Approval and Promulgation of Implementation Plans; Louisiana; Clean Air Interstate Rule Nitrogen Oxides Trading Programs

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a revision to the Louisiana State Implementation Plan (SIP) submitted by the State of Louisiana on August 20, 2007, as the Louisiana Clean Air Interstate Rule (CAIR) Nitrogen Oxides (NO_X) Trading Programs abbreviated SIP. The abbreviated SIP revision includes the Louisiana methodology for allocation of annual and ozone season NO_X allowances. EPA has determined that the Louisiana CAIR NO_X Trading Programs abbreviated SIP revision satisfies the applicable requirements of a CAIR abbreviated SIP revision. EPA is also approving revisions to the Louisiana SIP that establish administrative reporting requirements for all Louisiana CAIR programs; these revisions were submitted on September 22, 2006, as part of the Louisiana CAIR Sulfur Dioxide (SO₂) Trading Program SIP. EPA has also determined that the Louisiana CAIR NO_X Annual and Ozone Season Abbreviated SIP satisfies Louisiana's Clean Air Act (CAA) Section 110(a)(2)(D)(i) obligations to submit a SIP revision that contains adequate provisions to prohibit air emissions from adversely affecting another State's air quality through interstate transport.

The intended effect of this action is to reduce NO_X emissions from the State of Louisiana that are contributing to nonattainment of the 8-hour ozone and PM_2.5 National Ambient Air Quality Standards (NAAQS or standard) in downwind states. This action is being taken under section 110 of the CAA.

DATES:

This rule is effective on September 28, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2007-0651. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this Federal Register to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee 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.

The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment:

Louisiana Department of Environmental Quality, Office of Environmental Quality Assessment, 602 N. Fifth Street, Baton Rouge, Louisiana 70802.

FOR FURTHER INFORMATION CONTACT:

If you have questions concerning today's approval, please contact Ms. Adina Wiley (6PD-R), Air Permits Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is (214) 665-2115. Ms. Wiley can also be reached via electronic mail at wiley.adina@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever any reference to “we,” “us,” or “our” is used, we mean EPA.

Table of Contents

I. What Action Is EPA Taking?

II. What Is the Background for This Action?

III. When Is This Action Effective?

IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

EPA is approving a revision to the Louisiana SIP, the Louisiana CAIR NO_X Trading Programs abbreviated SIP revision, submitted on August 20, 2007, by the State of Louisiana at Louisiana Administrative Code Title 33, Part III, Chapter 5, Sections 506 (A) and (B) (LAC 33:III.506 (A) and (B)). We are also approving revisions to the Louisiana SIP establishing administrative reporting requirements for all Louisiana CAIR programs; these revisions were submitted with the Louisiana CAIR SO₂ Trading Program on September 22, 2006 (LAC 33:III.506 (D) and (E)). Louisiana is covered by the CAIR NO_X Annual and Ozone Season FIPs, which require participation in the EPA-administered CAIR FIP cap-and-trade programs for NO_X annual and ozone emissions. Under this abbreviated SIP revision and consistent with the flexibility given to Louisiana in its CAIR NO_X Annual and Ozone Season FIPs' provisions, the Louisiana provisions for allocating allowances under the Louisiana CAIR FIPs' NO_X annual and ozone season trading programs are approved as part of the Louisiana SIP. EPA has determined that the abbreviated SIP revision meets the applicable requirements in 40 CFR 51.123(p)(1) and (ee)(2) with regard to NO_X annual and ozone season allowance allocations. EPA, by ministerial action, will note in Appendix A.1. to Subpart EE of 40 CFR Part 97 that Louisiana has an approved SIP revision providing for NO_X annual allowance allocations. Similarly, EPA will note in Appendix A to Subpart EEEE of 40 CFR Part 97 that Louisiana has an approved SIP revision providing for NO_X ozone season allowance allocations. Since 40 CFR part 97 provides for automatic revision of the Louisiana CAIR FIP for NO_X annual and ozone season emissions (under 40 CFR 52.984) upon approval of such an abbreviated SIP revision, the Louisiana rules for NO_X annual and ozone season allowance allocations apply, rather than the Federal rules governing allocations, upon the effective date of approval.

EPA has also determined that this SIP revision adequately addresses the required elements of section 110(a)(2)(D)(i) of the Clean Air Act, 42 U.S.C. 7410(a)(2)(D)(i). The SIP revision contains provisions that address significant contribution, interference with maintenance, prevention of significant deterioration, and protection of visibility. The protection of visibility requirement will be re-evaluated after the regional haze SIP revision is completed and submitted to EPA.

EPA proposed to approve Louisiana's request to amend the SIP on August 15, 2007 (72 FR 45705). In that proposal, EPA also stated its intent to amend the CAIR FIP NO_X Annual and Ozone Season Trading Programs through ministerial action and proposed the finding as to section 110(a)(2)(D)(i), as described above. The comment period closed on September 14, 2007. EPA received one comment from a regulated entity in support of our proposed approval. EPA is finalizing the approval as proposed based on the rationale stated in the proposal and the accompanying Technical Support Document (TSD). The TSD is available as specified in the section of this document identified as ADDRESSES.

Also in today's action, EPA is providing a technical correction to the amendatory language for the Louisiana CAIR Sulfur Dioxide (SO₂) Trading Program at 40 CFR part 52, subpart T, section 52.970. On July 20, 2007 (72 FR 39741), EPA published direct final rulemaking action approving the Louisiana CAIR SO₂ Trading Program as a SIP revision. This action contained amendments to 40 CFR part 52, Subpart T, § 52.970 which incorrectly incorporated “Section 506(c)” into the Louisiana SIP. Today we are correcting 40 CFR part 52, subpart T, § 52.970 to correctly incorporate “Section 506(C)” into the Louisiana SIP.

II. What Is the Background for This Action?

The Louisiana Department of Environmental Quality (LDEQ) initially proposed the Louisiana-specific CAIR NO_X annual and ozone season allocation methodologies in January 2007 as revision AQ261 to the LAC and in February 2007 as a revision to the Louisiana SIP. As a result of extensive comments and subsequent rewrites, AQ261 was withdrawn from consideration. LDEQ proposed the revised CAIR NO_X annual and ozone season allocation methodologies as revision AQ285 to the LAC and the Louisiana SIP in May 2007. The comment period on the AQ285 SIP revision ended on July 3, 2007. LDEQ responded to comments and made technical amendments to the allocation methodologies. The final rule revision was submitted to the Louisiana Legislative Oversight Committee (LOC) on July 12, 2007. At this time the LDEQ also requested that EPA parallel process this abbreviated revision to the Louisiana SIP in conjunction with the LDEQ's rulemaking activities. The LDEQ requested parallel processing of the Louisiana CAIR NO_X Trading Programs abbreviated SIP revision to expedite Federal approval of the Louisiana NO_X annual and ozone season allocation methodologies before the allowance recordation deadline. The Louisiana CAIR NO_X Annual and Ozone Season FIP includes a NO_X allowance recordation deadline of September 30, 2007, at 40 CFR 97.153 and 97.353. As explained in the preamble of our April 28, 2006, promulgation of the CAIR FIPs, EPA will only record State allowance allocations if EPA has approved a full or abbreviated SIP for the State which specifies the allocation methodology (see 71 FR 25354).

In order to expedite review, we proposed approval of the Louisiana CAIR NO_X Trading Programs abbreviated SIP revision under a procedure called “parallel processing” whereby EPA proposes rulemaking action concurrently with the State's procedures for amending its regulations (40 CFR part 51, Appendix V, section 2.3). If the State's proposed revision is substantially changed, EPA evaluates those subsequent changes and may publish another notice of proposed rulemaking. If no substantial changes are made, EPA publishes a final rulemaking on the revisions after responding to any submitted comments. Final rulemaking action by EPA occurs only after the SIP revision has been fully adopted and submitted formally to EPA for incorporation into the SIP. In addition, any action by the State resulting in undue delay in the adoption of the rules may result in a re-proposal altering the approvability of the SIP revision.

The Louisiana LOC reviewed the final AQ285 from July 12-August 10, 2007, during which time the public was able to request a Legislative Oversight hearing. Since no hearing was requested by the deadline, the rule proceeded through the remainder of the Louisiana rulemaking process as finalized on July 12, 2007. The LDEQ published the final AQ285 in the August 20, 2007 Louisiana Register; the rule became effective upon publication.

The LDEQ submitted the final Louisiana CAIR NO_X Trading Programs abbreviated SIP revision on August 20, 2007. This SIP submittal included a copy of the Louisiana Register publication, providing evidence that the rule is fully adopted and effective at the State level. No substantive changes were made to the final SIP revision; however, it is important to note that the LDEQ updated Appendix A—Public Notification, to include all pages of the comment letters. The SIP revision submitted on July 12, 2007, inadvertently omitted even numbered pages from some comment letters. EPA is able to proceed with our final rulemaking because the August 20, 2007, SIP submittal was not substantively changed from proposal and provided evidence that Louisiana formally adopted and submitted the revisions for inclusion in the SIP.

III. When Is This Action Effective?

EPA has determined that today's technical correction to the Louisiana CAIR SO₂ citation falls under the “good cause” exemption in 5 U.S.C. 553(d)(3) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary or contrary to the public interest. Public notice and comment for this action are unnecessary because today's action to correct 40 CFR part 52 has no substantive impact on EPA's July 20, 2007, direct final rule approval of the Louisiana CAIR SO₂ Trading Program. In addition, EPA can identify no particular reason why the public would be interested in being notified of the correction of this error or in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the approval status.

EPA also finds that there is good cause for the approval of the Louisiana CAIR NO_X Trading Programs abbreviated SIP revision and technical amendment to the Louisiana CAIR SO₂ citation to become effective on September 28, 2007, because a delayed effective date is unnecessary due to the nature of the approval, which allows the State to make allocations under its CAIR rules. The expedited effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rule actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 5 U.S.C. 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

CAIR SIP approvals relieve States and CAIR sources within States from being subject to allowance allocation provisions in the CAIR FIPs that otherwise would apply, allowing States to make their own allowance allocations based on their SIP-approved State rule. The relief from these obligations is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, Louisiana's relief from these obligations provides good cause to make this rule effective September 28, 2007, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rule relieves obligations rather than imposes obligations, affected parties, such as the State of Louisiana and CAIR sources within the State, do not need time to adjust and prepare before the rule takes effect.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason and because this action will not have a significant, adverse effect on the supply, distribution, or use of energy, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard and indicates that approval will result in ministerial changes to the appropriate appendices of the CAIR FIP's trading rules, and does not alter the relationship or the distribution of power and responsibilities established in the Act. The EPA interprets Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it approves a State rule implementing a Federal standard. Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Because this rule merely approves a State rule implementing a Federal standard, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 27, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR Part 97

• Environmental protection
• Air pollution control
• Administrative practice and procedure
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements

40 CFR parts 52 and 97 are 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. Section 52.970 is amended as follows:

a. In paragraph (c) the table entitled “EPA Approved Louisiana Regulations in the Louisiana SIP” is amended under Chapter 5—Permit Procedures, by removing the entry for “Section 506(c)” and adding in its place an entry for “Section 506(C)”.

b. In paragraph (c) the table entitled “EPA Approved Louisiana Regulations in the Louisiana SIP” is amended under Chapter 5—Permit Procedures, by adding in numerical order new entries for “Section 506(A)”, “Section 506(B)”, “Section 506(D)”, and “Section 506(E).

c. In paragraph (e) the table entitled “EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures” is amended by adding a new entry at the end for the “Clean Air Interstate Rule Nitrogen Oxides Annual and Ozone Season Trading Programs”.

PART 97—[AMENDED]

3. The authority citation for part 97 continues to read as follows:

Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et seq.

4. Appendix A to Subpart EE is amended by adding an entry, in alphabetical order, for “Louisiana” to paragraph 1., to read as follows:

Appendix A to Subpart EE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations

1. * * *

Louisiana

5. Appendix A to Subpart EEEE is amended by adding an entry, in alphabetical order, for “Louisiana” under the introductory text to read as follows:

Appendix A to Subpart EEEE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations

Louisiana