[Federal Register Volume 63, Number 32 (Wednesday, February 18, 1998)]
[Rules and Regulations]
[Pages 8128-8134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4005]
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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
[[Page 8132]]
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
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
* * * * *
[FR Doc. 98-4005 Filed 2-17-98; 8:45 am]
BILLING CODE 6560-50-P
