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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[TX89-1-7370; FRL-5967-4]

Clean Air Act Reclassification; Texas-Dallas/Fort Worth

Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finding that the Dallas/Fort Worth (DFW)

nonattainment area (Dallas, Tarrant, Collin, Denton Counties, Texas)

has not attained the 1-hour ozone national ambient air quality standard

(NAAQS) by the applicable attainment date in the Clean Air Act (Act)

for moderate ozone nonattainment areas, November 15, 1996. The finding

is based on EPA's review of monitored air quality data from 1994

through 1996 for compliance with the 1-hour ozone NAAQS. As a result of

this finding, the DFW ozone nonattainment area will be reclassified by

operation of law as a serious ozone nonattainment area on the effective

date of this action. This Federal Register reclassification final rule

does not subject the State to sanctions under section 110(m) of the

Act. The effect of the reclassification will be to continue progress

toward attainment of the 1-hour ozone NAAQS through the development of

a new State Implementation Plan (SIP), due 12 months from the effective

date of this action, addressing attainment of that standard by November

15, 1999.

EFFECTIVE DATE: March 20, 1998.

FOR FURTHER INFORMATION CONTACT: Thomas Diggs or James F. Davis, Air

Planning Section (6PD-L), Environmental Protection Agency, Region 6,

1445 Ross Avenue, Suite 1200, Dallas, Texas, 75202, (214) 665-7214.

SUPPLEMENTARY INFORMATION:

I. Background

Under sections 107(d)(1)(C) and 181(a) of the Act, the DFW area was

designated nonattainment for the 1-hour ozone NAAQS and classified as

``moderate.'' See 56 FR 56694 (November 6, 1991). Moderate

nonattainment areas were required to show attainment by November 15,

1996 (section 181(a)(1)).

Pursuant to section 181(b)(2)(A) of the Act, EPA has the

responsibility for determining, within six months of an area's

applicable attainment date, whether the area has attained the 1-hour

ozone NAAQS.1 Under section 181(b)(2)(A), if EPA finds that

an area has not attained the 1-hour ozone NAAQS, it is reclassified by

operation of law to the next higher classification or to the

classification applicable to the area's design value at the time of the

finding. Section 181(b)(2)(B) of the Act requires EPA to publish a

notice in the Federal Register identifying areas which failed to attain

the standard and therefore must be reclassified by operation of law.

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\1\ On July 18, 1997 (62 FR 38856), EPA revised the ozone NAAQS

to establish an 8-hour standard; however, in order to ensure an

effective transition to the new 8-hour standard, EPA also retained

the 1-hour NAAQS for an area until such time as it determines that

the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR

38894. As a result of retaining the 1-hour standard, the Act part D,

subpart 2, Additional Provisions for Ozone Nonattainment Areas,

including the reclassification provisions of section 181(b), remain

applicable to areas that are not attaining the 1-hour standard.

Unless otherwise indicated, all references in this document are to

the 1-hour ozone NAAQS.

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If a state does not have the data necessary to show attainment of

the NAAQS, it may apply, under section 181(a)(5) of the Act, for a one-

year attainment date extension. Issuance of an extension is

discretionary, but EPA can exercise that discretion only if the state

has: (1) complied with the requirements and commitments pertaining to

the applicable implementation plan for the area, and (2) the area has

measured no more than one exceedance of the ozone NAAQS at any

monitoring site in the nonattainment area in the year preceding the

extension year.

A complete discussion of the statutory provisions and EPA policies

governing findings of whether an area failed to attain the ozone NAAQS

and extensions of the attainment date can be found in the proposal for

this action at 62 FR 46238 (September 2, 1997).

II. Proposed Action

On September 2, 1997, EPA proposed to find that the DFW ozone

nonattainment area failed to attain the 1-hour ozone NAAQS by the

applicable attainment date (62 FR 46238). The proposed finding was

based upon ambient air quality data from the years 1994, 1995, and

1996. These data showed that the 1-hour ozone NAAQS of 0.12 parts per

million (ppm) had been exceeded on average more than one day per year

over this three-year period. Attainment of the 1-hour NAAQS is

demonstrated when an area averages one or less days per year over the

standard during a three-year period (40 CFR 50.9 and Appendix H). The

EPA also proposed that the appropriate reclassification of the area was

too serious, based on the area's 1994-1996 design value of 0.139 ppm.

This Federal Register reclassification final rule is not an action

subjecting the State to sanctions described in section 110(m) of the

Act. The sanctions provisions of the Act would only apply if the State

failed to submit a revised DFW SIP or submitted a revised DFW SIP that

was disapproved by the EPA. For a complete discussion of the DFW ozone

data and method of calculating both the average number of days over the

ozone standard and the design value, see 62 FR 46238.

Finally, EPA proposed to require submittal of the serious area SIP

revisions no later than 12 months from the effective date of the area's

reclassification. The requirements for serious ozone nonattainment

areas are outlined in section 182(c) of the Act.

III. Response to Comments

The EPA received 156 comment letters in response to its September

2, 1997 proposal. The EPA wishes to express its appreciation to each of

these individuals and organizations for taking the time to comment on

the proposal. Each raised important issues to which EPA welcomes the

opportunity to respond.

As described above, EPA's proposal was composed of two elements:

(1) a finding of failure to attain by the statutory deadline of

November 15, 1996, (2) a 12-month schedule for submittal of the revised

SIP.

[[Page 8129]]

The EPA received comment letters from 147 citizens supporting the

reclassification action and/or requiring further improvements in air

quality. One additional citizen commented that EPA should focus on

sources of pollution other than motor vehicles such as aircraft, power

plants and diesel engines. The Environmental Defense Fund commented in

support of requiring further improvements in air quality. The Lone Star

Chapter of the Sierra Club sent in a letter supporting EPA's proposal

for reclassification of the DFW area to facilitate improvements in air

quality. Two citizen commenters expressed some qualified concerns about

the proposed action. The Greater Dallas Chamber requested EPA to

reconsider the action in view of improvements in air quality, and the

City of Plano requested a cost/benefit analysis and assessment on

whether new control standards are achievable. The City of Dallas

commented that programs should be required to be implemented across the

entire nonattainment area, and that the nonattainment area should be

expanded to the entire metropolitan statistical area (MSA) or

consolidated metropolitan statistical area (CMSA). The City of Dallas

also commented on flexible implementation times, on compliance with the

Unfunded Mandates Reform Act, Regulatory Flexibility Act, and on

Executive Order 12866. The Mayor of Fort Worth, the Honorable Kenneth

Barr, expressed concern that counties adjacent to the metroplex are not

being required to participate in the overall abatement program and

urged EPA to expand the program to all areas contributing to the ozone

problem. The City of Grand Prairie commented that the 1999 attainment

date is virtually unattainable, that the nonattainment area should

include the entire urbanized region, with control strategies applied

fairly throughout the entire area, and the EPA ensure sufficient

resources are available for technical assistance and public outreach.

The Texas Natural Resource Conservation Commission (TNRCC) commented

that it will continue to work in a results oriented way to improve air

quality in the DFW area, but expressed procedural and legal concerns

with the action. The EPA also received comments and questions from U.S.

Representative Martin Frost and from Texas State Representative Lon

Burnam regarding the timeframes associated with the reclassification

SIP due date in view of the extension of the comment period. Specific

comments along with EPA's responses are described below.

A. Comments on Air Quality Data

Comments: The Greater Dallas Chamber commented that while the area

has not met the air quality standards specified by EPA, since 1990

emissions have been reduced 15 percent while population has increased

13 percent. The City of Plano also made the comment that significant

progress has been made. The Environmental Defense Fund concurred with

EPA's assessment of the air quality data that the area did not attain

the ozone NAAQS by November 1996 and commented that little if any

progress has been made since 1994.

Response: The EPA recognizes that over the very long term some

improvements in the DFW air quality have been made and that programs

have been put in place to improve air quality at a Federal, State, and

local level. However, these programs have not been adequate to meet the

health-based ozone standard or make the area eligible for an extension

of the 1996 attainment date. Between 1994 and 1996, based on the number

of exceedance days DFW had the eighth worst air quality in the nation

(28 days). In the same time period based on air quality design value,

DFW had the tenth worst air quality in the nation (0.139 ppm). In 1990,

twenty-two areas had worse air quality than DFW based on air quality

design value (DFW design value in 1990 was 0.140 ppm). Over a ten year

period the area's design value has not shown a downward trend, and

continues to remain at unacceptable levels above the health-based

standards.

B. Comments Related to the Area of Coverage and Regional Approach to

Controls

Comments: The EPA received 11 comments from citizens supporting the

inclusion of surrounding counties to the DFW nonattainment area,

particularly Ellis County. Several commenters expressed specific

concerns about air pollutants coming from large stationary point

sources in Ellis County. Some of the comments were specifically

directed towards the burning of hazardous waste.

Response: The EPA agrees that sources of pollution outside the four

county nonattainment area must be taken into consideration in air

quality planning. We anticipate that the revised air quality attainment

modeling demonstration will include large stationary sources of

pollution from an area beyond the four county nonattainment area. The

control strategy included in the revised SIP may require emission

reductions from sources outside the nonattainment area if the State

determines they would be effective in achieving attainment for the DFW

area. The EPA has not included additional counties in the nonattainment

area at this time, since there has not been any air quality monitoring

data showing exceedances of the ozone standard in these counties. Part

of the additional monitoring requirements resulting from this action

will be a monitor located south of the DFW nonattainment area. In

addition, the EPA will be reevaluating the nonattainment area of

coverage again when designations are made for the revised 8-hour ozone

standard. Also, if the area does not meet its 1999 attainment deadline,

EPA will consider expanding the nonattainment area to additional

counties in the CMSA or the entire CMSA in a reclassification of the

area to severe ozone nonattainment. Regarding the burning of hazardous

waste, EPA's proposal for reclassification was strictly an action that

applied to the ozone standard and not related to this issue.

Comments: The Greater Dallas Chamber stated that it is important to

equally apply all standards and regulations among all four counties in

the nonattainment area and that a truly Regional approach to improve

air quality should be taken. The Greater Dallas Chamber also requested

EPA reconsider the proposed reclassification and work with all parts of

the nonattainment area to expand air quality control efforts. The City

of Dallas and City of Grand Prairie similarly commented that emission

control requirements should apply to all segments of the nonattainment

area. The City of Dallas specifically pointed to the growth in Collin

and Denton County, and the air quality exceedances in these counties as

reasons to include these counties in the emission control programs

especially those directed towards mobile sources such as the vehicle

inspection and maintenance program. They pointed to the inequity of the

situation in which the commuter to Dallas from the northern two

counties may drive 25 miles each way and not be subject to enhanced

testing, while the commuter to Dallas from Oak Cliff may drive only 5

miles each way and be subject to enhanced I/M testing. The City

commented that EPA should not accept any implementation plan which

omits enhanced I/M in Denton and Collin Counties. The Mayor of Fort

Worth expressed concern that counties adjacent to the metroplex are not

being required to participate in the overall abatement program. The

City of Dallas felt the current imbalance in application

[[Page 8130]]

of control programs raised questions of environmental justice.

Response: The EPA concurs that strategies that apply equally across

the nonattainment area are normally in the best interest in air quality

improvement efforts. The EPA has listed expansion of the vehicle

inspection and maintenance program to Collin and Denton counties as a

cost effective measure which the State should consider in its revised

SIP. However, EPA cannot require I/M programs to be placed in areas

outside the 1990 urbanized area. The State is planning to implement

remote sensing testing for vehicles commuting into Dallas and Tarrant

counties. The EPA will be evaluating the program to determine whether

sufficient numbers of failing vehicles are being repaired to make up

urbanized area coverage shortages stemming from the State decision to

implement its core I/M program in only Dallas and Tarrant counties. The

EPA's action to finalize the DFW reclassification is based upon the

area's monitored air quality and will help to focus efforts on needed

air quality improvements. Therefore, EPA does not believe it is in the

best interest of air quality to reconsider its proposed

reclassification. Furthermore, section 181(b)(2) of the Act mandates

that the Administrator redesignate an area that has not attained the

standard by the applicable attainment date.

Comments: The City of Dallas commented that EPA is required by

operation of law, 42 U.S.C. section 7407(d)(4)(iv), to designate the

entire MSA or CMSA as nonattainment with the serious classification.

The CMSA includes Collin, Dallas, Denton, Ellis, Henderson, Hunt,

Kaufman, Rockwall, Hood, Johnson, Parker and Tarrant counties. The City

of Dallas also cited 57 FR 13514-13515 (April 16, 1992) which stated

that when a moderate area is bumped up to serious this section of the

Act requires that the boundaries reflect the MSA/CMSA unless the State

notifies EPA of its intent to study the appropriate boundaries. In

addition, the City commented that for the policy reason of addressing

all emissions in the area the entire CMSA should be included.

Response: The City has correctly read EPA's interpretation cited in

the 1992 proposed General Preamble for Implementation of Title 1 of the

Clean Air Act (57 FR 13514-13515). However, since 1992 EPA has

interpreted and implemented section 107(d)(4)(A)(iv) of the Act in a

more flexible manner regarding reclassifications. This section of the

Act can also be interpreted only to be required to apply to areas when

they are initially classified and not necessarily when they are

reclassified. This latter interpretation was applied in the Phoenix

nonattainment area in its carbon monoxide reclassification (61 FR

39343-39347 (July 29, 1996)) and more recently in the moderate ozone

area reclassification to serious (62 FR 60001-60013 (November 6,

1997)). However, if the DFW area does not meet its 1999 attainment

deadline, EPA will consider expanding the nonattainment area to

additional counties in the CMSA or the entire CMSA in a

reclassification of the area to severe ozone nonattainment.

Comments: The EDF also commented that EPA should require Texas to

consider the finding of the Ozone Transport Assessment Group (OTAG) and

other studies which show ozone pollution is transported long distances

and to consider the likely impact on the DFW nonattainment area from

large point sources in Central and Northeast Texas.

Response: This comment is not relevant to the issues presented in

this rulemaking. The EPA anticipates that the revised air quality

modeling attainment demonstration will include emissions from large

stationary sources of pollution long distances from the nonattainment

area. The EPA agrees that looking at sources located at greater

distances is an appropriate approach. This was the conclusion of the

OTAG study. Although the OTAG results did not find that Texas was

contributing to transport to the eastern United States, the results did

conclude that transport is a factor in ozone formation.

C. Comments Related to the Timing of the Submission of the Revised SIP

Comments: U.S. Representative Martin Frost commented that he had

been contacted by groups that the implementation plan stay on the

original schedule in view of the 60-day extension of the comment

period. Texas State Representative Lon Burnam also commented regarding

the timeframes associated with the reclassification SIP due date in

view of the extension of the comment period. Representative Burnam

requested that the EPA stay on the original time frame for the final

reclassification and SIP due date and was concerned about the impact of

the 60-day time extension.

The EDF expressed concern that the proposed SIP submittal timing

will pass before new actions to improve air quality are taken. One

citizen also commented that a one-year SIP submittal window is too

long, in view of the serious attainment deadline of November 1999, and

requested EPA finalize a 6-month SIP submittal deadline. The citizen

also requested that EPA require the State to have some control measures

in place at May 1, 1998, and a second tier of measures in place by May

1, 1999. The TNRCC commented that if DFW is reclassified, the TNRCC

should be given a minimum of one year from the effective date prior to

the final reclassification action. The City of Dallas commented that

assuming EPA approval of the SIP, the nonattainment area will have

approximately one year from the time of SIP approval to achieve

attainment and that this time period will likely not be sufficient to

put in place many requirements to achieve meaningful results. The City

urged EPA to exercise all discretion to extend timetables so the region

has a reasonable chance to achieve compliance.

Response: The EPA believes that a 12-month schedule for submittal

of the revised plan is appropriate because of the time needed for the

State to develop and submit the revised SIP. This 12-month timeframe is

consistent with actions EPA has taken with the ozone reclassifications

of Phoenix and Santa Barbara. The 12-month timeframe will begin upon

the effective date of this action. Since the attainment date for

serious areas, November 15, 1999, is less than 2 years away, the State

will need to expedite adoption and implementation of controls to meet

that deadline. The EPA believes the two-tiered approach for the revised

air quality improvement plan has merit, but it will be up to the State

to determine when to implement the additional controls with the desired

result of meeting the 1999 attainment date. The EPA does not have

discretion to extend the attainment date, under section 182(I) of the

Act. However, the Act does allow for extensions of the attainment date

under section 182(a)(5), if in the attainment year the area has

sufficiently improved air quality and has met its SIP requirements.

D. Comments on Future Control Requirements

Comments: One citizen commented that EPA should make it clear that

the TNRCC has the ``powers'' to go beyond the required measures to come

up with an appropriate compliance plan for DFW. The citizen also

commented that EPA list the possible control options it has developed

in the final reclassification. Another citizen commented that EPA

should focus on sources of pollution other than motor vehicles such as

aircraft, power plants and diesel engines.

Response: The State has always had the ability to implement air

quality improvement programs that exceed the

[[Page 8131]]

Federal requirements. The control options the EPA is recommending for

consideration in the revised SIP include: 1) expansion of the I/M

program into Collin and Denton or additional counties, 2) enhancements

to the I/M program such as loaded mode testing, 3) cleaner gasolines

such as Phase II of the reformulated gasoline program, 4) adoption of

Reasonably Available Control Technology for offset lithographers, 5)

additional transportation control measures, 6) an effective clean fuel

fleet program, 7) nitrogen oxide (NOx) controls on utility

sources, and 8) opting into the California Low Emitting Vehicle

program. The EPA agrees that all sources of pollution have to be

considered for additional controls. However, in the DFW area on-road

mobile sources comprise about 41 percent of the emissions inventory

with off-road mobile sources comprising about 18 percent. Stationary

point sources account for about 12 percent of the area's volatile

organic compound air pollution.

Comments: The City of Grand Prairie commented that the attainment

date of 1999 is virtually unattainable due to the lateness of EPA's

action. The TNRCC also commented that it will be all but impossible for

the DFW area to implement controls in time prior to the proposed new

attainment deadline of November 15, 1999, and that another

reclassification would be likely in the same timeframe as EPA's new

ozone NAAQS. The TNRCC recommended that if the DFW area is

reclassified, EPA allow a three-year assessment period beyond the new

attainment date prior to any other action and that the TNRCC be given a

minimum of one year from the effective date for submittal of the

revised SIP.

Response: The EPA believes the State needs to take a proactive

approach in implementing measures to improve air quality, but agrees it

will be a challenge to achieve all the reductions needed by the summer

of 1999. The State has the option of extending the 1-hour ozone

attainment date out to 2005 if it requests a voluntary reclassification

to a severe ozone nonattainment area. If such an approach was taken,

requirements in the Act for a severe area would apply. Another

reclassification will not occur if the area has improved air quality by

November 1999 such that it is eligible for an extension based on the

monitored data, under section 182(a)(5) of the Act. The EPA does not

have the discretion in the Act to allow the three year assessment

period contemplated by the TNRCC. If the area is not eligible for the

extension, the Act would require another reclassification six months

after the November 15, 1999, attainment date. As stated earlier, the

EPA is allowing the State up to one year from the effective date to

submit its revised SIP.

E. Comments on Cost and Benefits

Comments: The City of Plano expressed concern about the costs

related to the new standards and that the cost may surpass public

health benefits. The City of Plano recommended that EPA perform a full

cost-benefit analysis of its action to the DFW area, investigate

whether new control standards are realistically achievable, and further

test the health benefits of stricter air control standards for DFW

before finalizing its proposed action.

Response: The EPA may not consider cost in the setting of air

quality standards or reclassification of areas that fail to attain the

standard. The decision whether or not to reclassify an area is solely

based on air quality monitoring data compared with the national ambient

air quality standard. The standards are required by the Act to be set

at levels that protect public health without consideration of costs.

However, we anticipate cost effectiveness will be considered by the

State in the development of the revised SIP in the selection of what

measures are best suited in achieving the standards.

Comments: The City of Grand Prairie commented that the EPA should

ensure sufficient State resources are available since the State has

failed in the past to provide sufficient or timely monitoring, modeling

and technical assistance to the area due to a stated lack of funding.

The City of Grand Prairie also requested a greater partnership with EPA

in public outreach to persuade public opinion concerning participation

in ozone reduction strategies since local entities do not have

sufficient resources to undertake these efforts independently.

Response: The EPA can only require that the State meet the

requirements of the serious areas which will include an attainment

modeling demonstration, enhanced monitoring and control strategy to

meet attainment. The financial and personnel resources needed to meet

these requirements can only be determined by the State. Regarding

partnership on public outreach, EPA agrees more can and should be done

in communicating the need for improved air quality in the DFW area and

the steps needed to achieve clean air. The EPA has been and is

available for public outreach events and welcomes opportunities to

participate. As part of this rulemaking action, EPA designed and

implemented a communication plan which is intended to develop support

for efforts to improve air quality.

F. Comments Related to the Promulgation of the New Ozone NAAQS

Comments: The TNRCC commented that it is inappropriate to maintain

the current 1-hour standard when the 8-hour standard is considered by

EPA to be more protective to human health and that this continued

imposition of the 1-hour standard is diametrically different than what

was originally proposed by EPA. The TNRCC recommended that EPA move now

to impose the 8-hour standard so that DFW and the TNRCC will no longer

be required to dedicate resources to the 1-hour standard. The TNRCC

questioned the legal authority of how the EPA can hold an area such as

DFW for two separate standards for the same criteria pollutant. The

TNRCC also commented that in the Presidential Directive, the President

stated he wanted to ensure that the new standards be implemented in a

common sense, cost effective manner; that they be implemented in the

most flexible, reasonable, and least burdensome manner; and that the

Federal government work with the State and local governments towards

this end. The TNRCC requested that EPA address each of these concepts

and explain how the DFW reclassification meets this directive.

Response: The continued applicability of the 1-hour standard is not

the subject of this rulemaking. The 8-hour ozone standard is likewise

not the subject of this action. This rulemaking only concerns the

finding that the DFW area failed to attain the 1-hour standard by the

attainment deadline and the consequences of that failure. The issue of

the continued applicability of the 1-hour standard was part of the

rulemaking in which EPA promulgated an 8-hour ozone standard (62 FR

38856 (July 18, 1997)). In that rulemaking, EPA made it clear that the

Act did not preclude EPA from simultaneously implementing both

standards. Also, historically EPA has had more than one primary

standard for criteria pollutants (e.g., annual and 24-hour PM10 and

sulfur dioxide standards, and 8-hour and 1-hour CO standards)(62 FR

38885). That rulemaking, not this one concerning DFW, was the

appropriate forum in which to raise issues concerning the continued

applicability of the 1-hour standard.

The EPA concurs that the Presidential Directive does direct EPA to

ensure that the new standards be implemented in a

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common sense, cost effective manner and they be implemented in the most

flexible, reasonable, and least burdensome manner. The EPA believes it

has been working with the State and local governments towards this end.

The EPA has participated and will continue to participate in numerous

briefings at the request of local governments to discuss the reason for

and implementation of the reclassification. The EPA will work with the

State in meetings and by giving guidance on and commenting on the

revised SIP as it proceeds through the State process. The Presidential

Directive also directs EPA to continue the implementation of the 1-hour

requirements until the 1-hour standard is achieved. The EPA believes it

is reasonable and makes sense to implement measures to improve air

quality prior to the 8-hour ozone SIPs due in 2003. The EPA allows a

good deal of flexibility in the measures that are chosen for the

revised SIP since the State may choose the measures it thinks are the

least burdensome and most cost effective.

G. Comments Related to Consistency of EPA's Action With Other Marginal

and Moderate Areas

Comments: The TNRCC questioned what it described as EPA's

inconsistency with areas similar to DFW noting that to date only three

moderate areas have been proposed for reclassification to serious (DFW,

Phoenix, and Santa Barbara). The TNRCC stated that it was encouraged by

recent news that St. Louis was not going to be reclassified to serious

nonattainment if the area made significant progress in reducing

emissions, and the TNRCC was interested in discussing a similar

approach with respect to DFW. The TNRCC specifically questioned why

other marginal and moderate areas have not been acted on for not

meeting their attainment deadlines.

Response: In contrast with DFW, most marginal and moderate areas

have either attained their air quality standards and been redesignated

to attainment, or have been eligible for an extension under section

182(a)(5) of the Act. The EPA is proceeding with implementing the 1-

hour standard for areas not falling into these categories and which

were required to meet the ozone standard at the end of 1996. Both the

Phoenix and Santa Barbara reclassifications to serious have been

finalized. The EPA is intending to propose reclassification of the

Beaumont/Port Arthur area to serious nonattainment in the absence of a

convincing demonstration that the area is subject to overwhelming

transport. The Manitowoc area was eligible for EPA's overwhelming

transport policy, which recognizes that most of their air pollution is

coming in from outside the area. In St. Louis, EPA is continuing to

review the appropriate information, but the lack of final action with

respect to St. Louis does not imply that EPA should determine that DFW

should not be reclassified.

H. Comments Related to the Unfunded Mandates Reform Act, Regulatory

Flexibility Act, and on Executive Order 12866

Comments: The City of Dallas commented that EPA is disregarding the

requirements of the Unfunded Mandates Reform Act (UMRA), Executive

Order 12866, and the Regulatory Flexibility Act in conducting the

rulemaking. The City noted EPA's position that since the proposed

reclassification is ordained by operation of law, no new requirements

are placed on the parties which these laws and the Executive order seek

to protect. The City argued that in reality new requirements, not

currently in the SIP, will be imposed on the community.

Response: The EPA position regarding compliance of this action with

the Regulatory Flexibility Act, Executive Order 12866, and the Unfunded

Mandates Act is described in the Administrative Requirements section of

this notice.

VI. Final Action

The EPA is finding that the DFW ozone nonattainment area did not

attain the ozone NAAQS by November 15, 1996, the Act's attainment date

for moderate ozone nonattainment areas. The submittal of the serious

area SIP revision will be due no later than 12 months from the

effective date of this action. The requirements for this SIP submittal

are established in section 182 of the Act and applicable EPA guidance.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future action. Each finding of

failure to attain, request for an extension of an attainment date, and

establishment of a SIP submittal date shall be considered separately

and shall be based on the factual situation of the area under

consideration and in relation to relevant statutory and regulatory

requirements.

VI. 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 action 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 neither the finding of failure to

attain the ozone standard, nor the establishment of a SIP submittal

schedule would result in any of the effects identified in E.O. 12866

section 3(f). As discussed in the response to comments above, findings

of failure to attain under section 181(b)(2) of the Act 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. section 601 et seq.,

EPA must prepare a regulatory flexibility analysis assessing the impact

of any proposed or final rule on small entities. See 5 U.S.C. sections

603 and 604. Alternatively, EPA may certify that the rule will not have

a significant economic impact on a substantial number of small

entities.

[[Page 8133]]

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

of the nonattainment area by operation of law 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 makes a

factual determination and establishes a schedule to require the State

to submit SIP revisions, and does not directly regulate any entities.

Therefore, pursuant to 5 U.S.C. 605(b), EPA reaffirms its certification

made in the proposal (62 FR 46233 (September 2, 1997)) that today's

final action will not have a significant impact on a substantial number

of small entities within the meaning of those terms for Regulatory

Flexibility Act purposes.

C. Unfunded Mandates Reform Act

Title II of the UMRA, (Pub. L. 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.

Generally, EPA has determined that the provisions of sections 202

and 205 of UMRA do not apply to this decision. Under section 202, EPA

is to prepare a written statement that is to contain assessments and

estimates of the costs and benefits of a rule containing a Federal

Mandate ``unless otherwise prohibited by law.'' Congress clarified that

``unless otherwise prohibited by law'' referred to whether an agency

was prohibited from considering the information in the rulemaking

process, not to whether an agency was prohibited from collecting the

information. The Conference Report on UMRA states, ``This section [202]

does not require the preparation of any estimate or analysis if the

agency is prohibited by law from considering the estimate or analysis

in adopting the rule.'' See 141 Cong. Rec. H3063 (Daily ed. March 13,

1995). Because the Clean Air Act prohibits the Agency from considering

the types of estimates and assessments described in section 202 when

determining whether an area attained the ozone standard or met the

criteria for an extension, UMRA does not require EPA to prepare a

written statement under section 202. Although the establishment of a

SIP submission schedule may impose a federal mandate, this mandate

would not create costs of $100 million or more, and therefore, no

analysis is required under section 202. The requirements in section 205

do not apply because those requirements are for rules ``for which a

written statement is required under section 202.* * * ''

Finally, section 203 of UMRA does not apply to today's action

because the regulatory requirements finalized today--the SIP submittal

schedule--affect only the State of Texas, which is not a small

government under UMRA.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by April 20, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, Intergovernmental

relations, Ozone.

Dated: February 4, 1998.

Lynda F. Carroll,

Acting Regional Administrator.

Part 81, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. In Sec. 81.344 the table for Texas--Ozone is amended by revising

the entry for the Dallas-Fort Worth area to read as follows:

Sec. 81.344 Texas.

* * * * *

Texas--Ozone

--------------------------------------------------------------------------------------------------------------------------------------------------------

Designation Classification

Designated area ---------------------------------------------------------------------------------------------------------------

Date \1\ Type Date \1\ Type

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[[Page 8134]]

* * * * * * *

Dallas-Fort Worth Area:

Collin County....................... ........... Nonattainment............................ 3/20/98 Serious

Dallas County....................... ........... Nonattainment............................ 3/20/98 Serious

Denton County....................... ........... Nonattainment............................ 3/20/98 Serious

Tarrant County...................... ........... Nonattainment............................ 3/20/98 Serious

* * * * * * *

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\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *

[FR Doc. 98-4005 Filed 2-17-98; 8:45 am]

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