ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-0AR-2010-0412; FRLDetermination of Nonattainment and Reclassification of the DallaslFort Worth 1997 8-hour

Ozone Nonattainment Area; Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to determine that the Dallas/Fort Worth (DFW) moderate 8-

hour ozone nonattainment area did not attain the 1997 8-hour ozone 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 of Federal Regulations (CFR) for moderate nonattainment areas.

This proposal is based on EPA's review of complete, 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. If EPA finalizes this determination, the DFW area will be

reclassified by operation of law as a serious 8-hour ozone 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

nonattainment requirements for serious areas as required by the Act. In this action, EPA is also

proposing that Texas submit the required SIP revisions for the serious area attainment
demonstration, 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; except that we propose that Texas submit the required SIP revision for the

Stage II vapor recovery to EPA no later than two years after the effective date ofthe final

rule making for this reclassification, pursuant to section 182(b)(3)(A) ofthe Act.

DATES: Comments must be received on or before [insert date 30 days from date of publication

in the Federal Register].

ADDRESSES: Submit your 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 "Contact Us" 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 between the hours of 8:00am and 4:00pm weekdays except for

legal holidays. Special arrangements should be made for deliveries of boxed 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 submit through

www.regulations.gov or e-mail, information that you consider to be 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 of your 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 comment that is placed

in the public docket and made available on the Internet. If you submit an electronic comment,

EPA recommends that you include your name and other contact information in the body of your

comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to

technical difficulties and cannot contact you 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 of any defects or viruses. For additional information about EPA's public

docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

3
Docket: 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 appointment for public inspection in the Region 6 FOIA

Review Room between the hours of 8:30am and 4:30pm weekdays except for legal holidays.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph

below or Mr. Bill Deese at 214-665-7253 to make an appointment. Ifpossible, please make the

appointment at least two working days in advance of your visit. There will be a fee of 15 cents

per page to make photocopies of documents. 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 of Contents

I. What is the Background for this Proposed Action?

A. What Are the National Ambient Air 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 Nonattainment Area, 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 Nonattainment Area

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 endanger public health and welfare" and to develop a primary and

secondary standard for each NAAQS. The primary standard is designed to protect human health

with an adequate margin ofsafety and the secondary standard is designed to protect public

welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as

criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur

dioxide. These standards present state and local governments with the minimum air quality

5
levels they must meet to comply with the Act. Also, these standards provide information to

residents ofthe United States about the 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 of nitrogen (NOx) in the presence ofsunlight. On July 18, 1997, EPA

promulgated an 8-hour ozone standard of 0.08 parts per million (ppm), which is more protective

than the previous l-hour ozone standard (62 FR 38855) that was established by 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 CFR part 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-year period must meet a data completeness requirement. The ambient

air quality monitoring data completeness requirement is met when the average percentage of

days with valid ambient monitoring data is greater than 90 percent, and no single year has less

than 75 percent data completeness as determined in Appendix I of part 50. Specifically, section

2.3 of 40 CFR part 50, Appendix I, "Comparisons with the 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 of communication, many reports ofozone concentrations are given in parts per billion (Ppb); ppb = ppm x

1000. Thus, 0.084 ppm becomes 84 ppb.

6
significant 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 greater than 5 rounding up. Thus, a computed 3-year average

ozone concentration of 0.085 ppm is the smallest value that is greater than 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 established by EPA. Each state must

submit these 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 of origin. 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

other matters, classifications for Part D subpart 2 areas under the 1997 8-hour standard. The

Phase 1 rule was challenged and certain portions ofit were vacated by the D.C. Circuit in South

Coast Air Quality Management Dist. 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

2 EPA 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

standard do not affect EPA's action here.

7
the Phase 1 rule that are directly relevant to this proposed rule -- 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.

For ozone nonattainment areas, requirements for SIPs are contained in Part D, 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 Nonattainment Area, and What Is Its Current 1997 8-hour Ozone

Nonattainment Classification?

The current DFW nonattainment area includes nine counties: Collin, Dallas, Denton,

Tarrant (the core counties) and Ellis, Johnson, Kaufman, Parker, and Rockwall (the remaining

counties). Under the 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 respect to the 1997 8-hour ozone standard.

With regard to the 8-hour standard, on April 30, 2004, EPA published the 8-hour ozone

designations in conjunction with its Phase I implementation rule (69 FR 23858 and 69 FR 23951,

respectively). For areas subject to Subpart 2 ofthe Act, such as the DFW nonattainment area,

the maximum period for attainment runs from the effective date of designations and

classifications for the 1997 8-hour ozone NAAQS and corresponds to the same length oftime

provided in Table 1 of Section 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 of all nine counties, was designated nonattainment for the

1997 8-hour ozone standard and classified as "moderate" based on a design value of 0.100 ppm,

with an attainment date ofJune 15,2010 (69 FR 23858). The design value (DV) of an area

characterizes the severity ofthe air quality concern and is represented by the highest DV

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.

9
attainment plan designed to attain the 1997 8-hour ozone standard. The state submitted a

supplement to 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 of an ozone nonattainment area to meet the standard by its attainment date, and for

reclassification of an 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 area has 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 area that has failed to attain by

its attainment date and the resulting reclassification.

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

10
EPA 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 (40 CFR 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 of 0.086 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 the June 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

Denton Airport 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

48-221-000 I

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 a rolling 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, if an 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 attainment year 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-year extension 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

12
classification 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 of an area that has failed to

attain the standard by its attainment date. The classification that 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" under the statutory scheme in

the Act, upon the effective date of a final rulemaking determining that the DFW has failed to

attain the 1997 8-hour ozone 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 Nonattainment Area and New

Attainment Date

Pursuant to section 181(b)(2) ofthe Act, EPA is proposing to determine that the DFW

area did not attain the 1997 8-hour ozone NAAQS by the June 15,2010, attainment deadline

prescribed under the Act for moderate ozone nonattainment areas. If EPA 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 later than 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-hour ozone standard. EPA is

13
proposing a schedule by which Texas will submit the SIP revisions necessary pursuant to

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 adjust the 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 of all 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

submit the 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 later than March 1,

2012, the start ofthe ozone season for the attainment year.

Pursuant to section 182(c) ofthe Act and as further referenced below, the requirements

for serious ozone nonattainment areas include, but are not 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

14
enhanced vehicle inspection and maintenance program (CAA section 182(c)(3) and 40 CFR

51.350); (4) clean fuel 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 submit the SIP revision relating to Stage

II vapor recovery to EPA no later than two years after the 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 of Stage II controls within 6

months to two years after the date of adoption 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

pursuant to 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 throughout the motor

vehicle fleet. If EPA 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 longer be subject to 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 subject to the CAA section 110(1)requirement that the revision does not interfere with any applicable

requirement ofthe CAA.

15
and operation of a system for gasoline vapor recovery of emissions 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. Under the 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 of gasoline per month, based on average monthly sales for the 2-year period before

the adoption date; or (iii) 2 years after the adoption date, in the case of all 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 of new 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 Coast Air Quality Management Dist. \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 of an 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 of Appeals for the District ofColumbia Circuit on the Phase 1 Rule to Implement the 8-

Hour Ozone National Ambient Air Quality Standards (NAAQS)," dated October 2,2007. As provided in CAA

sections 501 and 502(a) and 40 CFR 70.2, 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.

16
Table 2. Status ofRequirements for the Proposed DFW 1997 8-hour Ozone Serious

Nonattainment Area

Requirement Status Action Needed or Date

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 Must be 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 submit to

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

Pursuant to 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-hour ozone nonattainment area. Pursuant to

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 submit the

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

later than one year after the effective date ofthe final rulemaking for this reclassification; except

that we propose that Texas submit the 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 Order Reviews

Under section 181(b)(2) ofthe CAA, a determination of nonattainment is a factual

determination based upon air quality considerations and the resulting reclassification must occur

by operation oflaw. A determination of nonattainment and the resulting reclassification of a

nonattainment area by operation oflaw under section 181(b)(2) does not in and ofitself create

any new requirements, but rather applies the requirements contained in the Clean Air Act. For

18
these reasons, this proposed action:

• is not a "significant regulatory action" subject to review by the Office ofManagement

and Budget under Executive Order 12866 (58 FR 51735, October 4, 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 impact on 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 significant regulatory action based on health or safety risks subject

to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355,

May 22, 2001);

• is not subject to requirements of Section 12(d) ofthe National Technology Transfer and

Advancement Act 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

19
FR 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 preempt tribal law.

List of Subjects 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.

20