[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Proposed Rules]
[Pages 46238-46241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23236]
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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.
[[Page 46239]]
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
[[Page 46240]]
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
[[Page 46241]]
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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