[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
[[Page 64286]]
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
[[Page 64287]]
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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
