Approval and Promulgation of Air Quality State Implementation Plans; Louisiana; Approval of Clean Fuel Fleet Substitution Program Revision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA52-1-7422a; FRL-6378-3]

Approval and Promulgation of Air Quality State Implementation

Plans; Louisiana; Approval of Clean Fuel Fleet Substitution Program

Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on approving Louisiana's

State Implementation Plan (SIP) revision because it adequately

demonstrates that the Louisiana Clean Fuel Fleet (CFF) substitute

program achieves equivalent or better long term reductions in emissions

of ozone producing and toxic air pollutants than the Federal CFF

program. A detailed rationale for the approval is set forth in the

accompanying Technical Support Document.

DATES: This rule is effective on September 17, 1999 without further

notice, unless we receive adverse comment by August 18, 1999. If we

receive such comment, we will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region

6 Office listed below. Copies of the documents about this action are

available for public inspection during normal business hours at the

following locations. Persons interested in examining these documents

should make an appointment with the appropriate office at least two

working days in advance before the visiting day.

Environmental Protection Agency, Region 6, Air Planning Section,

(6PD-L), Multimedia Planning and Permitting Division, 1445 Ross Avenue,

Suite 700, Dallas, Texas 75202-2733.

Louisiana Department of Environmental Quality, Air Quality

Division, 7290 Bluebonnet Blvd., Baton Rouge, Louisiana, 70810.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Scoggins, Air Planning

Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-

2733, telephone (214) 665-7354 or via e-mail at [email protected].

While information may be requested via e-mail, comments must be

submitted in writing to the above Region 6 address.

SUPPLEMENTARY INFORMATION: This supplemental information section is

organized as follows:

What action is EPA taking?

What is the background?

What did the State submit?

What is the process for EPA approval of this action?

What Action is EPA Taking?

After review of the SIP revision request, we find the Louisiana's

substitution plan for the Federal CFF program requirements to be

approvable because the revision adequately demonstrated Volatile

Organic Compounds (VOC) emission reductions that are sufficient to meet

or exceed the

[[Page 38578]]

emission reductions of the Federal CFF program.

The information submitted by Louisiana demonstrated that the

substitution of the State's Clean Fuel Fleet program with above

Reasonable Available Control Technology (RACT) VOC emission reductions

achieved from tank fitting controls pursuant to Louisiana

Administrative Code (LAC) 33:III.2103 will not result in new National

Ambient Air Quality Standards (NAAQS) violations, nor increase the

frequency or severity of existing NAAQS violations, nor delay

attainment and maintenance of the NAAQS in the Baton Rouge Ozone

nonattainment area.

We believe the SIP revision submitted by Louisiana meets the

requirements of a substitute program that achieves equivalent long term

emission reductions of ozone precursors in the Baton Rouge ozone

nonattainment area. The State surveyed nine storage tanks in Baton

Rouge area which show, over a ten year period equivalent to the Federal

CFF program, an estimated total VOC emission reduction of 2,010 tons.

The emission reductions over the ten year period from the Federal CFF

program were estimated to be 1,264 tons.

What is the Background?

On November 15, 1990, Congress enacted amendments to the 1997 Clean

Air Act; Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C.

7401-7671q. Part C of Title II was added to the Act to establish two

programs: a clean-fuel vehicle pilot program in the State of California

(the California Pilot Test Program) and the Federal CFF program in

certain ozone and carbon monoxide nonattainment areas. The CFF program

is required by section 182(c)(4), 42 U.S.C., section 7511a(c)(4) and

the underlying requirements are in sections 246 of the Act, 42 U.S.C.,

section 7586.

On November 10, 1994, the Louisiana Department of Environmental

Quality submitted a SIP revision to the EPA, Region 6, which contained

provisions for a state CFF program. The SIP submittal was in response

to publication of the EPA's final CFF program rule (58 FR 11888, March

1, 1993) which established the 40 CFR part 88, subpart C regulations

required by the Act. The Louisiana CFF program SIP revision was

reviewed and subsequently approved by EPA on October 23, 1995 (60 FR

54305). State regulations governing the CFF program are codified in LAC

33:III.1951-1973. The Louisiana CFF program would have required covered

vehicle fleet owners in the Baton Rouge ozone nonattainment area to

purchase specified percentages of clean fuel vehicles beginning in

September, 1998.

Section 182(c)(4) of the Act, 42 U.S.C. 7511a, allows States to

opt-out of the Federal CFF program by submitting, for EPA approval, a

SIP revision consisting of a substitute program resulting in as much or

greater long term emissions reductions in ozone producing and toxic air

emissions as the Federal CFF program. We may approve such a revision

``only if it consists exclusively of provisions other than those

required under this Act for the area.''

After a thorough evaluation of their CFF program's costs and

marginal benefits, the State of Louisiana elected to opt-out of the CFF

program requirements.

What did the State Submit?

Louisiana submitted a SIP revision, on April 1, 1999, that

substitutes the long term emissions reductions resulting from a CFF

program for the Baton Rouge nonattainment area. The revision was

adopted after reasonable public notice and public hearing as required

by sections 110(a)(2) and 110(l) of the Act and 40 CFR 51.102(f). The

submission was reviewed and determined to be administratively complete

on April 6, 1999. The submittal was then reviewed for approvability by

EPA Region 6 and EPA headquarters.

The State of Louisiana is substituting emission reductions achieved

from LAC 33:III.2103 which impose controls beyond the Act requirements

(i.e., RACT) for storage tanks in the Baton Rouge nonattainment area.

The VOC storage tank rule LAC 33:III.2103 goes beyond Act requirements

by requiring guide pole and stilling well controls on external floating

roof tanks. The resultant long term emission reductions were greater

than the Louisiana CFF program emission reductions in the ozone

nonattainment area.

The SIP submittal contains: (1) Letter dated March 21, 1999, from

Governor Mike Foster replacing the CFF program submitted on November

10, 1994, and subsequently approved by EPA on October 23, 1995; (2)

plan revision dated March 22, 1999, and received at EPA on April 1,

1999; (3) documentation of the public notice dated December 21, 1998,

and a transcript of the public hearing dated January 25, 1999; and (4)

supplemental information dated January 22, 1999.

The areas affected by this substitute program include the parishes

of Ascension, Iberville, East Baton Rouge, Livingston, and West Baton

Rouge. These five parishes comprise the Baton Rouge ozone nonattainment

area.

A more detailed discussion of the Louisiana CFF substitute program

elements and control strategy can be found in the Technical Support

Document available from the U.S. EPA Region 6 office.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

What is the Process for EPA Approval of this Action?

We are publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no adverse

comments. However, in the ``Proposed Rules'' section of today's Federal

Register publication, we are publishing a separate document that will

serve as the proposal to approve the action if adverse comments are

received.

This rule will be effective on September 17, 1999 without further

notice unless we receive adverse comment by August 18, 1999. If EPA

receives adverse comments, we will publish a timely withdrawal in the

Federal Register informing the public that the rule will not take

effect. We will address all public comments in a subsequent final rule

based on the proposed rule. We will not initiate a second comment

period on this action. Any parties interested in commenting must do so

at this time.

Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a State, local or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the OMB a description

of the extent of EPA's prior consultation with representatives of

affected State, local and tribal governments, the nature of their

concerns, copies of any written communications from the governments,

and a statement supporting the need to

[[Page 38579]]

issue the regulation. In addition, E.O. 12875 requires EPA to develop

an effective process permitting elected officials and other

representatives of State, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local, or tribal

governments. The rule does not impose any enforceable rules on any of

these entities. Accordingly, the requirements of section 1(a) of E.O.

12875 do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that EPA determines is: (1) ``economically

significant,'' as defined under E.O. 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the order has the potential to

influence the regulation.

This final rule is not subject to E.O. 13045 because it approves a

state program.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, in a separately identified section of the preamble

to the rule, a description of the extent of EPA's prior consultation

with representatives of affected tribal governments, a summary of the

nature of their concerns, and a statement supporting the need to issue

the regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 60 et seq.,

generally requires an agency to conduct a regulatory flexibility

analysis of any rule subject to notice and comment rulemaking

requirements unless the agency certifies that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. This final rule will

not have a significant impact on a substantial number of small entities

because SIP approvals under section 110 and subchapter I, part D of the

Act do not create any new requirements but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP

approval does not create any new requirements, I certify that this

action will not have a significant economic impact on a substantial

number of small entities. Moreover, due to the nature of the Federal-

State relationship under the Act, preparation of flexibility analysis

would constitute Federal inquiry into the economic reasonableness of

state action. The Act forbids EPA to base its actions concerning SIPs

on such grounds. See Union Electric Co., v. U.S. EPA, 427 U.S. 246,

255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated annual costs to State,

local, or tribal governments in the aggregate; or to private sector, of

$100 million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated annual costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves pre-existing requirements under State or local law, and

imposes no new requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action.

G. Submission to Congress and the Comptroller General

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. The EPA will submit a report containing this rule and

other required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A major rule can

not take effect until 60 days after it is published in the Federal

Register. This action is not a ``major'' rule as defined by 5 U.S.C.

804(2). This rule will be effective September 17, 1999.

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by September 17, 1999. Filing a petition for

reconsideration with the Administrator of this final rule does not

affect the finality of this rule for the purposes of judicial review

nor does it extend the time within which a petition for judicial review

may be filed, and shall not postpone the effectiveness of such rule or

action. This action may not be challenged later in proceedings to

enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone,

Implementation plans, Reporting and recordkeeping requirements.

[[Page 38580]]

Dated: July 7, 1999.

Jerry Clifford,

Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart T--Louisiana

2. In Sec. 52.970(e) the second table is amended by revising the

title to the table to read ``EPA approved Louisiana nonregulatory

provisions and quasi-regulatory measures'', revising the first column

title ``Control measures'' to read ``Name of SIP provision'', revising

the last column title ``Comments'' to read ``Explanation'' and adding a

new entry to the end of the table to read as follows:

Sec. 52.970 Identification of plan.

* * * * *

(e) EPA approved nonregulatory provisions and quasi-regulatory

measures.

* * * * *

EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures

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State

submittal

Name of SIP provision Applicable geographic date/ EPA approval date Explanation

or nonattainment area effective

date

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* * * * * *

*

Clean Fuel Fleet Program Baton Rouge, LA........ 03/21/99 7/19/99 64 FR Substituted above RACT

Substitution. 38580. VOC emission

reductions from

storage tank rule LAC

33:III.2103

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[FR Doc. 99-18037 Filed 7-16-99; 8:45 am]

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