BOBBY JINDAL GOVERNOR PEGGY 

### M. HATCH SECRETARY

# ~tate 

# of**'l,oui~iana** DEPARTMENT OF ENVIRONMENTAL QUALITY 

## OFFICE OF THE SECRETARY

May 18,2010

Mr. Guy Donaldson Section Chief6PD-L US EPA Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733

RE: Section 185 Fee Determination ofTermination Baton Rouge Ozone Nonattainment Area

Dear Mr. Donaldson: 

# - o ::J:: :Po 

### -< N 

## o

Please find enclosed two (2) 

## bound copies of the revision to the State Implementation Plan for the Baton Rouge Nonattainment Area with regard to the l-hour Ozone National Ambient Air Quality Standards.

If you have any questions concerning this matter, please feel free to contact Vivian H. Aucoin at (225) 219-3509.

c: Sandra Rennie, EPA Region 6

Enclosures

Post Office Box 4301 • Baton Rouge, Louisiana 70821-4301 • Phone 225-219-3953· Fax 225-219-3971 UTun.vrJ,..n**lnl1;c:hlln~** O'nv

# Louisiana State Implementation Plan Revision'

Section 185 Fee Determination of Termination, Baton Rouge Nonattainment Area

Submitted to: EPA Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 

### 75202-2733

Final May?O 

### 10 

# DE,n**LOUlSI~**

## Louisiana State Implementation Plan Revision Section 185 Fee Determination of Termination, Baton Rouge Nonattainment Area

Executive Summary 1



## List ofAppendices
Appendix A: Guidance Memorandum on Developing Fee Programs Required by Clean
Air Act Section 185 for the l-Hour Ozone NAAQS 3 Appendix B: Louisiana RS 30:2066 : Fees, Severe and Extreme Ozone
Nonattainment Areas 21 Appendix C: Public Notice Documentation 25 Appendix D: Federal Register Notice: Baton Rouge l-Hour Ozone Nonattainment Area; Determination ofAttainment ofthe l-Hour Ozone Standard 66 Appendix E: Attainment Demonstration 73 Appendix F: Permanent and Enforceable Control Measures 426

Section 185 Fee Determination ofTermination, Baton Rouge Nonattainment Area February 2010

## Determination ofTermination Request

The Baton Rouge 5-Parish Ozone Nonattainment Area, which consists ofAscension, East Baton Rouge, Iberville, Livingston and West Baton Rouge parishes, was classified as severe under the I-hour ozone standard on June 23,2003. Accordingly, the area became subject to Clean Air Act Amendments (CAAA) 

### § 185, which requires a state to develop and implement a fee collection rule. The I-hour ozone standard was revoked by the Environmental Protection Agency on June 15, 2004 which was prior to the attainment deadline.

On January 5, 20 I0, the US Environmental Protection Agency (EPA) issued guidance on Developing Fee Programs required by Clean Air Act Section 185for the I-hour Ozone NAAQS. 

### (Appendix A) In this memorandum, EPA states that: "for an area we (EPA) determine is attaining either the I-hour or the 1997 8-hour ozone NAAQS, based on permanent and enforceable emissions reductions, the area would no longer be obligated to submit a fee program SIP revision to satisfy the anti-backsliding requirements associated with the transition from the l-hour standard to the 1997 8-hour standard. In such cases an area's existing SIP should be considered an adequate alternative program."

EPA further states that once the 1997 8-hour ozone standard is met, the purpose ofretaining the Section 185 fee program as an anti-backsliding measure would be fulfilled.



### Based upon monitoring data for the years 2006, 2007, 2008 and 2009, the Baton Rouge Nonattainment Area has reached attainment with the l-hour. EPA published a final rule which determined that the Baton Rouge nonattainment area had attained the I-hour
standard (75FR 6570). This final rule became effective on March 12, 2010. As of December 31, 2008, based on the monitoring data, the Baton Rouge Nonattainment Area also attained the 1997 8-hour ozone standard. A request for a determination of attainment with regard to the 1997 8-hour standard has been submitted to EPA Region 6 for approval. Therefore, the Baton Rouge Nonattainment Area is eligible to request a termination ofthe CAAA §185 fee collection. The present design value for the area is

Section 185 Fee Termination Determination Final May 2010

### 0.075 ppm. As such, the Department is submitting this request for a determination of
termination ofthe requirement to implement Section 185 ofthe CAAA of 1990.

The following attachments have been included for your convenience: • Section 185 fee guidance issued by EPA on January 5, 2010;

• Statutory authority to collect fees;

• Public Notice and Participation Documentation;

• Determination ofAttainment ofthe l-hour and 8-hour ozone standard;

• Attainment Demonstration for the Baton Rouge Nonattainment Area;

• Permanent and Enforceable Control Measures.

Section 185 Fee Termination Determination

2 

### Final May 2010

# Appendix A Guidance Memorandum on Developing Fee Programs Required by 

## Clean Air Act Section 185 for the I-hour Ozone NAAQS

Section 185 F_Tennlnation Detennlnatlon 3 Final May 2010

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 2n11



# JAN 05 OFFICE OF AIRQUALITY PLANNING

ANDSTANDARDS 

### MEMORANDUM



### SUBJECT:

FROM:



## TO: Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the I-hour Ozone NAAQS**tJ,-~** 

### Stephen D. Page, Director

# ~t!f' Office ofAir Quality Planning and

## Standard~ Regional Air Division Directors, Regions I-X

Section 185 ofthe Clean Air Act (CAA) requires states with ozone nonattainment areas classified as Severe or Extreme to develop, as a revision to their state implementation plan (SIP),

< 

### a fee collection rule to be implemented in the event that an area fails to attain the ozone standards

by the required attainment date.) This memorandum provides additional guidance on fee collection programs for the l-hour ozone National Ambient Air Quality Standard (NAAQS or standard), which are required as anti-backsliding measures during transition to the 1997 8-hour ozone standard.
Applicability ofSection 185 to Ozone NAAQS Nonattainment Areas
The section 185 fee program requirement applies to any ozone nonattainmentarea that is classified as Severe or Extreme under the NAAQS, including any area that was classified Severe
or Extreme under the l-hour ozone NAAQS as ofthe effective date ofthe area's 8-hour designation? The EPA had previously waived the section 185 fee program requirements applicable under the revoked I-hour ozone NAAQS in rules issued to address the transition from the l-hour standard to the 1997 8-hour standerd.' However, on December**~3,** 

### 2006, the United States Court ofAppeals for the District ofColumbia Circuit issued an opinion determining that EPA improperly waived the application ofthe section 185 fee provision for Severe and Extreme nonattainment areas that failed to attain the l-hour ozone standard by their attainment date. South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir.2006).

I See Attachment A for the text of CAA section 185. The CAA requires that fee program SIPs for nonattainment areas initially classified as Severe or Extreme for the I-hour ozone standard be submitted to EPA by December 31, 2000 (see CAA section I82(d)(3». Areas subsequently reclassified as Severe or Extreme have a SIP, submission date as determined by EPA. •
2 The I-hour ozone NAAQS were established in 1982 and revoked on June 15, 2004 for most areas. The 8-hour ozone NAAQS were first established in 1997. EPA is currently reconsidering the 8-hour ozone NAAQS that was last revised in 2008. EPA intends to complete the reconsideration by August 31, 2010.
J See 69 Fed Reg 23951 (April 30,2004).

IntemetAddress(URL). http://www.epa.gov RecycledIRecyclable • Printed whh Vagetable 011 Baaed Inks on Recycled Peper (Minimum 25% Poslconsumer) Section 185 Fee Termination Determination 4 Final May 2010

### 2



### Summary of Section 185Reguirements

In the event that a nonattainment area classified as Severe or Extreme fails to attain the ozone standard by the requireddate, section 185 of the CAArequires each major stationary source of volatile organic compounds (VOC) and nitrogen oxides (NOxt located in such area to pay a fee to the state for each calendar year following the attainmentyearfor emissions abovea "baseline amount." In 1990,the CAA set the fee as $5,000 per ton of

# voe and NOx emittedby the source during the calendaryear in excess of 80 percentof the "baseline amount." The fee must be adjusted for inflationbased on the Consumer Price Index (CPI) on an annual basis. Attachment B sets forth the fees, as**~djusted** 

### for inflation,for 1:4e years 1990-2009. The CAA providesthat the computation of a source's "baselineamount" must be the lower of the amount of actual or allowable emissions underthe permit applicable to the source (or if no permit has been issuedfor the attainment year, the amountofVOC and NOx emissions allowed under the applicableimplementationplan) during the attainment year. The CAA also provides that EPA may issue guidance on the calculationof the "baselineamount" as the lower of the average actual emissionsor average allowable emissionsover a period of more than one year in cases where a "source's emissions are irregular,cyclical or otherwise vary significantly from year to year." Accordingly, on March 21, 2008, EPA issued a memorandum entitled "Guidance on EstablishingEmissions Baselines under Section 185of the CAA for Severe and Extreme Ozone NonattainmentAreas that Fail to Attain the l-hour OzoneNAAQS by their Attainment Date." The CAA does not specify how states may spend or allocatethe fees collected under a section 185 fee program. Therefore, states have discretion on how to usethe fees. We believe that one beneficial approachwould be to channel the fees into innovative programs to provide incentives for additional ozone precursor emissions reductionsfrom stationary or mobile sources, or for other purposes aimed at reducing ambient ozoneconcentrations in the affected area. ' If the state fails to adopt or implement a required feeprogram, EPA is required to collect the unpaid fees and may also collect interest on any unpaid fees. All revenue collected by EPA under authority of section 185 is required to be deposited in a specialfund in the United States Treasury for licensing and other services and may be used to fund theAgency's activities for collecting such fees. See, CAA sections 18,S(d) and S02(b)(3)(C).

Alternativesto Section 185FeePrograms
As a result of the 2006 court decision in South Coast, states with areas classified as Severe or Extreme nonattainmentfor the l-hour ozone standard at thetime ofthe initial nonattainmentdesignation for the 8-hour standard are subject to the requirements of section 185. We believe states can meet this obligation through a SIP revision containing either the fee program prescribed in section 185, or an equivalent alternativeprogram, as further explained

4 

### While section 185expressly mentionsonly VOC,section I82(t) extends the application of thisprovision to NOx, by 

### providing that "planprovisions required under [subpart D] for majorstationary sourcesof [VOC] shall alsoapplyto majorstationary sources... of[NOx]."

section 185 Fee Termination Determination 5 Final May 2010

### 3

below. EPAbelieves that an alternativeprogrammay be acceptable ifit is consistentwith the principlesofsection 172(e) of the CAA, which allowsEPA throughrulemaking to accept alternativeprograms that are "not less stringent" whereEPA.hasrevisedthe NAAQSto make it less stringent. 111is discretion does not currentlyapply to a section 185 fee programobligation arising from failureto attain the 1997 8-hour ozoneNAAQS by the attainment date associated, with a Severeor Extremeclassificationfor that NAAQSbecausethat NAAQS has not been revoked.

Section 172(e) is an anti-backsliding provisionof the 

# eAA that requires EPA to develop regulations to ensurethat controls are "not less stringent"than those that applied prior to relaxing a standard where EPA has revised a NAAQS to make it less stringent. In 

### the implementation rule for the 1997ozoneNAAQS, EPA determinedthat although section 172(e) does notdirectly apply where EPAhas strengthenedthe NAAQS, as it did in 1997, it was reasonable to apply the same principlefor the transition from the l-hour NAAQSto the 19978-hour NAAQS. .1\$ 

### part ofapplyingthe principle in section 1"72(e) for purposes of the transitionfrom the l-hour standard to the 19978-ho,ur standard,EPA can either requirestatesto retainprograms that applied for purposesofthe I-hour standard,or alternativelycan allow statesflexibility to adopt alternative programs,but only 

## ifsuch alternativesare "not less stringent"thanthe mandated program. EPA is electingto consider alternativeprogramsto satisfythe section 185 feeprogram SIP revisionrequirement. The remainder of this memorandum describes the circumstances under which we believe we can approve an alternative program that is "no less stringent." These interpretations will onlybe-finalized through EPA actionstaken undernotice-and-eomment rulemaking

## to addressthe fee program obligations associated with each applicable nonattainment area. If a state choosesto adopt an alternativeprogram

## to the section 185fee program.the state must demonstrate that the alternativeprogram is no less stringentthan the otherwise applicable section 185 fee program. If our preliminary assessmentindicates that the alternative programis not less stringent,we would issue a notice in the FederalRegisterproposing to make such a determination at the same time we propose and take action on any accompanying SIP revision pursuant to section 11 O(k).



### EPAbelievesthat for an area that we determineis attainingeither the l-hour or 19978- hour ozoneNAAQS,based on permanentand enforceableemissions reductions, the areawould no longerbe obligated to submit a fee programSIP revisionto satisfythe anti-backsliding requirements associated with the transition from the l-hour standardto the 1997 8-hourstandard. In such cases an area's existing SIP should be considered an adequatealternative program. Our' reasoningfollows from the fact that an area's existingSIP measures, in conjunction with other enforceablefederalmeasures, are adequate for the area to achieveattainment, which is the purpose of the section 185 program. The section 185 fee programis an element ofan area's attainmentdemonstration, and its object is to bring aboutattainment aftera failure of an areato attain by its attainment date. Thus, areas that have attained the l-hour standard, the standard for which the fee programwas originally required, as a result ofpermanent and enforceable emissionsreductions, would have a SIP that is not less stringentthan the SIP required under section 185. Also, once an area attains the 19978-hour ozone standard, which replacedthe nowrevoked I-hour standard,the purpose of retaining the section 185fee program as an antibackslidingmeasure would also be fulfilled as the area wouldhave attained the 8-hourstandard

Section 185 F_ Termination Determination 6 Final May 2010

### 4



## f01' whichthe fee programwas retained as atransition measure. We believethat it would unfairly penalizesources in these areasto require that fees be paid after an area has attained the 8-hourstandard due to permanentandenforceable emission reductions becausethe feeswere imposed due to a failure to meet the applicable attainment deadline for the l-hour standard, not any failureto achievethe now applicable 8-hourstandard by its attainmentdate. Similarly, for the reasonsdescribed above, areasthat muststilldevelop and submita fee programmaysubmit
an alternative that providesthat the fees endat the timethat the area attains eitherthe l-hour or 1997 8-hour standarddue to the existence ofpermanent andenforceable measures.
Thereis also an additional, independent basisforEPAIS 

## approachto determining thatthe anti-backsliding requirements associated withsection 185 havebeen satisfied. Although section 185 provides that fees are to continue until the area is redesignated for ozone, EPA nolonger promulgates redesignations for the l-hourstandard because that standard has beenrevoked.

, Therefore, relief from thel-hour feeprogram requirements underthe terms of the statuteis an

impossibility, sincethe conditions the statuteenvisioned 

## forrelievingan area of its fee program obligation 110

## longer can exist. Thereis,thus,a gap in 

## the statutewhich must be filled byEPA. We believethat under these circumstances wemustexercise our discretion underChevron USA. Inc. v. NaturalResourcesDefenseCouncil, 467 U.S. 837 (1984), to fill this gap, so as to carry 

## outCongressional intent in the uniquecontextofanti-backsliding requirements for arevoked standard. Webelieve that it is reasonable for the fee program obligationthat applies for purposes ofanti-backsliding to cease upona determination, based on notice-and-comment rulemaking, that an area has attainedthe l-hour or 8-hourstandard due to permanentand enforceable measures. This determination centers on corecriteriaforredesignations underCAA section I07(d)(3). We believethesecriteria provide reasonable assurance that thepurpose of the l-hour anti-backsllding fee programobligation has beenfulfilled in the context of aregulatory regimewherethe area remains subjectto otherapplicable l-hour anti-backsliding and 8-hour
measures. Under these circumstances, retention of the feeprogram under the anti-backsliding rule is no longernecessary for the purpose ofachieving attainment of the 8-hour standard.

Additional PotentialEQuivalent Alternative Program Concepts

, Following is a summary ofconcepts for additional alternative programs that a statemight consider if all l-hour nonattainment areassubjectto the section 185fee program anti-backsliding requirements within that state are not eligible for the EPAdetermination set forth in the section • above,and/orif the state chooses to develop anotheralternative programthat is no less stringent than a section 185 fee program. While section 185focuses most directly on assessing emissions fees', we believeit is useful to interpret section 185withinthe contextofthe CAA's ozone implementation provisionsof subpart2 (which includes section185). The subpart 2 provisions
are designed to provide an ever-growing incentive to reduce ozone-forming pollutantemissions to levelsthat achieve attainmentof the ozoneNAAQS. In this context, to satisfy the requirements of section 185 associated withthe l-hourNAAQS we believe it is appropriate for statesto focus on fee assessments, achieving further emissions reductions, or somecombination of both in developing an alternativeprogram. For any alternative programadoptedby a state, the state'sdemonstration 

## that the program is no lessstringent should consistofcomparing expected feesandlor emissionsreductionsdirectly attributable to application of section 185to the expected fees and/or emissionsreductions fromtheproposed alternative program. For a valid

Section 185 Fee Termination Determination 7 Final May 2010

### 5



## demonstration to ensure equivalency, the state's submission should not underestimate the expected fees and/oremissionsreductions from the section 185fee program, noroverestimate theexpected fees and/or emissionsreductions associated with the proposedalternative program. Recently, a task force composed ofmembers of the CleanAir ActAdvisory Committee (CAAAC) was formed to discussalternate ideas on complying with section 185.

## s Theconcepts described herewere discussed by the taskforce, andthe CAAAC forwarded a list ofpotential program features to EPA forreview. EPA's assessment of whetherand how certainprogram features identified by the CAAACcanbe 

## usedin the contextof satisfyingthe requirements of section 185 is included as Attachment C to thismemorandum.

EPAcannot concludeat this timewhether specific state-developed programs relyingon these concepts or containing any of the features presented by the CAAACwould be approvable because such a determination would bebased on the specific parameters of the program adopted. Further, any suchdetermination wouldneedto be madethroughnotice-and-comment rulemaking. States may decideto develop unique alternative programs for each applicable nonattainment area, and we will independently evaluate the approvability ofeachalternative program. To assure a valid demonstration thatanalternative is no less stringent,werecommend thatstateswork with EPA on a case-by-case basis.

Additional Fee-Equivalent Alternative Programs

Weanticipate (subject to notice-and-comment rulemaking as noted above)

## thatwe could approve a programthat clearly raises at leastas much revenueas the otherwise required section ·185 feeprogram if the proceedsare spentto payforemissions reductionsofozone-fanning pollutants (NOxand/or VOC) in the samegeographic area subject to the section 185 program. Under this approach, the state wouldestimate revenues that would result under the section 185 feeprogram if all section 185sourcespaidfeesfor eachapplicablecalendar year, develop an alternative program that would raise at leastthatmuchrevenue, and.establish aprocess wherethe
revenues wouldbe used to pay foremissions reductions that will further improve ozoneair quality. . Underthis concept, states coulddevelop programs that shift the fee burden from the specific setof major stationary sourcesthat areotherwise requiredto pay fees according to section 185,to other non-majorsources ofemissions, including owners/operators of mobile
sources. This could allow statesto 

## recognize through reducedfees those major sources of emissions that have already installedthe latesttechnology, and assess the remainderof the total required fees on other sources that are not already as wellcontrolled. EPA recognizes that section 185is not strategic in imposing emissions feeson all major stationary sources, including already well-controlled sources that havefew, ifany, optionsfor avoiding fees by achieving additional reductions. States can be more strategic by craftingalternativeprogramsthat exempt
orreduce the fee obligation on well-controlled sources, and assign the required fees to less wellcontrolled sources as an incentivefor thosesources to furtherreduce emissions ofozone-forming

. pollutants. The alternativeprogramshouldnotrelyon emissionsreductions alreadyrequiredby

5 For more information on the CAAAC and the proceedings ofthe Task Force on section 185 fee programs, visit the following Web site: http://www.epa.e:ov/air/caaac/!8S.html

Section 185 Fee Termination Determination 8 Final May 2010

### 6

the applicable SIP, since the goal is to achieve further reductions to move the area expeditiously to attainment,

Additional Emissions-EQuivalent Alternative Programs

EPAbelievesthat as an alternative to the section 185 fee programa state couldadopta program that achieves at least as muchadditional emissions reductions

# as would beexpected to resultfromthe fee-minimization incentive of the section 185fee program. EPAbelieves this wouldclearly be demonstrated if the alternative program achievesemissions reductions each year that are equal to or greater than the amountofemissions againstwhich fees wouldbe assessed each year under the section 185feeprogram (Le., actual emissions in excessof 80 percentof the baseline emissionsj." Forpurposes of estimatingthe emissions reductions required in such a program,the state would assumethat sources wouldreduce their emissions to the fee applicability threshold. This conservative approach wouldassure that emissionsreductions from the alternative program are at least as great asreductions that might have occurredif the statutory fee programresulted in all major stationary sources reducing their emissions to no more than 80 percentof the baseline emissions. The emissions reductions in the alternative programcould comefrom the same set of major sourcessubjectto section 165, or from a differentset of sources, in whole or in part, so long as all reductions comefrom within the nonattainment area and are equallybeneficial in reducingozoneformation. The alternative program should not rely
on emissions reductions already requiredbythe applicable SIP, since the goal is to achieve further reductionsto move the area expeditiously to attainment. Underthis approach, states wouldfirst calculate the emissions baseline for the major stationary sources ofVOC and NOx in accordance withthe methodologyrequired underCM section 185(b)(2) and as furtherdescribed inthe March 21,2008 guidancememorandum. Once a statecalculates the baseline amountof eachpollutantfor each source affected by section 185, the amountof emissions in excess of 80 percentof the baselinewould be the amountof emissions of each pollutant that sourceswithinthe areawould need to reduce on a calendaryear basisin each year following the l-hour ozoneattainment year until such time as the feeprogram no longerapplies.

Additional AlternativePrograms Combining Emissions Reductions and Fees

Aprogram that combines featuresof anemissions-equivalent program with 

### a feeequivalent programcould also be adopted. Forexample, some portion of the emissions reductionsnecessaryto demonstrateequivalence (as explained above) could be offsetby fees collected on each ton ofemissions that is offset. To illustrate, assume that 1000 tons of . emissions reductions is neededto 

### demonstrate equivalence. The state could insteadadopta program that obtains 600 tons of emissionsreductions and collect fees totaling $2.0 million (calculated as the remaining 400 tons times $5,000 per ton).

G

### Aprogram thatachieves less than this amountofemissions reductions may also be approvable depending on the case-specific circumstances.

Section 185 Fee Termination Determination 9 Final May 2010

### 7



## .EPAAssistance Myofficeis available to provide

## any additional guidance and to consultwithany state thatwants todevelop an alternative equivalent program to the section 185fee 

## program. For additional consultation you maycontact Denise Gerth; 919M541-5550.



# . .

Section 185 Fee Termination Determination 10 Flna. May 2010**~TI** 

### ACHMENT A Text of CAA Section 185



### SEC. 185. ENFORCEMENT FORSEVERE ANDEXTREME OZONE NONATTAINMENT AREASFOR FAILURETO ATTAIN.

(a) GeneralRule.> Eachimplementation plan revisionrequired under section 182(d) and (e)

. (relatingto the attainmentplanfor Severe and Extremeozonenonattainment areas)shallprovide.

that, ifthe area to which suchplanrevision applies has failed to attainthe national primary ambientair quality standardfor ozoneby the applicable attainment date, each majorstationary
sourceofVOCs locatedin the area shall, except as otherwiseprovided'under subsection (c),pay a fee to the State as a penaltyfor such failure, computedin accordance with subsection(b),for each calendar yearbeginning afterthe attainment date, until the area is redesignated as an attainmentarea for ozone,Eachsuch plan revision should includeproceduresfor assessment and collectionof suchfees,

(b) 

### Computation of Fee.- (1) Fee amount.-The fee shallequal $5,000, adjustedin accordance with paragraph (3),per ton ofVOC emittedby the source during the calendaryear in excessof 80 percent of the baseline amount, computedunderparagraph(2).

. (2)Baseline amount- Forpurposesof this section,the baseline amount shall becomputed,

.in accordance with such guidance as 

## theAdministrator may provide, as the lower of the amount of actual VOC emissions ("a ctuals") or VOC emissionsallowed underthepermit applicable to . the source (or, ifno such permit has been issued for the attainment year,the amount ofVOC emissions allowedunder the applicable implementation plan "allcwables'lj) during the attainmentyear. Notwithstanding the preceding sentence,the Administrator may issueguidance authorizing the baseline amount to be determined in accordance withthe lower ofaverage actuals or averageallowables, determined over a period ofmore than one calendar year. Such guidancemay provide that suchaveragecalculationfor a specificsourcemay be used if that source'semissionsareirregular, cyclical, or otherwisevary significantly from year to year.

.(3) Annualadjustment.- The fee amount underparagraph

## (1) shall beadjusted annually, beginning in 

### the yearbeginning after the year of enactment, in accordance with section 502(b)(3)(B)(v) (relatingto 

### inflation adjustment). '

(c) Exception.- Notwithstanding any provision of this section, no sourceshall be required to pay any fee under subsection (a)withrespect to emissions during any yearthatis treated as an Extension Year under section 181(a)(5)

..

(d) Fee Collectionby the Administrator.- Ifthe Administrator has foundthat the feeprovisions of the implementation plan donot meet the requirements of this section, 01' 

### iftheAdministrator makes a finding that the Stateis not administering andenforcingthe fee required underthis section,the Administrator shall, in addition to any other actionauthorized under this title, collect, in accordance withprocedures promulgated by the Administrator, the unpaid fees requiredunder subsection(a). If the Administrator makes such a findingunder section 179(a)(4),the Administratormay collectfees for periods beforethe determination, plus interest computed in accordancewith section6621 (a)(2) of the Internal Revenue Codeof 1986 (relating to computationof intereston underpayment of Federal taxes),to the extentthe Administrator finds such fees have not been paid to the State. The provisions of clauses (ii) through (iii) of section 502(b)(3)(C) (relatingto penalties and use of the funds, respectively) shall apply withrespect to fees collectedunder this subsection.

Section 185 Fee Termination Determination 11 Final May 2010

## (e) Exemptions for CertainSm8.J.l Areas.-For areas witha totalpopulation under 200,000 which fail to attain the standard by the applicable attainment date, no sanctionunder this section or under any otherprovision 

## ofthis Act shall applyif

## thearea candemonstrate, consistent 

## with guidance issued by the Administrator. that attainment in 

## the area is preventedbecause ofozone 

## or ozone

## precursors transported

## from other areas. Theprohibition appliesonly in cases in which the area has met allrequirements andimplemented all measures applicable to the areaunderthis Act. [42U.S.C. 7511d]

Section 185 Fee Terininatlon Determination 12 Final May 2010

## ATTACHMENTB Inflation Adjustment for Section 185 Fees

Section185 cross-references the methodology in sectionS02(b)(3)(B)(v)of theCAA. Thismethod has been interpretedfor use in 

## determining permitfees in a 1992EPA memorandum. (See, Memorandum of October15, 1992, from Frank Bunyard,"Calculating Fees forOperating Permits.") EPA has usedthis method to calculatethe Part 70 pennit feerate since 1990, and will continueto update the rate everyyearin September,when the August values are available. The adjusted section 185 fee, then,would be proratedto that adjusted permitfee, as shown in Table 1 below, by multiplying thePart70 permitfee fateby'200 ($5000/$25). Since section 185 fees are assessed on a calendar yearbasis, and the inflationfactor is applied in September; the calendar year fee is determined as aweighted average(8/12 of the fee associated withJanuary to August, and 4/12 of the fee associated with Septemberto December). The weighted fees appear in Table 2 below. Thesewillbe updated each year in the fall.

TABLE 1: SECTION 185 FEE RATE BASED ON PART 70 PERMIT FEE RATE

Part 70 PermIt Effective Oates Fee Rate* Sect. 185 Fee Rate Sept 198B-Aug 1990 $25.00 $5,000.00 Seot 199O-Aua 1991 $26.21 $5242.00 Sept 1991-AuQ 1992 $27.59 $5518.00 Sept 1992-Aua 1993 $28.43 $5,686.00 Sept 1993-AuQ 1994 $29.30 $5,860.00 Sept 1994-Aug 1995 $30.07 $6,014.00 Sept'1995-Aug 1996 $30.93 $6186.00' Sept 1996-Aug 1997 $31.78 $6,356.00 Sept 1997-Aua 1998 $32.65 $6530.00 Sept 1998-Aua 1999 $33.21 $6,642.00 Sept 199B-Aug 2000

. $33.82' $6,764.00 Sept 2000-Aug 2001' $34.87 $6974.00 Sept 2001-AuQ 2002 $36.03 $7,206.00 Sept 2002-Aug 2003 $36.60 $7,320.00 Sept 2003-AuQ 2004 $37.43 $7,486.00 Sept 2004-AuQ 2005 $38.29 $7,658.00 Sept 2005-Aug 2006 $39.48 $7.896.00 Sept 2006-Aug 2007 $41.02 $8,204.00 Sept 2007-AuQ 2008 $41.96 $8,392.00 Sept 200B-Aug 2009 $43.75 $8750.00 Sept 2009':"AuQ 2010 $43.83 $8766.00

. .. From www.epa.gov/oar/oaqps/permits/hlstoricalrates.html

Section 185 Fee Termination Determination 13 Final May 2010

### TABLE 2: ANNUALIZED SECTION 185 

### FEE RATE

Sect. 185 Year Annualized Sect. 185 Fee Rate 1990 $5,080.67 1991 $5334.00 1992 $5574.00 1993 $5744.00 1994 $5911.33 1995 .$6.071.33 1996 $6242.67 1997 $6414.00 1998 $6,567.33 1999 $6682.67 2000 $6,834.00 2001 $7051.33 2002 $7,244.00 2003 $7375.33 2004 $7543.33 2005 $7737.33 2006 $7998.67 2007 $8266.67 2008 $8511.33 2009 $8,755.33

Section 185 Fee Termination Determination 14. Final May 2010

### ATTACHMENT C Response to CAAAC Task Force Options 

### EPA's CleanAir Act Advisory Committee (CAAAC) submitteda letter to EPA dated May 15,2009, askingwhether "it is legallypermissible under either section 185 or 172(e)for a stateto exercisethe discretion identified" in 10bullet pointslisted in an attachment to the letter (seeAttachment D). In general, we believethe language in section 185 is relatively clear regarding theprovisions that must comprisean approvable program and, as indicated in the discussion below, we do not believe that manyof theflexibilities raised by the CAAAC would be 

### approvable provisionsof a state-adopted section 185 feeprogram. However, EPAbelieves that analternative program that contains some of theseflexibilities may be acceptable if it is consistent withthe principles of section 172(e) of the CAA,whichallows EPA through rulemaking to acceptalternative programsthat are "notless stringent"where EPA has revised theNAAQS. Although the anti-backsliding provisions ofsection I72(e) facially apply only where EPA has revised the NAAQS to make it less stringent, in its implementation rule governing the transition from the 1-hour ozonestandard to the more stringent 19978-hour standard, EPAconcluded that it made senseto rely on the governing principles in section·I72(e). Applying thisprinciplefor the transition from the 1

### -hourstandard to the 1997 

### 8-hourozone standard, EPAcan either require states to retain a specific program that applied for purposesof the I-hour standard, or alternatively can allow statesflexibility to adopt alternative programs, but onlyifsuchalternatives are "not less stringent" than themandated program. EPA has not yet concluded whether to apply the principles of section 172(e) to any future transitions from the 1997ozoneNAAQS to any new or revised ozoneNAAQS.

. Consistent with the preceding distinction betweena section185 fee program and an alternative program that is "not less stringent,"weaddress each ofthe] 0 points separately below.

Point 

### A asks whether

## astate may "authorizemulti-facility operators to aggregate emissions from commonly-owned and -operated facilities withina single nonattainment area for the purposeofcalculating the fee." We have defined"majorstationarysources" in many contexts and have interpreted that definitionin certaincircumstances to allow for aggregation of sources, We anticipate that we would be able to approvea section 185 fee program SIPthat. . relies on a definition of "major.statiouary source"that is consistentwith the CAA as interpreted in our existingregulations and policies. Point B asks whether a state "may permitmajorsources to aggregate their VOC andNOx emissions on a site-widebasis in calculatingthe fee" andincludes a description ofcertain. limitations thatwould be assumed for such aggregation. Provided that aggregation is not used to avoida "majorsource" applicabilityfinding, and aggregation is 

### consistentwith the attainment demonstration (e.g., if the area has receiveda NOx waiverundersection 182(f), thenNOx reductions cannot be substituted for

# vec reductions), we believe states have discretionto allow a majorsourceto aggregate

# vec and NOx emissions. PointsC and D concern whether states may allow a discountfor certain "pre-attainment year or attainment year" controls. We do not believethat section185 allows for any such

c.i

Section 185 Fee Termination Determination 15 Final May 2010

### consideration. The statutory language is clear that the baselineemissions are the lowerof the actual emissions or emissions allowed under the applicable permit during the attainment year or allowedunderthe SIP during the attainment year wherethereis no such permit. The only exception to this calculation for baseline emissionsis wherea source's emission are "irregular, cyclical or otherwise vary significantly from yearto year." EPA has previously issuedguidance addressingthis exception. Although considerationof thesecontrols is not consistent withthe express termsof section 185, states may be ableto develop a "no less stringent" program consistent with the principles in section 172(e), takinginto considerationsuch pre-attainment controls. Seediscussion of point I below, Point E asks whether the purchase of emissionreduction credits, or allowances,that are part of an area's attainment control measures "may reduce the amount ofemissions uponwhich the fee is based or constitute an investment

## thatshould be creditedagainst the fee." In the context ofcalculating both the attainment-yearbaselineemissions and the post-attainmentyear emissions,section 185 requires such emissionsbe the-lower of actual or allowable emissions. We believeallowableemissions can include emissionreduction credits or emissions allowances held by a source subject to fees. Whether holdingthe emissions allowances will affecta source's fee obligationdepends on the amount that is determined to be the lower of actual or allowable emissionsfor that source. Ifstates wish to providesomeother form of credit for sources that purchasemarket-based control measures, they may be ableto do so in the context of a program that is no lessstringentthan a section 185 programconsistent with the principle in section 172(e). See discussion of point I below. Point F asks whether sources may receivecreditfor post-attainment year emissions reductions or air quality investments. The Act is clear that post-attainment year emission reductions wi

# ube

### credited to the extent that 

### they reduce emissionlevels from the baselineyear. For example,if a source has 1000 tons ofemissionsin the attainment "baseline" year, the CAA requires that 

### sourceto pay fees on any emissionsin excessof 800 tons (80 percent ofbaseline) in eachpost-attainment year. Ifthe source is ableto reducepost-attainmentyear emissions from 1000 tons to 900 tons, then the source will pay fees on only 100tons ofemissions. Withregard to creditingemission-reducingor air-quality investments, we note that section 185 does 110t specify how collectedfees must be spent. In general, we believethat a state may chooseto use collected fees to support air 

### quality improvementprojectsat 

## sources, However, we cautionthat any suchprovisions should not be developedin" a way suchthat the provisions wouldappearto defeat the purposeofsection 185, which is to encourage emissionreductions that will bringthe area into attainment with the ozone NAAQS in the near-term. Point G asks whether post-attainment year newsourcesmust be subject to the fees. We believe it is clear that the fee imposed is on majorsources. Thus, to the extent a "new source" is considereda part of a major source that existed in the attainment year, the emissions from the new source must be considered as emissions from that majorsource. For new major sourcesthat are not part of existing major sources, we believe section 185does not provide a clear interpretationof the source's fee obligation. Therefore, we believe states have discretion in determininghow fees apply to these sources. States should consider that section 185requires "each major stationarysource" to pay a fee; however, the baselineamount for sourcesthat did not have a permit in the attainment year is calculatedaccording to what the SIP "allowed" during



## C-2

Section 185 Fee Termination Determination 16 Final May 2010

### the attainment year. Therefore, states should examinehow the applicableSIP addressed emissions from potential new major sources 

## in the attainmentyear. For example, a state could determinethat the SIP's new source review (NSR)requirements would provide that a new source employemissions control that meets the requirements of "lowest achievable emissionsrate" (LAER). Therefore, the 

## attainment-year baseline for a new source is the level allowable after applicationofLAER. Alternatively,a state coulddetermine the SIP's NSR requirementswould provide that a new source's net emissions impact be no greater than zero (Le., emissions levels after applicationof LAER must be offset at a ratio of at least 1 to 1). Therefore the attainmentyearbaselinefor a new source is zero, subjectingthe entire amount of a source's post-attainment year emissionsto the per-ton emissions fee

.. Also, statesmay be able to develop "not less stringent"programs consistent with the principlesin section 172(e),that exempt new major
sources [Tom fees, provided the alternative programsmeet the 112(e) standard ofequivalence. See discussion of point I below. With regard to Point H, which referencesstate discretionregarding the use of collected fees, we point to our response above for Point F.
Point I asks whether section 172(e)authorizes a state to develop

## an alternative programto that mandated under section 185. As an initial matter,we note that section 172(e) does not directlyapply here, where we are transitioning from the l-hour 

### ozone standard to the more stringent 1997 8-hour standard. However, in developingour anti-backsliding.rules in the Phase 1 

### Rule for Implementingthe 8-houi Standard (69 FR 23951, April 30, 2004), we indicated that althoughsection 172(e) did not.directlyapply, we were relying on the principles in section 172(e), as well as other indicationsofCongressional intent, in developing our anti-backsliding rules. In South Coast Air Quality ManagementDistrict v. EPA,.472 F.3d 882 (D.C. Cir. 2006), the Court rejected our waiver of the section 185 fee program for the I-hour 

### standard, holding that such programwas a "control applicable"to the area as that phrase is used in section 172(e)and thus must be retained under EPA's decision to apply section I 

### 72(e) to the transition 

## from the 1- hour standardto the more stringent 8-hour standard. Not before the Court was 

### the issue of the remaininglanguage in section 172(e) that provides.that EPA "shall promulgate requirements

... to providefor controls which are not less stringentthan the controls applicable 

### to areas . designatednonattainmentbefore such relaxation." EPA believes that this language clearly allows EPA by regulation to accept alternativecontrol programsthat "are not less stringent" than those that were mandated by the Act for the standardthat has been replaced (i.e.ithe l-hour 

### standard).

Point J 

### requests that EPA "clearly indicatethe conditions under which the collectionof fees may be terminated." Furthermore,it indicatesthat some members ofthe task force "would like the authorityto 

## terminate the section 185fee programupon the first year in which an areaachievesthe relevant standard." EPA believes that for an area EPA determines through noticeand-comment rulemaking is attaining either the l-hour or 1997 8-hour ozone NAAQS based on 

## permanent and enforceable emissions reductions,the area would no longer be obligated to submita fee program SIP revision, nor be obligated to continue implementing a section 185 

### fee program(or approved alternative equivalentprogram). The bases for EPA to make such 

## a determination through notice-and-comment rulemaking are 

### provided in the memorandum associatedwith this Attachment. .

C-3

Section 185 Fee Termination Determination 17 Final May 2010

### ATTACHMENT D CAAAC Letter

United States Environmental Protection Agency Clean Air Act Advisory Committee May 15,2009

The HonorableElizabeth Craig Acting AssistantAdministrator Officeof Ail'andRadiation U.S. EPA Ariel Rios North 1200Pennsylvania Avenue, N.W. Mail Code 6101A Washington, DC20460
Re: CleanAir ActSections 185 and 172(e)

Deal' AssistantAdministrator Craig:

At the May 

### 14,2009 meeting of the US EPACleanAir ActAdvisory Committee, on a unanimous vote,the Committee resolved to 

### urgetheAgency to provide prompt guidance

### tothe States regarding the following question arisingunderthe Clean Air Act:

Is it legallypermissible undereithersectionJ

### 85 or J

### 72(e)for Q 

### State to exercise thediscretion identifiedin OptionsA-J?


### The CleanAir Act Section 185 TaskForce,a workgroupestablished under the Clean Ail' Act AdvisoryCommittee, identified ten areas (A-J) ofpotential state 

### discretion. These optionsarelisted in the attachment to this letter. TheCommitteetook no position on the reasonableness or legal permissibilityof any option.

As 

### several Statesare inthe process ofdeveloping theirsection 185nonattainment feeprograms, time is of the essence inproviding appropriate legaland policyguidance. . Thankyousincerely,

Co-Chairs of the Section 185 TaskForce:

EddieTerrill Director DepartmentofEnvironmental Quality Air Quality Division 707North Robinson Oklahoma City, OK73101-1677

Section 185 Fee Termination Determination 18 

### RobertA. Wyman Latham & 

### Watkins LLP 355 SouthGrand Avenue LosAngeles, CA 90071

Final May 2010

### A. AggregationofEmissions AmongCommonly-Owned Facilities At its option, a State may authorizemulti-facility operators to aggregateemissions fromcommonly-owned'and -operated facilitieswithin a single

## rionattainment area for the purpose of calculatingthe fee. B. AggregationofVOC and NOx Emissions At its option, a State may permit major sourcesto aggregate their VOC and NOx emissionson a site-wide basis in calculating the fee to the extent suchaggregation is consistent with attainmentmodelingpreviously submitted by the State for the applicableair quality control region. Suchaggregation is not to 

### be used for the purpose ofavoiding a "major source" applicability finding(e.g., by spreading emissions over multiple sourcesso as to renderthe averagefacility emissionsless than the major sourcethreshold).

C. 'Consideration ofPre-AttainmentYearor AttainmentYear Installation ofBACT orLAER At its option, a State may considerto an appropriate extent pre-attainment or . " attainmentyear emissioncontrolinvestments by major sources. Without intendingto define the precise boundariesof a State's discretion to recognizethe degreeofcontrol already achievedby a source, the participants determinedthat sourcesthat had recently (e.g., within five (5) years ofthe year for which the fee would be imposed) undergonenew sourcereview and, as a result, installedBACT or LAER, should not be requiredto include emissions from such equipment in calculatingthe fee.

D. ConsiderationofPre-Attainment Year or AttainmentYear Installation of Retrofit Controls. In addition, at its option under appropriate circumstances, a State may designate emissionperformancestandardsthat it has determinedrepresent well-controlled (e.g., in the range ofor superior to BACT or LAER) units for a givenperiod of time and authorize a facility to demonstrate what portion of its emissions should be excluded from the fee calculationon that basis.

E. ConsiderationofMarket-Based Programs At its option under appropriate circumstances, a State may determine that purchasesofemission reduction credits,or allowances,as part of a State's market-basedattainment control measuremay reduce the amount of emissions upon which the fee is based or constitutean investment that should be credited against the fee.

1

Section 185 Fee Termination Determination 19 Final May 2010

### F. Credit Sources for Post-Attainment Year Emissions-Reducingor Air Quality Investments At its option, a State should recognizeand appropriately creditqualifying postattainment year emissions-reducing or air quality-beneficial investments by major sources. These investmentsshould be credited to such sources in a mannerthat reduces or eliminates fees that otherwisewould be due under the program. States . should identify the qualifications for such investmentsbased on theirunique

attainment needs.

G. Post-AttainmentYear New Sources There was agreement that new sources constructedafter the attainmentyear would not have a baseline; would already have installedBACT or LAER, would already have provided offsets, and therefore should not be subject to the fee for such equipment. '

.
H. Use ofProgram Revenues States retain full discretion regardingthe use ofcollectedrevenues. Participants encouraged States to tailor strategiesto their unique attainment challenges and to consider ways to address under-regulated sources (e.g., legacy vehicles and engines and certain area sources).



## 1. Equivalent Programs Under section 172(e), a Stateshould have the option ofcollecting equivalentor greater fees, or of requiring equivalent or greater emissionreductions, by shifting the program target 

## in part or in whole to under-regulated sources (e.g., legacy vehicles and engines, under-regulated area sources) or by applying the program in a manner that addresses otherattainmentgaps. Likewise,the task force envisioned that any recommended strategynot directly approvable under section 185 should be considered as an equivalent alternativeprogram under 172(e). In such circumstances, the state may need to shift the fee burden amongsourcesto demonstrateequivalency. 1. Program Sunset EPA needs to clearly indicatethe conditionsunder which the collection of fees may be terminated. Some membersof the taskforce would like the authority to terminate the section 185fee program upon the first year in which an area achievesthe relevant standard.

2,

Section 185 Fee Termination Determination 20 Final May 2010

# AppendixB Louisiana RS 30:2066 : Fees, Severe and Extreme Ozone NonattainmentAreas

21PREVIOUS SECTION 

### I NEXT SECTION 

### I PRINTDOCUMENT 

### I CLOSETHISWINDOW 

## RS 30:2066

Section 185 F_ Termination Determination 22 

### http://legis.state.la.us/lss/lss.asp?doc=207831 &navlinks=T 

## Page 1 of 1

Final May 2010 

### 2/15/2010

### RS 30:2066 Page 1 of2

§2066. Fees; severe and extreme ozone nonattainment areas A. 

### The following terms shall have the following meanings for the purposes ofthis Section: (1) "Annual adjustment" shall mean an annual increase by the percentage by which the Consumer Price Index, as published by the United States Department ofLabor for all urban consumers or its successor publication, for the year immediately prior to the year in which the fee is being imposed exceeds the Consumer Price Index for the calendar year 1989. (2) "Baseline amount" shall mean the amount computed, in accordance with such guidance as the administrator of the United States Environmental Protection Agency may provide, as the lower amount within the year ofeither the actual volatile organic compound (VOC) or Nitrogen Oxides (NOx) emissions or the VOC or NOx emissions allowed under the permit applicable to the source, or if no permit has been issued 

## for that year, the amount of VOC or NOx emissions allowed under the implementation plan. Such guidance by the administrator may include the calculation ofthe baseline amount based upon average actuals or average allowables. B. 

### In accordance with the provisions ofArticle VII, Section 2.1 ofthe Constitution ofLouisiana, the Department ofEnvironmental Quality is authorized to adopt, promulgate, implement, and collect a fee, in addition to any other fee, to be paid by major stationary sources of VOC and NOx emissions located in severe or extreme ozone nonattainment areas that have failed to attain the one-hour national primary ambient air quality standard for ozone by the year 2005. The fee shall be no more than five thousand dollars or an amount determined by the department to be consistent with applicable federal requirements, whichever is less, plus annual adjustment, per ton of VOC and NOx emitted in excess of eighty percent ofthe baseline amount by the source during the calendar year. The fee shall be paid for each calendar year beginning after 2005 for which a fee is to be collected pursuant to this Section, until the area is classified as an attainment area for the one-hour national primary ambient air quality standard for ozone or such fee is no longer required by Section 185 of the Clean Air Act Amendments of 1990 (42 U.S.C. 7511d). To the extent consistent with applicable federal requirements, when imposing the fee authorized by this Section, the department may use such baseline or baselines as the department deems necessary and appropriate.' C. The fee authorized in this Section shall not apply to the following: (1) Emissions 'emitted during any year that is treated as an "Extension Year" under Section 181 (a)(5) of the Clean Air Act Amendments of1990 (42 U.S.C. 7511(a)(5). (2) Areas with a total population under two hundred thousand that failed to attain the standard ,by the year 2005, if the area can demonstrate, consistent with guidance by the Administrator of the United States Environmental Protection Agency., that attainment in 

### the area is prevented because of ozone or ozone precursors transported from other areas and ifthe 'area has met all requirements and implemented all applicable measures under the Clean Air Act Amendments of 1990. D. Notwithstanding any provision in this Section to the contrary, to the extent that the United States Congress, the United States Environmental Protection Agency, or a court with appropriate jurisdiction takes action that eliminates, reduces, or otherwise modifies the fee required by Section 185 of the Clean Air Act Amendments of 1990 (42 U.S.C. 7511d) or the manner in which such fee is implemented or collected, the department shall take such actions as appropriate to immediately adopt, promulgate, and implement such regulations as necessary to ensure that a minimum of such fee is collected pursuant to this Section' but not greater than five thousand dollars per ton as required by Section 185 ofthe Clean Air Act Amendments of 1990 (42 U.S.C. 7511d) or any new federal statute or binding federal requirement on the same subject. To the extent applicable judicial decisions or federal, laws, regulations, policies, guidance, or directives provide flexibility or alternatives with respect to the imposition of the fee required by Section 185 of the Clean Air Act Amendments of 1990 (42 U.S.C. 7511d), the department may adopt, promulgate, and implement such regulations and take such other actions as 'consistent therewith, including modifying the manner in which the fee authorized by this

Section 185 Fee Termination Determination 23 

### http://legis.state.la.us/lss/newWin.asp?doc=207831 Final May 2010 

### 2115/2010

### RS 30:2066 Page 2 of2

Section is implemented and collected, otherwise ameliorating the impact of such fee or imposing alternative requirements 

## in lieu of, or in addition to, such fee. Acts 2003, No. 441, §1; Acts 2008, No. 588, §1, eff. June 30, 2008.

Section 185 Fee Termination Determination' 24 

### http://legis.state.1a.usllss/newWin.asp?doc=207831 Final May 2010 

### 2/15/2010

# AppendixC PublicNotice Documentation

Section 185 F_Termlnatlon Determination 25 Final May 2010Herman Robinson, CPM Executive Counsel

Following are the fees that e charged by the Louisiana Board of Veterinary Medic' e: Doctors of Vete . ary Medicine:

Annual A ve Renewal Fee Annu nactive Renewal Fee Re waJ Late Fee

enewalLate CE Fee POTPOURRI epartmenl of Health and Hosplt oard orVeterinary Medici 

### HermanRobinson, CPM Executive Counsel 1002/1056 ozone nonattainment area pursuant to guidance issued by the U.S. Environmental Protection Agency on January 5, 2010 (see memo from Stephen D. Page, Director Office of Air Planning and Standards).

The Baton Rouge five-parish ozone nonattainment area, which consists of Ascension, East Baton Rouge, 

### Iberville, Livingston, and West Baton Rouge Parishes was classified as severe under. the now-revoked one-hour ozone standard on June 23. 2003. Accordingly, the area became subject to CAAA §185, which requires states to develop and implement a fee collection rule. The one-hour ozone standard was revoked by the Environmental Protection Agency on June 15.2004 which was prior to the attainment deadline.

Based upon monitoring data for the years 2006, 2007, and 2008, the Baton Rouge ozone nonattainment area has reached attainment with the one-hour, as well as the 1997 eight-hour, ozone standard and is therefore eligible to request a termination determination of the CAAA §185 fee collection. As such, the department is submitting a revision to the SIP.

A public hearing will be held at I :30 p.m, on March 30, 2010, in the Galvez Building, Oliver Pollock Conference Room, 602 N. Fifth Street, Baton Rouge, LA 70802. Interested persons are invited to attend and submit oral comments on the proposal. Should individuals with. a disability need an accommodation in 'order to participate, please contact Vivian H. Aucoin at (225) 219-3509 or at the address listed below.

All interested persons 

### are invited to submit written comments concerning the Termination Determination of CAAA §185 Penalty Fees for the Baton Rouge area no later than 4:30 

### p.m., March 30, 2010, to Vivian H. Aucoin, Office of Environmental Compliance, Air Quality Assessment Division, P.O. Box 4314, Baton Rouge, LA 70821-4314 or to 

### fax (225) 219-3240 or bye-mail to vivian.aucoin@la.gov.

A copy of the SIP revision is available on the LDEQ website at www.deq.louisiana.gov/portallDefault. aspx?tabid=2381.

Termination Determination of CAAA §185 Penalty Fees State Implementation Plan Revision POTPOURRI Department or Environmental Quality Office or the Secretary

Under the authority of the Louisiana Environmental Quality Act, R.S. 30:2001 et seq., the Secretary of the Louisiana Department of Environmental Quality gives notice that the Office of Environmental Compliance, Air Quality Assessment Division will submit a revision to the State Implementation Plan (SIP) to request a termination determination of the applicability of the Clean Air Act Amendments (CAAA) §185, to the Baton Rouge five-parish ough there are several factors which may impact whe GH s become regulated pollutants, it is expected that e regul ion of GHG emissions from mobile sources wi be the dn ing factor. EPA is currently developing aRe to regulate GHGs from mobile sources under Title 

## n of**~he** Clean Ai ct (74 

### FR 24007; May 22, 2009); the 

## r ht duty vehicle Ru . EPA expects to promulgate this rule y the end of March 2 10. It is currently EPA's positio that new pollutants bee me subject to PSD and Title V when a rule controlling tho pollutants is promulgated (a d even before that Rule takes e ect).

Accordingly, w n the light-duty vehicJ role is finalized, the GHGs subject t regulation under tha ule may become immediately SUbject regulation unde the PSD program, meaning' that from tha point forward prior to constructing any new major source or major ification that would increase GHGs by a si ificant unt, a source owner would need to apply for, d a rmitting authority would need to issue. a permit nd the PSD program that addresses these increases.

Further. in accordance wit ection 503(c) of the Clean Air Act, an owner or 0 rat r of an existing source exceeding the major sourc applic bility level for regulated GHGs would have 12 nths to bmit a Title V permit application if the faci . y did not ve a TItle V permit already.

The Louisiana De artment of Enviro Permits Division, s requesting owner or operators of facilities operatin under any type of air pe .t to notify the Air Permits 

### Divrsron if GHG emissions fr their facility equal or exc 25,000**C~e.** A site-speci estimate of potential GH emissions (in tons per year) is equested if available, b is not required. This correspondenc should be directed t Bryan D. Johnston, Air Permits Divi 'on, P.O. Box 43 , Baton Rouge, Louisiana 70821-43 • and submit d by March 31, 2010. Questions may be dire ted to Tegan readaway at (225) 219-3004.

LouisianaRegister Vol, 36, No.2 February 20. 2010 432

Section 185 Fee Termination Detennination 26 Final May 2010

### Acadiana's Daily Newspaper 

# THE ADVERTISER

1100 

### Bertrand Drive LAFAYETTE, LA 70506



## AFFIDAVIT OF PUBLICATION 

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LA.DEPlOfENVlRONMENTALQUAUTY LEGALAFFAIRS DIVISION



### PHONE: (337) 289-6300 FAX: (337) 289-6466

BDEQRD 

### 1283669 $66.43 139 

### Remender D. Weatherspoon LA Department of Environmental Quality OSEC/Legal Affairs Division Remediation & 

### Regulation Development Section 

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# o. Box 4302 Baton Rouge) LA 70821-4302 Account No.: Ad Number: Ad Total: No. of Lines: Reference No.: ""To Insure proper qredlt please refer to your account number and/or ad number when making payment Remittance address: P.O. Box 3268, Lafayette. LA 70502-3268 

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### POTPOURRI Department of Environmental Quality Office of Environmental Compliance Air Quality Assessment Division Termination Determination of CAAA §185 Penalty Fees State I mplementation Plan Revision

. (1002Pot2)

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## Sworn to and subscribed before me this 17th day of February, 2010.



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Section 185 Fee Termination Determination 27 Final May 2010

.1283669

. POTPOURRI Oepartment of .**EnvlrOllment~1** Quillity

, Offlceol Enllironmental

Compliance AirQUalifY '

. Assessment Olvlslqn

, Termination. Determination of CAAA §1BS Penalty Fee, StateImplementation PlanRevision

qOO2P0t21 Under**t~e** authorIty of the Louisiana Environ' mental Quality Act, R.S.30:2001 et seq., the Secretary of the Louisiana Department of Environmental Quality gives notice that the Office of Envlronmen- 'tal Compliance, Air 'Quallty Assessment 01- 'vislon,'wlllsubmit e revision to the Stete Implementallon Plan (51PI to request a fer' 'mlniJtioli determlna· tionillthe applicability 'of fhe Clean Air Act Amendments (CAAAI' §IBS, to the Balon**~ouge** ' five-parish ozone 'nonaltalnment erea ,purs'!ant to guld· endeIssuedbythe U.S', Environmental Protec· tloll'AgenCy on Janll:" aryS, 2010 (see memo from Stephen D. Page, Director OffIce of Air Planning and Stend'

### a'~e Bafon, RliuUe

.

.five-parish 020ne nonaltalnment area, which consists, of As· censlon, Ellst Batan Rouge" IpervlI,le, L1v:

.

. In95tO\1, and**w~** Bat·

on Rouge Parishes, was classified as SlIYere underthe now, re- voked one-hour otone standard on June 23, 2003. ,o.ccordlngly, the area becamesublectto CAM §lBS, which re- qulras states to devalop and' Implement a fee collection rule, The ene-heur ozone standard wiJs revoked by the Environmental Protection Agency on June IS, 2004 which WIS prior to the altaln- mentdeadline.

Bilsed upon monitor' Ing data filr ,Jlle.**~ers** 2006 '2007;' and2OOB, tfie**Bat~~,~ou!leo:zone nonatlaln"m~n,f**  ,i!',t,ea lias feach_V**~IJaln­** ment willi' ·the' one' hour, as well as the 1997 eight-hour, ozonestandard and Is therefore eligible to request a lilrmlnatlon determl' nation 01 fhe CAAA §1BS fee collection. As such, ,tile Department Is submitting a revl· slontothe 51 P,

Section 185 Fe':' Termination Determination Apublic hearing,will be heldat 1:30 p.m,on March 30, 2010, In,the Galvez BUilding, Oliver Pollock Conlerence Room, 602 N.Filth 'Sti'..m:·, Batoh'-**:Roull~;** tl\ ""fOII02'/' 'Ihtetli§fed person$ ate lriVIted to attend. and SUbmit orel comments on the pro· POsal. Should Individuals with a disability need an accommode-. tlonIn order to partldpate, please' contact Vivian 'H. ,Aucoin at (225)**219~5\l9** out""e addresslistedbelow.

All Interested' per- sonsare Invited to submit written o:ommenls concerning the Teml· nation Determlnallon of CAM,**§1B~** P,enalty Fees fbi''' ,the B.l!ton Rouge' ,e:r!if' 119 ','.Ier )han4:3O"" p.rtI.•' MlIt'.ch 30, 2010, fo ViVian H. Aucoin, Office ofIi'nvlronmental**ComplI,an~,** 'Air Quality ASsess' ment Division, Box 4314, Beton Rouge, LA 70821-4314 or to FAX (2251 219-3240 or bye· mall .to vlvlan,aucoinOla.gov.

Aclipy ofthe SIPrevision 15 available on t/1ii" t.OJ:Q Website it WWW.deq.llilJls.ia.na.gOv

•**~r~~~fa"lfi~PIC?t** Werman' Robinson, CPM, ,. El(el:Ufive COUnsel

.

28 , " 'J ;;".

: 

### . .;

Final May 2010

## PROOF OF PUBLICATION --I") 

# 2 A"

.... ·" f t.O '1 Lu 

### L.I



## 4225976 DEQ

- OSEe/LAD REG REMENDER WEATHERSPOON PO BOX4302 RM821-74 BATONROUGE LA 70821-4314 

### Sworn and subscribed before me by the

. person whose signature appears above 

## Februarv1(j, 2010 The hereto attached, notice was published in 

### THE ADVOCATE,
a dally newspaper ofgeneral circulation published in 

### Baton Rouge, Louisiana, and the Official Journal ofthe State ofLouisiana, City ofBaton Rouge, and Parish ofEast Baton Rouge, in the following issues: 

## 02116110 

## Publisher of THE ADVOCATE

# ~~~~ M. Monic McChristian, Notary Public ID# 88293, I 

### State ofLouisiana

## \\\\~~,~f/'1 My Commission Expires: Indefinite

## "'..".~"""' .••

## ~:4+.I,.

# .....**,.~** ••, ..\l8L,c '" v·...J.' .,.



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# CAPITAL CITY PRESS

Section 185 Fee Termination Determination 29 Final May 2010

# [CERTiFIED COpy

# loJ ;;..yv·



# . .' "1}'
State ofLouisiana Parish ofRapides 

# AFFIDAVIT OF- PUBLICATION FEB 1 8cDiD

LA: DEPT. OF £IlViROily.EHrAl. QIJAl.m ltGALAffAlliS Oi'iI5!(jN



### ( A Correct Copy ofPublication ) 

### I, Bill Heirtzler, Director ofAdvertising,

this 

## 15th day of February, 2010 at 

# Al:5:IJ,c.:

Terr/lA. Broussard Notary Number 19477 

## My commission is for life. 

## BIllHeirtzler

. ....)

Subscribed and sworn to 

### before me issue dated Febrnary 14, 2010. 

# 2'i!(¥**.L-l:~** i.

# ~J~A. dated February 14, 2010 and ending with the for one inserti.on(s) .commencing with the issue 

## newspaper,and not 

## in any supplement thereof advertisement, 

### as per clipping attached.,was Louisiana do solemnly swear that the

published in the regular and entire issue ofsaid Potpourri of THE 

### TOWN**TAL~** 

### published at Alexandria,

(2)**1~** A public hearing will be held at 1:30p.m. on; March 30, 2010, In the Galvez Building, Oliver Pollock Conference Room. 602 N. Fifth Street •. Baton Rouge, LA 70802. Interested parsons are Invited to attend and submit oral comments on the pro-

. posel. Should IndlVldu· als with a dlsabmty need an accommoda- tion In order to partlci'**e1~~Bn P~~5~uc~~ta;l**  (225l 219-3509 or at the address listed below. . All Interested persons are Invited to' submit

. written comments con- cerning the Termlna· tien Determination of CAAA §185 Penally FNS for the Baton

. Rouge area no liter

. than -4:30 e.rn., March 30, 2010, to Vivian H. Aucoin, Office llf Envl· ronmental Compliance, Air QUIllty Assess, ment Division. Box QU. Baton Rouge. LA·**7082"'431~** or to FAX (225) 219·3240 or by

.. mall to vlvlan;aucolnOla·lIOv. . A COpy of the SIP rtv!· sion Is available on the LDeQ website at·

. wwW.deq.loulslana.gov IPortaI/Default.aspx?t ablds2381. HERMAN ROBINSON. CPM . Executive Counsel POTPOURRI Department of I Environmental Quality OHice of Environmental

### ~~~8~:nf: 

# . Assessment Division
Termination Determination of CAM §185 Penalty Fees

. State Implementation. Plan Revision

(lOO2Pot2) Under ihe authority of the Louisiana Environ- mental. Quality Act. R.S. 30:2001 et seq••the Secretary of the Loui- siena Department of Environmental Quality

### ~~~e**~tl~~vl~~m~~** tal Compliance. Air Quality Assessment Di· vision, will submit I revIsion to the State ImplementatIon Plan. (SIP) to request a ·ter- mlnatlon determinl'**::n~: t~~e:~~I~I~bl~~**  Amendments (CAAA) §185, to the Baton Rouge flve-parlsh

. oxone nonettalnment area pursuent to guid- ance Issued by the U.S. Environmental protec· tlon ·Agency on Janu- ary S. 2010 (set memo**t~~::"'8~~c~' ~alf;**  Planning and srene-: arclsl. .The Baton Rouge fiveparish . ·oxone nonattalnment area, which consists of As' censlon, East Baton Rouge, lberville, L1v· ingston, and West Bit· on Rouge Parishes, was classified as se-vere under the now reyoked one-hour oIone standard on June 23,

### ~~**b~~~~:i~~reJ~~** CAAA ll85. which re- quires states to devel· op and Implement a fe. collection rule. Theene-heur ozone standard was reVOked by the Environmental**j~~~c~lf.n ~n~hl~~** wos prior to the attainmentdeadllne. Based upon monitoring data for the yeers '2006. 2007;aM 2008. 'the Aa./

...· on

. Rouge ozone nonattainment area ftas reached attain' ment with the one- hour. as well .as the 1997 elght·hour, ozone standard and -ts there' fore eligible to roquest a termination determi· nation of the CAAA §185 fee collection. As such. the Department**~0;¥gni:~1~:** a revl·

Section 185 Fee Termination Determination 30 Final May 2010'

### Notary Public 

# RECEIVED

FEB 26 2DtQ

LA. DEPT. OF ENVIRONMENTALQUALITY LEGAl. AFFAIRS DIVISION'



# Gwendolyn R. Du.i!?s ,/,·Or:.'l ,.'"'l

.... 

### -;"f-f t.,.,\)()4.,j 

## STATE OF LOUISIANA Parish 

## ofCalcasieu

.

00053262 LDEQ-OSEC-LAD

# ~oo~ Subscribed and sworn to before me on this 22nd day of February, 2010 at Lake Charles, A The attached Notice was published 

## in said newspaper 

## in its issue(s) dated:

### 00590273 - $31.00 February 20, 201{) He/She is a duly authorized agent of 

## LAKE CHARLES AMERICAN PRESS
a newspaperpublished daily at 4900 Highway 90 East, Lake Charles, Louisiana, 70615. (Mail 

### address: P.O. Box 2893 Lake Charles, LA 70602) 

# .»:
me the undersigned authority, tersonally came and appeared

# ~YS .. pOTPOURRI Departmentof Envlronrnerrtal Quality Ol'IIceof Envlronmen1tI1 Compllenc:e Air Quality AsseSS-

ment Division Termlnatlon Defemllnation of CAM §l85 . Penalty Fees state Implementation

Pion RBYlslon**O~Po12)** uneer the authority at the Louisiana Environmental Quality Act, R.S. 30:2001 et seq., the Sec-

. retort of the Louisiana Department of Envlron-' mental QuClllty gives no- ti ce tl'lat the 'Offlce of EnVironmental Compli- ance. Air tlu.a!lt'V A!'- sessment DIvISIon, will . submit**g~reylsJc:m.** tilth!: State I mp'lemenfation: Plan (SIP) to**reque~t** a; termination determlnq- tlan of the applicability , of the Clean AIr Act: Amendments (Cp..AA) : §185,to the Baton Rouge i flve-par.lsh**~zone** "onatfalnment area'pursuant

. to .guldance Isstied by the U.S. Environmental ProtectIon Agency on JanuarV.5,

...2010·.·(see memo from Stephen D. Pave, DireCtor ·Offlce of , AIr PloJ1nl!1p ,anp sren-. dardsl.'·· ',.'.:.;,.... . . . e

. The Batoh··· Rouge. flve.parlsh ozone nanat- ! tolnment area,' WhIch, canslsU .of·Ast;enslon,

. East aafan.Ro,uge. lber- ' ville, Llv.higsto/l. and West eerton

.Rpuge ParIshes, was cJ.asslfied as SIlvera iJnjler-'fne. now re- : vokedc·one".hour:bzone· standaI'd on June 23, 2003. Accordingly, fhe area becam" subtect t9**CAAA§l~$i,Whlch** re- quires stole!; to develpp and Implement a fee·callectian' ".Ii!!le. T.he**one-haur'~ane** stpndprd was r'eliol<i!d 1:1'1' the EnvlroillTleilte;,f',preteetlen Agency on' ",une 15. '2004 whld,**'",n~** ·o"lor to the:**ottciiniTienr~~b'dll"e**..

Based'upan'lT)oni,tor- 'Ing dat'o·

.. for·,tp'e ·yep" 2006;**}l001;,~lid~O!l8.** the Baton:'Rouge ezone nan- attainment area has reachedatfplnment With the ·ane-hou.r,',ps,well os the**·1~·97e19hFhaur.** ozane.stdridClrd.:a nd I.s therefcire'eltgible·'ta re- qUe5t'o**~e.rmtnQtian** determination ofthe CAAA §J85 fee collection. As such, fhe Department Is submitting a .revislon to the SIP

.. 

# {CERTIFIED

# COPY1~) \1'**f"~\I~** 

# Affidavit ofPublication

Section 185 Fee Termination Determination 31 Final May 2010Section 185 Fee Termination Determination 32 ,

# . '.;;

I, I:



### . . 

## .... A public hearing will be held at 1:30 e.m. pn

,March 30, 2010, In the Galvez Building, Oliver Pollock Confere'nee Room, 602 N. Fifth Street, Baton Rouge, I"A , 70802. Interested**p~r** sons are Invited to at- tend and submit oral comments on the pro- pO$OI. Shoilld IndMd\!- als with a ,dlsabllltv need on accommodation In order to participate, please contact Vlvloll H, Aucoin at (225) 219-3!i09 or at the address IIste,d below.

All hiterested persons are In\lltedto submit written comments con- cerning thl> Termination Determination of CAM §185 Penalt\! Fees tot the Baton RoU9l! ,area no later thali 4:30 P,'!I.' March 30,2010, to VIVian H. Aucoin, Office Of En-, vlronmental Compli- ance; Air Qualltv As· sessment Olvlslal), Box 4314, Baton Rouge,.l,.A 70821..4314 or to FAX (225) 219-3240 or bv , e-mail tovlvlan.aucoln@la.gov. ,

A COP\! of the SIP revl- .slon Is available lin the LOEQ website at www.deq.loulslana.goll/portoIlDefault.aspx?tal>ld-2381.
Hermon**RObl~~~** Executive CounsBl Feb20 

### n 00590273

Final May 2010

# LEGAL AD 

# DEPT. The hereto atta'ched advertisement 

# THE NEWS-STAR 

# MONROE, LOUISIANA PROOF OF PUBLICATION 

# fEB 24 2C;J
i./\. UEPJ: OFENVmONM£NTALQUAlIrt LEGALAFFAiRS DNISION '



# Publisher of

Was published in the NE'VS-STAR. 

## A daily 

## newspaper ofgeneral circulation.
Published in Monroe, Louisiana. Farish of Ouachita in the issues of:

# ~.Jl1tAJ11B 116 

# 00/0

# f1[~ 1JLa/}(W:r- 

# {CERTIFIED COpyJ

# .A!1l~1/' i POTPOURRI 'I DEPlI.RTMENTOF \ Blsed uPOn monitoring I EnvirOnmental Quality da. ta for the years 2D06. , Office of Envlronmen' 2OU7. and 2008. tne Bat-

" til Compliance on Rouge ozone , ' Air Quality nonattllnment erea ; Assessment DiVIsion • naa reacned att1lln' mentwlth the oneTermination D,terml- hour. as well aa tne nation of CAM' §185 1997 elgnt-nour. ozone Penelty Fees standard and Is ttlereState Implementation fore eligIble to request Plan Revision ,a termination determl· (lOO2Pot2) nation of tne CAAA I §185 fee collection. As , Under tile authority of such. tne DtPartmel]t'

### ~:n\:ts~~:ufvnvIA':.t**~'o~~~r:~~~.** a rev"

R.S. 30:2001 et seq., tne ' , " , secretary of the Loul' 'A public nearIng' wlll siena Department of be' neld at 1:30p.rn, on Environmental Quanty Marcn 30, 2010, In tne glvll$ notice that the Galvez Building,Oliver Office of Envlronmen- Pollock Conference tal compliance, Air' Room; 602 N. Fifth

### ~I~r~~~**~'~less:b~lt D~** **t!e~eJatornte~=** revIsion to the State persons are Invited to Implementation Plan attend and submit oral (SIP) to requll$t a ter- comments on the pro· mlnatlon /lelermlna' posal. snould IndivldoI tion of tne applicability als wltn a dlsablllty of the Clean Air Act need an accommod

.. Amendments' (CAM) tlon In order to partlcl· §185. to tha Baton pate. please contact R.ouge five-parish 

# I VIVIan H. Au<:oln at ozone nonattalnmant' (22S) 219-3509 or at the area pursuant to guld- , address listed below. anee issued by the U.S. All Interested persons Environmental Protec· are Invited to submIt tlon Agency on Janu- wrItten comments con- ary 5. 2010 (see memo cernlng tM Termlna· from .Stephen D. Page. lion Determlnellon of DIrector OffIce of Air I CAAf(' '§185 Penalty Plennlng and Stand· \ FIll$ for the Baton ards). Rouge aree no latlr tllan '4:30 p.m., March The ilitOA Rouge 30. 2010, to Vlvla.n H. five-perish ozone Aucoin. Office of Envl· nonatlalnment area. ronmentll Compliance, WIllch consists of AI- Air Quality Alaesacenslon, East Baton ment DivisIon, Box Rouge, Ibervllle. Llv' 4314, Baton Rouge, LA logston, and West Bit· 70821-431

.. or to, FAX on' Rouge parishes, (22S) 219-3240 ,or by ...· WlS cllsslfled IS ,sa- mill to vera under the now re- vlvlan.aucolnOla.gov. voked one-hour ozone ' stlnderd on June 23, A copy 01 the SIP revt2003. Accordingly, ttle slon Is aVlliable on the area, became subJect to LDEQc, website at CAM §185, which re- www.deQ.loulslanl.gov flulres stites to devel- IportaIlOetault.lSpx?l ':'**~~~eJr.:::I~m:~Th:** ablda2381. one-hour ozone stand· Herman Robinson. ard was revoked by CPM the ' Environmental ExecutIve Counsel

### ~~~~4~~**to&:n~l~** Monrll6. LA was prior to the attaIn' February 18.2910 ment deedline. '.:;OOO::,l;::z&36:.::..:c 92:.::....

_ 

## Sworn and subscribed before me by

The person whose signature appears above in Monroe, LA on this



# l't AD

Section 185 Fee Termination Determination 33 

# NOTARY PUBLIC Steven 

## L.**Tur~~J~~ifl1o**',': '.

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### day of F.ebrUl;lry,**2Q~O** 

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## -I 85 Fee TentllnationDetennin.tion'·· 

# . PROOFOF PUBLICATION 

# CERTIFIED COpy

, "**\l~**

## '!>\\~\ 

# .'

POTPOURRI

\:'. Department 'of Envl' 

### i ronrnentet Quality .; Office of Environ, , i mental Compliance : Air ·Quallty·Assess·, ;/·1

· ment orvls.I.?". L TerminatIon Deter' :[. mtnatton of CAAA · §lB5 Perialty Fe!!s '.

'State Implementation 

### I· Plan Revision ; (1.002Pot;U '

.. '.! Under the'

## a~~horlty' ''/ of the' Louisiana En-.: I

.,**vironmenta~·Quality.:** 

### I,

· Ad, R.S. 3O.2OO1.et

,. seq., the·Secretary**¢~.** :·the.Loulslana De- 

## "'1':
: partmentd,f"E:rivirooo' .,

. merital.QUalltygives \".:

: notice that the Office

. " of**~nvironmental.** .'

,......:. cemcuance, Air '. ., .

. '

.. Quality**·As~menf··** ,\.: ':.:. " Division, will submit, i

• • . t· a revision to the'

. I' ,.State ImPlementationl.:'

.. Plan. (S I P) 'to request 

## I:

.. a termination deter- -:

· mimition of the iilP' "

pllcablllty Oft

..he :.

. 'r: ·.qeiln,A.lr**~c;:t** 'i !. . '.

. .. ·Amendment.s : "

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....

(CAAA)·§'185,.to·the

..,

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### Rouge· five· 

### "'l"

.i pari:>" ozone .:' •.::, :: .....•: nonattainn'i!lilt'area

..r.,. l.

: pursua.nf: to**9:Uld~n.** 'eel,' '. .-: ..' Issuetl'**~ythe'** u.s; ""':

· .:" E'rll)ironmental**~ro~** ;,,'

# r ':.

. tectlon·Agencyon·

..

· ;. January 5, 2010.. (See :

. I memO from Stephen'" . 

### r: D'. Page, ·.Dlredor Of· .' · "

.. flce ,of Air P:lann1ng t.

, ." ' and Standards).

.. . ;. '., •• ':

### The'B~ton 

# ·r

.'. », Rou'ge flve-partsh ;. ozone nonattainment \. area, which' consists " of Ascension, East

. r': 'Baton Rouge, .": lberville, Livingston, 

### t and:West Baton " \. Rouge Parishes,. was. \ classified as sevjl:r'.lf'.·.:

. ".".
- . 

# '..

.. 

## .. :. ..**"~'** .

# . . , unaerttie';now**i"e~** 

### 'i

· . .yoked one-hour ozone· t·

standard on June 23, L 2003.• Accordlrigly,

. \.

.. .the area became sUb- !' ject to CAAA J18Si " :

·

### ~h~;~~u:tidi%a;~ 

## I

ment a fee collection : rule. The one't1bur.

. i ozone standard was i revoketl by the"Envh I ronrnental**,~r:o'ection** 

### I ,Agency·on·JUne.1'5,.. I '2004which' Was prior ! to the attatnment

. 'I ·deadllne

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### .

;," The Tltnes:.**F~:9r\!ar't.20,** 21)1.9**'~.:** ')'JJ -·Based.upiln' i 

# 't**m0':l~f~rtng** ·na.ta ·fo.r' ; :

..**:..~** 'thE! ·yilllr:S 2006, 2007,. ; and 2008.the'Batbn" Rouge'Ozeil1e "..' norilltt.' nmeilt,'a'reil has' reached attalnmenHvith tHi!**cir)~** hour"ill> well' as the ·l9.9'1eig.h!-hour. ozonestandarlf and Is thei'ef9nt ellgllJle. 'f:,' ,;.,. to r!!quest ,ateri,nlna- tlon determination of the CAAA §18Hee

. collection.' 

### As such". the Department Is '. SLlbmlttlng revision to' tlie:s,P," ". . A public;.ht'iiilrli!g will be·held. ;It,i:3Qp:m. on March 3ll, 20.10

.iti· ',.**t~e,.Gal.v.e··** , ', .. 0I1y er':'·

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submit written' 

### tom-

. merits cohee'rning tile

· 'Termination Deter" , ! mlnatiqn of CMA I

.

### ;(.ftl:5:"~~~ltrot':.f~r! ...: .•..

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4;39 p• ."'., March 30, \.;c .: : 2010, to Vlllian H. . Aucoin; Office of En- ·vlrOri\11enfal. Compliance, All'.**Qu~llry** As- ! sessment O\vlsIOn, Box 4314, Bil10n. i'" '. Rouge,LA 70821-4314 i" '. or to FAX (225) 219- \

.32-40 qr**~y** .e-maIl to .**Y..IY..l§!'I-"~:li~I1JngilJ~:.9gy:** . 

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### c6 i>{ in thl! SIp: re- :"" vlsllln.IS. available O"t I 1he LDEQ Wilbslte II! ,**:WwW.aeg.jo.ul~)!!n~:.ll** i ;**i:jjr~~rf~lll5ef;jYJ1.i'-l!**

.**PA1.t2ti!,q-:;;;~li!.** .**:~~~~nROblnSO"~"'"** '.'. Executive. Counsel ....•.

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. . Section '1.85

## Ee~ Termhiatlon. D.t•

## .:mi·n"~tiO~ 35 Final May 2010



### ,.

# -{CEiITlEIED**~11,lItG** 

# tithe**~lme£j-~icaJPttte** RECEIVED 

# FEB 282010

LA. DEPT. OF ENVIRONMENTALQUAUlY lEGALAFFAIRS DIVISION'



### 3800 HOWARD AVENUE, NEW ORLEANS, LOUISmNA 70140-1097 TELEPHONE (504) 826-3201



### State ofLouisiana

Parish ofOrleans



## February 20,2010 The Times Picayune Louisiana Department ofEnviron



# C1b.M: O 

## -L Sworn to and

# sU~bed before me this 

# If.
Day of Febmary, 2010

# m;7lF.-~ Notary Public MykOIDQ1ission expires at roydeath. 

### Charles A. Ferguson, Jr. 

### Notary identification number 23492

Final May 2010 36 

### 24th 3800 Howard Ave. New Orleans, LA 70125

On the following dates Was published 

## in Advertisement of

P.O. 

## Box 4301 Baton Rouge, LA 70821 Re: Potpourri Termination Determination ofCAAA 185 Penalty Fees State Implementation Plan Revision City ofNew Orleans
Personally appeared before me, aNotary 

### in and for the parish ofOrleans, Elizabeth C. Darcey who deposes and says that she is an Assistant Controller ofThe TimesPicayune, L.L.C., a Louisiana Corporation, Publishers of The Times-Picayune, Daily and Sunday, ofgeneral circulation; doing business in the City ofNew Orleans and the State ofLouisiana, and that the 

### attached LEGAL NOTICE ApubliC hearing will ba held at 1:30 p.m.on Marcil 30 2010 In the Gllvez BUIiOlng. Oliver POI· lock Conferrnce Room. 602 N. FItt/l Strlet. Baton Rouge. LA

I 70&02. JnterestedpersonsareIn-

vltedto attend and submit oral comments on tile proposal. Should Individuals with a alsabll· ItY neld an accommodation In order to participate. please con- tact Vlvlln H. AucDln at (225) 219-3509 oreftne adaress listed below. All Interested persons"" Invited to submit written comm.nts coneemlng the TermlnatJon O.**l:r:.a~~**

## ufo**;~ '~BJg:~~**  noliterthon 4:30 Pm.. Marth 30. 2010, to Vivian H.AucoIn. OffIce of environmental Compliance•• Air Ouallbl AssessmentOlvlslon.**~~it~ 0~~M~~12~**  3240 or by

..mell to vlvlan.aucoln_ILlIov. A cuPY. of tne SIP revision Js ovllllabil onthe LDEO Wlbslteat

.**=1i.a:.~~~ra"~m~portaVo** Heimon Robinson. CPM ExecutlviCounsel 

# / POTPOURRI Department ofEnvlrOnrntntaJ OullltY orne. of Environmental Compll· ance Air

OualltYAss"u","ntDivision TermInation Determination of

CAM§lIS P.nallY F.es State 11T\ll1.m.ntaUon PlanR,vl· slon (lOO2Po!Z) Und.r tn. autnortl:\l oftn. Loull/·**~~~ :.t~n~~~** **8.":M~'::** ry of til< loulslano DIPartment of EnvlronmlnW OullllY gives notlc. that lh. Dlnc. ofEnvl",n·**~s~~':;'1'g~~~ ~r,1** **~~:rt** a r.vlslOll to the State Impl

.. m.ntoUonPion(SIP) to request a t.rmlnallon Ult.rmlnaUon of the oopllcabllllY 01 the Clean Air Act Amlnamant! (CAM) IllS, to the BatgnRoug. IIve-oorish ozone nonattalmnent area**pur~ ~".s~l** **~~~~:~"upe::,:etI~ ~~gyfr~:ri** **J~~~n 56.2~~.~~~** **~:'''Ja::f.e** of Air Planning ana
Th. Balon Rougl IIV

..P.."h ozonl nonattalnment ar

... which consists of AsCOnslon. East Baton RoUDI. Ib.rvlll•• LJv. IllQston. ond W.st BatonRoupi Ptrlshes. was dblmld u , .. 

## V". unUir thl now,.vOkiU

.... hour OZOnt standardon June 13. 2003. AccordlnDIY.!hI area be· came subject to CAM §lIS, which reQuires stites to develOP ond Implement I fit COilletlon rull. Tn, on

..nour ozone stand

.. ard was revoked by !hi Envl"",· mentol Prolectlon ADenCY on June 15. ZOO. which wespriorto the otlalnment d.adllne. Sa

..d uponmonitoring dalll for the years 2006, 2007. ond 2OlI8. the Baton Rouge Ozgne nonlt. tllnment Irea has reached at. ta.lnment wfth the one--hour, as w.1I IS th. 1997 tIOht-hour. ozonestandard andIs th.refore**~~r~I~J~~u;,sttti". ~~\~~**  f•• COllection. As suen. tne 0

.. partmentJ.s submlttln" lrevlslon totn. SIP.

Section 185 Fee Termination Determination 

### I attest that the copy attached hereto as "Exhibit A" 

### is a true and correct copy ofthe advertisement published in The Times-Picayune on these dates.

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 

### 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX. 75202-2733


### MAR 3 0 20lU

.Viviari 

## H. Aucoin Office ofEnvironmental Assessment Environmental Planning Division Box 4314 Baton Rouge, LA**70821~4314** 

### Dear Ms. Aucoin:


### Thank you for the opportunity to comment on the Proposed Section 185 Fees Termination Determination. We believethat proposal as written should be revised to focus and expand upon the critical elements that qualify an area for a termination determination.

Pursuantto our guidance memo issued on January 5,2010, "Guidance on Developing Fee Programs Required by Clean 

### Air Act Section 185 for the 

## l-hour Ozone NAAQS", an 

### area that we determine is attaining either the I-hour or 1997 8-hour ozone standard, based 

## onpermanent and 

## enforceable reductions.would no longer

## needto , submit.a fee program,SIP revision

# to satisfy.the section '185. antibacksliding requirements associated with the l-hour standard. Under**~ese circum~taiic~s;**  

### an' 

## area' s existing SIP should be considered an adequate, alternative program. Our reasoning is that.an area's existing SIP measures, in conjunction with other enforceable measures, should be adequate to achieve attainment.

Based on EPA's guidance, we offer the following comments and suggestions:

The Administrator detennines thatthe area is 'attaining the national ambient air quality standard [for ozone] ...:... for the I-hoUIor,1997 8-hour: We note that EPA has determined thatthe 

### Baton Rouge area-is 

### currently attaining the one-hour ozone st.andard based on past air 

### quality data, See our,Federal Register-action on February 10,2010,75 FR 6570. While this determination is based 

## primarilyon complete, quality assured 2006- 2008 air quality data for the 1- hour ozone standard, please indicate, and provide' substantiating data showing whether the areais attaining either or both the 1- or 8-hour standards based on 2009 air quality data. We believe that, in order for EPA to determine that Baton Rouge is attaining either the 1-hour or**8~hour** 

### standard, the area must be attaining the NAAQS in 2009.
, The Improvement in 

## Air Quality is

## D~e to

## Pennime~t**~d** Enforceabie Reductions 

### in Emissions Resulting From Implementation ofthe SIP 

# and Applicable 

## FederalAir' " Pollution Control RegUlationS and Other Permanentand

## Enfo~ceable Reductions: LDEQ must demonstrate how air quality improvement

### in the Baton Rouge area is 'due to

RecyciedIRecycl8ble • Prlnted wtlh Vegetable OUBased Inks on 100% Recycled Paper (40% Postconsumer) Section 185 Fee Termination Determination 37 Final May 2010

### permanent and enforceable reductions 

## in emissions resulting from implementation ofthe SIPs, Federal measures, and other State-adopted measures. Please provide language that explains how this requirement is met.

As guidance on how to show this demonstration, we refer you to the discussion ofthis subject, permanent and enforceable emissions reductions, 

## in Federal Register Volume 75, Number 38 (Friday, February 26,2010), Pages 8871-8888, Approval and Promulgation ofImplementation Plans and Designation ofAreas for Air Quality Planning Purposes; Ohio; Indiana; Redesignation ofthe Ohio and Indiana Portions ofthe Cincinnati-Hamilton Area to Attainment for Ozone. See also the discussion in 

### the memorandum

- "Procedures for Processing Requests to Redesignate Areas to Attainment," John Calcagni, September 4, 1992, page 4.

. '. We appreciate the opportunity to comment on.the determination termination request. We reserve the right to 'comment further. Ifwe may be ofany assistance to you in the future, please feel free to contact me or Sandra Rennie ofmy staffat (214)**66~­** 

### 7367.

Sincerely yours,

# ~~~ Guy Donaldson, Chief 

## Air Planning Section EPA Region 6

Section 185 Fee Termination Determination 

### 2 38 Final May 2010

# KEAN 

# MIL

# L ERoEQ REC3lPi

KEAN MILLER HAW11tORNE IYARMOND MoCOWAN • JARMAN LLP ATTlIIIl\EYS Iff lAW 

# c6 March 30, 2010 

# 2filO f1HR 30 PA 1 ..;

Ms. Vivian H. Aucoin Office ofEnvironmental Compliance Air Quality Assessment Division Department ofEnvironmental Quality P.O. Box 4314 Baton Rouge, LA 70821-4314 MAUREEN N. HARBOURT. PARTNER 225 3B2·3412 DIRECT FAX 226 388·9133· MAUREEN.HARBOURT@KEANMILLER.COM



### RE: Louisiana Chemical Association, Baton Rouge Area Chamber ofCommerce, and Louisiana Mid-Continent Oil & 

### Gas Association Comments in Support ofLDEQ's Request for Termination Determination of Clean Air Act Amendments 

## § 185 Penalty Fees Docket

## In l002Pot2

Dear Ms. Aucoin: The Louisiana Chemical Association, the Baton Rouge Area Chamber of Commerce, and the Louisiana Mid-Continent Oil and Gas Association, (collectively, ''the Associations") appreciate the opportunity to comment on the Louisiana Department ofEnvironmental Quality's ("LDEQ's") proposal to request a determination from the United States Environmental Protection Agency ("EPA") that any requirement for the LDEQ to adopt a Clean Air Act ("CAA") Section 185 penalty fee program in its State Implementation 

## Plan is terminated due to the area achieving attainment with the l-hr and 8-hr ozone standards. EPA refers to such a decision as a "Termination Determination."

The members of the Associations have been key partners with LDEQ and EPA in efforts that led to attainment of the National Ambient Air Quality Standard (''NAAQS'') for ozone within the Baton Rouge Area. The Baton Rouge Area achieved attainment with the now revoked I-hour ozone standard for the three year period 2004-2006 1 

### and continues to be in attainment with the l-hour standard. The Baton Rouge Area also achieved attainment of the 8-hour standard for the three year period 2006-2008 and continues to be in attainment with that standard. These members are proud ofthe progress that has been made 

## in the improvement in 

### air quality within the Baton Rouge Area.

I The Area previously achieved the I-hour standard for 2004-2006, but had I exceedance at one monitor in 2007. Such may have been due to an exceptional event; however, because EPA was not making l-hour attainment decisions after revocation ofthe I-hour standard at that time, and because the area is 

### now in attainment, that issue is moot. Nonetheless, the Associations reserve all rights to obtain a determination that the**~007** exceedance was due . to an exceptional event, should such issue be determinative ofany liability for Section 1 85 penalty fees.

18TH flOOR ONE AMERICAN PLACE POST OFFICEBOX 3513 BATON ROUGE, LOUISIANA 70821 PHONE225.387.0999 FAX 225.388.9133 keanmiller.com Section 185 Fee Termination Determination 39 Final May 2010 BATON ROUGE NEW ORlEANS LAKE CHARLES PLAQUEMINE

### Ms. Vivian 

## H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 2 of14



## I. The Clean Data Policy and Guidance on Section 185 Fee Programs Are Reasonable and Support the Termination Determination

Pursuant to Section 185(a) of the CAA, 42 U.S.C. § 7511d(a), if an area classified as "severe" or "extreme" fails to attain the ozone NAAQS by the applicable attainment date, each major stationary source of volatile organic compounds ("VOCs") or nitrogen oxides ("NOx'') located in the area shall "pay a fee to the State as a penalty for such failure." The penalties are required for each calendar year beginning after the attainment date, until the area achieves attainment with the ozone NAAQS. The fee is equal to $5,000 per ton 

### in 1990 dollars (presently valued at over $8,7002) . 

### Id. 

### § 7511d(b)(1)-(3). The penalty fee is imposed on each ton ofVOC and nitrogen oxides ("NOx") emissions in excess of eighty percent of the baseline amount that are emitted by the source during the calendar year. The baseline is the lower of actual or allowable VOC and NOx emissions 

### in the calendar year of the deadline for achievement attainment, unless the baseline is adjusted pursuant to EPA guidance developed under Section 185. Id. 

### § 751Id(b)(2).

The Baton Rouge Area had been classified as a "severe" area under the old l-hour standard with a deadline ofNovernber 15,2005, to achieve the ozone standard. See 

### 68 Fed. Reg. 20,077 (Apr. 24, 2003). However, before that deadline, on June 15, 2004, EPA revoked the old I-hour standard and the accompanying rules for making findings offailure to meet the deadline. EPA did this because it had enacted the new 8-hour standard. On 

### April 30, 2004, EPA promulgated the Phase I Implementation Rule, which indicated that areas classified as "severe" under the old (and now revoked) l-hour standard were not required to include fees required by CAA Section 185 in their State Implementation Plan ("SIP") as part of the anti-backsliding
measures. See 

### 40 C.F.R. 

### § 51.905(e)(2)(ii). Therefore, as of April 30, 2004, states were not required to include such measures in SIP provisions. EPA classified the Baton Rouge Area as "marginal" under the new standard. Subsequently, although the I-hour standard was no longer in effect, the Baton Rouge Area achieved compliance with the old I-hour standard during the 2006-2008 time period.' In 

### other words, the Baton Rouge Area achieved attainment with the 1- hour standard without the necessity ofpenalty fees.

The Phase I Rule was vacated by the United States Court ofAppeals for the District of Colum:bia Circuit on December 22, 2006; with a clarification to the decision on June 8, 2007. 

### S. Coast Air Quality Mgmt. Dist. v. EPA, 

### 472 FJd 882 (D.C. Cir. 2006), amended and rehearing denied, 

### 489 F.3d 1245 (D.C. Cir. 2007), cert. denied, 

### 128 S. Ct. 1065 (Jan. 14,2008). The South Coast 

### decision vacated the Phase I Ru1e, which included the revocation ofthe I-hour standard, and remanded to EPA with instructions. The portion concerning revocation of the I-hour

2 

### See EPA Office ofAir Quality Planning and Standards, Memorandum from Stephen D. Page, Director ofOffice of Air Quality Planning and Standards, to Regional Air Division Directors, Regions I-X, entitled "Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the l-hour Ozone NAAQS" (Jan. 2010), at Attachment B, Table 2.

3 

### See footnote 1.

Section 185 Fee Termination Determination 40 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 3 of 14

standard was not struck down -- the court would allow EPA to revoke it, but certain antibacksliding measures had to continue. The court suggested, but did not directly state, that such measures must continue at least until the old I-hour standard was achieved. In 

### practical effect, this would mean keeping track ofthe l-hour standard in 

### some formalized way. This decision was not final until the appeal delays had run.

On June 8,2007, the D.C. Circuit made its decision on the rehearing/clarification ofthe December 2006 vacatur. See 

## S. CoastAir Quality Mgmt. Dist. 

### v. EPA, 

### 489 FJd 1245 (D.C. Cir, 

### 2007). The court did not change the essential conclusions of the December 2006 decision. Rather, the court clarified that the Phase I Rule was vacated only with regard to those parts ofthe rule that had been successfully challenged. This decision left intact the court's rejection of EPA's reasons for implementing the 8-hour standard in 

### certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the court let stand EPA's revocation of the l-hour standard and those anti-backsliding provisions of the Phase I Rule that had not been successfully challenged, principally: (1) nonattainment area new source review ("NSR") requirements based on an area's l-hour nonattainment classification; (2) Section 185 penalty fee program requirements for I-hour severe and extreme nonattainment areas; and (3) measures to be implemented pursuant to Section I72(c)(9) or l82(c)(9) ofthe CAA, on the contingency ofan area not making reasonable further progress ("RFP") toward attainment ofthe l-hour NAAQS, or for failure to attain that NAAQS. On January 14, 2008, the U.S. Supreme Court declined to review the D.C. Circuit's decision in South CoastManagement District v. EPA.



### As a result ofthe South Coast 

### decision, EPA was required to address the issues of when and how former l-hour nonattainment areas that had not yet adopted a rule for Section 185 fees were to do so. Under the CAA, such a requirement for Section 185 fees is triggered by an EPA finding of not attaining the standard by the deadline. Upon revocation ofthe I-hour standard, EPA ceased making findings with respect to an area's attainment status under the l-hour standard. Accordingly, there was no clear mechanism to commence imposition of Section 185 fees, even where an area has a Section 185 rule in place. Finally, EPA needed to address what is required if an area has already achieved attainment with the I-hour and/or the 8-hour· ozone NAAQS before EPA enacted rules or guidance to implement the South Coast 

### decision. EPA proposed a rule to implement the South Coast 

### decision and to address some ofthese issues, but there has not been a final rule. See 

### 74 Fed. Reg. 2936 (Jan. 16, 2009). That proposed rule indicated that a requirement to adopt a Section 185 fee program in a SIP would be suspended by a Clean Data Policy determination.

EPA's Clean Data Policy, is reflected in the May 10, 1995, EPA memorandum from John S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone Ambient Air Quality Standard". Under this policy, if EPA determines through rulemaking that a l-hour ozone nonattainment area is meeting the 1-

Section 185 Fee Termination Determination 41 Final May 2010

### Ms. Vivian 

## H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 4 of14

hour ozone standard, the requirements for the State to submit and have approved an attainment demonstration and related components such as reasonably available control measures ("RACM"), an RFP demonstration and contingency measures for failure to attain or make RFP are suspended as long as the area continues to attain the l-hour standard. The policy states: The EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions if ali 

### ozone nonattainment area is in fact attaining the ozone standard (i.e. attainment ofthe NAAQs is demonstrated with 3 consecutive years ofcomplete, quality assured air 

### quality monitoring data).



### ld. at 3. This is because the purpose ofthe SIP submissions and RFP requirements is to ensure attainment, and the area will have already achieved that purpose without such submissions ifit is in attainment. EPA's Clean Data Policy has been upheld in a number of court cases. See NRDC


### v. EPA, 

### 571 F.3d 1245 (D.C. Cir. 2009); Our Children's Earth Found. v, 

### EPA, 

### No. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion); Sierra Club 

### v. EPA, 

### 375 F.3d 537 (7th Cir. 2004); and Sierra Club 

### v. EPA, 

### 99 F. 3d 1551 (10th Cir. 1996). The Clean Data Policy indicates that ifthe area subsequently violates the ozone NAAQS, after such a Clean Data determination, then EPA would notify the State ofthat determination and would publish a notice thereofin the Federal Register. The policy states: "[s]uch a determination would mean that the area would thereafter have to address the pertinent SIP 

### requirements within a reasonable period of time, which EPA would establish taking into account the individual circumstances surrounding the particular SIP submissions at issue." 

### ld. at 6-7. EPA would do this through a notice-and-comment rulernaking to withdraw the determination of attainment, which would result in reinstatement ofthe requirement for the State to submit such plans by the deadlines established by EPA after considering such circumstances. The Clean Data Policy indicates that the State must continue to operate an appropriate air 

### monitoring system in accordance with 40 C.F.R. Part 58, even after the attainment determination. Further, the Policy indicates that a determination of attainment through this process is not the equivalent ofa redesignation ofthe area to attainment; it simply suspends certain SIP obligations until a formal redesignation is made. The Policy states:

Attainment of the standard is only one of the criteria set forth in section 107(d)(3)(E) [of the Clean Air Act] that must be satisfied for an area to be redesignated to attaimnent. To be redesignated, the State must submit and receive full approval of a redesignation request for the area that satisfies all ofthe criteria of that section, including the requirement of a demonstration that the improvement of the area's air quality is due to permanent and enforceable reductions, and the requirements that the area have a fully-approved SIP which meets all ofthe applicable requirements under section 110 and part D, and a fullyapproved maintenance plan. .

Section 185 Fee Termination Determination 42 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30,2010 Page 5 of14

If an area for which the determination of attainment is made has submitted or subsequently submits a redesignation request, the SIP submissions discussed in this memorandum would not be required for the area's redesignation request to be approved since they would no longer be considered applicable requirements under section 107(d)(3)(E).
Clean Data Policy, 

### at 7. On January 5,2010, EPA issued its Guidance on Section 185 Penalty Fee Programs. See 

### EPA Office of Air Quality Planning and Standards, Memorandum from Stephen D. Page, Director of Office of Air Quality Planning and Standards, to Regional Air Division Directors, Regions I-X, entitled "Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the I-hour Ozone NAAQS" (Jan. 2010) (hereinafter, "Section 185 Guidance"). Using its Cleat). Data Policy as support, EPA's Section 185 Guidance states that areas that have been determined to attain either the now revoked l-hour ozone standard or the 8-hour ozone standard are no longer obligated to submit fee program SIP revisions to satisfy anti-backsliding requirements. ld. at 3. Under the policy, areas that have attained either the 

### I-hour standard or the 8-hour standard as a result ofpermanent and enforceable emissions reductions are considered to have SIPs that are not less stringent than the SIP required under Section 185. 

### ld. EPA's interpretation that continued attainment of the l-hour NAAQS suspends SIP requirements related to attainment ofthe standard is based on the fact that the goal ofthe rate of progress reductions, or attainment, has been met. ld.

EPA's contention that a determination of attainment of either the l-hour or 8-hour standard is a valid and reasonable way of satisfying the requirements to submit attainment demonstrations and contingency measures for that standard is supported by the Courts that have upheld rulemaking applying EPA's Clean Data Policy. See NRDC v, 

### EPA, 

### 571 F.3d 1245 (D.C. Cir. 2009); Our Children IS 

### Earth Found. v, 

### EPA, 

### No. 04-73032 (9th Cir, 

### June 28, 2005) (memorandum opinion); Sierra Club 

### v. EPA, 

### 375 F.3d 537 (7th Cir. 2004); and Sierra Club v. EPA, 

### 99 F. 3d 1551 (10th Cir. 1996). The Clean Data Policy, which is embodied at 40 C.F.R. 51.918, provides that a determination ofthe 1997 8-hour standard will result in the suspension of requirements to submit requirements related to the 1997 8-hour standard. Thus, the Courts support EPA's application ofthe Clean Data Policy for purposes ofthe J-bour standard. EPA's defense ofthe 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 Fed. Reg. 71,612 - 71,644-46 (Nov. 29,2005); NRDC v, 

### EPA, 

### 571 F.3d 1245 (D.C. Cir. 2009). The Courts have upheld EPA's interpretation as consistent with the CAA.

Section 185 Fee Termination Determination 43 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 6 of14

II. The Baton Rouge Area Meets the Requirements for Termination of Any Requirement to Have a Section 185 Fee Program. 

### The EPA Guidance on Section 185 Penalty Fee Programs states that the obligation for an area to have a program in its SIP terminates once the area has demonstrated to EPA that the area met and continues to meet either the l-hour or 8-hour ozone NAAQS and has demonstrated that the area air quality improvement is due to permanent and enforceable measures.

A. The Area Has Achieved Both the 1-hour and 8-hour Ozone NAAQS. 

### The Associations support LDEQ's request for Section 185 fee Termination Determination. The Baton Rouge Area has met the requirements necessary to receive such a determination. EPA has officially determined that the Baton Rouge Area attained the l-hour ozone standard through the final Clean Data Policy determination published in 75 Fed. Reg. 6570 (Feb. 10, 2010). EPA's decision was based upon three years ofcomplete, quality-assured and certified ambient air monitoring data which showed that the Baton Rouge Area had monitored attainment of the standard at each of its 10 monitors for the 2006-2008 monitoring period. 

## Id. at 6571. Based on this determination, EPA also determined that the requirements for the Baton Rouge Area to submit SIP requirements related to attainment of the l-hour ozone NAAQS are suspended, so long as the area continues to attain the standard. 

## Id. This. determination is supported under EPA's Clean Data Policy. 

## Id. at 6572. During the notice-and-comment rulemaking following EPA's Notice of Proposed Rulemaking for the Baton Rouge Area l-hour Clean Data Determination, 74 Fed. Reg. 13,166- (Mar. 26, 2009), EPA did not receive any comments that challenged EPA's determination that the area has monitored attainment ofthe l-hour ozone standard for the 2006-2008 period. 75 Fed. Reg. at 6573.4 

### Nor was there any challenge to EPA's conclusion that preliminary data for 2009 also indicate that the area continues to be in attainment for the l-hour 

### ozone standard. 

## Id.
Not only did the Baton Rouge Area achieve attainment ofthe I-hour standard, it has also achieved attainment ofthe even more stringent 8-hour ozone NAAQS. The Baton Rouge Area met the 8-hour ozone NAAQS for the 2006-2008 period and has continued to attain the standard ever since. Under EPA regulations at 40 C.F.R. Part 50, the 8-hour ozone standard is attained when the three-year average ofthe annual fourth-highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 parts per million ("ppm") (i.e., less than or equal to 0.084 ppm or 84 parts per billion ("ppb") based on data rounding conventions specified in appendix I of40 CFR part 50) over the most recent three-year period at all monitors in an area. The LDEQ submitted a request to EPA Region 6 in August 2009 for redesignation ofthe Baton Rouge Area to full attainment.i 

### As part of the August 20, 2009 ozone redesignation

4 One commenter, the Louisiana Environmental Action Network, objected to the impact ofthe EPA decision, but did not challenge the fact that the Area was in attainment ofthe l-hour standard.
S See Baton Rouge Ozone Redesignation Request and Maintenance, available at

Section 185 Fee Termination Determination 44 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 7 of14

request, LDEQ submitted summarized ozone monitoring data indicating the top four daily maximum 8-hour ozone concentrations for each monitoring site in the Baton Rouge Area during the 2006-2008 period. These summarized worst-case ozone concentrations are part of the quality-assured ozone data collected in.this area and recorded in the federal Air Quality System. The annual fourth-high 8-hour daily maximum concentrations for each year during the 2006- 2008 period, along with the 3-year averages, are summarized in Table 1 below.



## Table 1: Annual Design Value6,for 

## 8-Hour Ozone Concentrations in 

## Parts Per Billion for the Baton Rouge Area

Monitor Site

*Highlighted areas show where monitor's design value was in compliance with the 8-hour standard.

The monitored ozone concentrations for 2006-2008 show that the entire Baton Rouge Area has attained the 8-hour ozone standard as the design value for all 10 monitors is below .5..84 ppb. The same is true of all 10 monitors 

### in 2009. The current design value for the area is 80 ppb, based upon the LSU monitor. The data collected at these monitoring sites show that the area satisfies the CAA requirement that the ozone standard must be attained at all monitoring sites in the area. Finally, as noted above, available ozone monitoring data from 2009 indicates that all monitors 

### in the Baton Rouge Area continued to attain the ozone NAAQS.



## B. The Air Quality Improvement in 

## the Baton Rouge Area is Due to Permanent and Enforceable Measures

http://www.deg.louisiana.gov/portalltabid/2982/Default.aspx.
6 

### The design value is the average ofthe annual fourth-high daily maximum 8-hour average ozone concentrations measured and recorded at each monitor.

Section 185 Fee Termination Determination 45 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnviromnental Compliance March 30, 2010 Page 8 of14

The Baton Rouge Area has attained the l-hour and 8-hour ozone NAAQS due to permanent and enforceable emissions reductions.

One ofthe most significant enforceable measures within the area resulted from LDEQ's adoption, in 2002, of LAC 33:III.2201, the "Beyond NOx RACT Rule." This rule, which has been incorporated into Louisiana's State Implementation Plan,7 required reductions from major sources within both the Baton Rouge 5-Parish Area and an additional 4 parishes in a "region of influence" by May 1, 2005. The rule was later amended to lower the applicability threshold from 50 TPY NOx to 25 TPY NOx. 8 

### The rule was projected to result in 40 Tons Per Day (TPD") NOx emission reductions. As indicated in the LDEQ's documentation supporting the proposed SIP Redesignation Request, Louisiana Register, August 20, 2009, 0908Pot2, the emission inventory comparison of 2002 to 2007 for "point source" emissions indicates that there was a reduction of 16,415 Tons Per Year ofNOx emissions from point sources subject to inventory reporting. This equates to a reduction of approximately 45 TPD, which is 5 TPD greater than the estimated 40 TPD reduction during that time period.' This does not even include the reductions from the neighboring parishes within the region of influence. This fact provides supporting evidence ofsubstantial NOx reductions in line with the projected impact ofthe rule. LDEQ also implemented rules to lower the applicability threshold for a number ofVOC control regulations from 50 TPY to 25 TPY or lower. These regulatory amendments were already enacted as enforceable state rules prior to the time LDEQ submitted them as a proposed SIP revision to EPA Region 6 on May 9, 2005. 10 

### The reduction in point source VOC emissions from the 2002 inventory to the 2007 inventory was 2,167 TPY, or about 5.9 TPD,' as demonstrated in LDEQ's August 20,2009 proposed SIP revision. 11 

### In addition, there have been substantial reductions in mobile source emissions due to LDEQ's continued implementation of the Vehicle 11M program and EPA fuel and vehicle regulations. LDEQ received full approval from EPA for its low enhanced 11M program in 2002. See 

### 67 Fed. Reg. 60,594 (Sept. 26, 2002). The program included gas cap testing and visual anti7 

### Louisiana DEQ adopted this rule in 2002 and submitted this as an update to its SIP in 2002; however, EPA Region 6 has not yet formally approved the rule as part of the federally approved SIP. However, the measure is permanent and enforceable under Louisiana law. '

8 

### This amendment was submitted by LDEQ in a SIP revision to EPA Region 6 for review in May 2005 due to the anti-backsliding requirements ofthe Phase I 8-Hour Ozone Implementation Rule. It 

### is still pending at EPA Region 6 for full approval into the SIP, but has been effective as a matter ofstate law since prior to May 2005. Louisiana's SIP revision is available at http://www.deg.Iouisiana.gov/portallDefault.aspx?tabid=2381.

9 See 

### http://www.deq.1ouisiana.gov/portallLinkClick.aspx?link=2984&tabid=2381, at Section 3: Reasonable Further Progress, pp. 429-45.

10See 

### http://www.deg.Iouisiana.gov/portal/tabid/2910IDefault.aspx.

II See 

### http://www.deq.1ouisiana.gov/portal/LinkClick.aspx?1ink=2984&tabid=2381 J 

### at Section 3: Reasonable Further Progress, pp. 429-445.

Section 185 Fee Termination Determination 46 Final fYIay 2010

### Ms. Vivian 

### H. Aucoin Office ofEnvironmental Compliance March 30,2010 Page 9 of 14

tampering checks on 1980 and newer gasoline-fueled cars and trucks weighing less than 10,000 lbs (gross vehicle weight rating). On-board diagnostic ("OBD") testing is conducted on 1996 and
newer vehicles. Annual emission testing is conducted using a decentralized network ofcertified motor vehicle inspection stations.

EPA's federal fuel and vehicle regulations have led to permanent and enforceable reductions in emissions. These include the EPA Tier II rules, enacted on February 10, 2000. See 

### 65 Fed.Reg. 6698. This rule required automakers to manufacture and sell lower-emitting cars and refineries to make cleaner, lower sulfur gasoline. Lower sulfur gasoline improves the efficiency of catalytic converters, thereby resulting in lower NOx emissions. The rules were phased in between 2004 and 2009. EPA has estimated that when fully implemented, NOx emission reductions will be approximately 77% for passenger cars, 86% for smaller SUVs, light trucks, and minivans, and 65-95% reductions for larger SUVs, vans, and heavier trucks. EPA estimated that VOC emission reductions will be approximately 12% for passenger cars, 18% for smaller SUVs, light trucks, and minivans, and 15% for larger SUVs, vans, and heavier trucks. The Preamble to the final rule described the permanent and enforceable emission reductions as follows:
For example, we project a reduction in oxides ofnitrogen emissions ofat least 856,000 tons per year by 2007 and 1,236,000 by 2010, the time frame when many states will have to demonstrate compliance with air quality standards. Emission reductions will continue increasing for many years, reaching at least 2,220,000 tons per year in 2020 and continuing to rise further in future years.



## Id.

EPA also implemented the Ultra-low Sulfur Diesel Requirements for Highway Vehicles through a series ofrulemakings, beginning 

### in January 2001. 

### See, inter alia, 66 Fed. Reg. 5002, January 18, 2001, and 70 Fed. Reg. 70498, November 22, 2005. Under this program, beginning June 1, 2006, nationwide, until 2010, at least 80 percent ofeach refmer's production (or imports) must meet the 15 ppm sulfur standard, with the remaining 20 percent or less meeting the 500 ppm sulfur standard-this is commonly referred to as the 80/20

### Temporary Compliance Option. Exceptions were made for EPA-approved small refiners. After June 2010, refiners must producing diesel fuel for use 

### in highway vehicles with a sulfur content ofno more than 15 ppm. As noted above, reductions in the sulfur content of the fuel increase the efficiency of the vehicle's catalytic converter, thereby lowering NOx emissions as well. These reductions have helped the area achieve attainment and are permanent, enforceable measures. LDEQ's August 20, 2009 proposed SIP revision package estimates that peak weekday NOx emissions from mobile sources were reduced by 15.7 TPD and VOC emissions by 7.6 TPD as a result of these measures from the 2002 to the 2008 time period, even when considering mobile source Vehicle Miles Traveled growth. Further reductions will occur under this program.

Section 185 Fee Termination Determination 47 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 10 of 14

EPA's Non-road Source Controls have resulted in emission reductions that are permanent and enforceable. These include the following four federal off-road measures: (1) Non-road Diesel Engines - Two rules under this category have resulted and will continue to result in emission reductions. The final rule on control of emissions from non-road diesel engines was published on October 23, 1998 (63 Fed. Reg. 56,968). The rule was established to reduce emissions from non-road diesel engines and equipment by establishing stringent new emissions standards and requirements to ensure that engines maintain their level of emission performance as they age, to provide compliance flexibility to engine and equipment manufacturers, and to establish a voluntary program to encourage the introduction oflow-emitting engines. In June 2004, EPA finalized the Clean Air Non-road Diesel Ru1e, which requires stringent pollution controls on diesel engines used in industries such as construction, agriculture, and mining that will result in a reduction in NOx emissions. 

## In addition, beginning in 2007, sulfur levels in non-road diesel fuels were reduced by 99 percent from current levels (from approximately 3,000 ppm now to 15 ppm in 2010). 

## In the case of locomotive and marine diesel fuel, the second step will occur in 2012. The rule also requires engine manufacturers to use advanced clean technologies, similar to catalytic technologies used in 

### passenger cars. New engine standards took effect, based on engine horsepower, in 2008. (2) Marine Spark-Ignition Engines - The final rule for control of emissions from new, gasoline, spark-ignition marine engines was published on October 4, 1996 (61 Fed. Reg. 52,088). The rule established, beginning in 1998, more stringent standards. for manufacture ofengines used in outboards, personal watercraft, and jet boats. (3) Marine Compression-Ignition Engines

- The final rule for control of emissions from new, compression-ignition, marine diesel engines, equal to or greater than 37 kilowatts, was published on December 29, 1999 (64 Fed. Reg. 73,300). The rule sets emission standards for engines and took effect between 2004 and 2007, depending on engine size. (4) Locomotives and Locomotive Engines - The final rule for control ofemissions from locomotives and locomotive engines was published on April 16, 1998 (63 Fed. Reg. 18,978). The rule sets emission standards for engines and includes a variety of compliance and enforcement provisions and regulations concerning the preemption of certain state and local controls for locomotives. Two other EPA national rules also constitute permanent and enforceable measures resulting in emissions reductions: National Volatile Organic Compound Emission Standards for Consumer Products and the National Organic Compound Emission Standards for Architectural Coatings ("AIM rule"). The Consumer Products Rule was enacted in September 1998 and established VOC content standards for 24 categories of household consumer products. The

Section 185 Fee Termination Determination 48 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 11 of14

requirements were phased-in from December 1998 through December 1999. 12 The AIM rule was enacted in August 1998, and became applicable to architectural coatings manufactured after August 15, 1999. The rule established a VOC content limit for each of the 61 categories of architectural coatings. EPA has estimated that the rule would reduce emissions of VOCs by 113,500 tons per year, nationwide, representing a 20 percent reduction from 1990 levels. 13 

### The Mobile Sources Air Toxics Rule, which was enacted on February 26, 2007,14 has also had an impact on emissions. Under this rule, EPA issued a final rule to reduce hazardous air 

### pollutants from mobile sources. Among these requirements in the rule are new standards to reduce non-methane hydrocarbon exhaust emissions from new gasoline-fueled passenger vehicles, more stringent evaporative emissions standards for new passenger vehicles and establishing standards that will limit hydrocarbon emissions that evaporate from and permeate through portable fuel containers such as gas cans. This rule has the co-benefit ofreducing VOC emissions. The evaporative emission standards for vehicles began phase-in 

## in 2009, while the fuel provisions ofthe rule become effective this year. Maximum Achievable Control Technology Standards, which were enacted pursuant to 40 CFR Part 63, are effective within the area. These regulations are generally more stringent than the VOC RACT rules and have a co-benefit ofreducing VOC emissions. That the reductions observed through 2008 are continuing is also verified by 2009 monitoring data. As ofDecember 31, 2009, the design values for all monitors within the Baton Rouge Area were well below 85 ppb. As noted in the table above, the highest design value is the LSU monitor, at 800 ppb. The other 9 monitors had design values of78 or below. .
Finally, the following VOC and NOx trend analysis 

## within the 5 parish Baton Rouge Area is helpful in demonstrating the significant reductions in VOC and NOx emissions that have occurred since the adoption ofthe Clean 

## Air Act Amendments of 1990.

12

### See the following for the rule and implementation information. http://www.epa.gov/ttnlatw/183e/cp/cppg.html.

13

### See Fact Sheet, regulations and implementation information at http://www·epa.gov/ttnatwOlI183e/aim/aimpg.html#lMP.

14

### See http://www.epa.gov/OTAQ/toxics.htm#regs.

Section 185 Fee Termination Determination 49 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30, 2010 Page 12 of 14



## 100000

90000 80000 70000 60000 50000 40000 30000 20000 10000 

# o III

# voe 1990 

# -voe 2005 81 

## NOx 1990

• NOx 2005

Total Point Area 

## NonRd Mobile

The above chart is based on certified LDEQ inventory information from 1990 to 2005. Additional NOx reductions, in particular, have occurred since that time due to the permanent and enforceable measures discussed above. In total, the Baton Rouge Area's volatile organic compound emissions have been reduced by more than 59% since 1990 and the emissions of nitrogen oxides have been reduced by more than 45% in that same time period. The largest contributors to these reductions were point source reductions of 70% for VOCs and 57 % for NOx, although reductions in mobile source emissions have also been significant. Further reductions are likely to occur both through SIP measures and additional federal regulatory provisions that are yet to be completely phased-in.



## C. Conclusion



## In conclusion, the implementation of the Section 185 fee program is not necessary for the Baton Rouge Area to attain the 1- and 8-hour ozone standards. The Baton Rouge Area has attained both standards without the implementation ofthe Section 185 fee program. The area achieved attainment with the now revoked l-hour ozone standard for the three year period 2004- 2006 and continues to be in attainment with the l-hour standard. This has been confirmed by a final Clean Data Policy determination. The Baton Rouge Area achieved attainment with the 8- hour standard as confirmed through certified, monitored data from 2004-2009. The Baton Rouge Area achieved compliance with these CAA standards without 

### the imposition of Section 185 penalty fees. As 

### the objective ofSection 185 fees is to bring about attainment ofozone NAAQS,

Section 185 Fee Termination Detennlnatlon 50 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance 

### March 30, 2010 Page 14 of 14

Section 185 Fee Termination Dete.rmlnatlon 51 Final May 2010

### Ms. Vivian H. Aucoin Office ofEnvironmental Compliance March 30,2010 Page 13 of 14 

# 2010 VlflR 30 

# PM 1 57 imposing these fees on areas that have attained the standard would certainly violate both the spirit and the intent ofthe CAA.

That the Baton Rouge Area has attained the ozone NAAQS based on permanent and enforceable emissions reductions cannot be doubted. LDEQ's NOx control rule lowered the applicability threshold for major sources from 50 TPY NOx to 25 TPY NOx. LDEQ also implemented rules to lower the applicability threshold for a number ofVOC control regulations from 50 TPY NOx to 25 TPY NOx or lower. Additional reductions 

## in mobile source emissions have resulted frOID LDEQ's implementation of the Vehicle IIM 

### program and EPA fuel and vehicle regulations. EPA's regulations include the Tier 

## II rules, which required automakers to manufacture 

### and sell cars and refineries that use cleaner, lower sulfur gasoline. Lower sulfur gasoline leads to lower NOx emissions. Under EPA's Ultra-low Sulfur Diesel Requirements for Highway Vehicles, refiners started producing diesel fuel for use in highway vehicles with a sulfur content ofno more than 15 ppm. EPA's Non-road Source Controls have also resulted in permanent and enforceable emission reductions. The Consumer Products Rule established VOC content standards for 24 categories ofhousehold consumer products. The AIM rule established a VOC content limit for each category of architectural coatings. The Mobile Sources Air Toxics Rule has reduced hazardous air pollutants from mobile sources by enacting new standards to reduce non-methane hydrocarbon exhaust emissioris from new gasoline-fueled passenger vehicles, more stringent evaporative emissions standards for new passenger vehicles and establishing standards that will limit hydrocarbon emissions that evaporate from and permeate through portable fuel containers such 

## as gas cans. This rule has the co-benefit ofreducing 

# voe emissions.

It is quite obvious that the Baton Rouge Area has attained the ozone NAAQS based on permanent 

### and enforceable emissions reductions. For these reasons, the Associations support LDEQ's determination that no Section 185 fee program need be added to the Louisiana SIP for the Baton Rouge Area and that EPA should grant LDEQ's request for a termination determination for that program.

Maureen 

### N. Harbourt
cc: Henry Graham, Jr. Meg Mahoney Richard Metcalf

Section 185 Fee Termination Determination 52 Final May 2010

# mTulane 

# v University

Tulane Environmental Law Clinic 

### March 29, 2010

Via facsimile and U.S. Mail to: Ms. Vivian H. Aucoin Office ofEnvironmental Compliance 

## Air Quality Assessment Division Louisiana Department ofEnvironmental Quality P.O. Box 4314 Baton Rouge, LA**70821-4~14** 

### Fax: to 

### (225) 219-3240 Ref: 101-100

Re: Section 185 Fee Determination ofTermination Request for the Baton Rouge Nonattainment Area

Dear Ms. Aucoin:

Please consider the following comments on the proposed Section 185 Fee Determination of Termination Request for the Baton Rouge Nonattainment Area. The Tulane Environmental Law Clinic submits these comments on behalf of the Louisiana Environmental Action Network (''LEAN''). 

### lEAN reserves the right to rely on all public 

### comments submitted in this matter. We request a written 

### response to these comments and notification if 

### and when the Louisiana Department of Environmental Quality ("LDEQ") submits to EPA 

## the final State Implementation Plan 

### ("SIP") revisions regarding this matter.

. COMMENTS

I. Violation ofthe Federal Health Protection Standards for Ozone Threatens the Public Health, Including the Health ofChildren.

'The most 

### widespread 'and -persistent urban pollution problem is ozone." 1 

### Children are "an important at-risk group" for health damage due to dangerous ozone levels.2
' 

### Children are at special risk in part because "children tend to spend more time outdoors than adults in the warm season.,,3 

### Also, "asthma is more prevalent [for children] than for adults.?" Ozone exposure is linked to "school absences in all children, and

1 EPA, "Overview - The Clean 

### Air Amendments of 1990; Title 1: Provisions for Attainment and Maintenance ofNational Ambient 

### Air Quality Standards," available at http://www.epa.gov/air/caa/caaa_overview.html (last visited MVCh 29, 2010).
:l. 73 Fed. Reg. 16,436, 16,441 (Mar. 27, 2008)-(preamble to EPA final rule revising ozone standard). 373 Fed. Reg. at 16,458. '[d.

.



### Tulane Environmental Law Clinic**6~flR!t(!'@f.'~,m.r18!),."""I@.~,allAn70118-6:D1** tel 

### 504.865.5789 fax 

### 862.8721 w\h\idlIll.,.adtD-telc

### Vivian H. Aucoin Re: Section 185 Fee Determination for the Baton Rouge Nonattainment Area March 29, 2010 Page 2 ofS

. emergency, department visits and hospital admissions in people with lung disease."s Long-term exposures to ozone may cause "chronic health effects [such as] structural damage to lung tissue and accelerated decline in baseline lung 

## function.t" Exacerbation of asthma may continue "several days following exposure." Clearly, given the public health risks, and the special risk to Louisiana's youth, the State cannot afford to violate the federal ozone standards which are set at the 

## minimum level "requisite to protect the public health."s


## II. Louisiana May Not Relax or Terminate Congressionally-Mandated Ozone Pollution Controls.

A. 

### Clean Air Act § 

### 185 Requirements Apply to the Baton Rouge Nonattainment Area. In April 2003, under the l-hour ozone standard, EPA reclassified the Baton Rouge Nonattainment Area ("BRNA") as a "severe" ozone nonattainment area subject to the Clean Air 

### Act 

## § 185 

## requirements." Specifically, 

## § 185 requires Louisiana to provide financial incentives for the reduction of ozone pollution in the BRNA.10 

### Pursuant to the anti-backsliding principle that Congress established in 42 U.S.C. § 

### 7502(e), these' mandatory financial incentives "are to be retained" notwithstanding Louisiana's delay in implementing them or EPA's modification of the ozone standard South Coast Air" Quality Management Dist. v. EPA, 472 F.3d 882, 900 (D.C. Cir. 2006) ("The Act placed states onto a one-way street whose only outlet is attainment"), clarified on denial of., se :: 

### reh'g, 489 F.3d 1245 (D.C. Cir. 2007), cert. denied 128 S. Ct. 1065 (2008).

B. 

### Section 185 Requirements Apply on an Ongoing Basis andMay Not be Relaxed or Terminated.

Louisiana must provide 

## § 185 financial incentives for the reduction of ozone pollution in the BRNA on an ongoing basis for the following three reasons: • First, § 

### 185 requires that the financial incentives continue at least "until the area is redesignated as an attainment area for ozone," 42 U.S.C. § 

### 7511d. "[A]ttainment" for the purpose of this provision refers to the 

## current ozone standard, not the old l-hour ozone standard or the 1997 8-hour ozone standard, as LDEQ suggests. • Second, to avoid impermissible backsliding, Louisiana may notrelax or "remove" § 

### 185 requirements. See South CoastAir Quality Management

## Dist. v. EPA, 472

s 

### 72 Fed. Reg. 37,818, 37,824 (July 11,2007) (preamble to EPA proposed rule to revise ozone standard). 673 Fed. Reg. 15,604,15,605 (Mar. 24,2008).

. 773 Fed. Reg. at 16,462.
8 

### 42 U.S.C. § 

### 7409(b)(1).
9 

### See 

### 68 Fed. Reg. 20.077,20,077 (April 24, 2003); see also 

### 42 U.S.C. § 

### 7511d(a) (stating that the rule applies to severe, as well as extreme, ozone nonattainment areas). IG 

### Id.

Section 185 Fee Termination Determination 54 Final May 2010

### Vivian H. Aucoin Re: Section 185 Fee Determination for the Baton Rouge Nonattainment Area March 29, 2010 Page 3 of 5 F. 3d at 900 (citing CAA § 175A(d), 42 U.S.C. § 7505a(d), which sets out the requirements for contingency 

## provisionsj.!' • Third, EPA's 

## "Guidance onDeveloping Fee ProgramsRequired by CleanAir Act Section 

## 185 for the 1-hourOzone NAAQS" is not a legally binding or a lawful interpretation of § 185. As such, it cannot substitute or supplement J) the plain meaning of the statutory text, 2) Congress' clearly expressed intent in the Clean 

### Air Act as a whole, or 3) thejurisprudence construing the Act. Therefore, LDEQ errs as a matter of law when it asserts that Louisiana is eligible to request a termination of the § 185 requirements. The requirements are not terminable until and unless Louisiana meets federal health protection standards for ozone.


## 1. Section 

## 185RequirementsApply at Least UntilEPARedesignates the Baton RougeNonattainmentAreafor Attainmentof the CurrentOzone Standard.
The plain meaning of §185, as well as Congress' clearly expressed intent in the Clean Air Act as a whole, 12 

### indicates that the section's requirements should remain in force at least until the BRNA is redesignated for attainment of the 

## current ozone . standard-that is the ozone standard that EPA has determined is "requisite to protect the

.. public health." 42 U.S.C. § 7409(b)(1). Indeed, §185 uses the present tense and does not qualify "attainment" with reference to any ozone standard other than the one currently in force. Further, "redesignation" under the Clean Air Act is a power vested in EPA subject to five limitations set forth in § 107(d)(3)(E), including that "the Administrator determines that the area has attained the national ambient air quality standard." Like § 185, § 107 does not peg "attainment" to any standard other than the one currently in force. When Congress enacted this'language, Congress was aware that the ozone standard would likely change based on EPA's periodic review of "the latest scientific knowledge useful in indicating the kind and extent of 

### all identifiable effects on public health" that the pollutant may cause. §§ 108(a), 109(d), 42 U.S.C. §§ 7408(a), 7409(d).13 

## 2. LouisianaMay Not Relax or Terminate § 

## 185Requirements.

The anti-backsliding principle set forth in § 172(e) and the general savings clause set forth in § 193 bar the relaxation of mandatory control requirements such as the § 185

1\ 

### See also CAA 

### § 193,42 U.S.C. 

### § 7515 (stating that "no control requirement in effect... before November 15. 1990, in any area which is a nonattainment area for any air pollutant may be modified after November IS, 1990 unless the modification insures equivalent or greater emission reductions of such air pollutant.")
12

### See South CoastAir QualityManagement Dist. v, 

### EPA, 472 F. 3d at 900 ("Considered as a whole, the Act reflects Congress's intent that air quality should be improved until safe and never allowed to retreat thereafter,")

. 13EPA has promulgated successive ozone standards, including (1) the 1979 l-hour standard, setting the ozone limit 

### to .125 ppm, 44 Fed. Reg. 8202 (Feb. 8, 1979); (2)1997 8-hour standard, setting the ozone limit to ,08 ppm, 62 Fed. Reg. 38,856, 38,856 (July 18, 1997); and (3) the 2008 8-hour standard, setting the limit to .075 ppm, 73 Fed. Reg. 16,436, 16,436 (Mar. 27, 2008). EPA has also proposed a new rule to set the standard "within the range of0.060 to 0.070 parts per million." 75 Fed. Reg. 2938,2938 (Jan. 19,2010). ,'.;



### ..

.fa.:·'

Section 185 Fee Termination Determination 55 Final May 2010

### Vivian H. Aucoin Re: Section 185 Fee Determination for the Baton Rouge Nonattainment Area March 29, 2010

. Page 4 ofS


### requirements. The court in 

### South Coast Air Quality Management Dist. 

## v. EPA, 472 F.3d 882,900 (D.C. Cir. 2006) explained that, in addition to being mandatory and applicable to "severe" nonattainment areas under the old I-hour standard, 

### § 185 requirements remain applicable and not removable under newer ozone standards:

Even areas that attained were not allowed to remove controls. At most, an attaining area was allowed to shift controls from active enforcement to the contingency plan that would be automatically triggered should air quality again deteriorate. CAA § 

### 175A, 42 U.S.C. 

### § 7505a. And EPA was to enforce a high threshold for removing controls from a SIP
- no mandatory controls could be removed and nothing could be done that would hinder an area's ability to achieve prescribed annual incremental emissions reductions. CAA 

### § 110(1), 

## 42 U.S.C. 

### § 7410(1). 

# u: at 900.


## In short, pursuant to the 

### South Coast decision, 

### § 172(e), and 

### § 193, LDEQ's proposed termination of the 

### § 185 requirements must fail because it would be an unlawful removal ofmandatory controls.



### 3. Louisiana May Not Claim an Exemption from § 

## 185 Requirements Basedon EPA Guidance that is NotLegally Binding.
Finally, LDEQ's reliance on EPA guidance as authority for the proposal is

..... misplaced. By definition, "guidance" is not legally binding. To create a legally binding 

## .ii,: rule, the federal Administrative Procedure Act mandates public notice and public comment for agency rule-making. 

### See 5 U.S.C. 

### § 551(4), 

### § 553. Because EPA provided public notice but not a public comment period when it issued the 

### "Guidance on Developing Fee Programs Required by Clean AirAct Section 

## 185for the I-hour Ozone NAAQS," the guidance is not a legally binding rule. Furthermore, the guidance is inconsistent with 1) the plain meaning of the statutory text, 2) Congress' clearly expressed intent in the Clean Air Act as a whole, and 3) the jurisprudence construing the Act. Accordingly, IDEQ cannot rely on the statements in such a non-binding document to waive requirements that are mandatory under the law.


## CONCLUSION

The 

### § 185 Fee Determination of Termination Request for the Baton Rouge Nonattainment Area is unlawful. Section 185 requirements continue to apply to the BRNA and Louisiana may not relax or terminate those requirements; instead, the state should comply with them. r;

Section 185 Fee Termination Determination 56 Final May 2010

### Vivian 

### H. Aucoin 

## Re: Section 185FeeDetermination for the Baton RougeNonattainment Area March 29, 2010 

## Page S ofS

AVAlVl 

### BABICH L.A. BarNo. 271 7 Tulane Environmental 

### Law Clinic 6329 Freret Street New Orleans, LA 70118-6321 Tel: (504) 862-8800 Fax: (504) 862-8721 

### Email: ababich@tulane.edu 

### Counsel/orPlaintiff Louisiana Environmental Action Network D CSANK Student 

### !Attorne

### y Tulane Environmental 

### Law Clinic 6329 Freret Street New Orleans, LA 70118-6321 Email: dcsankl @tulane.edu

Section 185 Fee Termination Determination 57 Final May 2010

# ... o

.. II 

# CALPINEMarch 25,2010

Ms. Vivian H. Aucoin. yjvian.aucoin@la.gov 

### Louisiana Department ofEnvironmental 

### Quality 

## OfficeofEnvironmental Compliance Air Quality Assessment Division: P.O. Box 4314 Baton Rouge, Louisiana 708214314 717TElWl AVENUE 

### sum: 1000 HOUSTON, TEXAS 77002



# MAR 25 70m
LDBO/O-lWAQAD AirP1amuos.Section

## Dear·~I1s'. Ahcoin;' :'" if' ,.

## :~-**~.':''-~.'** .. : ';': ". ,

## ~"<'.'"**">~::'~.'::;** 

# ..'

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......**~.:...** • '.. :**·2··~ .:\~** 

### ...r

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..



# .**<:~aIpin~ c6~bmti(m(Catpifie}** **$j;iit~6iatesfu~ oppditUnitytt)':~t6'Jidi~ttei{\cbmment**  

# to 'the

Louisiana Department ofEnvironmental Quality (LDEQ) regarding the proposed revision to

·T..

### onisiana's State Implementation'Plan (SIP), 

## as outlined under !tem#1002Pot2 ofLDEQ's Potpourri section dated

### FebruatY'l9~·2(nO.:·Sp;e8ificaliy~·CaIp4ie isprovidingcomment on**LDE~rs** 

### requestto terminate

### the applicability

## ofthe 

### nonattainment

## fee provisions ofSection 

## 185 of

## the Clean 

## AirAct 

## Amendments.of1990.for 

## 'theBaton 

## Rouge ozone 

## nonattainment

area {Batpn

# Ro~ge**~.ea).;.:~.** '.-_

...

# ~:~.:,::::.,'**<·~}~;'~5':~'."::'<':";:;·':.··"·~'**

# .. .... Calpine is a major North American power 

### company'witha generation' 

### capacity of

. .

### approxiiliat~ly'25,000 megawatts 

### (MW) of

## clean, reliabieand

### fuel.:e·ffi.cieriteI~tricitYfor

## c~gtomer,s~d,c~~~~:e~~··~.T~.~~~,s.**~~. on~:q~a4i8l1:~!~~C~.)D** **,~uis~~~ C:a1pin~** 



# . b,vns'and operates 

## the'Caivi11e

# EnergY-Center, 'rCS'30'MW"cogenci'ati'ori-fa:cilityIocatedin

# Sf:

Gabriel, and we own the Washington Parish Energy Center, a 565 MW generating facility

### ilians'curreritiy'~der construction and located near Bogalusa. .'
Calpine strongly**~~P.E.9rt~~S.:J:'-REQ:.~ J'J.9J:?R,s~U9**  

### ..**~e;vi:~~~~** 

## §W. sl;lcP**~at** 

### the Section 185 fee assessment arid collectiol:r- TOvlsions'are'termmilted.·;:As'rl6tbd'ill!the a enc 's ro osed 

## .-- , '"'' _,.<I? y •• , ,,,,.,,, ,_ ,"'_,,'''' ' ".' .••. "0' , •**.~,** 

## y p p

. rulemakin from 

### Feb···· "

..**··~r9(201 O··~the** **'nv~~** 

# ·il.rish'Baton:R6li·'**e14iea:h-a~"demonstrated** 

# .•.

# "itt'~~hf**witlriliirtm{l6k~(f;r:'hbur:illiii>~IW** 6!ibne

# stan~ as well as the currently**~J?R}.~~~~~ ~,~f91lf** **~!~~~4~tf.~t** 

### was established in 1997. The attainment determination was

'l • • \ "

Section 185 F_ Termination**De~erminatlon** .

•.1

.. 

### 1 58 Final May 2010

# A

# o

....

" 

### satisfied based on ambient monitoring data collected during the 2006, 2007 and 2008 . calendar years. Accordingly, the Baton Rouge Area has 

### satisfied its obligation to demonstrate attainment with all former and currently applicable ambient ozone standards

.

. A January 5"

## 2010.~dancerilemo regarding Ser.ti-Do.18S fues

## fj:~:m:;St.eP~en D.

## P(l.g~,.··· Director Office of

# Air Planning and Standards, US. Environmental Protection Agency (USEPA), reiterates the USEPA's beliefthat "

...attaining either.the 

## l-hour or 1997 8-hour
ozone NAAQS, based on permanent and enforceable emission reductions

..." would eliminate the obligation to implement a Section 185 fee program.
Furthermore, USEPA 

### also confirms that retention ofthe Section 185 fee program would be

.unnecessary for areas that attain the 1997 8-hour standard since such measures have been required as an anti-backsliding measure or-as a 

## nonattainment area transitioned to 

## focus efforts on attaining the 8-hour standard.: Because the BatonRouge Area meets both standards, the

### purpose ofthe Section 18S:fees has been rendered moot and imposition of 

## these fees 

## wouldserve no purpose.in the context ofhelping the Baton.Rouge Area attain the 

## NAAQS for 

## ozone, Finally, USEPA explicitly characterizes.as "unfair" 

### the imposition ofSection 185 fees for
areas that have attained the 8-hour.ozone·standard, which the BatonRouge Area-has done. 

## In consideration ofUSEPA's guidance and the demonstration Of

### attainmentby the Baton Rouge

. Area, Calpine concurs with LDEQ's. 

## viewthatthe Section 185·fees may - and should

- be' terminated.
Calpine requests, as a matter ofclarification and'regulatory certainty, that LDEQ explicitly state in:its final implementation 

### oftbis rulemaking that the Section 185 fees will not be assessed'or 

## collectedfor 

## anyperiod as a result

# of'the BatonRouge Area's demonstration'of attainment. 

## AJ3 supported by the three-plus year's worth ofambient monitoring data referenced previously, the BatonRouge Area 

### bas. affirmatively demonstrated attainment with both the l-hour and 8-hour ambient ozone standards for each year following the 2005 attainment deadline for the l-hour standard. Therefore, LDEQ can make a fully credible and supportable decision to forego assessment or collection ofthe Section 185 fees for any period.
Calpine supports the LDEQ's efforts to improve 'airquality throughout Louisiana and in the BatonRouge Area 

## in particular, and we look forward to continued opportunities to work with the agency on the development and implementation ofmeasures that will improve regional air 

### quality. 

# ..**:>~:**

Section 185 Fee Termination Determination 

### 2 59 Final May 2010

# A. 

# o



# .

We appreciate the opportunity to provide comment on this important rulemaking. 

### Ifyou have any questions regarding these comments, please contact me byphone at 713.570.4795
or via email atjason.goodwin@calpine.com.



## J on

## M. Goodwin, .E.

o 

### ector

- Environmental, Health & 

### Safety EastRegion Operations

cc: 

## Don"Neal David Planck "Reg"Jones Brett Kerr Danetta Beaushaw Aida Guloy 

### File: " .:.

Section 185 Fee Termination Determination 

### 3 60 Final May 20101002Pot2Summary 

### May 12, 2010

Page1 of 5



### Comment Summary Response & Concise Statement

- 1002Pot2 Revision to the State Implementation Plan Termination Determination of CAAA §185 Penalty Fees



### COMMENT 1: The commenter strongly supports the department's proposal to the State Implementation Plan (SIP) that requests a Termination Determination of the Clean Air Act Amendments (CAAA) of 1990, Section 185 fee assessment and collection provisions. RESPONSE 1: No action necessary.

COMMENT 2: The commenter would like the department to explicitly state in its final implementation of this rulemaking that §185 fees will not be assessed or collected for any period as a result of the Baton Rouge area's demonstration of attainment. RESPONSE 2: At this time, the department is unable to make this sort of statement. The department must follow the Clean Air Act Amendments of 1990 and those guidance documents issued by the US Environmental Protection Agency (USEPA).

COMMENT 3: The commenter supports the department's 

## efforts to improve air quality throughout Louisiana and in the Baton Rouge area in particular, and looks forward to continued opportunities working with the department to improve the regional air quality.
RESPONSE 3: The department appreciates the continued support.

COMMENT 4: Violation of the federal health protection standards for ozone threatens public health, including the health of children. Given the public health risks, and the special risk to Louisiana's youth, the state cannot afford to violate the federal ozone standards that are set at the minimum level requisite to protect public health. RESPONSE 4: At this writing, the state is not monitoring violation of any promulgated or implemented ozone standard.

Section 185 Fee Termination Determination 61 Final May 20101002Pot2Summary May 12, 2010

Page2 of 5



### COMMENT 5: Louisiana may not relax or terminate congressionally-mandated ozone pollution controls. The Clean Air Act, §185 requirements, apply to the Baton Rouge nonattainment area (BRNA). The BRNA was subjected to §185 fees when EPA reclassified the area as"severe" under the 1-hour ozone standard. Pursuant to the antibacksliding principle established by Congress (42 U.S.C. §7502(e)), the mandatory financial incentives "are to be retained" notwithstanding Louisiana's delay in implementing them or EPA's modification of the ozone standard. RESPONSE 5: Louisiana has not relaxed or terminated congressionally mandated ozone pollution controls.

COMMENT 6: Section 185 requirements apply on an ongoing basis and may not be relaxed or terminated. The §185 requirements continue at least "until the area is redesignated as an attainment area for ozone," under the current ozone standard. Also, Louisiana may not relax the §185 requirements to avoid impermissible backsliding. EPA's guidance document 

## (Guidance on Developing Fee Programs Requiredby CleanAir Act Section 

## 185 for the 1- hour OzoneNAAQS) is not a lawful interpretation of §185 and cannot be substituted for: the plain meaning of the statutory text; Congress' clearly expressed intent in the Clean Air Act; or the jurisprudence construing the Act. RESPONSE 6: Louisiana has not relaxed or terminated congressionally mandated ozone pollution controls, i.e., the §185 requirements.

COMMENT 7: Indicate and provide substantiating data showing whether the area is attaining either the 1-hour or the 8-hour standard based on 2009 air quality data. In order for EPA to determine that Baton Rouge is attaining the 1-hour or 8-hour standard, the area must be attaining the national ambient air quality standard (NAAQS) in 2009. RESPONSE 7: A statement has been added to the Executive Summary indicating the area's continued attainment of both the 1-hour and the 1997 8-hour ozone NAAQS.

Section 185 Fee Termination Determination 62 Final May 2010

### COMMENT

RESPONSE

COMMENT 1002Pot2 Summary May 12,2010

Page3 of 5



### 8: The department must demonstrate how air quality improvement in the Baton Rouge area is due to permanent and enforceable reductions in emissions resultlnqfrom implementation of the SIPs, federal measures, and other state-adopted measures. Provide language that explains how this requirement is met.

8: A table of the control measures that related to permanent and enforceable reductions in emissions has been added as Appendix 

### F.

9: The Clean Data Policy and Guidance on Section 185 fee programs are reasonable and support the Termination Determination. Pursuant to Section 185(a) of the Clean Air Act, 42 U.S.C. §7511d(a), if an area classified as "severe" or "extreme" fails to attain the ozone NMOS by the applicable attainment date, each major stationary source of volatile organic compounds (VQCs) or nitrogen oxides (NOx) 

### located in the area shall "pay a fee to the State as a penalty for such failure." Many changes occurred in the years following the enactment of the original 1- hour ozone NMOS. Lengthy litigation ensued the enactment of the 1-hour ozone NMOS. Also, in 1997 EPA issued its final rule for implementation of the 8-hour ozone standard. On April 30, 2004, EPA promulgated the Phase I Implementation rule that indicated that areas classified as "severe" under the now revoked 1-hour standard were not required to include fees required by CM §185 in their SIPs as part of the anti-backsliding measures. EPA classified the Baton Rouge area as "marginal" under the new standard. Subsequently, the Baton Rouge area achieved compliance with the revoked 1-hour standard that was no longer in effect, during the 2006-2008 time period. The Baton Rouge area achieved attainment with the 1-hour standard without the necessity of penalty fees. Under EPA's Clean Data Policy, if EPA determines through rulemaking that a 1-hour ozone nonattainment area is meeting the 1-hour ozone standard, the requirements for the state to submit and have approved an attainment demonstration and related components, a reasonable further progress (RFP) demonstration and contingency measures for failure to attain or make RFP are suspended as long as the area continues to attain the 1-hour standard. The Clean Data Policy indicates that the state must continue to operate an appropriate air monitoring system in accordance with 40 CFR Part 58, even after the attainment determination. The policy also

Section 185 Fee Termination Determination 63 Final May 20101002Pot2 Summary May 12, 2010

Page4 of 5



### indicates that an attainment determination through this process is not equivalent to a redeslqnation of the area to attainment. It simply suspends certain SIP obligations until a formal redesignation is made. EPA contends that a determination of attainment of either the 1-hour or 8-hour standard is a valid and reasonable way of satisfying the requirements to submit attainment demonstrations and contingency measures for that standard. RESPONSE 9: No response necessary.

COMMENT 10: The Baton Rouge area meets the requirements for termination of any requirement to have a Section 185 fee program. The area has achieved both the 1-hour and 8-hour ozone NMQS. EPA has officially determined that the Baton Rouge area attained the 1-hour ozone standard through the Clean Data Policy determination published in 75 FR 6570 (Feb. 10, 2010). The Baton Rouge (BR) area has also achieved attainment of the even more stringent 8-hour ozone NMQS for the 2006-2008 period and has continued to attain the standard ever since. The air quality improvement in the Baton Rouge area is due to permanent and enforceable measures. DEQ has supplied documentation that supports this statement. These permanent and enforceable measures are a result of both state and federal rules. RESPONSE 10: No response necessary.

COMMENT 11: The department's efforts for the Termination Determination are supported and the §185 program should not be imposed. The state has achieved attainment with both the 1-hour and 8-hour standard although final EPA approval may be pending. These achievements are the result of permanent, enforceable emission reductions without the added measures imposed under the §185 program. RESPONSE 11: No response necessary.

Section 185 F_ Termination Determination 64 Final May 20101002Pot2 Key May 12, 2010

Page5 of 5



## Comment Summary Response & 

## Concise Statement Key -1002Pot2 Revision to the State Implementation Plan Termination Determination of CAAA Sec. 185 Penalty Fees

COMMENT 

## #
1-3


## 4-6

7-8

9-10

11

section 185 Fe. Termination Determination 65 

### SUGGESTED BY
Jason Goodwin, Director I 

### Calpine Corp.
Diana Csank and Adam Babich Tulane Environmental Law Clinic Guy Donaldson, Chief EPA, Air Planning Section

Maureen N. Harbourt I 

### Kean Miller for LMOGA, BRACC, and LCA Henry Graham I 

### LCA

Final May 2010

# AppendixD Federal Register Notice: Baton Rouge I-Boar Ozone Nonattainment 

## Area;

. Determination ofAttainment of the 1-HourOzone Standard

Section 185 F_ Termination Determllllltion 

### 66 Final May 2010

### 6570 

### Federal Register/Vol. 75, No. 27/Wednesday. 

### February 10, 2010/Rules and Regulations

has been named in the information request provided to the institution by PinCEN with any questions relating to the scope or terms of the request. Except
as otherwise 

### provided in the information request, a financial institution shall only be required to search its records for:

(4) Relation to the Right to Financial Privacy Act and the Gramm-LeachBJiJeyAct. The informati!,n that a financial institution is required to report pursuant to paragraph (b)(3)(ii) of this section is information required to be reported in accordance with a federal statute or rule promulgated thereunder, for purposes of subsection 3413(d) of the Right to Fmancial Privacy Act (12 U.S.C. 3413(d)) and subsection 502(e)(8) of the Gramm.Leach-BIiIey Act (15 . U.S.C. 6802(e)(8)). (5) No effect 

### on law enforcement 

### or regulatory investigations. Nothing in

(iv) * * * [B)(1) A financial institution shall not disclose to any person, other than FinCEN or the requesting Treasury component, the law enforcement agency on whose behalfPinCEN is requesting information, or U.S. law enforcement attache in the case of a request by a foreign law enforcement agency, which has been named in the information request, the fact that FinCEN has requested or has obtained information under this section, except to the extent necessary to comply with such an information request.

(2) Notwithstanding paragraph (b)(3)(lv)(B)(1) of this section, a financial institution authorized to share information under § 103.110 may share information concerning an individual, entity. or organization named in a request from FinCEN in accordance with the requirements of such section. However, such sharing shall not disclose the fact that FlnCEN has requested information concerning such individual, entity, 

### or organization.

(e) Each financial Institution shall maintain adequate procedures to rrotect the security end confidentiality 0 requests from FinCEN for information under this section. The requirements of this paragraph (b)(3)(iv)(C) shall be deemed satisfied to the extentthat a financial institution applies to such information procedures that the institution has established to satisfy the requirements of section 501 of the Gramm-Leach-Bliley Act (15 U.S.C. 6801), and appliceble reguletions issued thereunder, with regard to the protection of its customers' nonpublic personal information.



### * * 

### * * * this subpart affects the authority of a Federal, State or local law enforcement agency or officer. or FinCEN or another component of the Department of the Treasury, to obtain information directly from a financial institution.

Daled: February 4, 2010. JamesH. Freis,Jr., Director, FinancialCn'mes Enforcement Network. [FR Doc. 2010-292a Flied 2-9-10; a,45 am] B1LUNG COOE 48' ll-02-P

POSTAL SERVICE
39 CFR Part 965
RUles of Practice In Proceedings Relative to Mall Disputes
AGENCY: Postal Service. ACTION: Final rule.

SUMMARY: This document revises the rules offractice of the Postal Service's Office 0 the Judicia! Officer to allow qualified persons licensed to practice law to be designated by the Judiclal Officer as presiding officers in proceedings relating to mail disputes. DATES: Effective Date: March 1, 2010. ADDRESSES: Judicial Officer Department, United States Postal Service, 2101 Wilson Boulevard, Suite 600, Arlington. VA 22201-3078. FOR FURllIER INFORMATION CONTACT: Administrative Judge 

### GaryE, Shapiro, (703) 812-1910. SUPPLEMENTARY INFORMATION: A. Executive Summary

39 CFR Part 965 contains the rules governing proceedings involving Mail Disputes. Only one change is made. Paragraph (a) of section 965.4 of the rules has defined the "presiding officer"
as 

### an Administrative Law Judge or an AdminiBtrative Judge qualified in accordance with law. The revised rule expands the definition ofpresiding officer to include any other qualified person licensed to practice law designated by the Judicial Officer to preside over a proceeding conducted pursuant to this pert. B. Summary of Change

Expending the definition ofpresiding officer in Part 965 is intended to permit qualified staff counsel employed in the Office of the Judicial Officer to be designated as the initial presiding official authorized to conduct proceedings and issue Initial Decisions in the resolution of mail disputes

. Administrative Law Judges and Administrative Judges qualified in accordence with law will continue to be designated as presiding officers in such matters. The appellate procedure is unchanged. 

### C.EffectiveDates and Applicability

These revised rules will govern proceedings under Part 965 docketed on or after March 1, 2010. List ofSubjects in 39 CPRPart 965

Administrative practice and . procedure. Mail disputes, Postal Service. • For the. reasons stated in the preamble, the Postal Service amends 39 CPRPart 965 as set forth below: .1, The authority citation for pert 965 continues to read as follows:

Authority: 39 U.S.C. 204. 401. • 2. In § 965.4, paragraph (a)is revised to read as follows: § 965.4 Presiding offlcera,

(a) The presiding officer shall be an Administrative Law Judge, an Administrative Judge qualified in accordance with law, or any other qualified person llcensad to practice law designated by the Judicial Officar to preside over a proceeding conducted pursuant to this part. The Judicial Officer assigns cases under this part. Judicial Officer includes Associate Judicial Officer upon delegation thereto. The Judicial Officer may, on his or her own initiative or for good cause found, preside at the reception of evidence.



### * * * • * Stanley F. Mires, ChiefCounsel,Legislative. /FR Doc. 2010-2a44 Flled 2-9-10: S:45 am) elLLlNG CODE P

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52 [EPA-ROS-oAR-2009-0014j**FRL-9113~1** Approval and Prcmulgatlon of Air Quality Implementation Plans; LOUisiana; Baton Rouge 1-Hour Ozone Nonattalnment Area; Detarmlnatlon of Attainment of the 1-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.**SUMM~RY:** The EPA has determined that the Baton Rouge (BR) l-hour ozone nonaltainment area has attained the 1- hour ozone National Ambient Air Quality Standard (NAAQS). This

Section 185 F_ Termination Determination 67 Final May 2010

### Federal Register/Vol. 75, No. 27/Wednesday, February 10, 2010/Rules and Regulations 

### 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 ofthe t-hour ozone NAAQS, are suspended for so long as the area continues to attain the 1-hour ozone NAAQS. OATES:This final rule is effective**M~ch** 12,2010, ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R06-0AR2009-0014. All documents in the docket
are liated in the http:// www.regu!ations.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 availabfe only in hard copy. Publicly available docket materials are avallable either electronically in www.regu!ations.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 exceptfor legal holidays.

.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraphbelow to make an appointment. Ifpossible, please make the appointment at least two working days in advance ofyour visit. There wlll 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 rennie.sandra@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us," and "our" means EPA. This supplementary information section is arranged as follows: 1.WhatActionIsEPA TBldDfl? II.What Is the Effect ofThisAction? III. Responses toComments IV.Final Action V. StatutoryandExecutiveOrderReviews I. What Action Is EPA Taking?

We are determining that the BR 1- hour ozone nonattainment area is currently attaining the 

### t-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 t-bour ozone NAAQS for the 2006-2008 monitoring period. Preliminary date for 2009 also indicate that the area continues to attain the 1- hour ozone NAAQS and there were no monitored exceedances of the t-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 

### t-hour
ozone NAAQS, are suspended for so long as the area continues to attain the 

### t-hour ozone NAAQS.

The rationale for our action is explained in the Notice ofProposed 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. 

## n.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 Poltcy.t 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 QualityManagement Disirict v, EPA, 472 F.3d 882 (DCCir. 2006), are suspended for so long as the
area continues to attain the 

### t-hour standard: a severe area attainment demonstration with its RACM

'Our CI.an O.t. Poliey is s.1 forth In • May 10, 1995 EPA memorandum from John S. S.lu, Director. Offic. ofAir QuslilY PIllnning and Stand.rds, .n!illad "R.asonabl. Further Progr

.... Attainm.nt Demnestratton, and Related R.quirement8.forOzoneNonallelnmanlAre

.. M••ting the OzoneAmbient Air Quality Standard." 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).

IfEPA 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 t-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 165 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 t-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 ofthe NNSR SIP program from the BR
ozone SIP. fiI. Responses to Conunents

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),

section 185 Fee Termination Determination 68 Final May 2010

### 6572 Federal Register/Vol. 75, No. 27/Wednesday, February 10, 201O/Rules and Regulations

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 BRis attaining the 1-hour standard and for EPA's proposal to suspend certain SIP requirements under EPA's Clean Data 'Polley, EPA summarizes and responds below to some additional comments submitted by LCA, and to adverse comments received from LEAN.

LCAsubmitted 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.

Rllsl'0nse: The scope ofthis action is limited to a finding of attainment for the ,1-hour ozone standard based on LPEQ's request for such a finding for the time period between 2006-2008, and continuing until the present. A determination of attainment for purposas of the clean data policy is based on the most recenttliree 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 ofthis

. 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 ofprotection 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 ofNovember 2005) EPA rationally could look to the 6-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 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: LCAstates 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 165 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 andJ
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 ohoday'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 oftoday'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: LCAstates 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 atteinment 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 165 fees in a separate rulemaking action.

LEANmade the following comments: Comment: LEANasserts generally that EPA cannot suspend certain l-hour ozone requirements under EPA's Clean Date Policy.

Response: As set forth in detail below, EPA's longstanding interpretation of the CAAunder 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 antibacksliding requirements remain applicable to the BR area. Thus the issue of whether an area meets the t-hour anti-backsliding requirements is still relevant. EPA's Clean Data Policy was originally directed at requirements underthe 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 t-hour ozone standard suspends the requirement to submit a-hour attainment demonstration, 1-hour reasonable further progress and a-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 2006 a-hour standard). See 73 FR 16435-16514 (March 27, 2006)2

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

2 On September 19, 2009 we announced thet we
ere reconeldering our 2009 decision sottlng national standards for ground-level ozone. The reconsidered etandard wes announced on January 9 and proposed on January 19, 2010 (75 FR 293S). We expect by August 2010 to ha.e completed our reconsideration of the standerd ond deelgnalions to proceed thereafter. When and IfEPA designates BR
as nonatta1nJnent of the reconsidered Itonderd, LDEQ will be required to prepare a new ozone plan that eddr•• s.s that stonderd.

Section 185 Fee Termination Determination 69 Final May 2010

### federal Register/Vol. 75, No. 27/Wednesday. February 10, 2010/Rules and Regulations 

### 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 200a a-hour standards, certain t-hour requirements remain applicable to BRfor antibacksliding purposes. Under the Clean Data Pollcy, 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 furthar 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 reductlons-attainment-has been met. Similarly, EPAbelieves-and Courts have agreed-that a plan to attain the a-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 Pollcy, in EPA's a-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 Pollcy. 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 NRDCv. EPA, 571 F.3d 1245 (DCCir. 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. JUDe 

### zs.2005) (memorandum opinion). The Courts have made clear that a determination ofattainment, 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 t-hour standard, the submission of those measures is no longer legally required ftlr 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 t-hour measures are necessary is belied by the factthat 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 Pollcy 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 nonattalnment, and those requirements are not affected by this rulemaking. As discussed further below. the DCCircuit Court has upheld the regulation embodying the Clean Data Pollcy for the a-hour ozone standard that suspends B-hour requirements for attainment demonstrations, RFP, and contingency measures upon a determination of attainment for that standard. 40 CPR 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 s-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 BRarea has
never met minimum federal healthprotection 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 BRarea 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 t-hour ozone standard if, over a consecutiva 3-year period, more than 3 days ofexpected number ofexceedances occur at the sarne monitor. See CAA, section 107(d)(4); 40 CFRPart 50, App.H. The data show that during this threeyear 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 rulemaktng does not address any ozone standard other than the 1-hour standard, . EPA notes that recent monitoring data suggest that the BRarea is also currently attaining the 1997 8-hour ozone standard.

Comment: LEANargues that the Court's decision in South CoastAir QualityManagement District v, EPA, 472 F.3d 882 (DCCir. 2006), prohibits BR from removing controls until it has attained the standard EPA has determined is requisite to publlc health, which they assert is the 75 ppb 2008 8- hour ozone standard. LEAN contends that the South Coast case made it clear thet EPA cannot release an area from applicable controls until it has achieved "safe" air quality. They further assert that allowing BRto escape antibacksliding requirements because it attained the 1-hour standard would be ignoring Congress' intent when enacting the CAAthat "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 DCCircuit upheld EPA's regulation embodying the Clean Data Policy in 40 CPR 51.918. That regulation provides that a determination of the 1997 a-hour standard will result in the suspension ofrequirements to submit requirements related to tha 1997 8-hour standard. Thus, contrary to commenter's contention, the DCCircuit supports. and does not prohibit, EPA's application of the Clean Date Policy for purposes of the t-hour standard. EPA's defense of the Clean Data Policy for the 1997 8- hour standard was identical to and

Section 185 Fee Termination Determination 70 Final May 20106574 

### Federal Register/Vol. 75, No. 27/Wednesday, February 10, 2010/Rules and Regulations

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 NRDCv. EPA, 571 F.3d 1245 (DCCir, 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 Aet.

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 ofthe 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 ofthe 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 ofthe 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 ofthe 8-hour ozone standard in the Phase 2 Rule ozone litigation in See NRDCv. 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 statuteunclear as to whether

. thosesections apply to an area that is already

attainingthe NAAQS. For the reasonsbelow, we join the Tenth Circuitin holding the EPA's interpretationis reasonable. SeeSierra Club v, EPA. 99 F.3d 1551 (10th Cir.1996). ••• TheEPA'sreasoning disposes as well of the NRDC's contentionsthat the Clean DataPolicyunlawfullycircumvents tha redasignation requirements, CAA § 107(d)(3)[E), 42. U.S.C. 7407(d)(3)(E), violatesthe mandatethat all Part0 requi;rements remainin force until an area has an approved maintenanceplan in place, CAA § 175A(c), 42. U.S.C. 7505a(c), and disregards the SupremeCourt'sadmonition that theEPA cannot"renderSubpart2.'s carefully designed restrictionsonEPA discretionutterlynugatory," Whitman v, Am. Trucking Ass'ns, 531 U.S. 457,484,121S.Ct. 903,149L.Ed.2d 1 (2001). TheClean Data Polleydoesnot effectaredesignation; an area must still comply with the statutory requirements before it can beredesignated to attainment. Furthermore, PartD-including Subpart2-remains in forcainsofaras it applies but, as we haveJustseen, theEPA ha5reasonably concluded theprovisions of the Actrequiring percentage reductionsdo not apply to an areathat has attainedthe 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 ofthe PM-10 standard. In rejecting petitioner's

. challenge to the Clean Data Policy, the Court stated:

AsthaEPA rationallyexplained,if an area is in complianca withPM-l0 standards,than furtherprogress for the purpose ofensuring attainmantis notnecessary. 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 provisiona ofthe CAA.

Comment: LEAN contends that the Clean Data Policy is illegal and cannot be used to ignore the statutorilyrequired 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 ofthe Clean Data Policy, an
area remains in nonattainment status until EPAredesignates the area after making the other findings required under Section 107(d). See 107(d)(3)(E)(i)-(v) (redesignation requirements); sse also, e.g., 60 FR 37366 (July 20, 1995) and 61 FR 31831 (Juna 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 0 or other parts of the statute. See, 

### e.g., 60 FR 36723, 36725 Ouly 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 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).

Comment: LEANasserts 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 t-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 ifBR falls out of attainment for the 1-hour standard, the proposed rule makes no mention ofhow 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

Section 185 Fee Termination Determination 71 Final May 2010

### Federal Register/Vol. 75, No. z7/Wednesday, February to, ZOtO/Rules and Regulations 6575

Clean Data Policy lays out the process to implement a suspended measure: (ilfEPAsubsequently determines that an area has violatedthe standard, the basis for the determination that the area need not make the pertinent SIPrevisions would no longer exist. The EPAwould notify the State of that determinationand would also provide notice to the public in the Federal Registar. Such a determination would mean that the area would thereafterhave to address the pertinent SIPrequirements within a reasonable amount of time, which EPA wouldestablish taking into account the individual circumstances surrounding the particular SIPsubmission at Issue.' Thus EPA has undertaken to act reasonably and responsibly in thefuture 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 illegalresults. Any such
concerns are entirely speculative and without foundation in fact. IV. Final Action

For the reasons aet 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 t-hour ozone nonattainment area has attained and continues to attain the 1- hour ozone standard. Thus, the requirements for submitting the a-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 ofManagement and Budget under

3 AB rBral1ln""dIn rootnota 1, BaaMay 10. 1995 EPA mamorandum from John S. Saltz. Diractor. Office of Air Quality Planning and Standards, entitlad ''Reasonable Further Progress. Attainmant Damon.tration. and Related Requirements for Ozone Nonattainmant Areas Maatlng the Ozone Ambient Air Quality Standard." See also 70 FR 71644-71646 (November 29, 2005). 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 entitles 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 (B6FR 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 country located In the states, and EPA notes that it will not imfose substantial direct costs on trlba 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 ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe 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 forjudicial review of these actions must be filed In the United States Court ofAppeals for the appropriate circuit by April 12, 2010. 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 postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).) List of Subjects in 40 CFRPart 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. A] Annendariz, Regional Administrator, Region 6. • 40 CFR part 52 is amended as follows:
PART 52-4:AMENDED]

.• 1. The authority citationfor part 52 continues to read as follows:

Authority: 42U.S.C. 7401 st seq. Subpart T-Louisiana

• 2. Section 52.977 is added to read as follows: § 52.977 Control strategy and regUlations: Ozone.

Determination ofAttainment. Effective March 12. 2010 EPA has determined the Baton Rouge r-hour
ozone nonattainment area has attained the a-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 i-hour ozone NAAQS for so long as the area continues to attain the t-hour ozone NAAQS. [FRDoc. 201D-2961 Filed 2-9-10; 8:45 am) BILLING CODE**U56~o-P**

Section 185 Fee Termination Determination 72 Final May 2010

# AppendixE AttainmentDemonstration

aectl_ 185 Fee -r:ermlnatlon Determination 73 Final May 2010

# Appendix E, Attainment Demonstration, is in a separatedocument in this docket.

# AppendixF Permanent and Enforceable Control Measures

section 185 F

.. Termlnetl_ Determination 428 Final MaY 2010

## Permanent andEnforceable Emissions Reductions

The BRNA has experienced improved air quality over the past several years as is evidenced by deceases in both l-hour and 8-hour ozone emission inventories (Els). These reduced Els are due to permanent and enforceable reductions in VOC and NOx emissions through control strategies implemented in the area. Permanent and enforceable state and national control strategies implemented in the BRNA include items in the following list and Table F-l below: State Control Strategies:

• Point Source NOx • Stage I Vapor Recovery

• Stage II Vapor Recovery • Vehicle Inspection/Maintenance Program • Clean Air Interstate (CAIR) NOx Trading Program • VOC RACT Control Technique Guidelines

Federal Control Strategies:



### • National Volatile Organic Compound Emission Standards for Consumer Products

• National Organic Compound Emission Standards for Architectural Coatings

• National Low Emission Vehicle (NLEV) Program/Tier II Engine and Fuel Standards

• Locomotives and Marine Compression-Ignition Engines

• Heavy-Duty Diesel Engine Rule

• Non-Road Diesel Rule

Section 185 fee Termination Determination 427 final May 2010

### SIP ELEMENT Table 

### F-l APPROVAL PAGE NUMBER DATE

iREsCISSION OF SECTION 182(F) AND 182(B)(I) EXEMPTIONS TO THE NITROGEN OXIDES ICONTROL REQUIREMENTS FORTHE BATON ROUGE OZONE NONATTAINMENT AREA i

!BATON ROUGE NONATTAINMENT AREA; OZONE, I-HoUR OZONE ATTAINMENT IDEMONSTRATlON; ATTAINMENT DATE EXTENSION, AND WITHDRAWAL OF NONATTAINMENT 

### IOET"""NAnON ANO RoclASS""A nON

!APPROVAL OF REVISIONS TO THE LOUISIANA DEPARTMENT OFENVIRONMENTAL QUALITY rrITLE 33 ENVIRONMENTAL QUALITY PART 

### HI. AIR CHAPTER 5, PERMIT PROCEDURES, 504. INONATTAINMENT NEW SOURCEREVIEW PROCEDURES 

# I

IBA TON ROUGE ATTAINMENT DEADLINE EXTENSION; REVISED BASE-YEAR INVENTORY; IREVISED 15%ROP PLAN; REVISED POST-1996 ROP PLAN; REVISED ATTAINMENT !DEMONSTRATION 68FR 23597

67R61786

(68 FR 20077 Notice of Withdrawal)

67FR61260
(Rule revision in process)

67FR61786 6/4/2003

10/2/2002

4/24/2003

9/30/ 20 02

## 1

10/2/2002

iCONTROL OF EMISSION OF NITROGEN OXIDES IN TEH BATON ROUGE OZONE NONATTAINMENT I IAREA

iMoTOR VEHICLE INSPECTION AND MAINTENANCE PROGRAM 

## I

!EMISSION REDUCTION CREDITS BANKING IN NONATTAINMENT AREAS 

# !

iSUBSTITUTE CONTINGENCY MEASURES 

# i
[rRANSPORTA TION CONFORMITY

!INSPECTIONAND MAINTENANCE PROGRAM

ICLEAN FUEL FLEET SUBSTITUTE PROGRAM 

## i

!REASONABLE FURTHER PROGRESS PLAN FORTHE 1996-1999 PERIOD, ATTAINMENT !DEMONSTRATION, CONTINGENCY PLAN, MOTOR VEHICLE EMISSION BUDGETS, AND 1990 IEMISSION INVENTORY FORTHE BATON ROUGE OZONE NONATTAINMENT, POINT BANKING ,REGULATION 67FR60877 9/27/2002

67FR60594 9/26/io02

67FR60871 9/27/2002

67FR60590 9/26/2002

64FR72934 2/28/2000

64FR45454 8/20/1999

64FR38577 7/19/1999

64FR35930 8/2/1999

!NONATTAINMENT MAJOR STATIONARY SOURCE REVISION

IVOC RACT FROM BATCH PROCESSES

!GENERAL CONFORMITY

!VOCRACT 64FR00413

63FR47429

63FRI1372

62FR63658 1/5/1999

11/8/1998

5/8/1998

2/2/1998 1
I

Section 185 Fee Termination Determination 428 Final May 2010

### SIP ELEMENT APPROVAL PAGE NUMBER DATE

lNONAlTAINMENT NSR PROCEDURES 62FR52948 11/10/1997

IPOINTE COUPEE REDESIGNATlON 62FR00648 12/20/1996 I ! iNEG DECLARATIONS FOR RACT 61FR55894 12/31/1996 

# I 115% RATE OF PROG RESS 61FR54737 12/23/1996 I ! IVOCRACT DEFINITION CORRECTION 61FR38590 8/2611996

IOZONE MONITORING (PAMS) 61FR31035 8/19/1996 

## ! iSECTlON 182(B)(I) TRANSPORTATION CONFORMITY NOX WAIVER 61FR07218 2/12/1996 

### I ISECTION 182(F)NOX CONTROL EXEMPTION 61FR02438 1/18/1996 i ICLEAN FUEL FLEET PROGRAM 60FR54305 12/22/1995

j1990BASE YEAR OZONE EMISSIONS INVENTORIES 60FR13908 5/15/1996 ! iEMISSION STATEMENT PROGRAM 60FR02014 2/611995

ISMALL BUSINESS ASSISTANCE PROGRAM 59FR32355 6/23/1994 ! IVOC RACT CORRECTION 59FR23164 5/5/1994 

### i iSTAGE II VAPOR RECOVERY 59FR14112 3/25/1994 i

,

### ····,···,····~~I "
, 

### Final



### Log 

### # 

## '

" 

### Filial Pub Citation

# H'~ " ..",' 

### , '/,./, ··,,1"':,·. A'······· I·.•.•,' ..•••. ....•.. ""',i, .' '. Control of Emission of Volatile Organic Compounds AQ236 (VOC) April 20, 2004 LR 30:744

AQ234 Control of Emissions of Nitrogen Oxides (NOx April 20, 2004 LR 30:748

AQ235 Nonattainment New Source Review Procedures April 20, 2004 LR 30:752

AQ237 Fugitive Emission Control August 20, 2004 LR 30:1659

Notification Requirements for Unauthorized OS052 Discharges August 20, 2004 LR 30:1667

AQ247* Transportation Conformity IBR March 20, 2005 LR 31:639

Section 185 Fee Termination Determination 429 Final May 2010., 

# ."**'~~"--:~'i;;;"~!~\' l;r;:;\~;\i,r~i'i';1_**  

# """ .,Final 

# Log#·' hr'/;r';Gr,c,\**'t,);~,'** ;, i,.L 

### Citation',·

r

# I~:'>'/i;r ",,",Y.';i;'r)<. 

## "j;g) '.,.,."" )""'" f'Trtali"UD>

, 

# Ii',),). i" 'J< "

" 

### Control of Emission of Organic Compounds AQ250 Exemptions May 20, 2005 LR 31:1062
New Source Review Rule for Prevention of Significant AQ246L Deterioration Program

- Louisiana Revisions December 20, 2005 LR 31:3155
New Source Review Rule for Prevention of Significant AQ246F Deterioration Program - Federal Revisions December 20, 2005 LR 31:3123
Incorporation by Reference of the CAIR S02 Trading AQ260FT Program September 20, 2006 LR 32:1597
AQ257FT Clean Air Mercury Rule Incorporation by Reference September 20, 2006 LR 32:1595

8-Hour Ambient Ozone Standard and Nonattalnment AQ253 New Source Review September 20, 2006 LR 32:1598
AQ259FT Incorporation by Reference of the Acid Rain Program September 20, 2006 LR 32:1597

AQ240 Emission Factors October 20, 2006 LR 32:1841
Control of Emissions from the Chemical Wood pulping AQ264 Industry October 20, 2006 LR 32:1840
General Permits, Temporary Sources, and Relocation AQ267 of Portable Facilities October 20, 2006 LR 32:1854
AQ285 CAIR NOx replaces AQ262 August 20, 2007 LR 33:1621
AQ288 Ambient Air Standards for Particulate Matter March 20, 2008 LR 34:433
AQ292 CAIR Rule June 20, 2008 LR 34:978

Revisions to Performance Testing Notifications and AQ294 Report Submittals September20,2008 LR 34:1903 Stage II Vapor Recovery Systems for Control of Vehicle Refueling Emissions at Gasoline Dispensing AQ291 Facilities November 20, 2008 LR 34:2397
AQ302 Transportation Conformity March 20, 2009 LR 35:461 AQ274 RegUlatory Permits-Purpose and Scope March 20, 2009 LR 35:456
AQ286 General Conditions April 20, 2009 LR 35:658
AQ304FT Exemption of VOCs May 20, 2009 LR 35:924

Section 185 Fee Termination Determination 430 Final May 2010

## Final.**iditaif~n·** LR 35:1101
AQ305 Control of Emissions of Nitrogen Oxides (NOx) 

### January 20, 2010 LR 36:59

Section 185 Fee Termination Determination 431 Flna' May 2010