, EPA
reserved the right to reverse the approval of the exemption if
subsequent modeling data demonstrated an ozone attainment benefit from
NOX emission controls. Photochemical grid modeling recently
conducted for the BR area SIP indicates that control of NOX
sources will contribute to the BR area's attainment of the ozone NAAQS.
The State of Louisiana, therefore, requested that EPA rescind the
NOX exemption based on this new modeling. We believe that
the State has adequately demonstrated that additional NOX
reductions will contribute to attainment of ozone NAAQS. The State of
Louisiana is not the only state that has requested EPA to rescind its
NOX waiver based on updated photochemical grid modeling
information. We reiterate that any emission reduction credits in
Louisiana will have to be permanent, actual, surplus, quantifiable, and
federally enforceable at the time of use as offset. For practical
purposes, to refrain from introducing additional uncertainties and
variables, and to minimize inconsistencies, the changes (increases or
decreases) in NOX emissions will need to adhere to
applicable rules and regulations instead of becoming a function of an
arbitrary and variable baseline level for NOX based on what
such emissions would/could have been 8 years or so ago, had no
exemptions been issued. Furthermore, upon rescission of the
NOX exemptions, the State will be required to implement the
applicable requirements of the Act for control of NOX
emissions, including RACT, NNSR, vehicle I/M, banking, and general and
transportation conformity. Rescission of the NOX exemption
and implementation of the State's newly promulgated NOX RACT
regulations will strengthen the existing Louisiana SIP. Therefore, we
disagree with the commenter's position in this regard.
This concludes our responses to the written comments we received
concerning this rulemaking.
5. Where Can I Find Background Information on the Exemptions?
To find information on the proposed rescission of the section
182(f) and 182(b)(1) NOX exemptions for the BR area you can
refer to our May 7, 2002 (67 FR 30638) publication. To find information
on the approval of the section 182(f) and 182(b)(1) NOX
exemptions you can refer to our January 26, 1996 (61 FR 2438), and
February 27, 1996 (61 FR 7218) rulemakings. To find information on the
proposed approval of the section 182(f) and 182(b)(1) NOX
exemptions you can refer to our August 18, 1995 (60 FR 43100), and
October 6, 1995 (60 FR 52349) rulemakings. A copy of the recently
completed modeling, NOX controls and NNSR regulations, and
I/M SIP revision that Louisiana submitted to EPA are available from EPA
and LDEQ at the addresses provided above.
[[Page 23603]]
6. What Areas in Louisiana Will Today's Rulemaking Affect?
The following table contains a list of parishes affected by today's
rulemaking.
------------------------------------------------------------------------
Rule provision Affected parishes
------------------------------------------------------------------------
Rescission of NOX Exemptions.............. Ascension, East Baton Rouge,
Iberville, Livingston, and
West Baton Rouge
------------------------------------------------------------------------
If you are in one of these Louisiana parishes, you should refer to
the Louisiana NOX rules to determine if and how today's
action will affect you.
7. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866, [58 Federal Register 51,735 (October
4, 1993)] the Agency must determine whether the regulatory action is
``significant'' and therefore subject to the Office of Management and
Budget (OMB) review and the requirements of the Executive Order 12866,
entitled ``Regulatory Planning and Review.''
The Order defines ``significant regulatory action'' as one that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must
approve all ``collections of information'' by EPA. The Act defines
``collection of information'' as a requirement for ``answers to * * *
identical reporting or recordkeeping requirements imposed on ten or
more persons * * *'' 44 U.S.C. 3502(3)(A). Because the proposed FIP
only applies to one company, the Paperwork Reduction Act does not
apply.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that has
less than 750 employees and is a major source of NOX; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
I certify that this action will not have a significant economic
impact on a substantial number of small entities. SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing.
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule. The EPA has determined
that the approval action promulgated does not include a Federal mandate
that may result in estimated costs of $100 million or more to either
State, local, or tribal governments in the aggregate, or to the private
sector. This Federal action approves pre-existing requirements under
State or local law, and imposes no new requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not
[[Page 23604]]
have tribal implications, as specified in Executive Order 13175. The
emissions sources affected by today's rulemaking action are not located
within the Indian tribal nations; therefore, this rule will not have
substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective June 4, 2003.
K. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 7, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Nitrogen dioxide, Nitrogen oxides, Nonattainment, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: April 25, 2003.
Christine Todd Whitman,
Administrator.
0
Part 52, chapter I, title 40 of the Code of Federal Regulations 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. Sec. 52.992 is amended by adding paragraph (e) to read as follows:
Sec. 52.992 Areawide nitrogen oxides (NOX) exemptions.
* * * * *
(e) On September 24, 2001, and on December 31, 2001, the LDEQ
requested that EPA rescind the Baton Rouge section 182(f) and 182(b)(1)
NOX exemptions that were approved by EPA, and published in
the Federal Register on January 26, 1996 (61 FR 2438), and February 27,
1996 (61 FR 7218). The State based its request on photochemical grid
modeling recently performed for the Baton Rouge State Implementation
Plan (SIP) which indicates that controlling NOX sources will
assist in bringing the Baton Rouge area into attainment with the
National Ambient Air Quality Standard (NAAQS) for ozone. On May 7,
2002, EPA proposed approval of the State's request to rescind both
NOX exemptions. Based on our review of the State's request
and the supporting photochemical grid modeling the NOX
exemptions are rescinded on May 5, 2003.
[FR Doc. 03-10888 Filed 5-2-03; 8:45 am]
BILLING CODE 6560-50-P