ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2009-00I4; FRL-_---l

Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Baton Rouge

I-Hour Ozone Nonattainment Area; Determination of Attainment ofthe I-Hour Ozone

Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA has determined that the Baton Rouge (BR) I-hour ozone nonattainment

area has attained the I-hour ozone National Ambient Air Quality Standard (NAAQS). This

determination is based upon three years of complete, quality-assured and certified ambient air

monitoring data that show the area has monitored attainment ofthe I-hour ozone NAAQS for the

2006-2008 monitoring period. Preliminary data for 2009 also indicate the area continues to attain

the l-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 ofthe l-hour ozone NAAQS, are suspended for so long as the

area continues to attain the I-hour ozone NAAQS.

DATES: This final rule is effective [Insert date 30 days from publication in the Federal

Register].

ADDRESSES: EPA has established a docket for this action under Docket Identification No.

EPA-R06-0AR-2009-0014. All documents in the docket are listed in the www.regulations.gov

index. Although listed in the index, some information is not publicly available, e.g., Confidential
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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 ofthe 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

rennie.sandra@epa.gov.

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.
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I. What Action is EPA Taking?

We are determining that the BR l-hour ozone nonattainment area is currently attaining the

l-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 l-hour ozone NAAQS for the 2006-2008 monitoring period.

Preliminary data for 2009 also indicate that the area continues to attain the l-hour ozone

NAAQS and there were no monitored exceedances ofthe I-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 ofthe l-hour ozone NAAQS, are suspended for so long

as the area continues to attain the l-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 ofthis 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', the effect of the determination is

that the following requirements to submit SIP measures under the l-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 (D.C. Cir. 2006), are

lOur 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."
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suspended for so long as the area continues to attain the I-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

I 82(c)(9).

If EPA subsequently determines, after notice-and-comment rulemaking in the Federal

Register, that the BR area has violated the I-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 I-hour ozone

NAAQS, and the effect ofsuch a determination on the obligation to submit specified I-hour antibacksliding requirements. It does not formally determine whether the area has attained the 8-

hour ozone NAAQS. Nor does it address the I-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 l-hour ozone anti-backsliding

requirements for section 185 penalty fees, based on the outcome of a future rulemaking in

response to the South Coastdecision. EPA has issued final guidance on 185 fees entitled

"Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the I-hour

Ozone NAAQs'banuary 5, 20 I0). However, in today's rulemaking proceedings, EPA has not

proposed and is not finalizing any action regarding the status of I-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
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(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 ofthe 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 Enviromnental Law Clinic on behalf of the Louisiana

Enviromnental Action Network (LEAN) (hereinafter LEAN), Louisiana Chemical Association

(LCA), 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 I-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 I-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 attaimnent for the l-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 attaimnent for purposes of the clean data
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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 l-hour ozone standard by the November 15,2005 deadline.

Response: The scope ofthis rulemaking is limited to a determination of attainment for the l-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 ofits 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 l-hour standard in the absence of any

effective l-hour standard. LCA argues that, because the l-hour standard was legally revoked

during the time period at issue (as of November 2005) EPA rationally could look to the S-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 ofthis rulemaking. EPA

has not made a finding that 90 ppb averaged on an 8 hour basis is equivalent to 120 ppb averaged

on a l-hour basis. This action considers only whether the area has attained the l-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
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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 l-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 l-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 l-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 l-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 l-hour

ozone standard for so long as the area remains in attainment of the standard in the future. EPA

will address BR's l-hour anti-backsliding requirements for CAA section 185 fees in a separate

rulemaking action.

LEAN made the following comments:
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Comment: LEAN asserts generally that EPA cannot suspend certain l-hour ozone requirements

under EPA's Clean Data Policy.

Response: As set forth in detail below, EPA's longstanding interpretation ofthe 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 l-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 l-hour standard, certain l-hour anti-backsliding requirements remain applicable to the

BR area. Thus the issue of whether an area meets the l-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 l-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 l-hour ozone

standard suspends the requirement to submit 1- hour attainment demonstration, I-hour

reasonable further progress and l-hour contingency measures for so long as the area continues to

meet the l-hour standard. This determination has no bearing on the requirements for the 8-hour

ozone standard.
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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

Response: As set forth in responses to comments above, our action here is limited to a

determination that the BR area has attained the l-hour ozone standard based on complete,

quality-assured monitoring data for 2006-2008, and preliminary data for 2009. The preliminary

2009 data show the I-hour 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 I-hour requirements

remain applicable to BR for anti-backsliding purposes. Under the Clean Data Policy, a

determination of attainment for the l-hour standard suspends the obligationto submit certain SIP

measures, including the I-hour attainment demonstration, I-hour reasonable further progress and

I-hour contingency measures for so long as the area continues to meet the l-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

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.
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Clean Data Policy, in EPA's 8-hour ozone implementation rulemaking and the I-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 D.C., 7th, 9th and 10th Circuits. See NRDC

v. EPA, 571 F.3d 1245 (D.C. 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 l-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 I-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 l-hour measures are necessary is belied by the fact that

the sole purpose of these measures is to bring about attainment of the I-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 ofthe

I-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 D.C. Circuit Court has upheld the
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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 I-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 I-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 ofthe l-hour ozone standard. An area violates the I-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 I-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 I-hour ozone standard. While this rulemaking
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does not address any ozone standard other than the I-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 (D.C. 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 l-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 l-hour ozone standard does not remove any controls that are in

place, or any controls that are required when the area is attaining the l-hour standard. It is

directed only at plan measures aimed specifically at attainment ofthe l-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 D.C. Circuit upheld EPA's regulation

embodying the Clean Data Policy in 40 CFR 51.918. That regulation provides that a

determination ofthe 1997 8-hour standard will result in the suspension ofrequirements to submit

requirements related to the 1997 8-hour standard. Thus, contrary to commenter's contention, the

D.C. Circuit supports, and does not prohibit, EPA's application of the Clean Data Policy for
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purposes of the l-hour standard. EPA's defense of the Clean Data Policy for the 1997 8-hour

standard was identical to and based upon its interpretation and practice with respect to the l-hour

ozone standard. See Phase 2 Rule, 70 FR 71644-71646 (November 29, 2005) and NRDC v. EPA,

571 F.3d 1245 (D.C. Cir. 2009). Thus the D.C. 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

of75 ppb. We expect by August 2010 to have completed our reconsideration ofthe standard and

designations to proceed thereafter. When and if EPA designates BR as nonattaimnent 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 attaimnent pursuant to section

107(d)(3). Consequently, the criteria of section I07(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 ofCAA 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 l-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
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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 (D.C. Cir. 2009). The D.C. Circuit

specifically rejected the arguments that the Clean Data Policy is inconsistent with the

redesignation provisions ofthe 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 ofthe NRDC's contentions that the Clean Data

Policy unlawfully circumvents the redesignation requirements, CAA § I 07(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 § 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 I (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 Dincluding Subpart 2-remains in force insofar as it applies but, as we have just seen, the

EPA has reasonably concluded the provisions ofthe 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-1O 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
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ofthe Clean Data Policy, finding it consistent with the provisions ofthe 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 tenus are

inoperative if an area is attaining the NAAQS. Even after application ofthe 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 ofthe 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 ifthe area lapses back into nonattainment, and the further risk that the area

will be reclassified ifthe 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).
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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 I-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 I-hour standard per the Clean Data Policy. Since EPA is

determining that the area is attaining the I-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 I-hour standard, the

proposed rule makes no mention of how quickly the suspended requirements to submit would

have to be put back in place ifBR 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 I-hour standard. The 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
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amount oftime, which EPA would establish taking into account the individual

circumstances surrounding the particular SIP submission at issue.'

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 ofits discretion

with regard to timing ofreinstatement 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 l-hour ozone nonattainment area has attained and

continues to attain the l-hour ozone standard. Thus, the requirements for submitting the l-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:

3 As referenced in footnote I, 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).
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• 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 ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number ofsmall

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 (Public Law

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) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose

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
19

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 ofthe

rule, to each House ofthe Congress and to the Comptroller General ofthe 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 ofthe United States prior to

publication ofthe 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) ofthe Clean Air Act, petitions for judicial review ofthese

actions must be filed in the United States Court ofAppeals for the appropriate circuit by

[FEDERAL REGISTER OFFICE: insert date 60 days from date of publication of this

document in the Federal Register]. Filing a petition for reconsideration by the Administrator

ofthese final rules does not affect the finality ofthis action for the purposes ofjudicial review

nor does it extend the time within which a petition for judicial review may be filed, and shall not
20

postpone the effectiveness ofsuch 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

Al Armendari?

Environmental protection, Air pollution

Intergovernmental relations, Nitrogen dioxides,

requirements, Volatile organic compounds.

Dated ~~+---jL-.~~~_

control,

Ozone,

Incorporation by reference,

Reporting and recordkeeping

Regional Administrator, Region 6.
21

40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

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

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

Subpart T-Louisiana

2. Section 52.977 is added to read as follows:

§ 52.977 Control strategy and regulations: Ozone.

(a) Determination of Attainment. Effective lInsert date 30 days from date of

publication in the Federal Register! EPA has determined the Baton Rouge l-hour ozone

nonattainment area has attained the l-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 ofthe I-hour ozone NAAQS for

so long as the area continues to attain the l-hour ozone NAAQS.