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

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

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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]

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