The February 10, 2010 Federal Register contains a notice of EPA’s final decision that the Baton Rouge ozone nonattainment area “has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS).” (The Baton Rouge area consists of the parishes of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge.) EPA found that the ambient monitoring data for 2006-2008 demonstrated attainment and noted there were no exceedances of the standard in 2009. Although this 1-hour ozone standard was revoked in 2005 and replaced with a more stringent 8-hour standard, some of the SIP requirements associated with the old 1-hour standard were continued under the Clean Air Act’s “anti-backsliding” provisions. The EPA action, known as a “Clean Data Policy Determination,” formally suspends several requirements associated with the Louisiana Department of Environmental Quality’s (“LDEQ’s”) State Implementation Plan (“SIP”) as long as the area continues to achieve the 1-hour standard. These suspended requirements include “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 1-hour ozone NAAQS.”

One of the areas EPA did not squarely address in the February 10 decision was the issue of whether Clean Air Act Section 185 penalty fees are among the suspended requirements; however, EPA hinted that it would follow recently issued guidance on that subject. The Federal Register notice states: “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 1-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.”

The January 5, 2010 Guidance referred to by EPA clearly stated that once an area meets either the old 1-hour ozone standard or the new 8-hour ozone standard, the obligation to have a Section 185 fee program is discontinued. Because the Clean Data Policy Determination in the February 10th Federal Register confirms that the Baton Rouge Area has met the 1-hour standard, it is expected that EPA will soon make a determination that no Section 185 program is needed. Such a decision would avoid a significant adverse economic impact to the community.

It should be noted that the 5-Parish Baton Rouge Area has also achieved attainment with the 8-hour ozone standard and the LDEQ also submitted a request for a Clean Data Policy Determination to the EPA for that 8-hour standard, thus providing further support for discontinuation of any requirement to adopt a Section 185 fee program. It is expected that EPA will soon propose such a determination for public comment. LDEQ also submitted a request to EPA last August for a determination that the Baton Rouge Area should be redesignated to full attainment with existing ozone standards. The full redesignation requires not only a Clean Data determination, but also approval of a maintenance plan to ensure continued attainment.

The EPA notice also indicated that the existing requirements for nonattainment new source review (“NNSR”) “may change after the area is redesignated and has an approved maintenance plan.” EPA indicated that at that time, the Louisiana Prevention of Significant Deterioration (“PSD”) requirements would apply within the area in lieu of the NNSR requirements. EPA is likely to propose full redesignation of the area to attainment within the next few months.

EPA and LDEQ are subject to a pending lawsuit filed by the Louisiana Environmental Action network (“LEAN”) in the U.S. District Court for the District of Columbia last year arguing that one or both of the agencies should impose a Section 185 fee program, a 1-hour severe NNSR program, and other requirements of the old 1-hour standard on sources within the Baton Rouge Area. The Baton Rouge Chamber of Commerce, the Louisiana Chemical Association, and the Louisiana Mid-Continent Oil and Gas Association have moved to intervene in that lawsuit.

The EPA Federal Register notice of the Clean Data Policy Determination for Baton Rouge is available here.