[Federal Register Volume 62, Number 234 (Friday, December 5, 1997)]
[Rules and Regulations]
[Pages 64284-64287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31912]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[LA-41-1-7355, FRL-5899-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction.

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SUMMARY: On July 17, 1997, EPA published a proposed rulemaking to 
correct the designation of Lafourche Parish, Louisiana, to 
nonattainment for ozone (62 FR 38237). One adverse comment letter was 
received during the 30-day comment period, and the issues raised in 
that letter are addressed in this document. Pursuant to the Clean Air 
Act (the Act), which allows EPA to correct its actions, EPA is today 
correcting the designation of Lafourche Parish to nonattainment for 
ozone.

DATES: This action is effective on January 5, 1998.

ADDRESSES: Copies of the information relevant to this action are 
available for inspection during normal hours at the following location: 
Environmental Protection Agency, Region 6, Air Planning Section (6PD-
L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    Anyone wishing to review this document 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

    The specific rationale EPA used to correct the ozone designation of 
Lafourche Parish was explained in the proposed correction document (62 
FR 38237, July 17, 1997) and will not be restated here. This document 
announces EPA's final action regarding the correction of Lafourche 
Parish to nonattainment for ozone.

II. Response to Comments

    The EPA received an adverse comment letter dated August 15, 1997, 
from the Louisiana Mid-Continent Oil and Gas Association. The 
commentors believed that EPA either failed to consider or purposefully 
disregarded several factors. The EPA's responses to these comments are 
detailed below.
    Comment: EPA failed to consider the odd shape of the parish and the 
location of the monitor with respect to sources in the parish.
    Response: 40 CFR part 58, Ambient Air Quality Surveillance, 
Appendices D and E, describe EPA's monitoring network design and siting 
criteria for State or Local Air Monitoring Stations (SLAMS). The SLAMS 
make up the ambient air quality monitoring network which is required by 
40 CFR 58.20 to be provided for in the State Implementation Plan (SIP). 
In general, the SLAMS monitor in Thibodaux was sited in accordance with 
40 CFR part 58, Appendices C and D, to measure the maximum population 
exposure one could reasonably expect to occur in the Parish. The shape 
of Lafourche Parish and the location of the major emission points were 
taken into consideration by the State and EPA to determine the 
appropriate siting scales and monitoring objectives for ozone in 
Lafourche Parish.
    Comment: EPA failed to consider the excellent compliance history of 
the Parish.
    Response: The EPA considered the compliance history of Lafourche 
Parish, prior to and during 1995, as part of our evaluation and 
approval process for the Parish's ozone redesignation request. But 
despite the prior compliance history of Lafourche, the operative facts 
showed a violation of the standard that disqualified the area from 
redesignation to attainment. The language of section 107 (d)(3)(E)(i) 
and (d)(1)(A) provides that EPA may not redesignate an area unless the 
Administrator determines that the area has attained the standard. This 
is reinforced by other sections of the Act, including section 175A 
maintenance plan requirements, and section 172(c)(9) contingency 
measures. The EPA has long interpreted this language as requiring EPA 
to disapprove redesignation requests for areas that violate the 
standard while a redesignation request is pending. See Memorandum dated 
September 4, 1992, entitled Procedures for Processing Requests to 
Redesignate Areas to Attainment, p. 5; Pittsburgh-Beaver Valley 
nonattainment area (61 FR 19123, May 1, 1996); Richmond, Virginia (59 
FR 22757, May 3, 1994), Birmingham, Alabama (62 FR 49154, September 19, 
1997), Northern Kentucky portion of Cincinnati-Hamilton nonattainment 
area (61 FR 50718, September 27, 1996), and Detroit-Ann Arbor, (60 FR 
12459, March 7, 1995). See also the opinion of the United States Court 
of Appeals for the Third Circuit in Southwestern Pennsylvania Growth 
Alliance v. Browner, 121 F. 3rd. 106 (3rd Cir. 1997).
    The Lafourche direct final approval notice itself stated: ``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 substitute 
for the direct final approval.'' (60 FR 43021-22). Although such a 
violation was recorded during the comment period, EPA failed to 
withdraw the approval and substitute a disapproval, as it acknowledged 
would have been the appropriate course of action. The EPA's position is 
consistent with 40 CFR section 50.9, which states that the NAAQS for 
ozone is attained ``when the expected number of days per calendar year 
with maximum hourly average concentrations above 0.12 parts per 
million[] is equal to or less than 1, as determined by Appendix H.'' 
Appendix H explains the methodology for determining ``attainment'' of 
the ozone standard. If there are more than three exceedances over a 
three-year period at any of the monitoring sites, the area has not 
attained the standard.
    The United States Court of Appeals for the Third Circuit, in 
evaluating EPA's disapproval of a redesignation request for an area 
that violated the standard while its request was pending, stated: ``we 
accept the view that the EPA may not redesignate an area if the EPA 
knows that the area is not meeting the NAAQS. The EPA's redesignation 
of the Lafourche Parish redesignation was thus not proper.'' 
Southwestern Pennsylvania Growth Alliance v. Browner, 121 F.3rd at 114. 
The commenters also complained that 1995 was an unusually warm year. 
But even if this were the case, this provides no grounds for excluding 
quality-assured monitored exceedances of the ozone standard. The EPA's 
applicable regulations governing ozone attainment provide no basis for 
excluding data due to exceptionally hot weather. 40 CFR section 50.9 
appendix D and H and part 58. See Birmingham, 62 FR 49154, and the 
discussion contained therein.
    Comment: The EPA failed to consider Lafourche Parish's performance 
with respect to the new 8-hour ozone standard.
    Response: Compliance with the new 8-hour ozone standard is 
irrelevant to

[[Page 64285]]

the issues in this rulemaking, which concerns only the area's failure 
to meet the 1-hour standard. The EPA's action here concerns only the 
requirement to meet the 1-hour standard. It should be noted, however, 
that data collected from 1993-1995 and 1994-1996 indicate that 
Lafourche Parish would also be in violation of the new 8-hour standard.
    Comment: The EPA did not consider the time it took to complete the 
entire review process, from draft SIP to final notice.
    Response: The EPA assumes the commentors are referring to the time 
it took to develop and act upon the redesignation request for Lafourche 
Parish. The Louisiana Department of Environmental Quality (LDEQ) 
submitted its initial redesignation request for Lafourche Parish during 
the Summer of 1993. However, the plan was found to be deficient in 
several areas, and did not demonstrate maintenance of the ozone 
standard. The EPA had the option to disapprove this initial request, or 
ask LDEQ to revise the request and resubmit the revision to us. The 
LDEQ submitted a revised redesignation request for Lafourche Parish to 
EPA on November 18, 1994. The direct final approval of that revised 
maintenance plan and redesignation request appeared in the Federal 
Register on August 18, 1995, some months after receiving the revised 
request. Although the entire period of EPA's review, measured from the 
date of the original redesignation request, was more than eighteen 
months (though EPA took less than that time period to consider the 
revised request), this does not alter EPA's authority to consider 
violations that occurred while its review was pending. Southwestern 
Pennsylvania Growth Alliance v. Browner, supra.
    Comment: The EPA failed to consider the uniqueness of the weather 
trends and purposefully disregarded the clear and convincing 
demonstration by LDEQ of transport in 1995.
    Response: the LDEQ submitted a modeling demonstration to EPA on 
July 31, 1996, to support its belief that the exceedances in Lafourche 
Parish in 1995 were the result of transport from the Baton Rouge area. 
As discussed in the September 5, 1996, response letter to LDEQ, EPA 
concluded that the modeling demonstration did not prove the 
overwhelming transport theory. Further, whether the cause of the ozone 
violation in 1995 was due to transport or local sources, the regulatory 
result would be the same, and would still result in a designation of 
nonattainment. The EPA carries the responsibility to protect and inform 
the public about health issues which, in the case of Lafourche Parish's 
violation of the ozone standard, require us to correct our rulemaking 
error and designate the area back to nonattainment. As in the case of 
the Pittsburgh-Beaver Valley nonattainment area that was the subject of 
the Southwestern Pennsylvania Growth Alliance case, there is here no 
adequate technical demonstration supporting a claim of transport-
dominated nonattainment. See SWPGA v. Browner. supra. Moreover, even if 
there had been such a demonstration, the Act provides that an 
attainment area is one that ``meets'' the NAAQS, and EPA is prohibited 
from redesignating an area to attainment unless it determines that the 
area ``has attained'' the NAAQS. Thus, even if an area's nonattainment 
can be demonstrated to be caused by overwhelming transport, that does 
not entitle the area to be redesignated to attainment. This is made 
clear by the provisions of section 182(h), which establishes ``rural 
transport'' areas. In this section, Congress addressed the situation 
confronted by the most pristine areas which fail to meet the NAAQS, but 
make no significant contribution to the ozone concentrations in their 
area. For these areas, Congress provided some relief in the form of 
relaxed control requirements; however, Congress insisted on retaining 
the ``nonattainment'' designation for these areas that fail to meet the 
NAAQS due to overwhelming transport. Thus, although Congress provided 
relief for these areas, it did not change their nonattainment 
designations. In contrast, Congress did provide that transport may be 
taken into account in the classification of nonattainment areas (Act 
section 181(a)(4)). Thus Congress expressed its intent to allow limited 
adjustments for transport in the context of classifying nonattainment 
areas, but not for redesignations. See the discussion of this issue in 
SWPGA v. Browner.
    Comment: The EPA did not consider or purposefully disregarded the 
President's directive to be flexible and minimize paperwork.
    Response: On July 16, 1997, the President of the United States 
issued a Presidential Directive entitled Memorandum for the 
Administrator of the Environmental Protection Agency. This Presidential 
Directive required EPA to maximize common sense, flexibility, and cost-
effectiveness when implementing the 8-hour ozone standard. However, 
this Presidential Directive also stated that the 1-hour standard will 
continue to apply in areas where air quality does not meet the current 
standard (62 FR 38421, July 18, 1997).
    Comment: The EPA failed to consider the unnecessary paperwork and 
review burdens on LDEQ and EPA since compliance with both standards is 
expected by year-end 1998.
    Response: This action will entail no unnecessary paperwork and 
review burdens. If the area attains the 1-hour standard and the 8-hour 
standard in the future, it will be eligible for appropriate designation 
to attainment of the 8-hour standard and revocation of the 1-hour 
standard.

III. Final Action

    The 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 (60 FR 43020, August 18, 
1995). In today's action, EPA is correcting this error by changing the 
designation of Lafourche Parish to an ozone nonattainment area, and 
classifying it as an incomplete data area. Today's action also amends 
40 CFR parts 52 and 81 to reflect the change in designation. These 
actions are being taken 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 (5 U.S.C. 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 (605(b)). Besides small businesses, small entities include 
small governments with jurisdictions of less than 50,000 people and 
small nonprofit organizations. The Regulatory Flexibility Act 
requirement applies to any rule subject to notice and comment 
rulemaking requirements.
    As set forth in the proposal, 62 FR 38238-239, this action is not 
subject to notice-and-comment rulemaking requirements, and therefore 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

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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 
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 corrects an error in the 
designation for the reasons described above and does not, in itself, 
impose any mandates.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. section 804(2).

E. 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 February 3, 1998. 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) of the Act.

List of Subjects

40 CFR Part 52

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

    Dated: November 26, 1997.
Jerry Clifford,
Acting Regional Administrator.

    40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart T--Louisiana

    2. Under Sec. 52.975, paragraph (f) is added to read as follows:


Sec. 52.975  Redesignations and maintenance plans; ozone.

* * * * *
    (f) Lafourche Parish, Louisiana, is designated back to 
nonattainment for ozone. The original classification of incomplete data 
is retained.

PART 81--[AMENDED]

    3. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    4. In Sec. 81.319, the ozone table is amended by revising the entry 
for Lafourche Parish to read as follows:


Sec. 81.319  Louisiana.

* * * * *

                                                                    Louisiana--Ozone                                                                    
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                                                             Designation                                             Classification                     
           Designated area           -------------------------------------------------------------------------------------------------------------------
                                                Date \1\                       Type                         Date                         Type           
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                                              *         *         *         *         *         *         *                                             
Lafourche Area:                                                                                                                                         
    Lafourche Parish................  January 5, 1998............  Nonattainment..............  ...........................  Incomplete data            
                                                                                                                                                        

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\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             

[FR Doc. 97-31912 Filed 12-4-97; 8:45 am]
BILLING CODE 6560-50-M