[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Proposed Rules]
[Pages 46238-46241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23236]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[TX-89-1-7356, FRL-5885-6]


Clean Air Act Reclassification, Texas; Dallas/Fort Worth 
Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA has determined that the Dallas/Fort Worth (DFW), 
Texas, moderate ozone nonattainment area has not attained the one-hour 
ozone National Ambient Air Quality Standard (NAAQS) by the November 15, 
1996, Clean Air Act (the Act) mandated attainment date for moderate 
ozone nonattainment areas. The proposed determination is based on EPA's 
review of monitored air quality data for compliance with the one-hour 
ozone NAAQS. If EPA takes final action on the determination as 
proposed, the Dallas/Fort Worth ozone nonattainment area will be 
reclassified by operation of law as a serious nonattainment area. The 
intended effect of such a reclassification would be to aid in ensuring 
the attainment of the NAAQS for ozone and allow the State additional 
time to submit a revised State Implementation Plan (SIP) to reach 
attainment of the one-hour ozone NAAQS.

DATES: Comments on this proposal must be received in writing by October 
2, 1997.

ADDRESSES: Written comments should be addressed to Mr. Thomas H. Diggs, 
Chief, Air Planning Section (6PD-L), at the EPA Regional Office listed 
below. Copies of the State ozone air quality monitoring data and EPA 
policy concerning attainment findings are contained in the docket for 
this rulemaking. The docket is available for inspection during normal 
business hours at the following locations:
Air and Radiation Docket and Information Center, Environmental 
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
1200, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT: Mr. Kurt Sonderman, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas, 75202, telephone (214) 665-7205.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements and EPA Actions Concerning Designation 
and Classifications

    Under section 107(d)(1)(C) of the Act, each ozone area designated 
nonattainment for the one-hour ozone NAAQS prior to enactment of the 
1990 Amendments, such as the Dallas/Fort Worth area, was designated 
nonattainment by operation of law upon enactment of the 1990 
Amendments. Under section 181(a) of the Act, each ozone area designated 
nonattainment under section 107(d) was also classified by operation of 
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or 
``extreme,'' depending on the severity of the area's air quality 
problem. Ozone nonattainment areas with design values between 0.138 and 
0.16 parts per million (ppm), such as the Dallas/Fort Worth area, were 
classified as moderate. These nonattainment designations and 
classifications were codified in 40 CFR part 81. See 56 FR 56694 
(November 6, 1991).
    States containing areas that were classified as moderate 
nonattainment by operation of law under section 107(d) were required to 
submit SIPs designed to show progress towards attainment, and 
attainment of the ozone NAAQS as expeditiously as practicable but no 
later than November 15, 1996. Moderate area SIP requirements are found 
primarily in section 182(b) of the Act.

B. Reclassification to Serious

    The EPA has the responsibility, pursuant to section 181(b)(2)(A) of 
the Act, of determining, within six months of the applicable attainment 
date (including any extension of that date) whether an ozone 
nonattainment area has attained the ozone NAAQS. Under section 
181(b)(2)(A) of the Act, if EPA finds that a moderate area has not 
attained the ozone NAAQS, it is reclassified by operation of law to the 
higher of the next higher classification or to the classification 
applicable to the area's design value at the time of the finding. 
Pursuant to section 182(b)(2)(B) of the Act, EPA must publish a notice 
in the Federal Register identifying areas which failed to attain the 
standard and therefore must be reclassified by operation of law.
    The one-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average 
more than one day per year over any three year period. See 40 CFR 
section 50.9 and 40 CFR part 50, Appendix H. The EPA makes attainment 
determinations for ozone nonattainment areas using the most recently 
available, quality-assured air quality data covering the three-year 
period up to and including the attainment date. The EPA has determined 
that the Dallas/Fort Worth area's air quality has not met the moderate 
area attainment deadline of November 15, 1996, based upon all 1994, 
1995, and 1996 (through November 15) quality-assured air quality data 
available to the Agency.
    Table 1 lists the three-year average number of days over the one-
hour ozone standard at each State and Local Air Monitoring Stations/
National Air Monitoring Stations (SLAMS/NAMS) monitoring site in the 
Dallas/Fort Worth metropolitan area for the period 1994 through 1996 
and each monitor's design value for that period. A complete listing of 
the ozone exceedances at each monitor as well as EPA's calculations of 
the design values can be found in the docket file.

[[Page 46239]]



      Table 1.--Average Number of Ozone Exceedances Days Per Year in the Dallas/Fort Worth Area [1994-1996]     
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                                                                            Number of     Average               
                                                                            days over    number of              
                         Site                            AIRS ID number        the       exceedance  Site design
                                                                             standard     days per   value (PPM)
                                                                           (1994-1996)      year                
----------------------------------------------------------------------------------------------------------------
Frisco...............................................         48-085-0005            4          1.3        0.126
Nuestra Drive (Galleria).............................         48-113-0045            7          2.3        0.134
Hinton Street........................................         48-113-0069            1          0.3        0.121
Denton County Airport................................         48-121-0033           12          4.0        0.139
Plano Parkway/South Colony...........................         48-121-0054            5          1.7        0.127
Meacham Field........................................         48-439-1002            4          1.3        0.126
Keller...............................................         48-439-2003           12          4.0        0.139
Red Bird Airport \1\.................................         48-113-0087            2          0.7        0.118
----------------------------------------------------------------------------------------------------------------
\1\ The Red Bird Airport was activated in 1995. The design value is the third highest reading based on two years
  of data.                                                                                                      

    As can be seen from Table 1, Average Number of Ozone Exceedances, 
DFW, six of the eight monitoring sites have averaged more than one 
exceedance day per year in the 1994-1996 period. Therefore, EPA has 
determined that the Dallas/Fort Worth metropolitan area did not attain 
the one-hour ozone NAAQS by the statutory deadline for moderate areas 
of November 15, 1996.
    Additionally, as shown in Table 2, 1996 Ozone Exceedances, DFW, 
four monitors in the Dallas/Fort Worth area recorded two or more 
exceedances in 1996. Accordingly, the area would not qualify for a one-
year extension due to the multiple exceedances.

                           Table 2.--Ozone Exceedances in Dallas/Fort Worth Area--1996                          
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               Site                   AIRS ID Number          Site type                Date              PPM    
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Denton County Airport.............         48-121-0033  SLAMS                  July 8, 1996........        0.131
Denton County Airport.............         48-121-0033  SLAMS                  September 6, 1996...        0.139
Meacham Field.....................         48-439-1002  SLAMS                  July 3, 1996........        0.127
Meacham Field.....................         48-439-1002  SLAMS                  July 8, 1996........        0.126
Keller............................         48-439-2003  SLAMS                  July 8, 1996........        0.131
Keller............................         48-439-2003  SLAMS                  September 6, 1996...        0.133
Red Bird Airport..................         48-113-0087  SLAMS                  June 3, 1996........        0.135
Red Bird Airport..................         48-113-0087  SLAMS                  July 3, 1996........        0.144
----------------------------------------------------------------------------------------------------------------

    The EPA also believes that the appropriate reclassification of the 
area is too serious. Section 181(b)(2) requires the area to be 
reclassified to the higher of the next higher classification or the 
classification appropriate to the design value at the time of the 
nonattainment finding. The next highest classification for the Dallas/
Fort Worth area is serious. Based on the design value calculated using 
data from the SLAMS/NAMS network, the area's design value is 0.139 ppm. 
The area's design value is calculated in accordance with 40 CFR part 
81, Air Quality Designations and Classifications; Final Rule, 56 FR 
56697 (November 6, 1991). See also the June 18, 1990, Memorandum from 
William G. Laxton, Director of the Technical Support Division, Office 
of Air Quality Planning and Standards for the method of calculating 
ozone design values.

C. SIP Requirements for Serious Ozone Nonattainment Areas

    Under section 181(a)(1) of the Act, the attainment deadline for 
moderate ozone nonattainment areas reclassified to serious under 
section 181(b)(2) will be completed as expeditiously as possible, but 
no later than November 15, 1999. Under section 182(i), these 
reclassified areas are required to submit SIP revisions addressing the 
serious area requirements for the one-hour ozone NAAQS in section 
182(c). Section 182(i) further provides that the Administrator may 
adjust the statutory schedules for submittal of these SIP revisions. 
Accordingly, EPA is exercising this authority to require submittal of 
the serious area SIP revisions no later than 12 months from the 
effective date of the area's reclassification. The EPA believes that a 
12 months schedule is appropriate because the attainment date for 
serious areas, November 15, 1999, is little more than two years away 
and the State will need to expedite adoption and implementation of 
controls to meet that deadline.
    Under section 182(c), the requirements for serious ozone 
nonattainment areas include, but are not limited to, the following: (1) 
Attainment and reasonable further progress demonstrations, (2) an 
enhanced vehicle inspection and maintenance program, (3) clean-fuel 
vehicle programs, (4) a 50 ton-per-year major source threshold, (5) 
more stringent new source review requirements, (6) an enhanced 
monitoring program, and (7) contingency provisions.
    The EPA has issued a ``General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990'' that sets forth the 
Agency's preliminary views on how it will act on SIPs submitted under 
Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57 
FR 18070 (April 28, 1992). This guidance should be followed in the 
development of the serious ozone nonattainment area SIP revision.
    The EPA has recently promulgated an eight-hour ozone standard (62 
FR 38856, July 18, 1997). In order to facilitate the transition from 
the one-hour to the eight-hour NAAQS, EPA may issue additional guidance 
to assist states in meeting the serious area requirements.

II. Proposed Action

    The EPA has evaluated this action for consistency with the Act, EPA 
regulations, and EPA policy. The EPA has determined that a 
reclassification of the Dallas/Fort Worth ozone nonattainment area from 
moderate to

[[Page 46240]]

serious is necessary to satisfy the requirements of the Act and the 
policy set forth in the General Preamble. The EPA is proposing today to 
reclassify the Dallas/Fort Worth ozone nonattainment area to serious.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

    Under E.O. 12866, (58 FR 51735, October 4, 1993), EPA is required 
to determine whether today's proposal is a ``significant regulatory 
action'' within the meaning of the E.O., and therefore should be 
subject to Office of Management and Budget review, economic analysis, 
and the requirements of the E.O. See E.O. 12866, section 6(a)(3). The 
E.O. defines, in section 3(f), a ``significant regulatory action'' as a 
regulatory action that is likely to result in a rule that may meet at 
least one of four criteria identified in section 3(f), including: (1) 
Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The EPA has determined that the finding of failure to attain 
proposed today, as well as the establishment of SIP submittal schedules 
resulting from a bump-up, would result in none of the effects 
identified in E.O. 12866 section 3(f). Under section 181(b)(2) of the 
Act, findings of failure to attain are based upon air quality 
considerations, and reclassifications must occur by operation of law in 
light of certain air quality conditions. These findings do not, in-and-
of-themselves, impose any new requirements on any sectors of the 
economy. In addition, because the statutory requirements are clearly 
defined with respect to the differently classified areas, and because 
those requirements are automatically triggered by classifications that, 
in turn, are triggered by air quality values, findings of failure to 
attain and reclassification cannot be said to impose a materially 
adverse impact on State, local, or tribal governments or communities. 
Similarly, the establishment of new SIP submittal schedules merely 
establishes the dates by which SIPs must be submitted, and does not 
adversely affect entities.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. Sections 603 and 604 of 5 
U.S.C. Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    A finding of failure to attain (and the consequent reclassification 
by operation of law of the nonattainment area) under section 181(b)(2) 
of the Act, and the establishment of a SIP submittal schedule for a 
reclassified area, do not, in-and-of-themselves, directly impose any 
new requirements on small entities. See Mid-Tex Electric Cooperative, 
Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (agency's certification 
need only consider the rule's impact on entities subject to the 
requirements of the rule). Instead, this rulemaking simply proposes to 
make a factual determination and to establish a schedule to require 
States to submit SIP revisions, and does not propose to directly 
regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), EPA 
certifies that today's proposed action does not have a significant 
impact on a substantial number of small entities within the meaning of 
those terms for RFA purposes.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, when EPA promulgates ``any general notice of proposed 
rulemaking that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditures by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more'' in any one year. A ``Federal 
mandate'' is defined, under section 101 of UMRA, as a provision that 
``would impose an enforceable duty upon the private sector or State, 
local, or tribal governments,'' with certain exceptions not here 
relevant. Under section 203 of UMRA, EPA must develop a small 
government agency plan before EPA ``establish[es] any regulatory 
requirements that might significantly or uniquely affect small 
governments.'' Under section 204 of UMRA, EPA is required to develop a 
process to facilitate input by elected officers of State, local, and 
tribal governments for EPA's ``regulatory proposals'' that contain 
significant Federal intergovernmental mandates. Under section 205 of 
UMRA, before EPA promulgates ``any rule for which a written statement 
is required under [UMRA section] 202'', EPA must identify and consider 
a reasonable number of regulatory alternatives and either adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule, or explain why a different 
alternative was selected.
    Sections 202, 204, and 205 of UMRA do not apply to today's action 
because the proposed factual determination that the Dallas/Fort Worth 
area failed to reach attainment does not, in-and-of-itself, constitute 
a Federal mandate because it does not impose an enforceable duty on any 
entity. Although the establishment of a SIP submission schedule may 
impose such a duty on the State, this requirement merely establishes 
due dates, does not set out any requirements not otherwise already 
present, and thus cannot be considered to cost $100 million or more. 
Finally, section 203 of UMRA does not apply to today's action because 
the regulatory requirements proposed today--the SIP submittal 
schedule--affect only the Dallas/Fort Worth nonattainment area, which 
is not a small government under UMRA.

D. Rule vs. Adjudication

    It should be noted that each of the three administrative 
requirements described above--E.O. 12866, the Regulatory Flexibility 
Act, and UMRA--apply only with respect to agency actions that fall into 
the category of ``rules,'' as defined under those provisions or under 
the Administrative Procedures Act, 5 U.S.C. 551 et. seq., E.O. 12866 
section 3 (d)-(e); Regulatory Flexibility Act, 5 U.S.C. 603(a), 601(2); 
Unfunded Mandates Reform Act, sections 202-205, 421. The EPA is 
considering the possibility that today's action, to the extent it 
consists of a determination that the Dallas/Fort Worth area failed to 
attain the ozone NAAQS as of the end of 1996, might not be considered a 
``rule'' as defined under these provisions, and instead might be 
considered an informal adjudication. The basis for this distinction 
could be that today's action constitutes a specific

[[Page 46241]]

factual determination applicable only to the area in question, based on 
preexisting facts. Under these circumstances, the administrative 
requirements discussed above might not apply. However, EPA is taking 
this approach under consideration, it is not today proposing this 
approach.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Ozone, Wilderness areas.

    Dated: August 25, 1997.
Jerry Clifford,
Acting Regional Administrator.
[FR Doc. 97-23236 Filed 8-29-97; 8:45 am]
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