[Federal Register Volume 85, Number 66 (Monday, April 6, 2020)]
[Rules and Regulations]
[Pages 19096-19109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06198]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-OAR-2019-0213; FRL-10006-97-Region 6]


Air Plan Approval; Texas; Dallas-Fort Worth Area Redesignation 
and Maintenance Plan for Revoked Ozone National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA or Agency) is approving revisions 
to the Texas State Implementation Plan (SIP) that pertain to the 
Dallas-Fort Worth (DFW) area and the 1979 1-hour and 1997 8-hour ozone 
National Ambient Air Quality Standards (NAAQS or standard). The EPA is 
approving the plan for maintaining the 1-hour and 1997 ozone NAAQS 
through the year 2032 in the DFW area. The EPA is determining that the 
DFW area continues to attain the 1979 1-hour and 1997 8-hour ozone 
NAAQS and has met the five CAA criteria for redesignation. Therefore, 
the EPA is terminating all anti-backsliding obligations for the DFW 
area for the 1-hour and 1997 ozone NAAQS.

DATES: This rule is effective on May 6, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2019-0213. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, 
Dallas, Texas 75270.

FOR FURTHER INFORMATION CONTACT: Robert Todd, EPA Region 6 Office, 
Infrastructure & Ozone Section, 1201 Elm Street, Suite 500, Dallas, TX 
75270, 214-665-2156, todd.robert@epa.gov. To inspect the hard copy 
materials, please schedule an appointment with Mr. Todd or Mr. Bill 
Deese at 214-665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

[[Page 19097]]

I. Background and Summary of Final Action

    The background for this action is discussed in detail in our June 
24, 2019 Proposal (84 FR 29471, ``Proposal''). In that document we 
proposed to: (1) Approve the plan for maintaining both the revoked 1979 
1-hour and 1997 8-hour ozone NAAQS \1\ through 2032 in the DFW area; 
(2) Determine that the DFW area is continuing to attain both the 
revoked 1-hour and 1997 ozone NAAQS; (3) Determine that Texas (``the 
State'') has met the CAA criteria for redesignation of the DFW area for 
the 1-hour and 1997 8-hour ozone NAAQS; and, (4) Terminate all anti-
backsliding obligations for the DFW area for both the 1-hour and 1997 
ozone NAAQS.
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    \1\ Throughout this document, we refer to the 1979 1-hour ozone 
NAAQS as the ``1-hour ozone NAAQS'' and the 1997 8-hour ozone NAAQS 
as the ``1997 ozone NAAQS.''
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    In this final action, we are approving the plan for maintaining 
both the 1-hour and 1997 ozone NAAQS through the year 2032 in the DFW 
area. We are also determining that the DFW area continues to attain 
both the 1-hour and 1997 ozone NAAQS and has met the five criteria in 
CAA section 107(d)(3)(E) for redesignation for these Standards. The EPA 
revoked the 1-hour and 1997 ozone NAAQS along with associated 
designations and classifications (69 FR 23951, April 30, 2004; and, 80 
FR 12264, March 6, 2015), and thus, the DFW area has no designation 
under both the 1-hour or 1997 ozone NAAQS that can be changed through 
redesignation as governed by CAA section 107(d)(3)(E). Therefore, we 
are not promulgating a redesignation of the DFW area under CAA section 
107(d)(3)(E). However, because the DFW area has met the five criteria 
in section 107(d)(3)(E) for redesignation, we are terminating all anti-
backsliding obligations for the DFW area for both the revoked 1-hour 
and 1997 ozone NAAQS.
    To determine the criteria under CAA section 107(d)(3)(E) are met, 
we determine: (1) That the area has attained the NAAQS; (2) that we 
have fully approved the applicable implementation plan for the area 
under CAA section 110(k); (3) that the improvement in air quality is 
due to permanent and enforceable reductions in emissions resulting from 
implementation of the applicable implementation plan and Federal air 
pollutant control regulations and other permanent and enforceable 
reductions; (4) that the area has a fully approved maintenance plan 
meeting the requirements of CAA section 175A; and, (5) that the state 
containing such area has met all requirements applicable to the area 
under CAA section 110 (Implementation plans) and part D (Plan 
Requirements for Nonattainment Areas).
    As discussed in our Proposal, the Technical Support Document (TSD), 
and in the remainder of this preamble, the five criteria listed above 
have been met. In past actions, we have determined that the area has 
attained the 1-hour and 1997 ozone NAAQS due to permanent and 
enforceable measures (Criteria 1 and 3). As discussed in the Proposal 
and in this final action, air quality in the DFW area has been meeting 
the 1-hour standard since 2006 and the 1997 ozone standard since 2014. 
As documented in the Proposal and the TSD, numerous State, Federal and 
local measures have been adopted and implemented including, but not 
limited to, nitrogen oxide (NOX) limits on all Portland 
cement kilns in Ellis County, and federal on- and off-road emissions 
control programs. These programs have resulted in significant 
reductions and resulted in attainment of the 1-hour and 1997 ozone 
standards.
    We are also finding that the area has met all requirements under 
CAA section 110 and part D that are applicable for purposes of 
redesignation, and all such requirements have been fully approved 
(Criteria 2 and 5). As discussed in the Proposal, for the revoked ozone 
standards at issue here, over the past three decades the State has 
submitted numerous SIPs for the DFW area to implement those standards, 
improve air quality with respect to those standards, and address anti-
backsliding requirements for those standards. The TSD documents many of 
these actions and EPA approvals. However, EPA has consistently held the 
position that not every requirement to which an area is subject is 
``applicable'' for purposes of redesignation. See, e.g., September 4, 
1992, Memorandum from John Calcagni (``Calcagni Memorandum'').\2\ As 
described in this memo, some of the Part D requirements, such as 
demonstrations of reasonable further progress, are designed to ensure 
that nonattainment areas continue to make progress toward attainment. 
EPA has interpreted these requirements as not ``applicable'' for 
purposes of redesignation under CAA section 107(d)(3)(E)(ii) and (v) 
because areas that are applying for redesignation to attainment are 
already attaining the standard.
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    \2\ As referenced in our Proposal, see ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992. To view the memo, please visit https://www.epa.gov/sites/production/files/2016-03/documents/calcagni_memo_-_procedures_for_processing_requests_to_redesignate_areas_to_attainment_090492.pdf.
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    Finally, we are fully approving the maintenance plan for the DFW 
area. As discussed in the Proposal, we agree that Texas has provided a 
plan that demonstrates that the DFW area will maintain attainment of 
the revoked 1-hour and 1997 standards until 2032. The plan also 
includes contingency measures that would be implemented in the DFW area 
should the area monitor a violation of these standards in the future.

II. Response to Comments

    We received comments from Earthjustice (on behalf of Downwinders at 
Risk and the Sierra Club); and the Texas Commission on Environmental 
Quality (TCEQ or State). These comments are available for review in the 
docket for this rulemaking. Our responses to all relevant comments 
follow. Any other comments received were either deemed irrelevant or 
beyond the scope of this action, but are also included in the docket 
for this action.
    We proposed to find that the DFW area met all five redesignation 
criteria in CAA section 107(d)(3)(E) for the revoked ozone standards, 
and consistent with the decision of the U.S. Court of Appeals for the 
District of Columbia Circuit in South Coast Air Quality Management 
District v. EPA, 882 F.3d 1138 (D.C. Cir. 2018) (``South Coast 
II''),\3\ that the anti-backsliding obligations for the DFW area 
associated with these standards should therefore be terminated. In the 
alternative, we proposed to redesignate the DFW area to attainment for 
the revoked ozone standards, taking comment on whether we had authority 
to do so. In this action, based upon comments received, we are 
finalizing the first option.
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    \3\ ``South Coast I'' refers to South Coast Air Quality 
Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006).
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    Comment: Earthjustice states that ozone is a serious health problem 
in Dallas.
    Response: We agree that ozone is a significant health issue in the 
DFW area, but we also recognize that significant progress has been made 
in reducing ozone levels in the area. This action recognizes that the 
DFW area has attained both the revoked 1-hour and 1997 ozone NAAQS. We 
also recognize that further air quality improvement is necessary in the 
area to meet the two current 2008 and 2015 ozone NAAQS and to protect 
public health. The DFW area was designated as nonattainment

[[Page 19098]]

for both the revoked 1-hour and 1997 ozone NAAQS and is designated as 
nonattainment for the two current (2008 and 2015) 8-hour ozone 
NAAQS.\4\ As a result, the State and DFW area--including local 
governments, business and industry--have implemented measures to reduce 
emissions of NOX and volatile organic compounds (VOC) that 
form ozone (see, e.g., State Submittal, Section 2.4: Permanent and 
Enforceable Measures Reductions and the TSD for this action). 
Accordingly, the DFW area has seen its 1-hour ozone design values 
decrease from 147 parts per billion (ppb) in 1992 to 98 ppb in 2018. 
Likewise, the DFW area design values for the 8-hour ozone NAAQS have 
decreased from 100 ppb in 2003 to 76 ppb in 2018.\5\ Because the area 
has attained the revoked 1-hour and 1997 ozone NAAQS, and has also met 
the other CAA statutory requirements for redesignation for these 
standards, we believe it is appropriate to terminate the anti-
backsliding requirements associated with these revoked NAAQS.
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    \4\ For the 1-hour ozone NAAQS the DFW nonattainment area 
consists of Collin, Dallas, Denton, and Tarrant Counties (56 FR 
56694, November 6, 1991). For the 1997 ozone NAAQS, the DFW 
nonattainment area included the four counties already listed, plus 
Ellis, Johnson, Kaufman, Parker, and Rockwall Counties (69 FR 23858, 
April 30, 2004). For the 2008 ozone NAAQS, the DFW nonattainment 
area included the nine counties already listed, plus Wise County (77 
FR 30088, May 21, 2012). For the 2015 8-hour ozone NAAQS the DFW 
nonattainment area consists of Collin, Dallas, Denton, Ellis, 
Johnson, Kaufman, Parker, Tarrant, and Wise Counties (83 FR 25776, 
June 4, 2018).
    \5\ See the TCEQ ozone reports posted at https://www.tceq.texas.gov/airquality/monops/ozone.
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    The area will remain designated nonattainment for the 2008 and 2015 
ozone NAAQS. The DFW area was recently reclassified as a Serious 
nonattainment area for the 2008 ozone NAAQS, and therefore the State 
must submit SIP revisions and implement controls to satisfy the 
statutory and regulatory requirements for a Serious nonattainment area 
for the 2008 ozone standard.\6\
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    \6\ See (83 FR 25776, June 4, 2018), and (84 FR 44238, August 
23, 2019).
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    Comment: Earthjustice states that EPA cannot lawfully or rationally 
apply the criteria at CAA section 107(d)(3)(E) to terminate anti-
backsliding protections for the DFW area, because that statutory 
provision provides only minimum criteria that must be satisfied before 
a designated nonattainment area may be redesignated to attainment. 
Earthjustice states that the provision provides no authority to 
terminate anti-backsliding on the basis of an area meeting its criteria 
for a revoked standard. The commenter also states that EPA does not and 
cannot identify a source of authority for its application of the 
statutory provision for the purposes of terminating anti-backsliding 
provisions and has not purported to create regulations here under its 
general rulemaking authority of CAA section 301(a) to do so. Further, 
the commenter alleges that the EPA's reliance on South Coast II to 
support its authority to terminate DFW's anti-backsliding requirements 
for the two revoked ozone NAAQS is unlawful and arbitrary. Earthjustice 
argues that the D.C. Circuit in South Coast II held only that the 
redesignation substitute was unlawful because it fell short of certain 
statutory requirements and did not address any other reasons why the 
regulation was unlawful and arbitrary. The commenter alleges that South 
Coast II ``says nothing'' about whether EPA could lawfully authorize 
termination of anti-backsliding requirements in the circumstance 
addressed here, where the area continues to violate the 2008 and 2015 
ozone NAAQS, and where termination ``weakens protections in the area.'' 
Earthjustice states that the South Coast II court's holding with 
respect to the EPA's authority to reclassify areas after revocation is 
irrelevant to the question of the EPA's authority to change an area's 
designation after revocation.
    Response: We disagree that the EPA lacks authority to terminate an 
area's anti-backsliding requirements for a revoked NAAQS and that we 
may not do so here for the DFW area with respect to the two revoked 
ozone NAAQS in question. The commenter's suggestion that the EPA may 
not look to the statutory redesignation criteria in CAA section 
107(d)(3)(E) for authority to terminate the DFW area's anti-backsliding 
requirements is contradicted by the D.C. Circuit's decision in South 
Coast II. In that decision, the court faulted the redesignation 
substitute, one of the EPA's mechanisms for terminating anti-
backsliding, but only because it had addressed only some, and not all, 
of the statutory redesignation criteria:

    The redesignation substitute request `is based on' the Clean Air 
Act's `criteria for redesignation to attainment' under [CAA section 
107(d)(3)(E)], 80 FR at 12,305, but it does not require full 
compliance with all five conditions in [CAA section 107(d)(3)(E)]. 
The Clean Air Act unambiguously requires nonattainment areas to 
satisfy all five of the conditions under [CAA section 107(d)(3)(E)] 
before they may shed controls associated with their nonattainment 
designation. The redesignation substitute lacks the following 
requirements of [CAA section 107(d)(3)(E)]: (1) The EPA has `fully 
approved' the [CAA section 110(k)] implementation plan; (2) the 
area's maintenance plan satisfies all the requirements under [CAA 
section 175A]; and (3) the state has met all relevant [CAA section 
110 and Part D] requirements. 80 FR at 12,305. Because the 
`redesignation substitute' does not include all five statutory 
requirements, it violates the Clean Air Act.
882 F.3d at 1152.

    We disagree that the D.C. Circuit, as commenters suggest, said 
nothing with respect to how anti-backsliding controls could be lawfully 
terminated for areas under a revoked NAAQS. The court stated that the 
Act ``unambiguously'' requires that all five statutory redesignation 
criteria be met before anti-backsliding controls (i.e., controls 
associated with the nonattainment designation for a revoked NAAQS) 
could be shed. Id. The court's express basis for vacating the 
redesignation substitute was that the mechanism failed to incorporate 
all of the statutory criteria as preconditions. Id. (``Because the 
`redesignation substitute' does not include all five statutory 
requirements, it violates the Clean Air Act.''). We do not agree with 
the commenter's suggestion that the EPA may not rely on the court's 
plain interpretation of the Act and act in accordance with it. The EPA 
had previously approved redesignation substitutes for the DFW area for 
the 1-hour ozone NAAQS and the 1997 ozone NAAQS. As discussed in our 
Proposal, this final action replaces our previous approvals of the DFW 
area redesignation substitutes for the 1-hour and 1997 ozone NAAQS.
    Furthermore, we reject the commenter's suggestion that 
nonattainment of the newer, current NAAQS is a unique set of 
circumstances that would reasonably alter the EPA's ability to either 
redesignate an area or terminate anti-backsliding requirements for a 
prior NAAQS. Nothing in CAA section 107(d)(3) suggests that the EPA's 
approval of a redesignation or termination of anti-backsliding for one 
NAAQS should include evaluation of attainment of another newer NAAQS. 
It is common practice that areas designated nonattainment for an 
earlier, less stringent NAAQS come into compliance with that NAAQS, 
meet the requirements for redesignation for that NAAQS, and are 
redesignated to attainment for that NAAQS, while remaining 
nonattainment for a newer more stringent standard for the same 
pollutant. Indeed, with Congress' directive that the EPA review and 
revise the NAAQS as appropriate no less frequently than every five 
years, it would be nearly impossible for areas to be redesignated to 
attainment for an older NAAQS if nonattainment of a newer (often more 
stringent) standard barred EPA from approving

[[Page 19099]]

redesignation requests for the older standard.
    We also disagree that this action's effects terminating anti-
backsliding requirements are in any way ``unique.'' Areas that are 
redesignated to attainment are permitted to stop applying nonattainment 
area New Source Review offsets and thresholds and transition to the 
Prevention of Significant Deterioration program, which the EPA does not 
agree is an unwarranted ``weakening'' of protections. In this case, 
because the DFW area remains nonattainment for the newer ozone NAAQS, 
it will continue to be subject to nonattainment new source review 
(NNSR) emissions offsets and threshold requirements, tailored to the 
current classifications that apply to the area. EPA does not agree with 
commenter's suggestion that areas that have reached attainment should 
be subject to a more stringent process to shed obligations under a 
revoked NAAQS than the process required to shed obligations for a 
current NAAQS. We do not agree that it is arbitrary or unlawful to hold 
areas that were nonattainment for a revoked NAAQS to the same standards 
that apply to areas that are nonattainment for the current NAAQS.
    Finally, with respect to Earthjustice's comment that the South 
Coast II court's holding regarding reclassification does not support an 
interpretation that the EPA has the authority to alter designations, 
the EPA is not finalizing a change in designation for the area for the 
two revoked NAAQS. Because we are not redesignating the DFW area to 
attainment no further response to this specific comment is required.
    Comment: Earthjustice states that EPA cannot lawfully or rationally 
change DFW's designation under revoked standards.
    Response: The EPA is not changing the designation for the DFW area 
under the 1-hour or 1997 ozone NAAQS in this action. As noted above, 
the designations for these areas were revoked when the NAAQS were 
revoked. In this action, EPA is terminating the anti-backsliding 
requirements associated with the two revoked NAAQS in this area.
    Comment: Earthjustice states that EPA arbitrarily fails to consider 
the consequences of terminating anti-backsliding protections. The 
commenter asserts that the EPA is not legally obligated to redesignate 
an area that meets criteria of CAA section 107(d)(3)(E), and that 
additionally, the EPA must also determine whether it should redesignate 
the area. Earthjustice states that finalization of this Proposal would 
ratify termination of key anti-backsliding protections, particularly 
the Serious area NNSR protections that would otherwise apply to 
proposed new and modified stationary sources and work to impose more 
stringent limits on harmful ozone-forming pollution attributable to 
those new and modified stationary sources. By authorizing DFW to have 
weaker protections than it otherwise would, while still having severely 
harmful levels of ozone air pollution, Earthjustice claims that the 
EPA's action irrationally deprives DFW communities of CAA public health 
protections intended to bring the area expeditiously into compliance 
with health-based ozone standards.
    Response: As stated previously, we are not in this action 
redesignating the DFW area for the revoked NAAQS. Rather, we find that 
all five CAA statutory criteria for redesignation are met, and 
therefore anti-backsliding obligations for the revoked NAAQS are 
appropriately terminated.
    We note that we have considered the consequence of terminating 
anti-backsliding protections specifically raised by the commenter, 
i.e., the Serious classification requirements for NNSR. The commenter 
submitted their comments in a July 24, 2019 letter. In a final rule 
published August 23, 2019 we reclassified the area to Serious for the 
2008 ozone standard (84 FR 44238). Thus, the Serious NNSR and other 
Serious ozone nonattainment requirements apply now and will continue to 
apply after this final rule.\7\
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    \7\ The NNSR requirements in the existing Texas SIP contain a 
provision that cross references the designation of the area to 40 
CFR part 81. See 30 TAC section 101.1(71). Because of the structure 
of this provision, the identification of an area's classification, 
and thus the related major source thresholds and offset ratios, is 
updated without any additional revision to the SIP. The EPA approved 
Texas SIP includes 30 TAC Section 116.12 (Nonattainment and 
Prevention of Significant Deterioration Review Definitions) and 30 
TAC Section 116.150 (New Major Source or Major Modification in Ozone 
Nonattainment Area). These provisions require new major sources or 
major modifications at existing sources in the DFW area to comply 
with the lowest achievable emission rate and obtain emission offsets 
at the Serious classification ratio of 1.2 to 1.
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    Comment: Earthjustice states that unhealthy levels of ozone and 
other air pollutants disproportionally affect communities of color in 
the DFW nonattainment area. Specifically, Earthjustice expressed 
concern about disproportionate impacts on the historic freedman town of 
Joppa, which is located southeast of downtown Dallas. Earthjustice 
includes a document with their submitted comments titled, ``EJSCREEN 
Report (Version 2017),'' dated March 05, 2018. The report shows 
environmental and demographic raw data (e.g., the estimated 
concentration of ozone in the air), and shows what percentile each raw 
data value represents. These percentiles provide perspective on how the 
selected block group (Joppa) compares to the entire State, EPA region, 
and nation. For example, if Joppa is at the 95th percentile nationwide, 
this means that only 5 percent of the US population has a higher block 
group value than the average person in Joppa. The variables included in 
the report are particulate matter (PM), ozone, diesel PM, several 
categories within the National Air Toxics Assessment (NATA),\8\ lead 
paint, wastewater discharge, and proximity to the following: traffic 
and traffic volume; Superfund sites; and Risk Management Plan 
facilities (potential chemical accident management plan). Earthjustice 
states that the weakened NNSR requirements will allow more VOC 
emissions and emissions of listed hazardous air pollutants than 
otherwise would be permitted, and the community of Joppa would bear a 
disproportionate burden of these emissions.
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    \8\ NATA is EPA's ongoing review of air toxics in the United 
States. EPA developed NATA as a screening tool for state, local and 
tribal air agencies. NATA's results help these agencies identify 
which pollutants, emission sources and places they may wish to study 
further to better understand any possible risks to public health 
from air toxics. For more information see https://www.epa.gov/national-air-toxics-assessment.
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    Response: The EPA appreciates the work the commenter has performed 
to evaluate potential disproportionate impacts in vulnerable 
communities; in this final action, however, we are addressing only the 
determination that the DFW area is attaining the revoked standards and 
meets the five criteria for redesignation, which leads to the 
termination of anti-backsliding measures. We note that emissions of PM 
and all other variables in the Commenter's EJSCREEN Report, with the 
exception of ground-level ozone, are outside the scope of this action.
    The EJSCREEN Report provided by the commenter examined the 
geographic distribution of several pollutants and other variables and 
whether the community in Joppa is disproportionately impacted by these 
pollutants and variables. The approvability of this action is based on 
requirements for ozone and the revoked standards being considered here. 
As discussed elsewhere, because EPA reclassified the DFW area to 
Serious for the 2008 ozone NAAQS in 2019, new sources built in the DFW 
area must meet NNSR requirements consistent with the Serious area 
classification (84 FR

[[Page 19100]]

44238), just as they were required to do prior to the approval of the 
redesignation substitute for the 1997 ozone NAAQS. Therefore, 
terminating the NNSR requirements for either of the revoked NAAQS for 
the DFW area has no impact, much less a disproportionate impact. Texas 
will continue to have to work to reduce ozone precursors to meet the 
2008 and 2015 ozone standards. Finally, we note that monitors 
throughout the DFW area have recorded concentrations meeting both the 
1-hour and 1997 ozone standards for some time.\9\
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    \9\ See https://www.epa.gov/air-trends/air-quality-design-values.
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    Comment: Earthjustice states that EPA arbitrarily concludes that 
relevant statutory and executive order reviews are not required for 
this rule and EPA wrongly asserts that the proposed action would only 
accomplish a revision to the Texas SIP that EPA can only approve or 
disapprove. Earthjustice states that through this rule, EPA proposes to 
change and adopt national positions regarding its authority to 
redesignate areas under CAA section 107(d)(3)(E) and terminate anti-
backsliding protections for revoked standards. Earthjustice states 
these actions are not SIP revisions and thus necessitate the statutory 
and executive order reviews EPA avoids by citing only a portion of the 
actions it is taking in this rulemaking. Earthjustice states that, in 
addition to the environmental justice concerns relevant to the review 
required by Executive Order 12898, EPA ignores other important 
considerations that are a part of rational decision-making like effects 
on children's health and other public health factors.
    Response: As stated previously, we are not in this action 
redesignating the DFW area for the two revoked NAAQS. Earthjustice has 
not provided much detail regarding which statutory and executive order 
reviews it believes are applicable and that the EPA has not addressed. 
In section V of this notice, we discuss EPA's assessment of each 
statutory and executive order that potentially applies to this action. 
We note that the introductory paragraph to section V of the Proposal 
preamble contains a typographical error that may have caused some of 
the commenter's concern. The last sentence of that paragraph appears to 
indicate that the reason for EPA's proposed assessment that the action 
is exempt from the enumerated statutory and executive orders is solely 
that the action is a review of a SIP. However, that sentence was 
intended to be inclusive of all the reasons stated in the introductory 
paragraph, including that the approval of the request to terminate 
anti-backsliding does not impose new requirements on sources (i.e., 
``For that reason'' more appropriately would have read ``For these 
reasons'').
    With respect to the commenter's concern that EPA has not adequately 
addressed environmental justice, we do not agree that Executive Order 
12898 applies to this action because this action does not affect the 
level of protection provided to human health or the environment. In 
this action the level of protection is provided by the ozone NAAQS and 
this action does not revise the NAAQS. As noted earlier in this final 
action, the DFW area will remain designated nonattainment for the 2008 
and 2015 ozone NAAQS. The DFW area was recently reclassified as a 
Serious nonattainment area for the 2008 ozone NAAQS, and therefore the 
State must submit SIP revisions and implement controls to satisfy the 
statutory and regulatory requirements for a Serious area for the 2008 
ozone standard.\10\
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    \10\ See 83 FR 25576 and 84 FR 44238.
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    With respect to commenter's concern that we have not adequately 
addressed executive orders regarding children's health, we do not agree 
that Executive Order 13045 applies to this action. Executive Order 
13045 applies to ``economically significant rules under E.O. 12866 that 
concern an environmental health or safety risk that EPA has reason to 
believe may disproportionately affect children.'' See 62 FR 19885, 
April 23, 1997. As noted in the Proposal and below in section V of this 
preamble, this rule is not ``economically significant'' under E.O. 
12866 because it will not have ``an annual effect on the economy of 
$100 million or more or adversely affecting 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.'' 62 FR 19885.\11\
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    \11\ See also ``Guide to Considering Children's Health When 
Developing EPA Actions: Implementing Executive Order 13045 and EPA's 
Policy on Evaluating Health Risks to Children.'' https://www.epa.gov/children/guide-considering-childrens-health-when-developing-epa-actions-implementing-executive-order.
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    Comment: Earthjustice states that EPA should not revise the 
attainment designations in 40 CFR 81 because it has failed to consider 
the consequences of doing so, including whether changes in the 
designations listing will affect remaining maintenance plan and other 
requirements after redesignation.
    Response: In this action, we are not revising the designations for 
the DFW area for the two revoked ozone NAAQS, and therefore the 
comments regarding consequences of changing the area's designation are 
beyond the scope of this final action. We are revising the 40 CFR part 
81 tables for the DFW area, which currently reflect the approvals of 
the area's redesignation substitute from 2016. For revoked standards, 
the sole purpose of the part 81 table is to help identify applicable 
anti-backsliding obligations. Therefore, we are revising the part 81 
tables to reflect that the DFW area has met all the redesignation 
criteria for the two revoked ozone NAAQS and therefore anti-backsliding 
obligations associated with those two revoked NAAQS are terminated.
    Comment: Earthjustice states the DFW area did not attain by its 
Serious area attainment date for the 1997 8-hour ozone NAAQS and EPA 
didn't reclassify the area to Severe nonattainment, as required by CAA 
section 181(b)(2). Earthjustice states that EPA thus has overdue legal 
obligations to reclassify the DFW area to Severe under the 1997 ozone 
standard in line with the D.C. Circuit's South Coast II decision. 
Earthjustice states that our Proposal cannot proceed without the 
programs for the DFW area to address the CAA section 185 failure to 
attain fee program \12\ and the CAA section 182(d)(1) vehicle miles 
traveled (VMT) program.\13\ Earthjustice also states that EPA has an 
overdue legal obligation to promulgate a Federal Implementation Plan 
(FIP) for these programs in the DFW area.
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    \12\ The CAA section 185 fee program requirements apply to ozone 
nonattainment areas classified as Severe or Extreme that fail to 
attain by the required attainment date. It requires each major 
stationary source of VOC or NOX located in an area that 
fails to attain by its attainment date to pay an annual fee to the 
state for each ton of VOC or NOX the source emits in 
excess of 80 percent of a baseline amount. The fees are paid until 
the area is redesignated to attainment or in the case of a revoked 
ozone standard, until the anti-backsliding obligations for the 
revoked standard area terminated.
    \13\ The 182(d)(1) VMT program (CAA section 182(d)(1)(A)) 
applies to ozone nonattainment areas classified as Severe or 
Extreme. It requires such areas to offset growth in emissions due to 
growth in VMT, reduce motor vehicle emissions as necessary to comply 
with RFP requirements, and choose from among and implement 
transportation control strategies and transportation control 
measures as necessary to demonstrate NAAQS attainment.
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    Response: To respond to this comment, it is useful to recount the 
complicated history leading up to this action. The attainment deadline 
for the DFW Serious area for the 1997 ozone NAAQS was June 15, 2013 
(see 75 FR 79302 (December 20, 2010)). EPA proposed to determine that 
the DFW area failed to attain by the June 15, 2013 attainment date and 
to reclassify the

[[Page 19101]]

DFW area to Severe under the 1997 ozone NAAQS based upon monitoring 
data for 2010-2012 (80 FR 8274, February 17, 2015). Less than a month 
later, EPA revoked the 1997 8-hour ozone standard along with the 
associated designations and classifications effective on April 6, 2015 
(80 FR 12264, 12296; March 6, 2015). It was EPA's interpretation at the 
time that we could not revise the classification of an area under a 
revoked ozone NAAQS and reclassification of an area upon its failure to 
attain by the attainment date was not retained as a regulatory anti-
backsliding measure (80 FR 12264, 12297; March 6, 2015). Therefore, EPA 
did not finalize the February 2015 reclassification proposal. Beginning 
with the time period 2012-2014, monitored levels in the DFW area have 
met the revoked 1997 ozone standard. We proposed to make a clean data 
determination on April 28, 2015 (80 FR 23487) and we finalized that 
clean data determination in September 2015 (see 80 FR 52630), based 
upon the 2012-2014 monitoring data. A clean data determination suspends 
the requirement to submit SIPs that are designed to help an area 
achieve attainment, such as demonstrations of how an area will attain 
(attainment demonstrations) and showings of reasonable further progress 
to attainment, because the stated purpose of those elements will have 
already been fulfilled for an area that is attaining the standard. The 
current preliminary 2017-2019 design value for the area is 77 ppb as 
air quality has continued to improve in the DFW area.
    On February 16, 2018, in the South Coast II decision, the D.C. 
Circuit determined that EPA erred in waiving the obligation to 
reclassify an area to a higher classification for the 1997 ozone NAAQS 
based on a failure to meet the 1997 attainment deadlines and as such 
EPA should continue to reclassify areas if they fail to attain the 
revoked 1997 standard. The court also vacated the portion of the rule 
that provided for the ``redesignation substitute'' approach to 
terminating anti-backsliding measures. As discussed elsewhere, the 
court made clear that anti-backsliding measures could only be 
terminated if all five criteria for redesignation under CAA section 
107(d)(3)(E) have been met. At the time of the South Coast II decision, 
the DFW area had been monitoring attainment of the revoked 1997 ozone 
standard for four years, and had obtained redesignation substitutes for 
both revoked ozone NAAQS in 2016 (81 FR 78688, November 8, 2016).
    In response to the court decision, Texas moved quickly to address 
the court's concerns regarding the redesignation substitutes that had 
been approved for the DFW area. Within 13 months of the South Coast II 
decision, Texas proposed and finalized at the state-level a 
demonstration that all five statutory criteria for redesignation for 
each of the revoked NAAQS had been met, including the preparation of a 
SIP revision to address maintenance of both NAAQS for the area through 
2032. In this action, we are determining the DFW area has met the five 
CAA criteria for redesignation for both NAAQS and therefore we are 
terminating all anti-backsliding obligations for those NAAQS.
    The commenter discusses two specific anti-backsliding measures 
associated with a Severe classification, the CAA section 185 failure to 
attain fee program and the CAA section 182(d)(1) VMT program. 
Earthjustice states that this proposal cannot proceed without such 
programs for the DFW area, because in commenter's view, the programs 
are required because EPA ``still has never addressed its failure to 
reclassify the area to severe.''. To require these programs at this 
time, however, when the area has met the 1997 standard for more than 
five years and the State has provided a demonstration that all five 
criteria for redesignation have been met, including a maintenance plan 
demonstrating that the area will continue to meet the standard for 10 
more years, would be an unnecessary and unproductive exercise. The D.C. 
Circuit's rationale in requiring EPA to continue to reclassify areas 
under a revoked NAAQS and consequently impose more stringent emission 
controls, like those cited by commenters, was in service of 
``constrain[ing] ozone pollution'' in order to attain that NAAQS. South 
Coast II, 882 F.3d at 1147 (``If EPA were allowed to remove the 
[attainment] deadlines * * * a state could go unpenalized without ever 
attaining the NAAQS.'') (emphasis added).
    Moreover, even if EPA were to make a determination today that the 
DFW area failed to attain by its 2013 Serious area attainment date and 
to reclassify the DFW area to Severe, that determination alone would 
not immediately render Texas in default of the section 185 fee program 
and the section 182 VMT requirements, as commenters suggest. When EPA 
makes a determination that an area has failed to attain and 
reclassifies that area, the Act prescribes that the Administrator may 
establish new deadlines for the submission of SIPs to meet the 
requirements of the new classification. CAA section 182(i). So were EPA 
to make such a determination, we would establish some period of time 
for Texas to submit the section 185 fee program and the VMT programs. 
Under EPA's longstanding interpretation of the CAA 107(d)(3)(E) 
criteria, states requesting redesignation to attainment must meet only 
the applicable requirements of the Act that come due prior to the 
submittal of a complete redesignation request. See September 4, 1992 
Calcagni memorandum at 2. (``For purposes of redesignation, a State 
must meet all requirements of section 110 and Part D that were 
applicable prior to submittal of the complete redesignation request. 
When evaluating a redesignation request, Regions should not consider 
whether the State has met requirements that come due under the Act 
after submittal of a complete redesignation request.''); September 17, 
1993 Michael Shapiro memorandum.\14\ (``Specifically, before EPA can 
act favorably upon any State redesignation request, the statutorily-
mandated control programs of section 110 and part D (that were due 
prior to the time of the redesignation request) must have been adopted 
by the State and approved by EPA into the SIP'') (emphasis added). 
Given that for a revoked NAAQS EPA is using the five statutory 
redesignation criteria to determine whether anti-backsliding should be 
terminated, we think it is reasonable to apply the same interpretations 
that we would in the redesignation context. Here, EPA never finalized a 
reclassification of the DFW area to Severe and never established SIP 
submission deadlines for Texas to submit a 185 program or a VMT 
program. Even if we were to do so now, because Texas has already 
submitted its demonstration that it is meeting all five statutory 
redesignation criteria and its request to terminate the area's anti-
backsliding for the 1997 ozone NAAQS, under EPA's long-standing 
interpretation of the 107(d)(3)(E) criteria, those SIP programs are not 
within the scope of requirements considered by EPA in evaluating 
whether the criteria have been met.
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    \14\ See the September 17, 1993 memorandum from Michael Shapiro, 
``State Implementation Plan (SIP) Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or 
after November 15, 1992'' at https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2_old/19930917_shapiro_sips_redesignation_ozone_co_naa.pdf.
---------------------------------------------------------------------------

    Other states have faced somewhat similar situations in the past. 
One analogous example is the St. Louis area, which was designated as a 
Moderate ozone nonattainment area for the 1979 1-hour ozone NAAQS. This 
area failed to attain by its attainment date, and EPA

[[Page 19102]]

did not timely issue its determination of that fact. Petitioners 
challenging EPA's eventual determination that the area did not attain 
attempted to argue that EPA had de facto made the determination years 
earlier than its actual 2001 rulemaking, via statements made in a 
letter to the Governor suggesting that air quality problems remained 
after the area's attainment date or by the negative implication of not 
having included the St. Louis area on a list of areas that had attained 
by the attainment date. The D.C. Circuit ruled that neither of these 
actions constituted the requisite determination of whether the area 
attained, agreeing with the Agency that ``if there has not been a 
rulemaking there has not been an attainment determination.'' See Sierra 
Club v. Whitman, 285 F.3d 63, 66 (D.C. Cir. 2002). Nor did the court 
endorse environmental petitioners' claim that EPA's 2001 determination 
that St. Louis failed to attain should be ``converted to the date the 
statute envisioned [i.e., 1997], rather than the actual date of EPA's 
action.'' Id. at 68. The court ruled that the Administrative Procedure 
Act prohibits retroactive rulemaking, that there is no indication that 
Congress intended the CAA to be an exception to that prohibition, and 
that back-dating the effective date of EPA's determination of failure 
to attain would be arbitrary. See id. Specifically, the court stated, 
``Although EPA failed to make the nonattainment determination within 
the statutory time frame, Sierra Club's proposed solution only makes 
the situation worse. Retroactive relief would likely impose large costs 
on the States, which would face fines and suits for not implementing 
air pollution prevention plans in 1997, even though they were not on 
notice at the time.'' Id.
    The situation faced in the St. Louis 1-hour ozone nonattainment 
area resembles the current situation in the DFW area in another way. 
That is, after EPA issued the determination that St. Louis had failed 
to attain by the Moderate attainment deadline and reclassified the area 
to Serious, the St. Louis area came into attainment of the NAAQS and 
submitted its request to be redesignated prior to the deadlines to 
submit the Serious area requirements associated with the 
reclassification. In evaluating Missouri's request to redesignate St. 
Louis, EPA followed its longstanding interpretation of CAA section 
107(d)(3)(E) and evaluated the redesignation based on whether the state 
had all of its required Moderate SIPs approved, but not based on 
whether the state had submitted and EPA had approved Serious area 
plans. Petitioners challenged this precise issue, arguing that Missouri 
was required to have submitted the Serious area requirements for the 
St. Louis area before it was permitted to move on to redesignation. See 
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). The court flatly 
rejected petitioners' position. The 7th Circuit recognized that St. 
Louis was required to have been bumped up and treated as a Serious 
nonattainment area, and therefore subject to the more stringent 
requirements of that classification such as requiring sources of more 
than 50 tons (rather than 100 tons) of precursor chemicals to install 
control measures, but that there would be ``some lead time'' for 
covered sources to limit their emissions. Id. And, ``[b]efore that time 
arrived, St. Louis met the national ozone standard,'' and the court 
viewed this as a critical point. See id. It agreed with EPA that a 
reasonable interpretation of CAA section 107(d)(3)(E) was to adjudge 
St. Louis' redesignation request based on ``whatever actually was in 
the plan and already implemented or due at the time of attainment.'' 
Id. At the heart of the court's disagreement with petitioners was the 
petitioners' view that reclassification ``was some sort of 
punishment;'' whereas the court interpreted Congress' reclassification 
requirements as an instruction to reclassified areas ``to take 
additional steps . . . to achieve an adequate reduction in ozone, [so] 
it would be odd to require them even when they turned out to be 
unnecessary.'' Id. In the court's view, ``[r]eclassification was a 
combination of (a) goad (clean up or suffer expensive measures), and 
(b) palliative (sterner measures expedite compliance). Once an area has 
meet [sic] the national air quality standard, neither rationale calls 
for extra stringency; indeed the statutory system would not be much of 
a goad if the tighter controls must continue even after attainment.'' 
Id. at 542.
    The St. Louis example is therefore informative to the current DFW 
situation in two ways. First, it suggests that the section 185 fee 
program SIP and the VMT SIP are not required submissions until EPA 
promulgates a rulemaking finding that the DFW area failed to attain by 
its attainment date and reclassifies the area and that such finding 
cannot be inferred without actual agency action. See Sierra Club v. 
Whitman, 285 F.3d at 66. Second, the St. Louis history indicates that 
even if EPA were to promulgate a finding today that the DFW area failed 
to attain by its 2013 attainment date, the evaluation being undertaken 
in this current action of whether the DFW area has met the statutory 
criteria for redesignation would not include the section 185 fee 
program or the VMT requirements, because the deadlines to submit those 
requirements would necessarily be established in the future, and Texas' 
March 29, 2019 request to terminate its anti-backsliding obligations 
for the DFW area under the 1997 ozone NAAQS would therefore pre-date 
any such deadlines.
    Additionally, with respect to 185 fees, we note that the Act is 
explicit that the program begins if a Severe or Extreme area is found 
to have failed to attain by the applicable attainment deadline for 
those classifications. See CAA Sec.  185(a) (noting that the program 
will apply ``if the area . . . has failed to attain the [NAAQS] for 
ozone by the applicable attainment date''). The earliest possible 
Severe attainment deadline under the Act would have been June 15, 2019. 
As the DFW area attained the 1997 ozone standard long before any Severe 
attainment deadline, fees would never be collected for failure to 
attain the 1997 ozone standard. To require the State to submit a 
program that could never be triggered does not serve the ultimate goal 
of the CAA, which is to have areas attain the various NAAQS that EPA 
establishes as expeditiously as practicable, not to create unnecessary 
paperwork exercises that could never achieve any environmental benefit.
    With respect to the CAA section 182(d)(1)(A) VMT requirements, we 
note that such programs generally contain three elements: (1) Specific 
enforceable transportation control strategies and transportation 
control measures to offset any growth in emissions from growth in 
vehicle miles traveled or numbers of vehicle trips in the Severe 
nonattainment area, (2) reduction in motor vehicle emissions as 
necessary (in combination with other emission reduction requirements) 
to comply with the reasonable further progress requirements of the Act, 
and (3) adoption and implementation of measures specified in section 
108(f) of the Act as necessary to demonstrate attainment of the NAAQS. 
Even if EPA had promulgated a final determination that the DFW area 
failed to attain in 2013, or if EPA were to promulgate such a 
determination today, the Agency's action in 2015 clean data 
determination finding that the DFW area was attaining the NAAQS \15\ 
would have the effect of

[[Page 19103]]

suspending the second and third elements--the RFP and attainment 
elements of the section 182(d)(1)(A) VMT SIP requirements.\16\ As noted 
above, a clean data determination suspends the requirement to submit 
attainment-related planning SIPs for so long as the area continues to 
attain, and those requirements are permanently terminated when EPA 
finds that the redesignation criteria have been met. Therefore, even if 
we had reclassified the DFW area to Severe for the 1997 ozone NAAQS or 
were to do so now, and the first element of the VMT SIP at that point 
became or would become a required submission, these latter two VMT 
elements would not have been required to be submitted due to the clean 
data determination for the 1997 ozone NAAQS, and they are terminated 
now because the DFW area has met the CAA five criteria for 
redesignation.
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    \15\ 80 FR 52630, 52631 (September 1, 2015) (``Finalizing the 
CDD suspends the requirements for the TCEQ to submit an attainment 
demonstration or other SIPs related to attainment of the 1997 ozone 
NAAQS in the DFW area for so long as the area is attaining the 
standard (40 CFR 51.1118)'').
    \16\ ``Reasonable Further Progress, Attainment Demonstration, 
and Related Requirements for Ozone Nonattainment Areas Meeting the 
Ozone National Ambient Air Quality Standard'' Memorandum from John 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995. To view the memo please visit https://www.epa.gov/ground-level-ozone-pollution/reasonable-further-progress-attainment-demonstration-and-related.
---------------------------------------------------------------------------

    If the State were now required to address section 182(d)(1)(A)'s 
first element, the requirement to offset any growth in emissions from 
growth in VMT or numbers of vehicle trips, following a bump up to a 
Severe classification, the first step would be to determine if there 
had been an increase in motor vehicle emissions in the area due to 
growth in VMT or vehicle trips between the base year used in SIP 
planning and 2014, the area's attainment year. As EPA has explained in 
its guidance on the VMT offset element,\17\ it would only be necessary 
to adopt and implement a program of offsetting transportation control 
measures or other transportation control strategies if it is determined 
that there had been an increase in motor vehicle emissions due to 
increase in VMT or vehicle trips during that period. Again, however, 
because the area has not been reclassified as a Severe nonattainment 
area, no analysis of whether there has been such an increase in 
emissions from growth in VMT is required under the Act, no 
determination regarding such an analysis has been made or is required, 
and consequently no requirement to offset any such undetermined growth 
in emissions through implementation of TCMs has been triggered. 
Therefore, it is flatly incorrect for the commenter to assert that a 
Severe area VMT program must be implemented before EPA can take final 
action in this rule.
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    \17\ See page 7 of ``Implementing Clean Air Act Section 
182(d)(1)(A): Transportation Control Measures and Transportation 
Control Strategies to Offset Growth in Emissions Due to Growth in 
Vehicle Miles Travelled'', Office of Transportation and Air Quality, 
EPA-420-B-12-053, August 2012. This guidance is available at https://nepis.epa.gov/Exe/ZyPDF.cgi/P100EZ4X.PDF?Dockey=P100EZ4X.PDF.
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    The commenter additionally argues that EPA has an overdue legal 
obligation to promulgate a FIP for the 185 fee and VMT programs. EPA 
has no authority to issue a FIP for these Severe area requirements. We 
have authority to promulgate a FIP only after we (1) find that a State 
has failed to make a required SIP submission or find that the SIP 
submission does not satisfy the minimum criteria found in 40 CFR 51, 
Appendix V (a ``finding of failure to submit'') or (2) disapprove a SIP 
submission in whole or in part. After making such a finding or 
disapproving a SIP submission we are required to promulgate a FIP 
within 2 years unless we approve a SIP submission that corrects the 
deficiency. See CAA section 110(c)(1). We have not made a finding of 
failure to submit for a 185 fee or VMT program nor have we disapproved 
a SIP revision addressing either of these programs for the DFW area. 
Thus, we do not have the authority to promulgate a FIP for these 
programs in the DFW area.\18\
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    \18\ Although the commenter does not explicitly argue for this, 
they seem to suggest that EPA should consider the VMT and 185 fee 
programs as having already been due in the past and Texas to be 
delinquent in submitting such programs, even though EPA never 
finalized a reclassification for the DFW area. Because of the 
complexity of the CAA's SIP provisions and the interrelationship 
between federal and state action, the EPA believes it is 
inappropriate to impose any retroactive effect on decisions in a 
manner that would create deadlines that have long passed. EPA has 
historically refused to do this, and courts have supported this 
position. See, e.g., Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 
2002).
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    Comment: Earthjustice states that EPA arbitrarily flouts important 
considerations relevant to this rulemaking, and states that this 
action's consequences on interstate and intrastate ozone transport are 
not considered. Earthjustice states that EPA failed to consider how 
redesignation will affect Texas' interstate ozone transport obligations 
under existing regulations and how redesignation of the DFW area will 
affect attainment in other Texas areas, such as San Antonio and 
Houston, both of which struggle with existing ozone pollution and are 
in nonattainment for several standards. Earthjustice states EPA must 
consider the interstate and intrastate consequences of redesignating 
and relaxing anti-backsliding controls in the DFW area.
    Response: We are not redesignating the DFW area for the revoked 1-
hour and 1997 ozone NAAQS. We disagree that EPA is required under the 
CAA to consider the effect of this action on interstate and intrastate 
ozone transport before it may terminate the DFW area's anti-backsliding 
requirements with respect to the two revoked ozone NAAQS in question, 
and we do not agree that such considerations are relevant to this 
rulemaking. At the outset, we note that the State is projecting DFW 
area ozone precursor emissions will decrease, reducing the DFW area's 
impact on other areas.
    Interstate ozone transport is addressed under CAA section 
110(a)(2),\19\ and Texas' interstate transport obligations under the 
Act are not in any way altered by this action. To the extent that Texas 
has outstanding interstate ozone transport obligations under CAA 
section 110(a)(2)(D), they remain obligated to address those statutory 
requirements after finalization of this action.
---------------------------------------------------------------------------

    \19\ See ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. 
This document is available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
---------------------------------------------------------------------------

    The TCEQ has also adopted Serious Area attainment plans for the 
Houston and DFW areas for the 2008 8-hour ozone standard, and those 
submittals--including any obligation to address intrastate transport as 
necessary to attain the NAAQS--will also be evaluated in separate 
actions.
    Comment: Earthjustice states that EPA's Proposal leaves important 
modeling questions unaddressed. Earthjustice states EPA predicts that 
point source NOX emissions will increase slightly between 
2014 and 2020, then expects these NOX emissions to remain 
identical until 2032. In its TSD, EPA does not explain how it arrived 
at its modeling prediction and given the tremendous growth of 
industrial facilities in the Dallas area due, in part, to oil and gas 
extraction activities it is difficult to see how this prediction holds. 
Similarly, EPA fails to explain how VOC emissions from point sources 
will remain essentially identical between 2014 and 2032. Earthjustice 
also questions whether these predictions are technically sound or with 
a ``margin of error'' that might result in putting the Dallas area in 
nonattainment for either or both standards if future relaxed new source 
review permit controls are put in place.
    Response: As described in our Proposal and TSD, EPA evaluated the

[[Page 19104]]

emission inventories (EIs) submitted by the State in its Maintenance 
Plan and we found the State's approach and methods of calculating the 
base year and future year EIs appropriate.\20\ We disagree that we or 
the State did not provide an explanation for holding the point source 
VOC emissions constant for the projection years for the purposes of 
demonstrating that the standard would be maintained. As TCEQ explains 
in its SIP, it was following EPA guidance (noting that emissions trends 
for ozone precursors have generally declined) and thus, for planning 
purposes, TCEQ found it reasonable to hold point source emissions 
constant, rather than show such emissions as declining.\21\ For 
projection year EIs, TCEQ designated the 2016 EI as the baseline from 
which to project future-year emissions because using the most recent 
point source emissions data would capture the most recent economic 
conditions and any recent applicable emissions controls. As TCEQ 
further describes in its SIP, TCEQ noticed that the 2014 attainment 
year VOC emissions are higher than future-year emissions projected from 
the sum of the 2016 baseline emissions plus available emission 
credits.\22\ Therefore, future point source VOC emissions were 
projected by using the 2014 values as a conservative estimate for all 
future interim years. This approach is consistent with EPA's EI 
Guidance document at 21.
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    \20\ See https://www.epa.gov/moves/emissions-models-and-other-methods-produce-emission-inventories#locomotive.
    \21\ See EPA's ``Emissions Inventory Guidance for Implementation 
of Ozone and Particulate Matter National Ambient Air Quality 
Standards (NAAQS) and Regional Haze Regulations'' published May 
2017, EPA-454/b-17-002. Section 5, beginning on p. 119 of this 
Guidance document addresses Developing Projected Emissions 
Inventories. This Guidance document is available on EPA's website at 
https://www.epa.gov/air-emissions-inventories/air-emissions-inventory-guidance-documents.
    \22\ Not to be confused with the 2016 baseline and as noted 
earlier in this action, the 2014 base year EIs for NOX 
and VOC represent the first year in which the DFW area is attaining 
both the 1-hour and 1997 ozone NAAQS and thus, the 2014 EI is also 
called the attainment inventory. The 2014 attainment inventory 
provides a starting point against which to evaluate the EI levels 
estimated for future years.
---------------------------------------------------------------------------

    For point source NOX emissions, TCEQ took a different 
approach that is also conservative and fully explained in the SIP 
submittal. We disagree that there is any disparity. As explained in the 
SIP submittal, TCEQ held the most recent year (2016) emissions constant 
and accounted for growth through adjustments for cement kilns.\23\ Each 
of the interim year NOX EIs were adjusted to account for 
available, unused emissions credits. TCEQ also assumed that additional 
emissions would occur based on the possible use of emission credits, 
which are banked emissions reductions that may return to the DFW area 
in the future through the use of emission reduction credits (ERCs) and 
discrete emissions reduction credits (DERCs). All banked (i.e., 
available for use in future years) and recently-used ERCs and DERCs 
were added \24\ to the future year inventories. We believe this is a 
conservative estimate because historical use of the DERC has been less 
than 10 percent of the projected rate--including all the banked ERCs 
and DERCs in the 2020 inventory assumes a scenario where all available 
banked credits would be used in 2020, which is inconsistent with past 
credit usage.
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    \23\ Recently authorized emission limits from permits, consent 
decrees, and agreed orders were used to project emissions, which is 
a representative and conservative approach to emissions growth.
    \24\ The ERCs were divided by 1.15 before being added to the 
future year EIs to account for the NNSR permitting offset ratio for 
Moderate ozone nonattainment areas. Since the area is now classified 
as a Serious ozone nonattainment area however, any ERCs actually 
used will have to be divided by 1.2. See the SIP submittal for more 
specific detail on how Texas assumed and calculated the ERC and DERC 
use for the future EI years.
---------------------------------------------------------------------------

    Despite the conservative assumptions for point source growth, the 
total emissions estimated by the State for all anthropogenic sources of 
NOX and VOC in the DFW area for 2020, 2026, and 2032 are 
lower than those estimated for 2014 (the attainment inventory year). 
Consistent with the Calcagni Memorandum regarding a Maintenance 
Demonstration, ``[a] State may generally demonstrate maintenance of the 
NAAQS by either showing that future emissions of a pollutant or its 
precursors will not exceed the level of the attainment inventory or by 
modeling to show that the future mix of sources and emission rates will 
not cause a violation of the NAAQS.'' Calcagni memorandum at 2. Because 
the State's estimated future EIs for the DFW area do not exceed the 
2014 attainment year EI, we do not expect the area to have emissions 
sufficient to cause a violation of the 1-hour or 1997 ozone NAAQS.
    In addition, NNSR offsets will continue to be required in the DFW 
area addressed in this action because all nine counties are also 
designated nonattainment, and currently classified as Serious, under 
the 2008 ozone NAAQS.\25\ The required NNSR offset for the DFW area at 
this time is 1.2:1 for sources emitting at least 50 tons per year, 
consistent with the Serious area requirements provided in CAA section 
182(c)(10). Whether a new or modified major source in the DFW area 
chooses to offset NOX or VOC or a combination of the two, 
the offsets must be made in the same ozone nonattainment area.
---------------------------------------------------------------------------

    \25\ Wise County is also included in the DFW Serious 
nonattainment area under the 2008 ozone NAAQS (84 FR 44238).
---------------------------------------------------------------------------

    Finally, despite population and economic growth, emissions of 
NOX and VOC in the DFW area have been decreasing since 1990. 
Emissions of NOX in the DFW area have dropped from 
approximately 587.93 tons per day (tpd) (1990 base year under the 1-
hour ozone NAAQS) to 442.08 tpd (2011 base year under the 2008 ozone 
NAAQS) and emissions of VOC have dropped from approximately 771.02 tpd 
(1990 base year) to 475.65 tpd (2011 base year) \26\ See 59 FR 55586, 
November 8, 1994, and 80 FR 9204, February 20, 2015.\27\ The DFW SIP 
must be further revised to meet the emission reductions required by CAA 
section 182(c)(2)(B) for the Serious ozone nonattainment classification 
under the 2008 ozone NAAQS.\28\ This progress reflects efforts by the 
State, area governments and industry, federal measures, and others.\29\
---------------------------------------------------------------------------

    \26\ The 1990 base year includes 126.09 tpd in biogenic VOC 
emissions. Biogenic emissions, i.e., emissions from natural sources 
such as plants and trees, are not required to be included in the 
2011 base year.
    \27\ We approved the area's Reasonable Further Progress (RFP) 
plan for the Moderate ozone NAAQS under the 2008 ozone NAAQS showing 
15% emission reductions from 2011 through the attainment year 
(2017), plus an additional 3% emission reductions to meet the 
contingency measure requirement.
    \28\ The State recently adopted a SIP revision to meet RFP 
Serious area requirements for the DFW area with an additional 
average of 3% emission reductions from 2017 through the attainment 
year (2020), plus an additional 3% emissions reductions to meet the 
contingency measure requirement (see https://www.tceq.texas.gov/airquality/sip/dfw/dfw-latest-ozone for the State's Serious area 
RFP). See also 84 FR 44238.
    \29\ See also https://www.epa.gov/clean-air-act-overview/progress-cleaning-air-and-improving-peoples-health.
---------------------------------------------------------------------------

    Comment: Earthjustice states the DFW area did not meet its Moderate 
attainment date under the 2008 NAAQS and EPA will reclassify the area 
to Serious nonattainment. Commenter states that once EPA completes that 
action, ``the new source review requirements will snap back to serious 
area level and other serious areas requirements will again apply.'' 
This will cause the area's NSR requirements to ``roller coaster'' to no 
purpose. The commenter adds that if EPA insists on finalizing the 
proposal, it should wait to do so until after it reclassifies the DFW 
area.
    Response: EPA appreciates the commenter's attention to this process 
detail. We reclassified the DFW area to Serious under the 2008 8-hour 
ozone

[[Page 19105]]

NAAQS effective September 23, 2019 (84 FR 44238). Therefore, the 
commenter's concern that we should wait to finalize our proposal until 
the area is reclassified under the 2008 NAAQS is satisfied.
    Comment: Earthjustice asserts that EPA must either create 
regulations to authorize termination of anti-backsliding protections 
when certain conditions are met or reverse its duly adopted, nationally 
applicable position that EPA lacks authority to redesignate areas under 
revoked standards. Earthjustice states that either action would be 
reviewable exclusively in the D.C. Circuit. Earthjustice further 
asserts that even if aspects of EPA's action constitute a locally or 
regionally applicable action that overbears the nationally applicable 
aspects of the action, Earthjustice believes that EPA's action would 
still be ``based on a determination of nationwide scope and effect'' 
(citing CAA section 307(b)(1)). Earthjustice asserts that ``EPA 
expressly proposed in its FR publication to base action on that 
determination (via either pathway),'' but also states that if a more 
specific finding and publication were necessary, that EPA is obligated 
to make the finding and publish it because EPA's action here is a 
determination of nationwide scope and effect. The commenter concludes 
that the venue for judicial review of this action therefore necessarily 
lies in the D.C. Circuit.
    Response: First, as noted earlier, the EPA is not in this action 
changing DFW's designation, so Earthjustice's comments on that point 
are beyond the scope of this final action. Second, we disagree that 
promulgation of a regulation authorizing the action taken here is 
necessary or being undertaken in this notice. As mentioned earlier in 
this final action, we believe the D.C. Circuit's decision in South 
Coast II regarding the vacatur of the redesignation substitute 
mechanism made clear that under the CAA, areas may shed anti-
backsliding controls where all five redesignation criteria are met. 
Through this final action, we are replacing our previous approvals of 
the redesignation substitutes for the DFW area for the revoked 1979 1-
hour and 1997 ozone NAAQS, because that mechanism was rejected by the 
D.C. Circuit for its failure to include all five statutory 
redesignation criteria. Per the D.C. Circuit's direction, this action 
examines all five criteria, finds them to be met in the DFW area, and 
terminates the relevant anti-backsliding obligations for the DFW area, 
thereby replacing the prior invalid approvals for the DFW area. We do 
not agree that given the circumstances here, the parties must wait for 
EPA to promulgate a national regulation codifying what the D.C. Circuit 
has already indicated the CAA allows before we may replace the 
redesignation substitutes for the DFW area.
    As such, we do not agree that this action is reviewable exclusively 
in the D.C. Circuit. See CAA section 307(b)(1). To the extent the 
commenter is asserting otherwise, we do not agree that this is a 
``nationally applicable'' action under CAA section 307(b)(1). This 
final action approves a request from the State of Texas to find that 
the State has met all five of the statutory criteria for redesignation 
under CAA section 107(d)(3)(E) for the DFW area and it approves the 
submitted CAA section 175A(d) maintenance plan for the DFW area into 
the Texas SIP. The legal and immediate effect of the action terminates 
anti-backsliding controls for only the DFW area with respect to two 
revoked NAAQS and amends the 40 CFR part 81 tables accordingly for only 
the DFW area. Nothing in this action has legal effects in any area of 
the country outside of the DFW area or Texas on its face. See Dalton 
Trucking, Inc. v. EPA, 808 F.3d 875, 881 (D.C. Cir. 2015) (``To 
determine whether a final action is nationally applicable, `this Court 
need look only to the face of the rulemaking, rather than to its 
practical effects.''' (internal citations omitted)). The fact that this 
is the second area in the country for which EPA will have approved 
termination of anti-backsliding per CAA requirements after South Coast 
II does not entail that the action itself is ``nationally applicable.''
    Earthjustice next contends that even if it is true that EPA's final 
action is not nationally applicable but is locally or regionally 
applicable, that judicial review of this action should still reside in 
the D.C. Circuit because EPA's action is based on a determination of 
nationwide scope or effect. The commenter alleges that ``EPA has 
expressly proposed in its FR publication to base action on that 
determination (via either pathway).'' This is plainly untrue. Nowhere 
in the Proposal or in this final action did EPA make a finding that the 
action is based on a determination of nationwide scope or effect. The 
requirements under CAA section 307(b)(1) that would allow for review of 
a locally or regionally applicable action in the D.C. Circuit--i.e., 
that EPA makes a finding that the action is based on a determination of 
nationwide scope or effect and that EPA publishes such a finding--have 
not been met. See Dalton Trucking, 808 F.3d at 882.
    Comment: The TCEQ states that our past failure to provide for a 
legally valid mechanism for termination of anti-backsliding obligations 
for revoked standards has created uncertainty and our reluctance to 
redesignate for the revoked standards creates severe economic 
consequences for the public, regulated industry, and states. TCEQ added 
that (1) certainty on the issue of how the EPA must act to remove anti-
backsliding requirements is an absolute necessity for states, 
potentially impacted regulated businesses, and citizens and (2) 
continued implementation of programs required for revoked, less 
stringent standards is costly and takes resources away from states and 
localities that are necessary to meet more stringent standards.
    Response: We understand the value of regulatory certainty. We also 
understand that there is a cost for implementing required programs for 
revoked, less stringent standards. We have endeavored to provide 
flexibility to states on implementation approaches and control 
measures. The D.C. Circuit has upheld our revocation of previous ozone 
standards as long as sufficient anti-backsliding measures are 
maintained. In South Coast II, the court was clear that anti-
backsliding measures could be shed if all five requirements for 
redesignation in CAA section 107(d)(3)(E) had been met. We are finding 
here that Texas has met all redesignation criteria necessary for 
termination of the anti-backsliding measures.
    Comment: TCEQ states that (1) we continue to have authority to 
redesignate areas from ``nonattainment'' to ``attainment'' post-
revocation of a NAAQS and (2) if we determine we do not have authority 
to redesignate areas to attainment post-revocation, we clearly have 
authority to determine that an area has met all redesignation 
requirements necessary for termination of anti-backsliding 
requirements. TCEQ states that EPA should redesignate the DFW area to 
attainment under the revoked 1-hour and 1997 ozone NAAQS. TCEQ states 
that EPA has the authority to, and should, revise the listings in Part 
81 of the Code of Federal Regulations to show the DFW area as an 
attainment area under the revoked 1-hour and 1997 ozone NAAQS and make 
clarifying changes to the Part 81 tables to promote public 
understanding of what measures are required for areas under revoked 
standards.
    Response: EPA disagrees with Commenter regarding our authority to 
redesignate an area under the revoked 1-hour and 1997 ozone NAAQS. As 
explained above, in revoking both the 1-hour and 1997 ozone standards, 
EPA revoked the associated designations

[[Page 19106]]

under those standards and stated we had no authority to change 
designations. See 69 FR 23951, April 30, 2004, 80 FR 12264, March 6, 
2015, and NRDC v. EPA, 777 F.3d 456 (D.C. Cir. 2014) (explaining that 
EPA revoked the 1-hour NAAQS ``in full, including the associated 
designations'' in the action at issue in South Coast Air Quality 
Management District v. EPA, 472 F.3d at 882 (D.C. Cir, 2006 (``South 
Coast I''). The recent D.C. Circuit decision addressing 
reclassification under a revoked NAAQS did not address EPA's 
interpretation that it lacks the ability to alter an area's designation 
post-revocation of a NAAQS. Moreover, the court's reasoning for 
requiring EPA to reclassify areas under revoked standards was that a 
reclassification to a higher classification is a control measure that 
constrains ozone pollution by imposing stricter measures associated 
with the higher classification. The same logic does not apply to 
redesignations, because redesignations do not impose new controls and 
can provide areas the opportunity to shed nonattainment area controls, 
provided doing so does not interfere with maintenance of the NAAQS. 
Therefore, we do not think it follows that the EPA is required to 
statutorily redesignate areas under a revoked standard simply because 
the court held that the Agency is required to continue to reclassify 
areas to a higher classification when they fail to attain. However, 
consistent with the South Coast II decision, we do have the authority 
to determine that an area has met all the applicable redesignation 
criteria for a revoked ozone standard and terminate the remaining anti-
backsliding obligations for that standard. We are therefore revising 
the tables in 40 CFR part 81 to reflect that the DFW area has attained 
the revoked 1979 1-hour and revoked 1997 8-hour NAAQS, and that all 
anti-backsliding obligations with respect to those two NAAQS are 
terminated.
    Comment: TCEQ stated that when we began stating that we no longer 
make findings of failure to attain or reclassify areas for revoked 
standards, we provided no rationale supporting why we would no longer 
do so.
    Response: As noted above, in the Phase I rule to implement the 1997 
ozone standard, we revoked the 1-hour NAAQS and designations for that 
standard (see 69 FR 23951, 23969-70, April 30, 2004). Accordingly, 
there was neither a 1-hour standard against which to make findings for 
failure to attain nor 1-hour nonattainment areas to reclassify. We also 
explained that it would be counterproductive to continue to impose new 
obligations with respect to the revoked 1-hour standard given on-going 
implementation of the newer 8-hour 1997 NAAQS. Id. at 23985. We 
recognize that subsequent court decisions, such as the South Coast II 
decision, have affected our view. The South Coast II decision vacated 
our waiver of the statutory attainment deadlines associated with the 
revoked 1997 ozone NAAQS, for areas that fail to meet an attainment 
deadline for the 1997 ozone standard, and we are determining how to 
implement that decision going forward.
    Comment: TCEQ commented that if we interpreted revocation of ozone 
standards as limiting our authority to implement all statutory rights 
and obligations, including the rights of states to be redesignated to 
attainment, it would cause an absurd result: i.e., implementing anti-
backsliding measures in perpetuity. The commenter added that it would 
subvert one of the foundational principles of the CAA--restricting the 
right of states to be freed from obligations that apply to 
nonattainment areas upon the states achieving the primary purpose of 
Title I of the CAA--to attain the NAAQS.
    Response: The ``absurd result'' noted by the commenter is that an 
area would need to implement anti-backsliding measures in perpetuity. 
Through this action we are terminating anti-backsliding controls for 
the DFW area upon a determination that the five statutory criteria of 
CAA section 107(d)(3)(E) have been met. Therefore, although we are not 
redesignating the DFW area to attainment for the revoked ozone 
standards, the ``absurd result'' noted by the commenter does not 
remain.
    The EPA does believe it is appropriate for states to be freed from 
anti-backsliding requirements in place for the revoked NAAQS in certain 
circumstances, and we believe the court in South Coast II was clear 
that this could be done if all the CAA criteria for a redesignation had 
been met.
    Comment: TCEQ commented that the CAA makes no distinction between 
revoked or effective standards regarding EPA's authority to 
redesignate. TCEQ also commented that reading the CAA section granting 
authority for designations generally, it is apparent that Congress 
intended the same procedures be followed regardless of the status of 
the NAAQS in question. TCEQ added that nothing in CAA section 107 
creates differing procedures when we revoke a standard or qualifies our 
mandatory duty to act on redesignation submittals from states.
    Response: None of the substantive provisions of the CAA make 
distinctions between revoked and effective NAAQS and the redesignation 
provision in section 107 is no different. Nonetheless, as noted above, 
at the time that we revoked the ozone NAAQS in question, we also 
revoked all designations associated with that NAAQS. We therefore do 
not think a statutory redesignation is available for an area that no 
longer has a designation. However, in South Coast II, the D.C. Circuit 
found that the CAA allows areas under a revoked NAAQS to shed anti-
backsliding controls if the statutory redesignation criteria are met.
    Comment: The TCEQ suggests that the EPA should expand upon the 
rationale provided in our Proposal for our decision to take no action 
on the maintenance motor vehicle emission budgets (MVEBs) related to 
the 1-hour and 1997 ozone NAAQS.
    Response: The conformity discussion in our May 21, 2012 rulemaking 
(77 FR 30160) to establish classifications under the 2008 ozone NAAQS 
explains that our revocation of the 1-hour standard under the 1997 
ozone Phase I implementation rule and the associated anti-backsliding 
provisions were the subject of the South Coast I litigation (South 
Coast Air Quality Management District v. EPA, 472 F.3d at 882). The 
Court in South Coast I affirmed that conformity determinations need not 
be made for a revoked standard. Instead, areas would use adequate or 
approved MVEBs that had been established for the now revoked NAAQS in 
transportation conformity determinations for the new NAAQS until the 
area has adequate or approved MVEBs for the new NAAQS. As explained in 
our June 24, 2019 proposal, the DFW area already has NOX and 
VOC MVEBs for the 2008 ozone NAAQS, which are currently used to make 
conformity determinations for both the 2008 and 2015 ozone NAAQS for 
transportation plans, transportation improvement programs, and projects 
according to the requirements of the transportation conformity 
regulations at 40 CFR part 93.\30\
---------------------------------------------------------------------------

    \30\ Transportation Conformity Guidance for the South Coast II 
Court Decision, EPA-420-B-18-050. November 2018, available on EPA's 
web page at https://www.epa.gov/state-and-local-transportation/policy-and-technical-guidance-state-and-local-transportation.
---------------------------------------------------------------------------

    The TCEQ offers its own basis to expand the rationale for EPA's 
action by citing the transportation conformity regulations at 40 CFR 
93.109(c), which provides that a regional emissions analysis for 
conformity is only required for a nonattainment or maintenance area 
until the effective date of revocation of the applicable NAAQS. The 
TCEQ concludes that this sufficiently justifies

[[Page 19107]]

EPA's determination not to act on the MVEBs in this SIP submittal 
because the effective date of revocation for both the 1-hour and 1997 
ozone NAAQS has passed, and therefore a regional emissions analysis for 
conformity is no longer required for these NAAQS in the DFW area. 
However, EPA notes that 40 CFR 93.109 represents the criteria and 
procedures for determining conformity in cases where a determination is 
required. As previously explained, the DFW area is not required to 
demonstrate conformity under the revoked 1-hour and 1997 ozone NAAQS, 
hence 40 CFR 93.109(c) is not an applicable rationale for the DFW area.
    Comment: TCEQ stated that we have the authority to, and should, 
revise the designations listing in 40 CFR 81 to better reflect the 
status of applicable anti-backsliding obligations for the areas.
    Response: We believe that we have the authority to revise the 
tables in 40 CFR 81 to better reflect the status of applicable anti-
backsliding obligations, particularly because those tables currently 
reflect the invalid redesignation substitutes that this final action is 
replacing. We are making ministerial changes to the tables for the 1-
hour and 1997 ozone standards in 40 CFR 81.344 to better reflect the 
status of applicable anti-backsliding obligations for the DFW area.

III. Final Action

A. Plan for Maintaining the Revoked Ozone Standards

    We are approving the maintenance plan for both the revoked 1-hour 
and 1997 ozone NAAQS in the DFW area because we find it demonstrates 
the two ozone NAAQS (1979 1-hour and 1997 8-hour) will be maintained 
for 10 years following this final action (in fact, the State's plan 
demonstrates maintenance of those two standards through 2032). As 
further explained in our Proposal and above, we are not approving the 
submitted 2032 NOX and VOC MVEBs for transportation 
conformity purposes because mobile source budgets for more stringent 
ozone standards are in place in the DFW area. We are finding that the 
projected emissions inventory which reflects these budgets is 
consistent with maintenance of the revoked 1-hour and 1997 ozone 
standards.

B. Redesignation Criteria for the Revoked Standards

    We are determining that the DFW area continues to attain the 
revoked 1-hour and 1997 ozone NAAQS. We are also determining that all 
five of the redesignation criteria at CAA section 107(d)(3)(E) for the 
DFW area have been met for these two revoked standards.

C. Termination of Anti-Backsliding Obligations

    We are terminating the anti-backsliding obligations for the DFW 
area with respect to the revoked 1-hour and 1997 ozone NAAQS. 
Consistent with the South Coast II decision, anti-backsliding 
obligations for the revoked ozone standards may be terminated when the 
redesignation criteria for those standards are met. This final action 
replaces the redesignation substitute rules that were previously 
promulgated for the revoked 1-hour and 1997 ozone NAAQS (81 FR 78688, 
November 8, 2016.).

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the air quality designation status 
of geographical areas and do not impose any additional regulatory 
requirements on sources beyond those required by state law. A 
redesignation to attainment does not in and of itself impose any new 
requirements. While we are not in this action redesignating any areas 
to attainment, we are approving the state's demonstration that all five 
redesignation criteria have been met. Similar to a redesignation, the 
termination of anti-backsliding requirements in this action does not 
impose any new requirements.
    With regard to the SIP approval portions of this action, the 
Administrator is required to approve a SIP submission that complies 
with the provisions of the Act and applicable Federal regulations. 42 
U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 
EPA's role is to approve State choices, provided that they meet the 
criteria of the CAA. Accordingly, where EPA is acting on the SIPs in 
this action, we are merely approving State law as meeting Federal 
requirements and are not imposing additional requirements beyond those 
imposed by State law.
    For these reasons, this action as a whole:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because actions that are exempted under 
Executive Order 12866 are also exempted from Executive Order 13771;
     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, 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).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

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

[[Page 19108]]

this action must be filed in the United States Court of Appeals for the 
appropriate circuit by June 5, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen oxides, Ozone, Volatile organic compounds.

List of Subjects in 40 CFR Part 81

    Dated: March 19, 2020.
Kenley McQueen,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. In Sec.  52.2270(e), the second table titled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' is amended by adding an entry at the end of the table for 
``Dallas-Fort Worth Redesignation Request and Maintenance Plan for the 
1-hour and 1997 8-hour Ozone Standards''.
    The addition reads as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
                                        Applicable        approval/
      Name of SIP provision            geographic or      effective     EPA approval date         Comments
                                    nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Dallas-Fort Worth Redesignation    Dallas Fort-Worth,      3/29/2019  4/6/2020, [Insert
 Request and Maintenance Plan for   TX.                                Federal Register
 the 1-hour and 1997 8-hour Ozone                                      citation].
 Standards.
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2275 is amended by revising paragraph (m) to read as 
follows:


Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (m) Termination of Anti-backsliding Obligations for the Revoked 1-
hour and 1997 8-hour ozone standards. Effective May 6, 2020 EPA has 
determined that the Dallas-Fort Worth area has met the Clean Air Act 
criteria for redesignation. Anti-backsliding obligations for the 
revoked 1-hour and 1997 8-hour ozone standards are terminated in the 
Dallas-Fort Worth area.
* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
4. The authority citation for Part 81 continues to read as follows:

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


0
5. In Sec.  81.344:
0
a. In the table titled ``Texas--Ozone (1-Hour Standard)'' revise the 
entry for ``Dallas-Fort Worth Area'' and footnote 3.
0
b. In the table titled ``Texas--1997 8-Hour Ozone NAAQS (Primary and 
secondary)'' revise the entry for ``Dallas-Fort Worth, TX'' and 
footnote 5 and remove footnote 6.
    The revisions read as follows:


Sec.  81.344  Texas

* * * * *

                                                  Texas--Ozone
                                              [1-Hour standard] \1\
----------------------------------------------------------------------------------------------------------------
                                                Designation                           Classification
         Designated area         -------------------------------------------------------------------------------
                                       Date \2\              Type              Date \2\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Dallas-Fort Worth Area:.........  See footnote 3....  See footnote 3....  See footnote 3....  See footnote 3.
    Collin County.\3\
    Dallas County.\3\
    Denton County.\3\
    Tarrant County.\3\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 * * * * * * *
\3\ The Dallas-Fort Worth Area was designated and classified as Moderate nonattainment on November 15, 1990. The
  area was classified as Serious nonattainment on March 20, 1998 and was so designated and classified when the 1-
  hour ozone standard, designations and classifications were revoked. The area has since attained the 1-hour
  ozone standard and met all the Clean Air Act criteria for redesignation. All 1-hour ozone standard anti-
  backsliding obligations for the area are terminated effective May 6, 2020.

* * * * *

[[Page 19109]]



                                         Texas--1997 8-Hour Ozone NAAQS
                                           [Primary and secondary] \1\
----------------------------------------------------------------------------------------------------------------
                                              Designation \a\                     Category/classification
         Designated area         -------------------------------------------------------------------------------
                                       Date \1\              Type              Date \1\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Dallas-Fort Worth, TX:..........  See footnote 5....  See footnote 5....  See footnote 5....  See footnote 5.
    Collin County.\5\
    Dallas County.\5\
    Denton County.\5\
    Ellis County.\5\
    Johnson County.\5\
    Kaufman County.\5\
    Parker County.\5\
    Rockwall County.\5\
    Tarrant County.\5\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 * * * * * * *
\5\ The Dallas-Fort Worth, TX area was designated and classified as a Moderate nonattainment area effective June
  15, 2004. The area was classified as Serious nonattainment effective January 19, 2011. The area has since
  attained the 1997 ozone standard and met all the Clean Air Act criteria for redesignation. All 1997 8-hour
  ozone standard anti-backsliding obligations for the area are terminated effective May 6, 2020.

* * * * *
[FR Doc. 2020-06198 Filed 4-3-20; 8:45 am]
BILLING CODE 6560-50-P


