
[Federal Register: August 9, 2010 (Volume 75, Number 152)]
[Proposed Rules]               
[Page 47746-47751]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au10-22]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2010-0412; FRL-9186-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Dallas/Fort Worth (DFW) 
moderate 8-hour ozone nonattainment area did not attain the 1997 8-hour 
ozone national ambient air quality standard (NAAQS or standard) by June 
15, 2010, the attainment deadline set forth in the Clean Air Act (CAA 
or Act) and Code of Federal Regulations (CFR) for moderate 
nonattainment areas. This proposal is based on EPA's review of 
complete, quality assured and certified ambient air quality monitoring 
data for the 2007-2009 monitoring period that are available in the EPA 
Air Quality System (AQS) database. If EPA finalizes this determination, 
the DFW area will be reclassified by operation of law as a serious 8-
hour ozone nonattainment area for the 1997 8-hour standard. The serious 
area attainment date for the DFW area would be as expeditiously as 
practicable, but not later than June 15, 2013. Once reclassified, Texas 
must submit State Implementation Plan (SIP) revisions for the DFW area 
that meet the 1997 8-hour ozone nonattainment requirements for serious 
areas as required by the Act. In this action, EPA is also proposing 
that Texas submit the required SIP revisions for the serious area 
attainment demonstration, reasonable further progress (RFP), reasonably 
available control technology (RACT), contingency measures, and for all 
other serious area measures required under CAA section 182(c) to EPA no 
later than one year after the effective date of the final rulemaking 
for this reclassification; except that we propose that Texas submit the 
required SIP revision for the Stage II vapor recovery to EPA no later 
than two years after the effective date of the final rulemaking for 
this reclassification, pursuant to section 182(b)(3)(A) of the Act.

DATES: Comments must be received on or before September 8, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2010-0412, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-6762.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such

[[Page 47747]]

deliveries are accepted only between the hours of 8 a.m. and 4 p.m. 
weekdays except for legal holidays. Special arrangements should be made 
for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2010-0412, 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 whose 
disclosure is restricted by statute. Do not submit through http://
www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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 and with any 
disk or CD-ROM you submit. 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, any form of encryption, and 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: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page to make photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Carrie Paige, Air Planning Section, 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6521; fax 
number 214-665-6762; e-mail address paige.carrie@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this proposed action?
    A. What are the national ambient air quality standards?
    B. What is ozone and what is the 1997 8-hour ozone standard?
    C. What is a SIP and how does it relate to the 1997 8-hour ozone 
standard?
    D. What is the DFW nonattainment area, and what is its current 
1997 8-hour ozone nonattainment classification?
    E. What are the CAA provisions regarding determinations of 
nonattainment and reclassifications?
II. What is EPA's evaluation of the DFW area's 1997 8-hour ozone 
data?
III. What actions is EPA proposing?
    A. Determination of Nonattainment, Reclassification of the DFW 
Nonattainment Area and New Attainment Date
    B. Proposed Date for Submitting a Revised SIP for the DFW Area
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What is the Background for this proposed action?

A. What are the national ambient air quality standards?

    Section 109 of the Act requires 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. EPA has set 
NAAQS for six common air pollutants, 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. What is ozone and what is 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 (NOX) in the presence of sunlight. On July 18, 
1997, EPA promulgated an 8-hour ozone standard of 0.08 parts per 
million (ppm), which is more protective than the previous 1-hour ozone 
standard (62 FR 38855) that was established by EPA in 1979. We revoked 
the 1-hour ozone standard effective June 15, 2005. See 40 CFR 50.9(b) 
and 69 FR 23858 (April 30, 2004). Under EPA regulations at 40 CFR part 
50, the 1997 8-hour ozone standard is attained when the 3-year average 
of the annual fourth highest daily maximum 8-hour average ambient air 
quality ozone concentration is less than or equal to 0.08 ppm (i.e., 
0.084 ppm when rounding is considered). See 69 FR 23857 (April 30, 
2004).\1\ Ambient air quality monitoring data for the 3-year period 
must meet a data completeness requirement. The ambient air quality 
monitoring data completeness requirement 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. Specifically, 
section 2.3 of 40 CFR part 50, Appendix I, ``Comparisons with the 
Primary and Secondary Ozone Standards'' states: ``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

[[Page 47748]]

0.085 ppm is the smallest value that is greater than 0.08 ppm.'' \2\
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    \1\ For ease of communication, many reports of ozone 
concentrations are given in parts per billion (ppb); ppb = ppm x 
1000. Thus, 0.084 ppm becomes 84 ppb.
    \2\ EPA notes that today's proposed action deals with the 
classifications and SIP obligations associated with the 1997 8-hour 
ozone NAAQS. On March 27, 2008 (73 FR 16436), EPA promulgated a 
revised 8-hour ozone standard of 0.075 ppm. On January 6, 2010, EPA 
proposed to set the level of the primary 8-hour ozone standard 
within the range of 0.060 to 0.070 ppm, rather than at 0.075 ppm. 
EPA anticipates that in 2010 it will have completed reconsideration 
of the standard and thereafter will proceed with designations. EPA's 
actions with respect to this new standard do not affect EPA's action 
here.
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C. What is a SIP and how does it relate to the 1997 8-hour ozone 
standard?

    Section 110 of the Act requires states to develop air pollution 
regulations and control strategies to ensure that state air quality 
meets the NAAQS established by EPA. Each state must submit these 
regulations and control strategies to 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.
    EPA published a first phase rule governing implementation of the 
1997 8-hour ozone standard (Phase 1 Rule) on April 30, 2004 (69 FR 
23951). The Phase 1 Rule addressed, among other matters, 
classifications for Part D subpart 2 areas under the 1997 8-hour 
standard. The Phase 1 rule was challenged and certain portions of it 
were vacated by the DC Circuit in South Coast Air Quality Management 
Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006), clarified on rehearing, 489 
F.3d 1245 (DC Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The 
provisions of the Phase 1 rule that are directly relevant to this 
proposed rule--classifications for subpart 2 and the related 8-hour 
ozone standard attainment deadlines--are not among those that were 
successfully challenged, and they remain effective.
    EPA also published a rule governing implementation of the 1997 8-
hour ozone standard (Phase 2 Rule) on November 29, 2005 (70 FR 71612), 
as revised on June 8, 2007 (72 FR 31727). The Phase 2 rule addresses 
SIP obligations for the 1997 8-hour ozone NAAQS, including the SIP 
elements associated with RACT, reasonably available control measures 
(RACM), RFP, modeling and attainment demonstrations, new source review 
(NSR), vehicle inspection and maintenance programs (I/M), and 
contingency measures for failure to meet RFP and the attainment date.
    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 as marginal, moderate, serious, severe or 
extreme.

D. What is the DFW nonattainment area, and what is its current 1997 8-
hour ozone nonattainment classification?

    The current DFW nonattainment area includes nine counties: Collin, 
Dallas, Denton, Tarrant (the core counties) and Ellis, Johnson, 
Kaufman, Parker, and Rockwall (the remaining counties). Under the 1-
hour ozone standard, the DFW nonattainment area was classified as a 
``serious'' nonattainment area and included only the four core 
counties. See 63 FR 8128 (February 18, 1998). The remaining counties 
maintained their initial designation of unclassifiable/attainment for 
the 1-hour ozone standard. See 56 FR 56694 (November 6, 1991).\3\ On 
October 16, 2008, we determined that the DFW 1-hour ozone nonattainment 
area was attaining the 1-hour ozone standard based upon complete, 
quality-assured and certified ambient air monitoring data that showed 
the area had monitored attainment of the 1-hour ozone NAAQS for the 
2004-2006 monitoring period (73 FR 61357). That determination allowed 
certain SIP planning measures to be suspended for so long as the area 
continues to monitor attainment of the 1-hour ozone standard. Today's 
proposed rulemaking addresses the area's attainment and 
reclassification only with respect to the 1997 8-hour ozone standard.
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    \3\ Designations for Texas begin at 56 FR 56835.
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    With regard to the 8-hour standard, on April 30, 2004, EPA 
published the 8-hour ozone designations in conjunction with its Phase I 
implementation rule (69 FR 23858 and 69 FR 23951, respectively). For 
areas subject to subpart 2 of the Act, such as the DFW nonattainment 
area, the maximum period for attainment runs from the effective date of 
designations and classifications for the 1997 8-hour ozone NAAQS 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 or 17 years; and Extreme--20 years.
    The DFW area, consisting of all nine counties, was designated 
nonattainment for the 1997 8-hour ozone standard and classified as 
``moderate'' based on a design value of 0.100 ppm, with an attainment 
date of June 15, 2010 (69 FR 23858). The design value (DV) of an area 
characterizes the severity of the air quality concern 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, on May 30, 2007, 
the State of Texas submitted an attainment plan designed to attain the 
1997 8-hour ozone standard. The state submitted a supplement to this 
plan on April 23, 2008. On July 14, 2008, we proposed to conditionally 
approve the 1997 8-hour ozone attainment demonstration SIP revision for 
the DFW moderate 8-hour ozone nonattainment area. See 73 FR 40203. We 
finalized this approval on January 14, 2009. See 74 FR 1903. The DFW 
area met all of the current requirements for its moderate area 
classification.

E. What are the CAA provisions regarding determinations of 
nonattainment and reclassifications?

    Section 181(b)(2) of the Act prescribes the process for making 
determinations upon failure of an ozone nonattainment area to meet the 
standard by its attainment date, and for reclassification of an ozone 
nonattainment area. Section 181(b)(2)(A) of the Act requires that EPA 
determine, based on the area's 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 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 EPA to publish in the Federal Register a 
notice identifying any area that has failed to attain by its attainment 
date and the resulting reclassification.

II. What is EPA's evaluation of the DFW area's 8-hour ozone data?

    EPA is proposing to make its determination of whether the DFW 
attained the 8-hour ozone standard by its attainment deadline based on 
quality-assured, quality-controlled ambient air monitoring data for the 
years 2007-2009. These data, from sites in the DFW area have been 
certified by TCEQ, and are presented in Table 1. These data show that 
the DFW area was

[[Page 47749]]

violating the 1997 8-hour ozone standard at the time of its June 15, 
2010 attainment deadline. As noted above, the highest design value at 
any regulatory monitor in the area is considered the design value for 
the area (40 CFR 58.1). The Keller and Eagle Mountain Lake monitoring 
sites recorded the highest 2007-2009 design values, and thus at the 
time of its attainment deadline, the area had a design value of 0.086 
ppm. Thus, pursuant to section 181(b)(2) of the Act, EPA is proposing 
to determine that the DFW nonattainment area did not attain the 1997 8-
hour ozone NAAQS by the June 15, 2010, deadline for moderate 
nonattainment areas.

              Table 1--DFW Area Fourth Highest 8-Hour Ozone Concentrations and Design Values (ppm)*
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                                                          4th Highest daily max
            Site name and No.            ------------------------------------------------------   Design value
                                                2007              2008              2009           (2007-2009)
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Fort Worth Northwest, 48-439-1002.......             0.081             0.073             0.083             0.079
Keller, 48-439-2003.....................             0.084             0.085             0.090             0.086
Frisco, 48-085-0005.....................             0.080             0.079             0.079             0.079
Midlothian OFW, 48-139-0016.............             0.076             0.072             0.072             0.073
Denton Airport South, 48-121-0034.......             0.089             0.084             0.082             0.085
Arlington Municipal Airport, 48-439-3011             0.075             0.078             0.080             0.077
Dallas North No. 2, 48-113-0075.........             0.079             0.076             0.088             0.081
Rockwall Heath, 48-397-0001.............             0.074             0.073             0.078             0.075
Grapevine Fairway, 48-439-3009..........             0.089             0.077             0.086             0.084
Kaufman, 48-257-0005....................             0.074             0.069             0.068             0.070
Granbury, 48-221-0001...................             0.081             0.073             0.077             0.077
Eagle Mountain Lake, 48-439-0075........             0.084             0.085             0.091             0.086
Parker County, 48-367-0081..............             0.088             0.077             0.080             0.081
Cleburne Airport, 48-251-0003...........             0.087             0.083             0.080             0.083
Dallas Hinton St., 48-113-0069..........             0.076             0.064             0.062             0.067
Dallas Executive Airport, 48-113-0087...             0.080             0.077             0.079             0.078
Greenville, 48-231-1006.................             0.069             0.063             0.067             0.066
Pilot Point, 48-121-1032................             0.075             0.080             0.078             0.077
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* Design value calculations for the 8-hour ozone standard are based on a rolling three-year average of the
  annual 4th highest values (40 CFR Part 50, Appendix I).

    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 8-hour 
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. The DFW area's attainment year is 2009. In 2009, the 
area's fourth-highest daily 8-hour average from the monitor with the 
highest average of the area's monitors was 0.091 ppm. 40 CFR 51.907(a), 
(c). Therefore, the DFW area does not qualify for a 1-year extension of 
its moderate area attainment deadline.
    Section 181(b)(2)(A) of the Act provides that, should an area fail 
to attain by the applicable date, the area is reclassified by operation 
of law to the next higher classification or the classification 
applicable to the area's ozone design value at the time of the required 
notice under Section 181(b)(2)(B), whichever is higher. Section 
181(b)(2)(B) requires EPA to publish a notice in the Federal Register 
identifying the reclassification status of an area that has failed to 
attain the standard by its attainment date. The classification that 
would be applicable to the DFW area's ozone design value at the time of 
today's notice is ``marginal'' because the area's 2009 calculated 
design value, based on quality-assured ozone monitoring data from 2007-
2009, is 0.086 ppm. By contrast, the next higher classification for the 
DFW area is ``serious.'' Because ``serious'' is a higher nonattainment 
classification than ``marginal'' under the statutory scheme in the Act, 
upon the effective date of a final rulemaking determining that the DFW 
has failed to attain the 1997 8-hour ozone standard by the applicable 
attainment date of June 15, 2010, the DFW area will be reclassified by 
operation of law as ``serious.''

III. What actions is EPA proposing?

A. Determination of Nonattainment, Reclassification of the DFW 
Nonattainment Area and New Attainment Date

    Pursuant to section 181(b)(2) of the Act, EPA is proposing to 
determine that the DFW area did not attain the 1997 8-hour ozone NAAQS 
by the June 15, 2010, attainment deadline prescribed under the Act for 
moderate ozone nonattainment areas. If EPA takes final action on this 
determination as proposed, the DFW area will be reclassified by 
operation of law from moderate to serious nonattainment. Serious areas 
are required to attain the standard ``as expeditiously as practicable'' 
but no later than 9 years after designation, or June 15, 2013. 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 8-hour ozone standard. EPA is proposing a 
schedule by which Texas will submit the SIP revisions necessary 
pursuant to reclassification to serious nonattainment of the 1997 8-
hour ozone standard.

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

    EPA is also addressing here the schedule by which Texas would be 
required to submit a revised SIP. When an area is reclassified, 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 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, in this case 2012 (40 CFR 51.900(g)). The ozone season 
is the

[[Page 47750]]

ozone monitoring season as defined in 40 CFR Part 58, Appendix D, 
section 4.1, Table D-3 (October 17, 2006, 71 FR 61236). For the DFW 
area, March 1st is the beginning of the ozone monitoring season. 
Therefore, we propose that Texas submit the required SIP revisions, 
including the attainment demonstration, RFP, RACT, contingency 
measures, and other applicable serious area requirements to 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 no later than 
March 1, 2012, the start of the ozone season for the attainment year.
    Pursuant to section 182(c) of the Act and as further referenced 
below, the requirements for serious ozone nonattainment areas include, 
but are not limited to: (1) Attainment and reasonable further progress 
demonstrations (CAA section 182(c)(2), 40 CFR 51.908 and 40 CFR 
51.910); (2) an enhanced monitoring program (CAA section 182(c)(1) and 
40 CFR 58.10); (3) an enhanced vehicle inspection and maintenance 
program (CAA section 182(c)(3) and 40 CFR 51.350); (4) clean fuel 
vehicle programs (CAA section 182(c)(4)); (5) transportation control 
(CAA section 182(c)(5)); (6) a 50 ton-per-year major source threshold 
(CAA section182(c) and 40 CFR 51.165); (7) more stringent new source 
review requirements (CAA section 182(c)(6) and 40 CFR 51.165); (8) 
special rules for modification of sources (CAA sections 182(c)(7) and 
182(c)(8), and 40 CFR 51.165); (9) contingency provisions (CAA section 
182(c)(9)); and (10) increased offsets (CAA section 182(c)(10) and 40 
CFR 51.165). See also the requirements for serious ozone nonattainment 
areas set forth in section 182(c) of the Act.
    In addition, the requirements of section 182(b)(3) relating to 
Stage II gasoline vapor recovery shall apply, provided EPA has not yet 
found that onboard vapor recovery (ORVR) is in widespread use in the 
motor vehicle fleet and waived the section 182(b)(3) requirement.\4\ 
Pursuant to section 182(b)(3)(B), we propose that Texas submit the SIP 
revision relating to Stage II vapor recovery to EPA no later than two 
years after the effective date of the final rulemaking for this 
reclassification, since that corresponds to the period that moderate 
and worse nonattainment areas were first required to submit Stage II 
SIPs following enactment of the 1990 CAA Amendments. Section 182(b)(3) 
requires implementation of Stage II controls within 6 months to two 
years after the date of adoption by the state of requirements for the 
installation and operation of a system for gasoline vapor recovery of 
emissions from the fueling of motor vehicles, depending on the age and 
throughput of the facility.\5\
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    \4\ Section 182(b)(3) imposes the Stage II requirement on 
moderate and worse ozone nonattainment areas, but pursuant to 
section 202(a)(6), section 182(b)(3) applied only in serious and 
worse areas after EPA promulgated rules for ORVR in 1994. Section 
202(a)(6) additionally allows EPA to revise or waive the section 
182(b)(3) requirement for all ozone nonattainment areas after EPA 
determines that ORVR is in widespread use throughout the motor 
vehicle fleet. If EPA finds that ORVR is in widespread use and 
waives the section 182(b)(3) requirement in advance of the date by 
which new serious areas would otherwise be required to implement 
Stage II controls, such areas would no longer be subject to the 
section 182(b)(3) requirement. Further, for any areas that already 
implement Stage II, to remove Stage II controls following an EPA 
widespread use and waiver decision, any EPA SIP approval would be 
subject to the CAA section 110(l) requirement that the revision does 
not interfere with any applicable requirement of the CAA.
    \5\ Pursuant to section 182(b)(3)(B), the compliance date shall 
be (i) 6 months after the adoption date, in the case of gasoline 
dispensing facilities for which construction commenced after the 
date of the enactment of the Clean Air Act Amendments of 1990; (ii) 
one year after the adoption date, in the case of gasoline dispensing 
facilities which dispense at least 100,000 gallons of gasoline per 
month, based on average monthly sales for the 2-year period before 
the adoption date; or (iii) 2 years after the adoption date, in the 
case of all other gasoline dispensing facilities. Any gasoline 
dispensing facility described under both clause (i) and clause (ii) 
shall meet the requirements of clause (i).
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    The DFW 1-hour ozone nonattainment area was reclassified as serious 
for that standard on February 18, 1998 (63 FR 8128), so the 1-hour 
ozone standard requirements applicable to the area are those that apply 
to nonattainment areas classified as serious. Under the 1-hour ozone 
standard, Collin, Dallas, Denton and Tarrant counties were all 
classified as serious. As such, many of the requirements listed above 
are already being implemented in those areas, as specified in Table 2 
below. However, some of these requirements will be new to the five 
remaining counties that were not included in the 1-hour ozone 
nonattainment area for DFW; these are also provided in Table 2 below. 
EPA also notes that there may be sources in the five remaining counties 
that will be newly subject to Title V and will have one year from the 
effective date of the final rulemaking for this reclassification to 
provide TCEQ with a Title V permit application.\6\ A list of the 
requirements already in place and those yet to be implemented in the 
DFW area is provided in Table 2 below:
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    \6\ As stated earlier in this notice, in regards to requirements 
for SIPs regarding review of new or modified major stationary 
sources (``new source review''), the reclassification proposed 
herein would not lower the ``major source'' thresholds required in 
the four core counties because the statutory thresholds that applied 
by virtue of the area's classification under the 1-hour ozone 
standard continue to apply as anti-backsliding measures for the 1997 
8-hour ozone standard (see South Coast Air Quality Management Dist. 
v. EPA, 472 F.3rd 882 (DC 2006) rehearing denied 489 F.3d 1245, 
clarifying that the vacatur was limited to the issues on which the 
court granted the petitions for review). In EPA's Phase 1 rule, EPA 
made NSR applicability thresholds dependent upon the status and 
classification of an area under the 1997 8-hour standard. The effect 
of the ruling in the South Coast case is to restore NSR 
applicability thresholds pursuant to the classifications previously 
in effect for areas designated nonattainment for the 1-hour 
standard. See EPA memorandum from Robert J. Meyers, ``New Source 
Review (NSR) Aspects of the Decision of the U.S. Court of Appeals 
for the District of Columbia Circuit on the Phase 1 Rule to 
Implement the 8-Hour Ozone National Ambient Air Quality Standards 
(NAAQS),'' dated October 2, 2007. As provided in CAA sections 501 
and 502(a) and 40 CFR 70.2, 70.3(a), 71.2 and 71.3(a), the 
thresholds at which a source is required to apply for and operate a 
Title V operating permit are linked to the NSR ``major source'' 
applicability threshold.

 Table 2--Status of Requirements for the Proposed DFW 1997 8-Hour Ozone
                       Serious Nonattainment Area
------------------------------------------------------------------------
                                                      Action needed or
         Requirement                 Status         date approved by EPA
------------------------------------------------------------------------
Attainment Demonstration      Due 1 year from the   Must be submitted to
 182(c)(2)(A).                 effective date of     EPA for approval.
                               the final
                               rulemaking for this
                               action.
RFP Demonstration             Due 1 year from the   Must be submitted to
 182(c)(2)(B).                 effective date of     EPA for approval.
                               the final
                               rulemaking for this
                               action.
Enhanced monitoring           Due 1 year from the   Must be submitted to
 182(c)(1).                    effective date of     EPA for approval.
                               the final
                               rulemaking for this
                               action.
Enhanced I/M program........  Implemented in all 9  November 14, 2001
                               counties.             (66 FR 57261).
Clean-fuel vehicle programs   Equivalency program   Must be submitted to
 182(c)(4).                    due 1 year from the   EPA for approval.
                               effective date of
                               the final
                               rulemaking for this
                               action\7\.

[[Page 47751]]


Transportation control        Transportation        Adopt transportation
 182(c)(5).                    controls in place     controls as needed
                               under the 1997 8-hr   in the serious
                               ozone moderate        nonattainment area
                               nonattainment area    and submit to EPA
                               SIP.                  for approval.
50 tpy threshold for VOCs     Implemented in all 9  July 17, 2008 (73 FR
 182(c).                       counties.             40972).
50 tpy threshold for NOX....  Implemented in all 9  December 3, 2008 (73
                               counties.             FR 73562).
De minimis rule 182(c)(6)...  Implemented in core   Must be expanded to
                               counties.             all 9 counties.
Special rule for              Implemented in core   Must be expanded to
 modifications of sources      counties.             all 9 counties.
 emitting less than 100
 tons. 182(c)(7).
Special rule for              Implemented in core   Must be expanded to
 modifications of sources      counties.             all 9 counties.
 emitting 100 tons or more.
 182(c)(8).
Contingency provisions        Due 1 year from the   Must be submitted to
 182(c)(9).                    effective date of     EPA for approval.
                               the final
                               rulemaking for this
                               action.
Offsets of 1.2 to 1           Implemented in core   Must be expanded to
 182(c)(10).                   counties.             all 9 counties.
Stage II vapor recovery.....  Implemented in core   Submit evidence of
                               counties.             widespread use or
                                                     expand Stage II SIP
                                                     to all 9
                                                     counties.\4\
------------------------------------------------------------------------

IV. Proposed Action

    Pursuant to section 181(b)(2) of the Act, EPA is proposing to 
determine, based on certified, quality-assured monitoring data for 
2007-2009, that the DFW area did not attain the 1997 8-hour ozone 
standard by the applicable June 15, 2010 attainment deadline. If EPA 
finalizes this determination, upon the effective date of the final 
determination DFW will be reclassified by operation of law as a serious 
1997 8-hour ozone nonattainment area. Pursuant to section 182(i) of the 
Act, EPA is also proposing the schedule for submittal of the SIP 
revisions required for serious areas once the DFW area is reclassified. 
We propose that Texas submit the required SIP revisions for the serious 
attainment demonstration, RFP, RACT, contingency measures, and for all 
other serious area measures required under CAA section 182(c) to EPA no 
later than one year after the effective date of the final rulemaking 
for this reclassification; except that we propose that Texas submit the 
required SIP revision for the Stage II vapor recovery to EPA no later 
than two years after the effective date of the final rulemaking for 
this reclassification, pursuant to section 182(b)(3)(A) of the Act.
---------------------------------------------------------------------------

    \7\ In 2005, the Texas Legislature repealed the Texas Clean Fuel 
Fleet substitute program. As a result, Texas must submit an 
equivalency demonstration. See 75 FR 27514, beginning on page 27524 
(May 17, 2010).
---------------------------------------------------------------------------

V. 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 Clean Air Act; 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 rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not 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.

    Dated: July 28, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. 2010-19574 Filed 8-6-10; 8:45 am]
BILLING CODE 6560-50-P

