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 Chief 6PD-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:

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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?O10

DE,n

LOUlSI~
Louisiana State Implementation Plan Revision

Section 185 Fee Determination of Termination, Baton Rouge

Nonattainment Area

Executive Summary 1

List of Appendices

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 The I-hour ozone standard was revoked by the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 185 for 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 of retaining 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 of the 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 NAAQStJ,-~

Stephen D. Page, Director~t!f' Office of Air 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 of Section 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 of Appeals 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 CAA requires 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 amount ofVOC 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 use the 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 ozone concentrations in the affected area. '

If the state fails to adopt or implement a required fee program, 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 the Agency's activities for

collecting such fees. See, CAA sections 18,S(d) and S02(b)(3)(C).

Alternativesto Section 185Fee Programs

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

nonattainment designation 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 alternative program, as further explained

4 While section 185expressly mentionsonly VOC,section I82(t) extends the application of this provision

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. EPA believes 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

lessstringent. 111is discretion does not currentlyapply to a section 185 fee program obligation

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 lessstringent. In the implementation

rule for the 1997ozone NAAQS, EPA determined that although section 172(e) does not directly

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

of applyingthe 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 onlyifsuch alternativesare "not less stringent"thanthe mandated program.

EPA is electingto consider alternativeprogramsto satisfythe section 185 fee program

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 only be-finalized through EPA actionstaken under notice-and-eomment

rulemakingto addressthe fee program obligations associated with each applicable nonattainment

area. If a state choosesto adopt an alternativeprogramto 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 11O(k).

EPA believesthat for an area that we determineis attainingeither the l-hour or 19978-

hour ozoneNAAQS,based on permanent and enforceableemissions reductions, the area would

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 about attainment 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 of permanent 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 now

revoked 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 programwasretained as a transition 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 permanentand enforceable 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 muststill develop 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 of permanent and enforceable measures.

Thereis also an additional, independent basisfor EPAIS approachto determining thatthe

anti-backsliding requirements associated withsection 185 havebeen satisfied. Although section

185 provides that fees are to continue until the area isredesignated for ozone, EPA no longer

promulgates redesignations for the l-hourstandard because thatstandard has beenrevoked.

,Therefore, relief from thel-hour fee program 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 by EPA.

We believethat under these circumstances wemust exercise our discretion underChevron USA.

Inc. v. NaturalResourcesDefenseCouncil, 467 U.S. 837(1984), to fill this gap, so as to carry

out Congressional intent in the unique contextof anti-backsliding requirements for a revoked

standard. Webelieve that it is reasonable for the fee program obligationthat applies for

purposes of anti-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 believethese criteria provide reasonable assurance that the purpose of the

l-hour anti-backsllding fee programobligation has beenfulfilled in the context of a regulatory

regimewherethe area remains subjectto otherapplicable l-hour anti-backsliding and 8-hour

measures. Under these circumstances, retention of the fee program under the anti-backsliding

rule is no longernecessary for the purpose of achieving attainment of the 8-hourstandard.

Additional PotentialEQuivalent Alternative Program Concepts

, Following is a summary of concepts 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 lessstringent

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-hour NAAQS 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 consistof comparing expected

fees andlor emissionsreductionsdirectly attributable to application of section 185to the

expected fees and/or emissionsreductions fromthe proposed alternative program. For a valid

Section 185 Fee Termination Determination 7 Final May 2010
5

demonstration to ensure equivalency, the state'ssubmission should not underestimate the

expected fees and/oremissionsreductions from the section 185fee program, noroverestimate

the expected fees and/or emissionsreductions associated with the proposedalternative program.

Recently, a task force composed ofmembers of the CleanAir Act Advisory Committee

(CAAAC) was formed to discuss alternate ideas on complying with section 185.s The concepts

described herewere discussed by the task force, andthe CAAAC forwarded a list of potential

program features to EPA for review. EPA's assessment of whetherand how certainprogram

features identified by the CAAACcan be 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 be based on the specific parameters of the program adopted.

Further, any such determination 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 of eachalternative

program. To assure a valid demonstration thatan alternative is no less stringent,werecommend

thatstateswork with EPA on a case-by-case basis.

Additional Fee-Equivalent Alternative Programs

We anticipate (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 payfor emissions 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

fee program if all section 185sourcespaidfeesfor eachapplicablecalendar year, develop an

alternative program that would raise at leastthatmuchrevenue, and.establish a process wherethe

revenues wouldbe used to pay for emissions reductions that will further improve ozoneair

quality.

. Underthis concept, states could develop programs that shift the fee burden from the

specific setof major stationary sourcesthat are otherwise requiredto pay fees according to

section 185,to other non-majorsources of emissions, 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 well controlled. EPA recognizes that

section 185is not strategic in imposing emissions feeson all major stationary sources, including

already well-controlled sources that have few, if any, optionsfor avoiding fees by achieving

additional reductions. States can be more strategic by craftingalternativeprogramsthat exempt

or reduce the fee obligation on well-controlled sources, and assign the required fees to less wellcontrolled sources as an incentivefor those sources to furtherreduce emissions of ozone-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 much additional emissions reductions as would be expected to

resultfromthe fee-minimization incentive of the section 185fee program. EPA believes this

wouldclearly be demonstrated if the alternative program achievesemissionsreductions each

year that are equal to or greater than the amountof emissions againstwhich fees wouldbe

assessed each year under the section 185fee program (Le., actual emissions in excessof 80

percentof the baseline emissionsj." For purposes of estimatingthe emissionsreductions required

in such a program,the state would assumethatsources would reduce 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 majorstationary 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 sourcessubject to 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 programshould not rely

on emissions reductions already requiredby the 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 further described in the March 21,2008 guidancememorandum. Once

a state calculates 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 fee program

no longerapplies.

Additional AlternativePrograms Combining Emissions Reductions and Fees

A program that combines featuresof an emissions-equivalent program with a feeequivalent programcould also be adopted. For example, some portion of the emissions

reductionsnecessaryto demonstrateequivalence (as explained above) could be offsetby fees

collected on each ton of emissions that is offset. To illustrate, assume that 1000 tons of .

emissions reductions is needed to 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).

GAprogram thatachieves less than this amountof emissions 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 provideany additional guidance and to consultwithany state

that wants to develop 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
~TIACHMENT A

Text of CAA Section 185

SEC. 185. ENFORCEMENT FORSEVERE ANDEXTREME OZONE NONATTAINMENT

AREASFOR FAILURETO ATTAIN.

(a) GeneralRule.> Each implementation plan revision required under section 182(d) and (e)

. (relatingto the attainmentplanfor Severe and Extremeozone nonattainment areas)shallprovide.

that, ifthe area to which suchplanrevision applies has failed to attainthe national primary

ambientair quality standardfor ozone by the applicable attainment date, each majorstationary

source ofVOCs 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 year beginning afterthe attainment date, until the area is redesignated as an

attainmentarea for ozone,Eachsuch plan revision should includeproceduresfor assessment and

collectionof such fees,

(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 be computed,

.in accordance with such guidance as the Administrator may provide, as the lower of the amount

of actual VOC emissions ("actuals") or VOC emissions allowed underthe permit 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 issue guidance

authorizing the baseline amount to be determined in accordance withthe lower of average

actuals or average allowables, determined over a period ofmore than one calendar year. Such

guidancemay provide that suchaveragecalculationfor a specificsourcemay be used if that

source'semissionsare irregular, cyclical, or otherwisevary significantly from year to year.

.(3) Annual adjustment.- The fee amount underparagraph (1)shall beadjusted annually,

beginning in the year beginning 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 fee provisions

of the implementation plan donot meet the requirements of this section,01' ifthe Administrator

makes a finding that the Stateis not administering and enforcingthe fee required underthis

section,the Administrator shall, in addition to any other actionauthorized under this title, collect,

in accordance with procedures 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 section 6621(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 with respect to

fees collectedunder this subsection.

Section 185 Fee Termination Determination 11 Final May 2010
(e) Exemptions for Certain Sm8.J.l Areas.-For areas witha total population under 200,000 which

fail to attain the standard by the applicable attainment date, no sanctionunder thissection or

under any otherprovision of this Act shall applyif the area candemonstrate, consistent with

guidance issued by the Administrator. that attainment in the area is prevented because of ozone

or ozoneprecursors transportedfrom other areas. Theprohibition appliesonly in cases in which

the area has met all requirements and implemented all measures applicable to the areaunderthis

Act.

[42 U.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 section S02(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

for Operating 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 fate by'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 a weighted 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 AdvisoryCommittee (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

(see Attachment D). In general, we believethe language in section 185 is relatively clear

regarding the provisions that must comprisean approvable program and, as indicated in the

discussion below, we do not believe that manyof the flexibilities raised by the CAAAC would

be approvable provisionsof a state-adopted section 185 fee program. However, EPA believes

that an alternative 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 "not less stringent"where EPA has revised

the NAAQS. 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 ozone standard to the more stringent 19978-hour

standard, EPA concluded 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-hourstandard, or alternatively can allow statesflexibility to adopt alternative programs, but

onlyifsuch alternatives are "not less stringent" than the mandated 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,"we address each of the] 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 purposeof calculating 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 SIP that.

. 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 of certain.

limitations that would be assumed for such aggregation. Provided that aggregation is not used to

avoida "majorsource" applicability finding, and aggregation is consistentwith the attainment

demonstration (e.g., if the area has receiveda NOx waiverundersection 182(f), then NOx

reductions cannot be substituted forvec reductions), we believe states have discretionto allow

a majorsourceto aggregatevec 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

allowed underthe 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 issued guidance

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 of emissions uponwhich

the fee is based or constitute an investmentthatshould be creditedagainst the fee." In the

context of calculating 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 wiubecredited to the extent that they reduce emissionlevels from the baselineyear.

For example,if a source has 1000 tons of emissionsin the attainment "baseline" year, the CAA

requiresthat sourceto pay fees on any emissionsin excessof 800 tons (80 percent of baseline) in

each post-attainment year. Ifthe source is ableto reducepost-attainmentyear emissions from

1000 tons to 900 tons, then the source will pay fees on only 100tons of emissions. Withregard

to creditingemission-reducingor air-quality investments, we note that section 185 does110t

specify how collectedfees must be spent. In general, we believethat a state may chooseto use

collected fees to support air quality improvementprojectsatsources, However, we cautionthat

any such provisions should not be developed in" 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. Statesshould 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 sourcesin 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 could determine 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 attainmentyear baselinefor 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 of equivalence.

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-hourstandard. 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 lessstringent" 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 area

achievesthe 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 equivalent program). 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 Act Sections 185 and 172(e)

Deal' AssistantAdministrator Craig:

At the May 14,2009 meeting of the US EPACleanAir Act Advisory Committee, on a

unanimous vote,the Committee resolved to urgethe Agency to provide prompt guidancetothe States

regarding the following question arisingunderthe Clean Air Act:

Is it legallypermissible under eithersection J85 or J72(e)for Q State to exercise

the discretion identified in Options A-J?

The CleanAir Act Section 185 TaskForce,a workgroupestablished under the Clean Ail' Act

AdvisoryCommittee, identified ten areas (A-J) of potential state discretion. These optionsare listed in

the attachment to this letter. TheCommittee took no position on the reasonableness or legal

permissibilityof any option.

As several Statesare inthe process of developing theirsection 185nonattainment fee programs,

time is of the essence in providing appropriate legaland policyguidance.

. Thankyousincerely,

Co-Chairs of the Section 185 Task Force:

EddieTerrill

Director

Departmentof Environmental 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 such aggregation

is consistent with attainmentmodelingpreviously submitted by the State for the

applicableair quality control region. Suchaggregation is not to be used for the

purpose of avoiding a "major source" applicability finding(e.g., by spreading

emissions over multiple sourcesso as to renderthe averagefacility emissionsless

than the major source threshold).

C. 'Consideration ofPre-AttainmentYearor AttainmentYear Installation ofBACT

orLAER

At its option, a State may considerto an appropriate extent pre-attainment or . "

attainment year emissioncontrol investments by major sources. Without

intendingto define the precise boundariesof a State's discretion to recognizethe

degree of control 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. Considerationof Pre-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

purchasesof emission 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 of collectedrevenues. 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

demonstrate equivalency.

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 relevantstandard.

2,

Section 185 Fee Termination Determination 20 Final May 2010
AppendixB

Louisiana RS 30:2066 : Fees,Severe and Extreme Ozone Nonattainment Areas

21
PREVIOUS SECTION I NEXTSECTION 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 of Labor 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 of either 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 of the baseline

amount based upon average actuals or average allowables.

B. In accordance with the provisions of Article VII, Section 2.1 of the Constitution ofLouisiana,

the Department of Environmental 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 of the 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 if the '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 of the 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

Public Notice Documentation

Section 185 F_Termlnatlon Determination 25 Final May 2010
Herman 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 or Veterinary 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

RECEIVED

FEB 26· 2010

LA.DEPlOf ENVlRONMENTAL QUAUTY

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

P. 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

I, ROSE PENFOLD1 do solemnly swear that I am the LEGAL CLERK of THE ADVERTISER,

a newspaper printed and published at Lafayette, in the Parish of Lafayette, State of Louisiana, and

that from my personal knowledge and reference to the files of said pubttcatton, the advertisement of

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)

was published in THE ADVERTISER on the following dates:

.*Sunday, February 1412010

LEGAL CLERK

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

Notary Public - Christie Veaze

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, State Implementation

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,'wlllsubmite 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· endeIssuedby the 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, ozone standard 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

A public 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 of Ii'nvlronmental ComplI,an~,

'Air Quality ASsess' ment Division, Box

4314, Beton Rouge, LA

70821-4314 or to FAX

(2251 219-3240 or bye·

vlvlan,aucoinOla.gov.

mall .to 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

DEQ - OSEe/LAD REG 4225976

REMENDER WEATHERSPOON

PO BOX4302 RM 821-74

BATON ROUGE 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 of general circulation

published in Baton Rouge, Louisiana,

and the Official Journal

of the State of Louisiana,

City of Baton Rouge,

and Parish of East Baton Rouge,

in the following issues:

02116110

Publisher of

THE ADVOCATE

~~~~ M. Monic McChristian,

Notary Public ID# 88293, I

State of Louisiana \\\\~~,~f/'1 My Commission Expires: Indefinite "'..".~"""'.••~:4+.I,...... ,.~••, ..\l8L,c '" v·...J.' .,. .... s •• 'wi .,,,, .... :it. "I11III • .-

~O i.fIt I .... 4!.- .,.. AV' CI". -

-~·o = N: Z - lz oJ ~. '0:«- ... •• ~lI:t .. r Q): - - .. od. '" ,~ _ ,. •• . ... 0 ..... ':::'.:~ '."" .,. ...... ... ''::> -. ......... ··:,rOTAR'( ....O.::: .....'" ~~ 'IV , ....

.1.1/ ~TE 0 \ \\

//"'11\\\\

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 18cDiD

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. The ene-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 ENVIRONMENTAL QUALITY

LEGAl. AFFAIRS DIVISION'

Gwendolyn R. Du.i!?s

,/,·Or:.'l ,.'"'l.... -;"f-f t.,.,\)()4.,j

STATE OF LOUISIANA

Parish of Calcasieu .

00053262

LDEQ-OSEC-LAD

Subscribed

~oo~ 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 newspaper published 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

Department of Envlronrnerrtal Quality

Ol'IIceof Envlronmen1tI1 Compllenc:e Air Quality AsseSS- ment Division

Termlnatlon Defemllnation ofCAM§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·

standa I'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 of the CAAA

§J85 fee collection. As

such, fhe Department Is

submitting a .revislon to the SIP..

{CERTIFIED COPY1~) \1' f"~\I~

Affidavit of Publication

Section 185 Fee Termination Determination 31 Final May 2010
Section 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~rsons 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: OF ENVmONM£NTAL QUAlIrt

LEGAL AFFAiRS DNISION '

Publisher of

Was published in the NE'VS-STAR.

A daily newspaper of general circulation.

Pu blished 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 IVIVIan 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:.::..:c92:.::.... _

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
',':

'. ..,~.

.1,; ""':'" " ...,<'

:.-. .'

fEB.24'201Q

.. .".:

. . .'.

•.1' •

......;.

..: .

I..A.DEPT. OF ENYlRONMENTALQUAUlY '.

~EGAL ~fAlRSDrflSIOtt

: .....

. ,.. '

"".

c.: ' .

..",

. .

orhrtlrimt5

'.OIANAW.BARBER,NOTARY PUBLIC .,6()49t

CADDO. PARISH, LOUISIANA

MY, COMMISSION IS.FOR LIFE

. .':'. ,.

:~ ..: : .

-;.'

'.' ·~'.~MlSH OF CADDO:,

··';;~~Fre,>the undersignedauthority,P~~~ Came and~r~~'<>;~\~~i?f

···i:~i~~r=:=;::::a:·~~~~ ,:,.,. :./~¢lassi~~d..Advertis:ing Manager ofThe Tim~, aadis·qre~~~~:;~+Fl;'~A: thatthe a~op.~d~ ~<,.~ '}~>: ': '~'.. ,<~:;..:

. .', '.' ",;. . .•. :' i.. . '.1.:•.;. ,~:~, ..

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

•...,,:.:0. . .;,'"'-&.'';i llllie(!'1J]leslenthe following dates to ·WIt;· ,'."". . ." ,;':.:;:"'::"::;:i,..,<:;·,: /.",:.:,~ ..:',:.,,"'" :~~'.' , : . ;.. "

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,;.' ;" ~._. .~;:

.....'~

.... Sworn to and subscribed before me this.22nd day of F.ebrUl;lry, 2Q~O :.:': .'......: .,,'

.: ..•.•:..if:;t~j.;!i,,:····, .....• lJuUL~'.~';'~';".~.

'. .,: ....,:'. .·.cr;'".",;," _.-j::,;.\';-):;>::::/~~

':(N;'~t.~ni\' ···:'·>;i:'(::·',{i :" ~.r'/ '.. ,,':>.{

.. . ,

:..

,.".'

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' ...

Sectlo",:-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. (SIP) 'to request I: .. a termination deter- -:

· mimition of the iilP' "

pllcablllty Oft..he :. . 'r: ·.qeiln,A.lr ~c;:t 'i !. . '.

. .. ·Amendment.s : " ... " ....(CAAA)·§'185,.to·the ..,

, 'Eiatorr 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 CAAAJ18Si " :

· ~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...... -,
-".'

..

... ' \

.;'., .

,,'.:.:: .

;,"

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·· , ', .. 0I1yer':'· ..... :;., .'·k·d."'·\'.:",\·...;.;

fflrenee. n.:,· .f.1IUh •.·,··1

~ff:~g r.~:; J

'.",c,: J~~:l ~~~r .. · 1I1swith ltit·· : -. n~d illi):icco 'fnod!t~ : . · tlon ·In ordet' to par-··· I

tlclpate•.:'!J1ei!lse I:on<' . tact Ylvlanl-kAucolli. : . 'at (225)·l!19-3.$Q?·or at .1·.··

-the aijdres$ listed tle-:' , ' · low.' .' .!.

::!~~n:~~el~~:::~b •y:.;~i) submit written' tom- . merits cohee'rning tile · 'Termination Deter" , ! mlnatiqn of CMA I

. ;(.ftl:5:"~~~ltrot':.f~r! ...:.•..

._~;~ :;;iT~~r ;:h;~ ;, '\ . 4;39p•."'., 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: .

"'''. '. " ..~:,,," ', ,. ."~.' :

.A:c6i>{ 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

....•.

' ..;'

r.,

. .

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 ENVIRONMENTAL QUAUlY

lEGALAFFAIRS DIVISION'

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

State ofLouisiana

Parish of Orleans

February 20,2010

The Times Picayune

Louisiana Department of Environ

C1b.M: O -L

Sworn to and sU~bed before me this If.

Day of Febmary, 2010

m;7lF.-~ Notary Public

MykOIDQ1ission expires at roy death.

Charles A. Ferguson, Jr.

Notary identification number 23492

36 Final May 2010

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, a Notary 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, of general

circulation; doing business in the City ofNew Orleans and

the State of Louisiana, 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 or ef tne adaresslisted 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 on the LDEO Wlbslteat

. =1i.a:.~~~ra"~m~portaVo

Heimon Robinson. CPM ExecutlviCounsel

/

POTPOURRI

DepartmentofEnvlrOnrntntaJ OullltY orne. of Environmental Compll· ance AirOualltY Ass"u","nt Division

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 01the CleanAir Act Amlnamant! (CAM) IllS, to the BatgnRoug. IIve-oorish ozone nonattalmnent area pur~

~".s~l ~~~~:~"upe::,:etI~

~~gyfr~:ri J~~~n56.2~~.~~~ ~:'''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". unUirthl now,.vOkiU.... hour OZOntstandardon 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 revokedby!hi Envl"",· mentol Prolectlon ADenCY on June 15. ZOO. which wespriorto the otlalnmentd.adllne.

Sa..d upon monitoring 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. ozone standard andIsth.refore

~~r~I~J~~u;,sttti". ~~\~~ f•• COllection. As suen. tne 0.. partmentJ.s submlttln" lrevlslon to tn. 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 area is 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 Permanent and Enfo~ceable Reductions: LDEQ

must demonstrate how air quality improvementin 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 of any assistance to you

in the future, please feel free to contact me or Sandra Rennie ofmy staff at (214) 66~­

7367.

Sincerely yours,

Guy

~~~ Donaldson, Chief

Air Planning Section

EPA Region 6

Section 185 Fee Termination Determination

2

38 Final May 2010
KEANMILLERoEQ REC3lPi KEAN MILLER HAW11tORNE IYARMOND MoCOWAN • JARMAN LLP

ATTlIIIl\EYSIff lAW

March 30, 2010 c6 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 of Environmental 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 2004-20061 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-hourstandard 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 of any 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 of failure 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 of Appeals 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 of the I-hour standard,

and remanded to EPA with instructions. The portion concerning revocation of the I-hour

2 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 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 of the 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 of the

December 2006 vacatur. See S. Coast Air 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 of an

area not making reasonable further progress ("RFP") toward attainment of the 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 Coast Management District v. EPA.

As a result of the 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 of the 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 of the NAAQs is demonstrated with 3 consecutive years

of complete, quality assured air quality monitoring data).

ld. at 3. This is because the purpose of the 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 of the 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 of a 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 of permanent 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 of the 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 of the Clean Data Policy for purposes of the J-bour standard. EPA's

defense of the Clean Data Policy for the 1997 8-hour standard was identical to and based upon

its interpretation and practice with respect to the l-hour ozone standard. See Phase 2 Rule, 70

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 of complete, 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 of the 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 of the I-hour standard, it has also

achieved attainment of the 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 of the 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 of 40 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 of the EPA decision, but did

not challenge the fact that the Area was in attainment of the 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 of the 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 of the 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 of NOx 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.

10 See 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 of Environmental 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 of certified

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 of nitrogen emissions of at 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 of each 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 of no 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 of low-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 of engines 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 of emissions 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 of December 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 of 78 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 of the 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 of Section 185 fees is to bring about attainment ofozone NAAQS,

Section 185 Fee Termination Detennlnatlon 50 Final May 2010
Ms. Vivian H. Aucoin

Office of Environmental 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 of no 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 of Environmental 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 of Termination 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 of the Federal Health Protection Standards for Ozone Threatens

the Public Health, Including the Health of Children.

'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

1EPA, "Overview - The Clean Air Amendments of 1990; Title 1: Provisions for Attainment and

Maintenance of National 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:D1tel 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 not relax or "remove"

§ 185 requirements. See South Coast Air 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 on Developing Fee ProgramsRequired by Clean Air Act

Section185for the 1-hour Ozone 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) the jurisprudence 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 185Requirements Apply at Least UntilEPARedesignates the

Baton RougeNonattainment Areafor Attainmentofthe 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 alsoCAA § 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 of 0.060 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

of mandatory controls.

3. Louisiana May Not Claim an Exemption from § 185 Requirements

Based on EPA Guidance that is Not Legally 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 Air Act Section 185 for 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 185Fee Determination 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/or PlaintiffLouisiana 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' ,. :~- ~.':''-~.' .. : ';': ". , ~"<'.'" ">~::'~.'::; ..' ," ••'. ••,: ••• \ '•••,,:" • ",I' ~.. • ......~.:... • '.. : ·2··~ .:\~...r.. '.. ',' ..

. <:~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~·CaIp4ieisprovidingcomment on

LDE~rs requestto terminate the applicability ofthe nonattainment fee provisions ofSection

185 ofthe Clean Air Act 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:cilityIocatedinSf:

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

ilians'curreritiy'~derconstruction 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'~~hfwitlriliirtm{l6k~(f;r:'hbur:illiii>~IW 6!ibne stan~ as well asthe 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
Ao

....

"

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 ofAir 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 Baton Rouge 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 Baton Rouge Area-has done. In

consideration ofUSEPA's guidance and the demonstration Ofattainment by the Baton Rouge .

Area, Calpine concurs with LDEQ's. viewthat the Section 185·fees may - and should - be'

terminated.

Calpine requests, as a matter of clarification and'regulatory certainty, that LDEQ explicitly

state in:its final implementation oftbis rulemaking that the Section 185 fees will not be

assessed'or collected for anyperiod as a result of'the Baton Rouge Area's demonstration'of

attainment. AJ3 supported by the three-plus year's worth of ambient monitoring data

referenced previously, the Baton Rouge 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 'air quality throughout Louisiana and in the

Baton Rouge Area in particular, and we look forward to continued opportunities to work with

the agency on the development and implementation ofmeasuresthat 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

East Region Operations

cc: Don"Neal

David Planck

"Reg"Jones

Brett Kerr

Danetta Beaushaw

Aida Guloy

File:

" .:.

Section 185 Fee Termination Determination

3

60 Final May 2010
1002Pot2Summary

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 2010
1002Pot2Summary

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 Ozone NAAQS) 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 2010
1002Pot2 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 2010
1002Pot2 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 of Attainment of the 1-Hour Ozone 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 behalf PinCEN 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 extent that 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 of presiding

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 of presiding

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 of Subjects 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

of the 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

paragraph below to make an

appointment. If possible, please make

the appointment at least two working

days in advance of your 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,

FORFURTHER 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.Statutoryand ExecutiveOrderReviews

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 of Proposed

Rulemaking (NPR) published on March

26,2009 (74 FR13166) 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 of This Action?

Pursuant to our determination of

attainment and in accordance with the

interpretation of the Clean Air Act

(CAA) set forth in our Clean Data

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 Quality Management

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. of Air QuslilY PIllnning and

Stand.rds, .n!illad "R.asonabl. Further Progr.... Attainm.nt Demnestratton, and Related

R.quirement8.for Ozone Nonallelnmanl Are ..

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

of the 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 of this 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 recent tliree years of

complete, quality-assured monitoring

data, and its duration is conditioned on

the area remaining in attainment. Any

findings related to other historical

periods are not relevant to today's

rulemaking. ' Comment: LCA stated in its comments

that it also reserves the right to request

a determination that the BR area

actually attained the 1-hour 'ozone

standard by the November 15,2005

deadline.

Response: The scope of this . rulemaking is limited to a determination

of attainment for the 1-hour ozone

standard based on LDEQ's request for

such a determination for the time period

between 2006-2008, and continuing

until the present. In this rulemaking,

EPA is not addressing the BR area's

attainment status with respect to any

other historical time period, or its status

as of its 2005 attainment date.

Comment: LCA contended that EPA

can rely on a level of 90 ppb averaged on an 8-hour basis for ozone as being an

equivalent level of protection to the 1-

hour standard in the absence of any

effective 1-hourstandard. LCA argues

that, because the 1-hour standard was legally revoked during the time period

at issue (as of November 2005) EPA

rationally could look to the 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 of this.

rulemaking. EPA has not made a finding

that 90 ppb averaged on an 8 hour basis

is equivalent to 120 ppb averaged on a

1-hour basis. This action considers only

whether the area has attained the 1-hour

ozone standard of 120 ppb (or 124 ppb

when rounding is considered), based on

monitoring data for that standard.

Comment: 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 of today's

rulemaking, EPA will address the

section 185 fees anti-backsliding

requirements for the 1-hour ozone

standard in a separate proceeding or rulemaking. .

Comment: 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

CAA under the Clean Data Policy is

valid and reasonable, and has been

upheld by every court in which it has

been challenged. We respond to LEAN's

specific: comments below.

Comment: LEAN asserts that the 1-

hour standard is no longer relevant for

determining whether an area's air

quality is requisite to protect public

health.

Response: While EPA agrees that it

has issued an 8-hour ozone standard

that is more protective than the 1-hour

standard, certain 1-hour 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

under the 1-hour standard. and that

interpretation has now been

incorporated in the form of a regulation

for implementation of the 8-hour ozone

requirements. Under the Clean Data

Policy, an attainment determination for

the 1-hour standard has consequences

for an area's obligation to submit certain

regulatory requirements for that

standard. For the reasons set forth in the

proposal and in EPA's responses to

comments here, a determination that the

BR area has attained the 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 FR293S). 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,

LDEQwill 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 of attainment, for

either the 1-hour or 8-hour standard, is

a valid, reasonable, and legitimate

alternative way of satisfying the

requirements to submit attainment

demonstrations, reasonable further

progress requirements. and contingency

measures, for that standard. Upon EPA's

final determination that the BR area is

attaining the 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 fact that the

sole purpose of these measures is to

bring about attainment of the 1-hour

standard. EPA is determining that this

attainment has already occurred and it

continues, and that submission of measures designed to create attainment

is not necessary for so long as the area

continues to attain. Contrary to

Commenter's assertion, no further

reductions to bring about attainment of

the 1-hour standard are necessary or

required. The application of the Clean

Data 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 arguesthat

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 of expected number of exceedances

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 Coast Air

Quality Management 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 CAA that "air quality should be

Improved until safe and never allowed

to retreat thereafter."

Response: The suspension of the

obligation to submit the attainment

demonstration, RFP plan, and

contingency measures for the 1-hour

ozone standard does not remove any

controls that are in place, or any

controls that are required when the area

is attaining the 1-hour standard. It is

directed only at plan measures aimed

specifically at attainment of the 1-hour

standard, which are not necessary once

the area has attained, and continues to

attain that standard. The obligations for

submissions being suspended here do

not bear on any obligations linked to the

revised 2008 8-hour ozone standards.

We will address any new 8-hour

requirements in a separate proceeding or rulemaking. Moreover, as set forth

above, the 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 of requirements 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 2010
6574 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 of the reconsidered

standard, LDEQ will be required to

prepare a new ozone plan that addresses

that standard. .Comment: LEAN argues that EPA

cannot lawfully suspend controls from a

SIP without going through the

comprehensive redesignation

procedures of 42 U.S.C. 7407(d)(3).

Response: This action does not

constitute a redesignation to attainment

pursuant to section 107(d)(3).

Consequently, the criteria of section

107(d)(3) do not apply to this action.

See 60 FR 36723. Nor does the existence

of the separate statutory redesignation

procedure prevent EPA from applying

its interpretation of CAA requirements

under the Clean Data Policy.

Several Circuit Courts have' upheld

the use of the Clean Data Policy to

suspend the requirement to submit

certain SIP planning measures for the 1-

hour ozone standard. The Tenth,

Seventh and Ninth Circuits have upheld

EPA'rulemakings applying the Clean

Data Policy. See Sierra Club v. EPA, 99

F. 3d 1551 (10th Cir. 1996); Sierra Club

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

Our Children's Earth Foundation v,

EPA, No. 04-73032 (9th·Cir. June 28,

2005) memorandum opinion. See also

the discussion and rulemakings cited in

the Phase 2 8-Hour Ozone '

Implementation Rule, 70 FR 71644-

71646 (November 29, 2005).

The D.C. Circuit has also upheld the

Clean Data Policy, as it is embodied in

40 CFR 51.918, which was challenged in

the context of the 8-hour ozone standard

in the Phase 2 Rule ozone litigation in

See 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 interpretationisreasonable. See Sierra

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's admonition

that theEPA cannot"renderSubpart2.'s

carefully designed restrictionson EPA

discretionutterlynugatory," Whitman v, Am.

Trucking Ass'ns, 531U.S. 457,484,121S.Ct.

903,149L.Ed.2d 1 (2001). TheClean Data

Polleydoesnot effecta redesignation; an area must still comply with the statutory

requirements before it can be redesignated to

attainment. Furthermore, PartD-including

Subpart2-remains in forcainsofarasit

applies but, as we haveJustseen, theEPA

ha5reasonably concluded the provisions 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:

Astha EPA rationallyexplained,if an area is in complianca withPM-l0 standards,than

further progress for the purpose ofensuring

attainmantis not necessary.

Thus, the Courts have considered and

rejected the commenter's arguments that

the Clean Data Policy is at odds with the

redesignation process, and have ruled in

favor of EPA's interpretation of the

Clean Data Policy, finding it consistent

with the provisiona of the 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 of the Clean Data Policy, an

area remains in nonattainment status

until EPA redesignates the area after

making the other findings required

under Section 107(d). See

107(d)(3)(E)(i)-(v) (redesignation

requirements); 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 of how

quickly the suspended requirements to

submit would have to be put back in

place if BR fell out of attainment. LEAN

speculates that the requirements could

be re-imposed and then re-suspended in

an illegal manner. ' Response: EPA will make a future

determination in notice-and-comment

rulemaking if the BR falls out of

attainment for the 1-hour standard. The

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 thereafter have to address the

pertinent SIPrequirements within a

reasonable amount of time, which EPA

would establish 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

of Management 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 (B6 FR

28355, May 22, 2001);

• Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

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

application of those requirements would

be inconsistent with the Clean Air Act;

and

• Does not provide EPA with the

discretionary authority to address, as

appropriate, disproportionate human

health or environmental effects, using

practicable and legally permissible

methods, under Executive Order 12898

(59 FR 7629, February 16, 1994).

In addition, this rule does not have

tribal implications as specified by

Executive Order 13175 (65 FR 67249,

November 9,2000), because there is no

federally recognized Indian country

located In the states, and EPA notes that

it will not 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

of the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rules

in the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

these actions must be filed In the United

States Court of Appeals for the

appropriate circuit by April 12, 2010.

Filing a petition for reconsideration by

the Administrator of these final rules

does not affect the finality of this action

for the purposes of judicial review nor

does it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements. (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 citation for part 52

continues to read as follows:

Authority: 42 U.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 of Attainment.

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 separate document 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""AnON

!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

9/30/20 021

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 FROMBATCH 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

!

iNEGDECLARATIONS FOR RACT 61FR55894 12/31/1996

I

115% RATE OF PROGRESS 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',·

rI~:'>'/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