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

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

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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

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(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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