### ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R06-0AR-2010-0412; FRLDetermination ofNonattainment and Reclassification ofthe DallaslFortWorth 1997 8-hour Ozone Nonattainment Area; Texas

AGENCY: Environmental Protection Agency (EPA). 

### ACTION: Proposed rule.



### SUMMARY: EPA is proposing to 

### determine that the Dallas/FortWorth (DFW) moderate 8- hour ozone nonattainment area did not attain the 1997 8-hourozone national ambient air quality standard (NAAQS or standard) by June 15,2010, the attainment deadline set forth in the Clean Air Act (CAA or Act) and Code ofFederal Regulations (CFR) for moderate nonattainment areas. This proposal is based on EPA's review ofcomplete, quality assured and certified ambient air quality monitoring data for the 2007-2009 monitoring period that are available in the EPA Air Quality System (AQS) database. IfEPA finalizes this determination, the DFW area will be reclassified by operation oflaw as a serious 8-hourozone nonattainment area for the 1997 8-hour standard. The serious area attainment date for the DFW area would be as expeditiously as practicable, but not later than June 15,2013. Once reclassified, Texas must submit State Implementation Plan (SIP) revisions for the DFW area that meet the 1997 8-hour ozone nonattainmentrequirements for serious areas as required by the Act. In this action, EPA is also proposing that Texas submitthe required SIP revisions for the serious area attainmentdemonstration, reasonable further progress (RFP), reasonably available control technology (RACT), contingency measures, and for all other serious area measures required under CAA section 182(c) to EPA no later than one year after the effective date ofthe final rulemaking for this reclassification; exceptthat we propose that Texas submitthe required SIP revision for the Stage II vapor recovery to EPA no laterthan two years after the effective date ofthe final rule making for this reclassification, pursuantto section 182(b)(3)(A) ofthe Act.

DATES: Comments mustbe received on or before [insertdate 30 days from date ofpublication in the Federal Register].

ADDRESSES: Submityour comments, identified by Docket ID No. EPA-R06-0AR-2010- 0412, by one ofthe following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments. • EPA Region 6 "ContactUs" web site: http://epa.gov/region6/r6coment.htm. Please click on "6PD" (Multimedia) and select "Air" before submitting comments. • E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below. • Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214- 665-6762. • Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. 2• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only betweenthe hours of8:00am and 4:00pm weekdays except for legal holidays. Special arrangements should be made for deliveries ofboxed information.

Instructions: Direct your comments to Docket ID No. EPA-R06-0AR-2010-0412, EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI)

or other information whose disclosure is restricted by statute. Do not submitthrough www.regulations.gov or e-mail, information that you considertobe CBI or otherwise protected. The www.regulations.gov website is an "anonymous access" system, which means EPA will not know your identity or contact information unless you provide it in the body ofyour comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part ofthe commentthat is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your name and othercontactinformation in the body ofyour comment and with any disk or CD-ROM you submit. IfEPA cannotread your commentdue to technical difficulties and cannotcontactyou for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use ofspecial characters, any form of encryption, and be free ofany defects or viruses. For additional information about EPA's public docket visitthe EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

3Docket: 

### All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov 

### or in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointmentfor public inspection in the Region 6 FOIA Review Room betweenthe hours of8:30am and 4:30pm weekdays except for legal holidays. Contactthe person listed in the FOR FURTHER INFORMATION CONTACT 

### paragraph below or Mr. Bill Deese at 214-665-7253 to make an appointment. If

### possible, please make the appointment at least two working days in advance ofyour visit. There will be a fee of 15 cents per page to make photocopies ofdocuments. On the day ofthe visit, please check in at the EPA Region 6 reception area at**144~** 

### Ross Avenue, Suite 700,Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: 

### Carrie Paige, Air Planning Section, (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 70,0, Dallas, Texas 75202-2733, telephone (214) 665-6521; fax number 214-665-6762; e-mail address paige.carrie@epa.gov.

SUPPLEMENTARY INFORMATION: Table ofContents I. 

### What is the Background for this Proposed Action? A. What Are the National AmbientAir Quality Standards? 

### 4

### B. What is Ozone and What is the 1997 8-hour Ozone Standard? C. What is a SIP and How Does it Relate to the 1997 8-hour Ozone Standard? D. What is the DFW NonattainmentArea, and What Is Its Current 1997 8-hour Ozone Nonattainment Classification? E. What are the CAA Provisions Regarding Determinations ofNonattainment and Reclassifications? II. What is EPA's Evaluation ofthe DFW Area's 1997 8-Hour Ozone Data? III. What Actions is EPA Proposing? 

### A. Determination ofNonattainment, Reclassification ofthe DFW NonattainmentArea and New Attainment Date 

### B. Proposed Date for Submitting a Revised SIP for the DFW Area IV. Proposed Action V. Statutory and Executive Order Reviews



### I. What is the Background for this Proposed Action? A. What Are the National Ambient Air Quality Standards? Section 109 ofthe Act requires EPA to establish a NAAQS for pollutants that "may reasonably be anticipated to endangerpublic health and welfare" and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protecthuman health with an adequate margin ofsafety and the secondary standard is designed to protectpublic welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteriapollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality 5levels they must meet to comply with the Act. Also, these standards provide information to residents ofthe United States aboutthe air quality in their communities.

B. What is Ozone and What is the 1997 8-hour Ozone Standard? Ozone is a gas composed ofthree oxygen atoms. It is not usually emitted directly into the air, but at ground level is created by a chemical reaction between volatile organic compounds (VOCs) and oxides ofnitrogen (NOx) in the presence ofsunlight. On July 18, 1997, EPA promulgated an 8-hour ozone standard of0.08 parts per million (ppm), which is more protective than the previous l-hour ozone standard (62 FR 38855) that was establishedby EPA in 1979. We revoked the l-hour ozone standard effective June 15,2005. See 40 CFR 50.9(b) and 69 FR 23858 (April 30, 2004). Under EPA regulations at 40 CFRpart 50, the 1997 8-hour ozone standard is attained when the 3-year average ofthe annual fourth highest daily maximum 8-hour average ambient air quality ozone concentration is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR 23857 (April 30, 2004).1 Ambient air quality monitoring data for the 3-yearperiod must meet a datacompleteness requirement. The ambient air quality monitoring data completeness requirement is met when the average percentage of days with valid ambient monitoring data is greaterthan 90 percent, and no single year has less than 75 percentdata completeness as determined in Appendix I ofpart 50. Specifically, section 2.3 of40 CFR part 50, Appendix I, "Comparisons withthe Primary and Secondary Ozone Standards" states: "The primary and secondary ozone ambient air quality standards are met at an ambient air quality monitoring site when the 3-year average ofthe annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. The number of

I For ease ofcommunication, many reports ofozone concentrations are given in parts per billion (Ppb); ppb = ppm x 1000. Thus, 0.084 ppm becomes 84 ppb. 

### 6significant figures in the level ofthe standard dictates the rounding convention for comparing the computed 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration with the level ofthe standard. The third decimal place ofthe computed value is rounded, with values equal to or greaterthan 5 rounding up. Thus, a computed 3-year average

ozone concentration of0.085 ppm is the smallestvalue that is greaterthan 0.08 

### ppm.t"

C. What is a SIP and How Does it Relate to the 1997 8-hour Ozone Standard? Section 110ofthe Act requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the NAAQS establishedby EPA. Each state must submitthese regulations and control strategies to EPA for approval and incorporation into the Federally-enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point oforigin. The SIPs may contain state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations. EPA published a first phase rule governing implementation ofthe 1997 8-hour ozone standard (Phase 1 Rule) on April 30, 2004 (69 FR 23951). The Phase 1 Rule addressed, among othermatters, classifications for Part D subpart 2 areas underthe 1997 8-hour standard. The Phase 1 rule was challenged and certain portions ofit were vacated by the D.C. Circuit in 

### South CoastAir Quality ManagementDist. 

### v. EPA, 472 F.3d 882 (D.C. Cir. 2006), clarified on rehearing, 489 F.3d 1245 (DC Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The provisions of

2EPA notes that today's proposed action deals with the classifications and SIP obligations associated with the 1997 8-hour ozone NAAQS. On March 27,2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm. On January 6, 2010, EPA proposed to set the level ofthe primary 8-hour ozone standard within the range of0.060 to 0.070 ppm, rather than at 0.075 ppm. EPA anticipates that in 2010 it will have completed reconsideration ofthe standard and thereafter will proceed with designations. EPA's actions with respect to this new standarddo not affect EPA's action here. 7the Phase 1 rule that are directly relevantto this proposedrule -- classifications for subpart 2 and the related 8-hour ozone standard attainment deadlines -- are not among those that were successfully challenged, and they remain effective. EPA also published a rule governing implementation ofthe 1997 8-hour ozone standard (Phase 2 Rule) on November 29,2005 (70 FR 71612), as revised on June 8, 2007 (72 FR 31727). The Phase 2 rule addresses SIP obligations for the 1997 8-hour ozone NAAQS, including the SIP elements associated with RACT, reasonably available control measures (RACM), RFP, modeling and attainment demonstrations, new source review (NSR), vehicle inspection and maintenance programs (iIM), and contingency measures for failure to meet RFP and the attainment date. Forozone nonattainment areas, requirements for SIPs are contained in PartD, Subparts 1 and 2 ofthe Act. Under Subpart 2, the applicable control requirements become increasingly

more stringent according to an area's classification as marginal, moderate, serious, severe or extreme.

D. What is the DFW NonattainmentArea, and What Is Its Current 1997 8-hour Ozone Nonattainment Classification? The currentDFW nonattainment area includes nine counties: Collin, Dallas, Denton, Tarrant (the core counties) and Ellis, Johnson, Kaufman, Parker, and Rockwall (the remaining counties). Underthe l-hour ozone standard, the DFW nonattainment area was classified as a "serious" nonattainment area and included only the four core counties. See 63 FR 8128 (February 18, 1998). The remaining counties maintained their initial designation of



### 8

### unclassifiable/attainment for the l-hour ozone standard. See 56 FR 56694 (November 6, 1991).3 On October 16, 2008, we determined that the DFW l-hour ozone nonattainment area was attaining the l-hour ozone standard based upon complete, quality-assured and certified ambient air monitoring data that showed the area had monitored attainment ofthe l-hour ozone NAAQS for the 2004-2006 monitoring period (73 FR 61357). That determination allowed certain SIP planning measures to be suspended for so long as the area continues to monitor attainment ofthe l-hour ozone standard. Today's proposed rulemaking addresses the area's attainment and reclassification only with respectto the 1997 8-hour ozone standard. With regard to the 8-hour standard, on April 30, 2004, EPA publishedthe 8-hour ozone designations in conjunction with its Phase I implementationrule (69 FR 23858 and 69 FR 23951, respectively). For areas subjectto Subpart 2 ofthe Act, such as the DFW nonattainment area, the maximum period for attainmentruns from the effective date ofdesignations and classifications for the 1997 8-hour ozone NAAQS and corresponds to the same length oftime provided in Table 1 ofSection 181(a) ofthe Act: Marginal- 3 years; Moderate - 6 years; Serious - 9 years, Severe - 15 or 17 years; and Extreme - 20 years. The DFW area, consisting ofall nine counties, was designated nonattainment for the 1997 8-hour ozone standard and classified as "moderate" based on a design value of0.100 ppm, with an attainment date ofJune 15,2010 (69 FR 23858). The design value (DV) ofan area characterizes the severity ofthe air quality concern and is represented by the highestDV measured at any ozone monitor 

### in the area. The calculation for the DV is the three-year average ofthe annual fourth-highest daily maximum 8-hour average ozone concentration measured at a monitor. In 

### response to the designation, on May 30, 2007, the State ofTexas submitted an

3 Designations for Texas begin at 56 FR 56835. 9attainment plan designed to attainthe 1997 8-hour ozone standard. The state submitted a supplementto this plan on April 23, 2008. On July 14,2008, we proposed to conditionally approve the 1997 8-hour ozone attainment demonstration SIP revision for the DFW moderate 8- hour ozone nonattainment area. See 73 FR 40203. We finalized this approval on January 14, 2009. See 74 FR 1903. The DFW area met all ofthe current requirements for its moderate area classification.

E. What are the CAA Provisions Regarding Determinations ofNonattainment and Reclassifications? Section 181(b)(2) ofthe Act prescribes the process for making determinations upon failure ofan ozone nonattainment area to meet the standard by its attainment date, and for reclassification ofan ozone nonattainment area. Section 181(b)(2)(A) ofthe Act requires that EPA determine, based on the area's design value (as ofthe attainment date), whether or not the

area attained the ozone standard by that date. For marginal, moderate, and serious areas, ifEPA finds that the nonattainment areahas failed to attain the ozone standard by the applicable attainment date, the area must be reclassified by operation oflaw to the higher of(1) the next higher classification for the area, or (2) the classification applicable to the area's design value as determined at the time ofthe required 

### Federal Register notice. Section 181(b)(2)(B) requires EPA to publish in the 

### Federal Register a notice identifying any areathat has failed to attainby its attainment date and the resulting reclassification.



### II. What is EPA's Evaluation of the DFW Area's 8-HourOzone Data?

10EPA is proposing to make its determination ofwhether the DFW attained the 8-hour

ozone standard by its attainment deadline based on quality-assured, quality-controlled ambient air monitoring data for the years 2007-2009. These data, from sites in the DFW area have been certified by TCEQ, and are presented in Table 1. These data show that the DFW area was violating the 1997 8-hour ozone standard at the time ofits June 15,2010 attainment deadline. As noted above, the highest design value at any regulatory monitor in the area is considered the design value for the area (40CFR 58.1). The Keller and Eagle Mountain Lake monitoring sites recorded the highest 2007-2009 design values, and thus at the time ofits attainment deadline, the area had a design value of0.086 ppm. Thus, pursuant to section 181(b)(2) ofthe Act, EPA is proposing to determine that the DFW nonattainment area did not attain the 1997 8-hour ozone NAAQS by theJune 15,2010, deadline for moderate nonattainment areas.

Table 1 - DFW Area Fourth Highest 8-hour Ozone Concentrations And Design Values (ppm)* 

### Site 4tb 

### Highest Daily Max Design Value Name and Number (2007-2009) 2007 2008 2009 Fort Worth Northwest 0.081 0.073 0.083 0.079 48-439-1002 Keller 0.084 0.085 0.090 0.086 48-439-2003 Frisco 0.080 0.079 0.079 0.079 48-085-0005 Midlothian OFW 0.076 0.072 0.072 0.073 48-139-0016 DentonAirport South 0.089 0.084 0.082 0.085 48-121-0034 Arlington Municipal Airport 0.075 0.078 0.080 0.077 48-439-3011 Dallas North No.2 0.079 0.076 0.088 0.081 48-113-0075 Rockwall Heath 0.074 0.073 0.078 0.075 48-397-0001 

### 11

### Grapevine Fairway 0.089 0.077 0.086 0.084 48-439-3009 Kaufman 0.074 0.069 0.068 0.070 48-257-0005 Granbury 0.081 0.073 0.077 0.077 48-221-000I Eagle Mountain Lake 0.084 0.085 0.091 0.086 48-439-0075 Parker County 0.088 0.077

. 0.080 0.081 48-367-0081 Cleburne Airport 0.087 0.083 0.080 0.083 48-251-0003 Dallas Hinton St. 0.076 0.064 0.062 0.067 48-113-0069 Dallas Executive Airport 0.080 0.077 0.079 0.078 48-113-0087 Greenville 0.069 0.063 0.067 0.066 48-231-1006 Pilot Point 0.075 0.080 0.078 0.077 48-121-1032

• Design value calculations for the 8-hour ozone standard are based on arolling three-year average ofthe annual 4th highest values (40 CFR Part 50, Appendix I).


### Under section I8I(a)(5) ofthe Act, and 40 CFR 51.907, an area can qualify for up to 2 one-year extensions ofits attainment date ifit meets the conditions set forth in 40 CFR 51.907. For the 1997 8-hour standard, ifan area's fourth highest daily maximum 8-hour average value in the attainment year is 0.084 ppm or less (40 CFR 51.907), the area is eligible for the first oneyear extension to the attainment date. The attainmentyear is the year immediately preceding the attainment date. The DFW area's attainment year is 2009. 

### In 2009, the area's fourth-highest daily 8-hour average from the monitor with the highest average ofthe area's monitors was 0.091 ppm. 40 CFR 51.907(a), (c). Therefore, the DFW area does not qualify for a I-yearextension of its moderate area attainment deadline. Section I8I(b)(2)(A) ofthe Act provides that, should an area fail to attain by the applicable date, the area is reclassified by operation oflaw to the next higher classification or the 12classification applicable to the area's ozone design value at the time ofthe required notice under Section 181(b)(2)(B), whichever is higher. Section 181(b)(2)(B) requires EPA to publish a notice in the Federal Register identifying the reclassification status ofan area that has failed to attain the standard by its attainment date. The classificationthat would be applicable to the DFW area's ozone design value at the time oftoday's notice is "marginal" because the area's 2009 calculated design value, based on quality-assured ozone monitoring data from 2007-2009, is 0.086 ppm. By contrast, the next higher classification for the DFW area is "serious." Because "serious" is a higher nonattainment classification than "marginal" underthe statutory scheme in the Act, upon the effective date ofa final rulemaking determining thatthe DFW has failed to attain the 1997 8-hourozone standard by the applicable attainment date ofJune 15,2010, the DFW area will be reclassified by operation oflaw as "serious."

III. What Actions Is EPA Proposing? A. Determination ofNonattainment, Reclassification ofthe DFW NonattainmentArea and New Attainment Date Pursuantto section 181(b)(2) ofthe Act, EPA is proposing to determine thatthe DFW area did not attain the 1997 8-hour ozone NAAQS by the June 15,2010, attainment deadline prescribed underthe Act for moderate ozone nonattainment areas. IfEPA takes final action on this determination as proposed, the DFW area will be reclassified by operation oflaw from moderate to serious nonattainment. Serious areas are required to attain the standard "as expeditiously as practicable" but no laterthan 9 years after designation, or June 15, 2013. The "as expeditiously as practicable" attainment date will be determined as part ofthe action on the required SIP submittal demonstrating attainment ofthe 1997 8-hourozone standard. EPA is 13

### proposing a schedule by which Texas will submitthe SIP revisions necessary pursuantto reclassification to serious nonattainment ofthe 1997 8-hour ozone standard.

B. 

### Proposed Date for Submitting a Revised SIP for the DFW Area EPA is also addressing here the schedule by which Texas would be required to submit a revised SIP. When an area is reclassified, EPA has the authority under section 182(i) ofthe Act to adjustthe Act's submittal deadlines for any new SIP revisions that are required as a result of the reclassification. Pursuant to 40 CFR 51.908(d), for each nonattainment area, the State must provide for implementation ofall control measures needed for attainment no later than the beginning ofthe attainment year ozone season. The attainment year ozone season is the ozone

season immediately preceding a nonattainment area's attainment date, in this case 2012 (40 CFR 51.900(g)). The ozone season is the ozone monitoring season as defined in 40 CFR Part 58, Appendix D, section 4.1, Table D-3 (October 17,2006, 71 FR 61236). For the DFW area, March 1st is the beginning ofthe ozone monitoring season. Therefore, we propose that Texas submitthe required SIP revisions, including the attainment demonstration, RFP, RACT, contingency measures, and other applicable serious area requirements to EPA as expeditiously as practicable, but not later than one year after the effective date ofthe final rulemaking for this reclassification. In addition, all applicable controls shall be implemented no laterthanMarch 1, 2012, the start ofthe ozone season for the attainment year. Pursuantto section 182(c) ofthe Act and as further referenced below, the requirements for serious ozone nonattainment areas include, but arenot limited to: (l) attainment and reasonable further progress demonstrations (CAA section 182(c)(2), 40 CFR 51.908 and 40 CFR 51.910); (2) an enhanced monitoring program (CAA section 182(c)(l) and 40 CFR 58.10); (3) an 14enhanced vehicle inspection and maintenance program (CAA section 182(c)(3) and 40 CFR 51.350); (4) cleanfuel vehicle programs (CAA section 182(c)(4)); (5) transportation control (CAA section 182(c)(5)); (6) a 50 ton-per-year major source threshold (CAA section182(c) and 40 CFR 51.165); (7) more stringent new source review requirements (CAA section 182(c)(6) and 40 CFR 51.165); (8) special rules for modification ofsources (CAA sections 182(c)(7) and 182(c)(8), and 40 CFR 51.165); (9) contingency provisions (CAA section 182(c)(9)); and (10) increased offsets (CAA section 182(c)(1 0) and 40 CFR 51.165). See also the requirements for serious ozone nonattainment areas set forth in section 182(c) ofthe Act. In addition, the requirements ofsection 182(b)(3) relating to Stage II gasoline vapor recovery shall apply, provided EPA has not yet found that onboard vapor recovery (ORVR) is in widespread use in the motor vehicle fleet and waived the section 182(b)(3) requirement." Pursuant to section 182(b)(3)(B), we propose that Texas submitthe SIP revision relating to Stage II vapor recovery to EPA no later than two years afterthe effective date ofthe final rulemaking for this reclassification, since that corresponds to the period that moderate and worse nonattainment areas were first required to submit Stage II SIPs following enactment ofthe 1990 CAA Amendments. Section 182(b)(3) requires implementation ofStage II controls within 6 months to two years after the date ofadoption by the state ofrequirements for the installation

4 Section I82(b)(3) imposes the Stage II requirement on moderate and worse ozone nonattainment areas, but pursuantto section 202(a)(6), section I82(b)(3) applied only in serious and worse areas after EPA promulgated rules for ORVR in 1994. Section 202 (aX6) additionally allows EPA to revise or waive the section I82(b)(3) requirement for all ozone nonattainment areas after EPA determines that ORVR is in widespread use throughoutthe motor vehicle fleet. IfEPA fmds that ORVR is in widespread use and waives the section I82(b)(3) requirement in advance ofthe date by which new serious areas would otherwise be required to implement Stage II controls, such areas would no longerbe subjectto the section I82(b)(3) requirement. Further, for any areas that already implement Stage II, to remove Stage II controls following an EPA widespread use and waiver decision, any EPA SIP approval would be subjectto the CAA section 110(1)requirement that the revision does not interfere with any applicable requirement ofthe CAA. 15and operation ofa system for gasoline vapor recovery ofemissions from the fueling ofmotor vehicles, depending on the age and throughput ofthe facility.i The DFW I-hour ozone nonattainment area was reclassified as serious for that standard

on February 18, 1998 (63 FR 8128), so the l-hour ozone standard requirements applicable to the area are those that apply to nonattainment areas classified as serious. Underthe 1-hour ozone standard, Collin, Dallas, Denton and Tarrant counties were all classified as serious. As such, many ofthe requirements listed above are already being implemented in those areas, as specified in Table 2 below. However, some ofthese requirements will be new to the five remaining counties that were not included in the l-hour ozone nonattainment area for DFW; these are also provided in Table 2 below. EPA also notes that there may be sources in the five remaining counties that will be newly subject to Title V and will have one year from the effective date of the final rulemaking for this reclassification to provide TCEQ with a Title V permit application.6 A list ofthe requirements already in place and those yet to be implemented in the DFW area is provided in Table 2 below:

S Pursuant to section 182(b)(3)(B), the compliance date shall be (i) 6 months after the adoption date, in the case of gasoline dispensing facilities for which construction commenced after the date ofthe enactment ofthe Clean Air Act Amendments of 1990; (ii) one year after the adoption date, in the case ofgasoline dispensing facilities which dispense at least 100,000 gallons ofgasoline per month, based on average monthly sales for the 2-yearperiod before the adoption date; or (iii) 2 years after the adoption date, in the case ofall other gasoline dispensing facilities. Any gasoline dispensing facility described under both clause (i) and clause (ii) shall meet the requirements ofclause (i).

6 As stated earlier in this notice, in regards to requirements for SIPs regarding review ofnew or modified major stationary sources ("new source review"), the reclassification proposed herein would not lower the "major source" thresholds required in the four core counties because the statutory thresholds that applied by virtue ofthe area's classification under the I-hour ozone standard continue to apply as anti-backsliding measures for the 1997 8-hour ozone standard (see South CoastAirQuality ManagementDist. \I. EPA, 472 F.3rd 882 (D.C. 2006) rehearing denied 489 F.3d 1245, clarifying that the vacatur was limited to the issues on which the court granted the petitions for review). In EPA's Phase 1 rule, EPA made NSR applicability thresholds dependent upon the status and classification ofan area under the 1997 8-hour standard. The effect ofthe ruling in the South Coast case is to restore NSR applicability thresholds pursuant to the classifications previously in effect for areas designated nonattainment for the l-hour standard. See EPA memorandum from Robert J. Meyers, "New Source Review (NSR) Aspects ofthe Decision ofthe U.S. Court ofAppeals for the District ofColumbia Circuit on the Phase 1 Rule to Implement the 8- Hour Ozone National AmbientAir Quality Standards (NAAQS)," dated October2,2007. As provided in CAA sections 501 and 502(a) and 40 CFR70.2, 70.3(a), 71.2 and 71.3(a), the thresholds at which a source is required to apply for and operate a Title V operating permit are linked to the NSR "major source" applicability threshold. 

### 16Table 2. Status ofRequirements for the Proposed DFW 1997 8-hour Ozone Serious Nonattainment Area Requirement Status Action Needed orDate Approved by EPA Attainment Due I year from the effective Must be submitted to EPA for Demonstration date ofthe final rulemaking for approval 182(c)(2)(A) this action. RFP Demonstration Due 1 year from the effective Must be submitted to EPA for 182(c)(2)(B) date ofthe final rulemaking for approval this action. Enhanced monitoring Due 1 year from the effective Mustbe submitted to EPA for 182(c)(l) date ofthe final rulemaking for approval this action. Enhanced 

### 11M program Implemented in all 9 counties November 14,2001 (66 FR 57261) Clean-fuel vehicle Equivalency program due 1 Must be submitted to EPA for programs 182(c)(4) year from the effective date of approval the final rulemaking for this action." Transportation control Transportation controls in Adopt transportation controls as 182(c)(5) place under the 1997 8-hr needed in the serious ozone moderate nonattainment nonattainment area and submitto area SIP. EPA for approval. 50 tpy threshold for Implemented in all 9 counties July 17,2008 (73 FR 40972) VOCs 182(c) 50 tpy threshold for NOx Implemented in all 9 counties December 3, 2008 (73 FR 73562) De minimis rule Implemented in core counties Must be expanded to all 9 counties 182(c)(6) Special rule for Implemented in core counties Must be expanded to all 9 counties modifications ofsources emitting less than 100 tons. 182(c)(7) Special rule for Implemented in core counties Must be expanded to all 9 counties modifications ofsources emitting 100 tons or more. 182(c)(8) Contingency provisions Due 1 year from the effective Must be submitted to EPA for 182(c)(9) date ofthe final rulemaking for approval this action. Offsets of 1.2 to 1 Implemented in core counties Must be expanded to all 9 counties 182(c)(l0) Stage II vapor recovery Implemented in core counties Submit evidence ofwidespread

7 In 2005, the Texas Legislature repealed the Texas Clean Fuel Fleet substitute program. As a result, Texas must submit an equivalency demonstration. See 75 FR 27514, beginning on page 27524 (May 17,2010). 17

# I use or expand Stage II SIP to all 9 I counties" I 

### IV. Proposed Action Pursuantto section 181(b)(2) ofthe Act, EPA is proposing to determine, based on certified, quality-assured monitoring data for 2007-2009, that the DFW area did not attain the 1997 8-hour ozone standard by the applicable June 15,2010 attainment deadline. IfEPA finalizes this determination, upon the effective date ofthe final determination DFW will be reclassified by operation oflaw as a serious 1997 8-hourozone nonattainment area. Pursuantto section 182(i) ofthe Act, EPA is also proposing the schedule for submittal ofthe SIP revisions required for serious areas once the DFW area is reclassified. We propose that Texas submitthe required SIP revisions for the serious attainment demonstration, RFP, RACT, contingency measures, and for all other serious area measures required under CAA section 182(c) to EPA no laterthan one year after the effective date ofthe final rulemaking for this reclassification; except that we propose that Texas submitthe required SIP revision for the Stage II vapor recovery to EPA no later than two years after the effective date ofthe final rulemaking for this reclassification, pursuant to section 182(b)(3)(A) ofthe Act.



### V. Statutory and Executive OrderReviews Under section 181(b)(2) ofthe CAA, a determination ofnonattainment is a factual determination based upon air quality considerations and the resulting reclassification must occur by operation oflaw. A determination ofnonattainment and the resulting reclassification ofa nonattainment area by operation oflaw under section 181(b)(2) does not in and ofitselfcreate any new requirements, but rather applies the requirements contained in the Clean Air Act. For 18

### these reasons, this proposed action:

• is not a "significantregulatory action" subjectto review by the Office ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October4, 1993); • does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.c. 3501 et seq.); 

### • is certified as not having a significant economic impacton a substantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 

### • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4); • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • is not an economically significantregulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • is not a significantregulatory action subjectto Executive Order 13211 (66 FR 28355, May 22, 2001); • is not subjectto requirements ofSection 12(d) ofthe National Technology Transfer and AdvancementAct of 1995 (15 U.S.c. 272 note) because applicationofthose requirements would be inconsistent with the Clean Air Act; and • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629) February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 19FR 67249, November 9,2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempttribal law.

List ofSubjects in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas.

Authority: 42 U.S.C. 7401 

### et seq.

Lawrence E. Starfield, Acting Regional Administrator, Region 6.

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