[Federal Register Volume 62, Number 137 (Thursday, July 17, 1997)]
[Proposed Rules]
[Pages 38237-38239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18858]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[LA-41-1-7342, FRL-5859-3]


Designation of Areas for Air Quality Planning Purposes; State of 
Louisiana; Correction of the Designation for Lafourche Parish

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed correction.

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SUMMARY: This document announces EPA's proposal to correct the 
designation of Lafourche Parish, Louisiana, to nonattainment for ozone. 
Subsequent to publication, but prior to the effective date of the 
approval action in this matter, Lafourche Parish violated the ozone 
standard. Pursuant to the Clean Air Act (the Act), which allows

[[Page 38238]]

EPA to correct its actions, EPA is today proposing to correct the 
designation of Lafourche Parish to nonattainment for ozone.

DATES: Comments on this proposed action must be received by August 18, 
1997.

ADDRESSES: Comments should be mailed to Thomas H. Diggs, Chief, Air 
Planning Section (6PD-L), EPA, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733. Copies of information relevant to this action are 
available for inspection during normal hours at the following 
locations: Environmental Protection Agency, Region 6, Air Planning 
Section (6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
    Anyone wishing to review this proposal at the Region 6 EPA office 
is asked to contact the person below to schedule an appointment 24 
hours in advance.

FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region VI, 1445 Ross Avenue, 
Dallas, Texas 75202-2733, telephone (214) 665-7219.

SUPPLEMENTARY INFORMATION:

I. Background

    Lafourche Parish was originally designated as nonattainment for 
ozone on September 11, 1978 (40 CFR 81.319). Under the Act, as amended 
in 1990, the area retained its designation of nonattainment and was 
classified as an incomplete data area by operation of law pursuant to 
sections 107(d) and 181(a) of the Act (56 FR 56694).
    On November 18, 1994, the State of Louisiana submitted a 
maintenance plan and redesignation request for Lafourche Parish to EPA 
for approval. On August 18, 1995, EPA issued a direct final notice 
approving Louisiana's redesignation request (60 FR 43020), because it 
met the maintenance plan and redesignation requirements set forth in 
the Act. Section 107(d)(1)(A)(ii) of the Act, 42 U.S.C. 
7407(d)(1)(A)(ii), provides that an attainment area is one that 
``meets'' the National Ambient Air Quality Standards (NAAQS). Section 
107(d)(3)(E)(i) of the Act, 42 U.S.C. 7407(d)(3)(E)(i), prohibits EPA 
from redesignating an area to attainment unless EPA determines that the 
area ``has attained'' the NAAQS. The EPA's redesignation policy 
includes language to address how EPA will respond to a monitored 
violation of the NAAQS prior to the effective date of a redesignation 
action.
    The EPA's redesignation policy is discussed in a guidance 
memorandum dated September 4, 1992, entitled Procedures for Processing 
Requests to Redesignate Areas to Attainment. This policy memorandum 
provides that if monitoring data indicates a violation of the NAAQS 
before the redesignation action is effective, the approval of the 
redesignation action should be withdrawn or disapproved.
    Language in the direct final notice of August 18, 1995, restates 
this policy as follows: ``If the monitoring data records a violation of 
the NAAQS before the direct final action is effective, the direct final 
approval of the redesignation will be withdrawn and a proposed 
disapproval substituted for the direct final approval'' (60 FR 43021-
43022). The ozone monitor in Lafourche Parish recorded a violation (a 
fourth exceedance of the ozone standard in three years) on August 27, 
1995, during the 30-day comment period of EPA's approval action on the 
redesignation request. The EPA did not withdraw its approval of the 
redesignation action, and it took effect on October 18, 1995. The 
fourth exceedance was validated on January 10, 1996.

II. Correction of Error Under Section 110(k)(6)

    Section 110(k)(6) of the Act provides that whenever the Regional 
Administrator determines that the Regional Administrator's action 
approving, disapproving, or promulgating any plan or plan revision (or 
part thereof), area designation, redesignation, classification, or 
reclassification was in error, the Regional Administrator may in the 
same manner as the approval, disapproval, or promulgation revise such 
action as appropriate without requiring any further submission from the 
State. Such determination and the basis thereof shall be provided to 
the State and public. The EPA interprets this provision to authorize 
the Agency to make corrections to a promulgation when it is shown to 
EPA's satisfaction that an error occurred in failing to consider or 
inappropriately considering information available to EPA at the time of 
the promulgation, or the information made available at the time of 
promulgation is subsequently demonstrated to have been clearly 
inadequate.
    The EPA's initial action to redesignate Lafourche Parish to 
attainment (60 FR 43020), was based on a demonstration that the area 
met the NAAQS for ozone. Monitoring data recorded during the comment 
period on the initial action indicate that the area was in violation of 
the ozone standard, and EPA's action to allow the redesignation to 
become effective in light of the violation was in conflict with the 
statute, EPA policy, language contained in the Lafourche approval, and 
other notices of disapproval published by EPA for areas that had 
violated the NAAQS while their redesignation requests were pending. 
These other areas include Richmond, Virginia, (59 FR 22757), the 
Pittsburgh-Beaver Valley nonattainment area, (61 FR 19193), the 
Kentucky portion of the Cincinnati-Hamilton nonattainment area, (61 FR 
50718), the Ohio portion of the Cincinnati-Hamilton nonattainment area, 
(62 FR 7194), and Birmingham, Alabama, (62 FR 23421). The EPA is 
soliciting comment on our proposed correction of this area back to 
nonattainment for ozone.

III. Proposed Action

    In 60 FR 43020, EPA issued a direct final rule promulgating a 
change to the designation of Lafourche Parish, Louisiana to attainment 
for ozone, and amended 40 CFR parts 52 and 81 accordingly. In today's 
action, EPA is proposing to correct an error by changing the 
designation of Lafourche Parish to an ozone nonattainment area, and 
classifying it as an ozone nonattainment incomplete data area. Today's 
action also proposes an amendment to 40 CFR parts 52 and 81 to reflect 
the change in designation. These actions are proposed in accordance 
with section 110(k)(6) of the Act.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget has exempted this regulatory 
action from E.O. 12866 review.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
requires any federal agency, when it develops a rule, to identify and 
address the impact of the rule on the small businesses and other small 
entities that will be subject to the rule (RFA sections 603 and 604). 
This requirement applies to 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 (RFA section 605(b)). Besides small businesses, small entities 
include small governments with jurisdictions of less than 50,000 people 
and small nonprofit organizations.
    Today's action is not subject to notice-and-comment rulemaking 
requirements. As an action under section 110(k)(6) of the Act, it is 
governed by section 553 of the Administrative Procedure Act

[[Page 38239]]

(APA), 5 U.S.C. 551 et seq. That section provides that an agency must 
provide public notice of, and an opportunity to comment on, a proposed 
rule unless the agency finds for good cause that providing notice-and-
comment procedures for the rule are ``impracticable, unnecessary or 
contrary to the public interest'' (section 553(b)).
    The Agency believes there is good cause for finding public notice 
and comment procedures unnecessary for this action to correct the 
designation of Lafourche Parish. As EPA explained in the notice of 
August 18, 1995, Lafourche Parish could not be designated to attainment 
if the area experienced a violation of the ozone NAAQS during the 
period for public comment on the notice. Lafourche Parish in fact 
experienced a violation during the public comment period, but the 
Agency did not withdraw its notice approving the redesignation. The 
Agency is now proposing to correct that error. Since the public had an 
opportunity to comment on the original notice and the Agency is only 
correcting a mistake with this action, public notice and comment on 
today's notice is not legally necessary. The Agency is nonetheless 
voluntarily using notice-and-comment procedures to make this 
correction.
    As an action not subject to notice-and-comment requirements, this 
action is also not subject to the RFA requirement to prepare regulatory 
flexibility analyses. Moreover, this action will not establish any 
requirements applicable to small entities. It simply corrects the 
designation of the area by restoring the nonattainment designation that 
was erroneously changed to attainment. The RFA requires analyses of a 
rule's requirements as they would apply to small entities. If the rule 
does not apply to small entities, an RFA analysis is inapplicable.
    Further, it is unlikely that this action will result in State 
imposition of control requirements that are different from those 
applicable in Lafourche Parish before the erroneous change in 
designation status. Under Title I of the Act, States are primarily 
responsible for establishing control requirements needed to attain and 
the maintain the NAAQS. Louisiana has adopted an implementation plan 
that includes control requirements that apply to particular sources or 
categories of sources, depending on a number of factors, including the 
designation status of the area in which a source is located. As a 
result of today's action, Louisiana will once again have to apply some 
of those control programs in Lafourche Parish. Some of those programs 
may ultimately impose requirements on small entities in the Parish. 
However, these controls were applicable before the erroneous 
designation to attainment; correcting that mistake will only put the 
small entities in that area in the place they were prior to the mistake 
being made.
    Beyond that, the purpose of the RFA is to promote Federal agency 
efforts to tailor a rule's requirements to the scale of the small 
entities that will be subject to it. That purpose cannot be served in 
the case of State control requirements. Some of the control 
requirements included in States' SIPs are prescribed to some extent by 
the Act. Even so, the only issue before EPA in actions such as this one 
is the proper designation of a particular area. The implementation 
consequences of a designation are beyond the scope of such actions, and 
indeed, beyond EPA's reach to the extent they are dictated by the Act 
itself or are left to States' discretion. In light of all the above, if 
the RFA were applicable to this action, the Agency would certify that 
it will not have a significant economic impact on a substantial number 
of small entities.

C. 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 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 this action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector. This Federal action simply proposes to correct an error 
in the designation for the reasons described above and does not, in 
itself, impose any mandates.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental regulations, Ozone, 
Reporting and recordkeeping, and volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks and 
wilderness areas, Designation of areas for air quality planning 
purposes.

    Authority: 42 U.S.C. 7401-7871q.

    Dated: July 8, 1997.
Jerry Clifford,
Acting Regional Administrator.
[FR Doc. 97-18858 Filed 7-16-97; 8:45 am]
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