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

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.

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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

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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

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\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

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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

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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

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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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