Determination of Nonattainment and Reclassification of the Dallas/Fort Worth 1997 8-Hour Ozone Nonattainment Area; Texas

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to determine that the Dallas/Fort Worth (DFW) 8-hour ozone nonattainment area did not attain the 1997 8-hour ozone national ambient air quality standard (NAAQS or standard) by June 15, 2013, the attainment deadline set forth in the Code of Federal Regulations (CFR) for a Serious ozone nonattainment area under this standard. This proposal is based on EPA's review of complete, quality assured and certified ambient air quality monitoring data for the 2010-2012 monitoring period that are available in the EPA Air Quality System (AQS) database. If the EPA finalizes this determination, the DFW area will be reclassified by operation of law as a Severe ozone nonattainment area for the 1997 8-hour ozone standard. The EPA is also proposing that Texas must submit to the EPA the State Implementation Plan (SIP) revisions to address the Severe ozone nonattainment area requirements of the Act no later than one year after the effective date of the final rulemaking for this reclassification.

DATES:

Comments must be received on or before March 19, 2015.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R06-OAR-2014-0536, by one of the following methods:

• www.regulations.gov. Follow the on-line instructions.
• Email: Ms. Carrie Paige at paige.carrie@epa.gov.
• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2014-0536. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through http://www.regulations.gov or email, if you believe that it is CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an “anonymous access” system, which means that EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov,, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment along with any disk or CD-ROM submitted. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment with the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253.

FOR FURTHER INFORMATION CONTACT:

Ms. Carrie Paige, Air Planning Section (6PD-L); telephone (214) 665-6521; email address paige.carrie@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” means the EPA.

Table of Contents

I. Background

II. EPA's Evaluation of the DFW Area's 1997 8-Hour Ozone Data

III. The Consequences of Reclassification

IV. The 2008 Ozone Standard and Its Effect on Reclassification of the DFW Area

V. Proposed Action

VI. Statutory and Executive Order Reviews

I. Background

A. The National Ambient Air Quality Standards

Section 109 of the Clean Air Act (CAA or Act) requires the EPA to establish a NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety and the secondary standard is designed to protect public welfare and the environment. The EPA has set NAAQS for six common air pollutants, also referred to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Also, these standards provide information to residents of the United States about the air quality in their communities.

B. The 1997 8-Hour Ozone Standard

Ozone is a gas composed of three oxygen atoms. It is not usually emitted directly into the air, but at ground level is created by a chemical reaction between volatile organic compounds (VOCs) and oxides of nitrogen (NO_X) in the presence of sunlight. On July 18, 1997, the EPA promulgated an 8-hour ozone standard of 0.08 parts per million (ppm). See 62 FR 38856 and 40 CFR 50.10.

Consistent with the EPA regulations in section 2.3 of 40 CFR part 50, Appendix I: “The primary and secondary ozone ambient air quality standards are met at an ambient air quality monitoring site when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. The number of significant figures in the level of the standard dictates the rounding convention for comparing the computed 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration with the level of the standard. The third decimal place of the computed value is rounded, with values equal to or greater than 5 rounding up. Thus, a computed 3-year average ozone concentration of 0.085 ppm is the smallest value that is greater than 0.08 ppm.” In addition, the ambient air quality monitoring data for the 3-year period must meet a data completeness requirement, which is met when the average percentage of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.

C. The SIP and its Relation to the 1997 Ozone Standard

The Act requires states to develop air pollution regulations and control strategies to ensure that for each area designated nonattainment for a NAAQS, state air quality will meet the NAAQS established by the EPA. Each state must submit these regulations and control strategies to the EPA for approval and incorporation into the Federally-enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. The SIPs may contain state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

For ozone nonattainment areas, requirements for SIPs are contained in Part D, subparts 1 and 2 of the Act. Under subpart 2, the applicable control requirements become increasingly more stringent according to an area's classification. The five classifications are Marginal, Moderate, Serious, Severe or Extreme, with Marginal areas subject to the least stringent requirements and Extreme areas subject to the most.

The EPA published two sets of regulations governing how the provisions of the CAA would apply for purposes of implementing the 1997 ozone standard. On April 30, 2004 (69 FR 23951), EPA promulgated the Phase 1 Rule, which addressed, among other matters, classifications for areas designated nonattainment for the 1997 ozone standard.

The EPA published a second rule, the Phase 2 Rule on November 29, 2005 (70 FR 71612), and made several revisions to that rule on June 8, 2007 (72 FR 31727). The Phase 2 rule addresses SIP obligations for the 1997 ozone standard, including the SIP elements associated with reasonably available control technology (RACT), reasonably available control measures (RACM), reasonable further progress (RFP), modeling and attainment demonstrations, new source review, vehicle inspection and maintenance (I/M) programs, and contingency measures for failure to meet RFP and the attainment date.

D. The DFW Nonattainment Area and Its Current Nonattainment Classification Under the 1997 Ozone Standard

On April 30, 2004, the EPA designated nine counties as the DFW nonattainment area for the 1997 ozone standard (i.e., Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant counties) and this 9-county area was classified under subpart 2 of the Act, as “Moderate” (69 FR 23858). For areas subject to subpart 2 of the Act, the maximum period to achieve attainment runs from the effective date of designations and classifications for the 1997 ozone standard and corresponds to the same length of time provided in Table 1 of Section 181(a) of the Act: Marginal—3 years; Moderate—6 years; Serious—9 years; Severe—15 years; and Extreme—20 years. 40 CFR 51.903.

The DFW nonattainment area was classified as Moderate based on a design value at the time of designation (DV) of 0.10 ppm, with an attainment date of June 15, 2010 (69 FR 23858). The DV of an area characterizes the severity of the air quality and is represented by the highest DV measured at any ozone monitor in the area. The calculation for the DV is the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration measured at a monitor. In response to the designation, the State of Texas submitted an attainment plan designed to meet the 1997 ozone standard and we conditionally approved this plan on January 14, 2009 (74 FR 1903).

Section 181(b)(2) of the Act prescribes the process for making a determination of whether an ozone nonattainment area met the standard by its attainment date. Section 181(b)(2)(A) of the Act requires that the EPA determine, based on the area's ozone design value (as of the attainment date), whether or not the area attained the ozone standard by that date. For Marginal, Moderate, and Serious areas, if the EPA finds that the nonattainment area has failed to attain the ozone standard by the applicable attainment date, the area must be reclassified by operation of law to the higher of (1) the next higher classification for the area, or (2) the classification applicable to the area's design value as determined at the time of the required Federal Register notice. Section 181(b)(2)(B) requires the EPA to publish in the Federal Register a notice identifying any area that has failed to attain by its attainment date and, if applicable, the resulting reclassification. The DFW area failed to attain the 1997 ozone standard by its Moderate attainment date of June 15, 2010, and was consequently reclassified as a Serious ozone nonattainment area with an attainment date of no later than June 15, 2013 (75 FR 79302, December 20, 2010).

II. EPA's Evaluation of the DFW Area's 1997 8-Hour Ozone Data

The EPA is proposing to determine the DFW area did not attain the 1997 ozone standard by its attainment deadline of June 15, 2013 based on quality-assured, quality-controlled ambient air monitoring data for the years 2010-2012 that show the area was violating the 1997 ozone standard. These data from sites in the DFW area have been certified by the TCEQ and are presented in Table 1. As noted earlier in this action, the highest DV at any regulatory monitor in the area is considered the DV for the area (40 CFR 58.1). The Keller monitoring site recorded the highest 2010-2012 design value—0.087 ppm—which is also the design value for the area. Thus, pursuant to section 181(b)(2) of the Act, the EPA is proposing to determine that the DFW nonattainment area did not attain the 1997 ozone standard by the June 15, 2013, deadline for Serious nonattainment areas.

Under section 181(a)(5) of the Act and 40 CFR 51.907, an area can qualify for up to 2 one-year extensions of its attainment date if it meets the conditions set forth in 40 CFR 51.907. For the 1997 ozone standard, if an area's fourth highest daily maximum 8-hour average value in the attainment year is 0.084 ppm or less (40 CFR 51.907), the area is eligible for the first one-year extension to the attainment date. The attainment year is the year immediately preceding the attainment date (40 CFR 51.900(g)), thus the DFW area's attainment year is 2012. In 2012, the area's fourth-highest daily maximum 8-hour was 0.092 ppm at the Arlington monitor site. Therefore, the DFW area does not qualify for a 1-year extension of its Serious area attainment deadline.

Section 181(b)(2)(A) of the Act provides that, should the EPA find that an area fails to attain by the applicable date, the area shall be reclassified by operation of law to the higher of: The next higher classification for the area; or the classification applicable to the area's ozone design value at the time of the reclassification. The classification that would be applicable to the DFW area's ozone DV at the time of today's notice is “Marginal” because the area's calculated DV, based on quality-assured ozone monitoring data from 2011-2013, is 0.087 ppm. By contrast, the next higher classification for the DFW area is “Severe.” Because “Severe” is a higher nonattainment classification than “Marginal” under the statutory scheme in the Act, upon the effective date of the final rulemaking determining that the DFW has failed to attain the 1997 ozone standard by the applicable attainment date of June 15, 2013, the DFW area will be reclassified by operation of law as “Severe.”

III. The Consequences of Reclassification

A. Effect of Reclassification on Stationary Air Pollution Sources

Upon reclassification, stationary air pollution sources in the DFW ozone nonattainment area will be subject to Severe ozone nonattainment area New Source Review (NSR) and Title V permit requirements. The source applicability threshold for major sources and major source modification emissions is lowered to those that emit or have the potential to emit at least 25 tons per year (tpy) of VOC and NO_X. For new and modified major stationary sources subject to review under Texas Administrative Code Title 30, Chapter 116, Section 116.150 (30 TAC 116.150) in the EPA approved SIP, VOC and NO_X emissions increases from the proposed construction of new or modified major stationary sources must be offset by emissions reductions meeting a minimum offset ratio of 1.30 to 1. See 30 TAC 116 and 40 CFR 52.2270(c).

B. Use of Reformulated Gasoline

Effective one year after the reclassification of the DFW area as a Severe ozone nonattainment area, the requirement at section 211(k)(10)(D) of the Act would expand the prohibition of the sale of conventional gasoline and require the use of reformulated gasoline in Ellis, Johnson, Kaufman, Parker, and Rockwall counties. Currently, the prohibition applying to the sale of conventional gasoline in the DFW area is limited to Collin, Dallas, Denton and Tarrant counties (see 57 FR 46316, October 8, 1992).

C. Proposed Date for Submitting a Revised SIP for the DFW Area

Pursuant to section 181(b)(2) of the Act, the EPA is proposing to determine that the DFW area did not attain the 1997 ozone standard by the attainment deadline for Serious ozone nonattainment areas. If the EPA takes final action on this determination as proposed, the DFW area will be reclassified by operation of law from Serious to Severe nonattainment. Severe areas are required to attain the standard “as expeditiously as practicable” but no later than 15 years after designation, or June 15, 2019. The “as expeditiously as practicable” attainment date will be determined as part of the action on the required SIP submittal demonstrating attainment of the 1997 ozone standard. The EPA is proposing a schedule by which Texas will submit the SIP revisions necessary pursuant to reclassification to Severe nonattainment of the 1997 ozone standard.

When an area is reclassified, the EPA has the authority under section 182(i) of the Act to adjust the Act's submittal deadlines for any new SIP revisions that are required as a result of the reclassification. Pursuant to 40 CFR 51.908(d), for each nonattainment area, the State must provide for implementation of all control measures needed for attainment as expeditiously as practicable but no later than the beginning of the attainment year ozone season. The attainment year ozone season is the ozone season immediately preceding a nonattainment area's attainment date. For an area with an attainment date of June 15, 2019, which is the date that would apply for the DFW area if bumped up to Severe, the attainment year ozone season is 2018 (40 CFR 51.900(g)). The ozone season is the ozone monitoring season as defined in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (71 FR 61236, October 17, 2006). For the DFW area, March 1st is the beginning of the ozone monitoring season. We propose that Texas submit the required SIP revisions, including the attainment demonstration, RFP plan, and other applicable Severe area requirements to the EPA as expeditiously as practicable, but not later than one year after the effective date of the final rulemaking for this reclassification. In addition, all applicable controls shall be implemented as expeditiously as practicable but no later than March 1, 2018, which is the beginning of the attainment year ozone season.

D. Severe Area Plan Requirements

Pursuant to section 182(d) of the Act and 40 CFR 51 subpart X, the revised SIP for the DFW area must include all the CAA requirements for Serious ozone nonattainment area plans such as: (1) Enhanced ambient monitoring (CAA 182(c)(1)); (2) an enhanced vehicle I/M program (CAA 182(c)(3)); and (3) a clean fuel vehicle program or an approved substitute (CAA 182(c)(4)). The revised SIP for the DFW area must also meet the Severe area requirements specified in CAA section 182(d), including: (1) An attainment demonstration (CAA section 182(c)(2)(A) and (d); 40 CFR 51.908); (2) provisions for RACT and RACM (CAA sections 172(c)(1); 182(b)(2) and (d); 40 CFR 51.912); (3) RFP reductions for each three-year period until the attainment date (CAA section 182(c)(2)(B) and (d); 40 CFR 51.910); (4) contingency measures to be implemented in the event of failure to meet RFP or attain the standard (CAA 172(c)(9) and 182(c)(9)); (5) transportation control measures to offset emissions from growth in vehicle miles traveled or VMT (CAA 182(d)(1)(A)); (6) increased offsets for major sources (CAA section 182(d)(2) and 40 CFR 51.165); and (7) fees on major sources if the area fails to attain the standard (CAA 182(d)(3) and 185).

Because the DFW area is presently classified as Serious under the 1997 ozone standard, the state has adopted and EPA has approved into the SIP provisions that meet several of these requirements. A list of the requirements already in place and those yet to be adopted by the State for the DFW area is provided in Table 2.

IV. The 2008 Ozone Standard and Its Effect on Reclassification of the DFW Area

In 2008, the EPA promulgated a more protective 8-hour ozone standard of 0.075 ppm (73 FR 16436) and EPA published a rule designating areas for that standard on May 21, 2012 (77 FR 30088). On June 6, 2013, the EPA published its proposed rule to implement the 2008 ozone standard (78 FR 34178). The rule also proposed revocation of the 1997 ozone standard for all purposes, and that upon revocation of that standard, the EPA would not be obligated to reclassify areas to a higher classification under the 1997 ozone NAAQS based upon a determination that the areas failed to attain such NAAQS by the areas' corresponding attainment date (78 FR 34178, 34236; proposed 40 CFR 51.1105(d)(2)(ii)). We anticipate final action on the proposed implementation rule this spring. If EPA has not yet taken final action to reclassify the DFW area for the 1997 ozone standard before a final rulemaking revoking the 1997 ozone NAAQS for all purposes is effective, and that rulemaking is finalized as proposed with respect to EPA's obligation concerning reclassification of areas for the revoked standard, then EPA will not finalize this proposed reclassification for DFW. However, the DFW area will still be subject to appropriate “anti-backsliding” requirements for the 1997 ozone NAAQS as established in any final rule EPA may promulgate in connection with any revocation of the 1997 standard. Anti-backsliding provides protection against degradation of air quality (e.g., the DFW area does not “backslide”) and ensures the area continues to make progress toward attainment of the new, more stringent NAAQS. Anti-backsliding also ensures there is consistency with the ozone NAAQS implementation framework outlined in subpart 2 of Part D of the CAA (78 FR 34178, 34211).

V. Proposed Action

Pursuant to section 181(b)(2) of the Act, the EPA is proposing to determine, based on certified, quality-assured monitoring data for 2010-2012 that the DFW area did not attain the 1997 ozone standard by the applicable June 15, 2013 attainment deadline. If the EPA finalizes this determination, upon the effective date of the final determination the DFW 9-county nonattainment area will be reclassified by operation of law as a Severe ozone nonattainment area under the 1997 ozone standard. Pursuant to section 182(i) of the Act, the EPA is also proposing the schedule for submittal of the SIP revisions required for Severe areas once the DFW area is reclassified. The EPA is proposing that Texas submit to the EPA the required SIP revisions for the Severe attainment demonstration, RFP and for all other Severe area measures required under sections 172, 182(c), 182(d) and 185 of the Act no later than one year after the effective date of the final rulemaking for this reclassification.

VI. Statutory and Executive Order Reviews

Under section 181(b)(2) of the CAA, a determination of nonattainment is a factual determination based upon air quality considerations and the resulting reclassification must occur by operation of law. A determination of nonattainment and the resulting reclassification of a nonattainment area by operation of law under section 181(b)(2) does not in and of itself create any new requirements, but rather applies the requirements contained in the Clean Air Act. For these reasons, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications because it will not have a substantial direct effect on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

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