[Federal Register Volume 80, Number 169 (Tuesday, September 1, 2015)]
[Rules and Regulations]
[Pages 52630-52633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21539]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2012-0098; FRL-9931-78-Region 6]


Approval and Promulgation of Implementation Plans; Texas; 
Attainment Demonstration for the Dallas/Fort Worth 1997 8-Hour Ozone 
Nonattainment Area; Determination of Attainment of the 1997 Ozone 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving 
revisions to the Texas State Implementation Plan (SIP) submitted to 
meet certain requirements under section 182(c) of the Clean Air Act 
(CAA) for the Dallas/Fort Worth (DFW) nonattainment area under the 1997 
8-hour ozone National Ambient Air Quality Standard (NAAQS or standard). 
The revisions address the attainment demonstration submitted on January 
17, 2012, by the Texas Commission on Environmental Quality (TCEQ) for 
the DFW Serious nonattainment area. The EPA has also determined that 
the DFW nonattainment area is currently attaining the 1997 ozone NAAQS. 
This determination is based upon complete, quality-assured and 
certified ambient air monitoring data that show the area has monitored 
attainment of the 1997 ozone NAAQS for the 2012-2014 monitoring period. 
Thus, the requirements to submit an attainment demonstration and other 
planning SIPs related to attainment of the 1997 ozone NAAQS, and the 
sanctions clock and the EPA's obligation to promulgate an attainment 
demonstration Federal Implementation Plan (FIP) for the DFW area are 
suspended for so long as the area continues to attain the 1997 ozone 
NAAQS.

DATES: This final rule is effective on October 1, 2015.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2012-0098. All documents in the docket are 
listed on the http://www.regulations.gov Web site. 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. Publicly available docket materials are available 
either electronically through http://www.regulations.gov or in hard 
copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.

FOR FURTHER INFORMATION CONTACT: Carrie Paige, (214) 665-6521, 
[email protected].

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

I. Background

    The background for this action is discussed in detail in our April 
28, 2015 Proposal (80 FR 23487). In that notice, we proposed to 
disapprove the TCEQ's 8-hour ozone attainment demonstration for the DFW 
Serious nonattainment area because the area failed to attain the 1997 
ozone NAAQS by the June 15, 2013 attainment date.\1\ Our analysis and 
findings are discussed in the proposed rulemaking. We also proposed to 
determine that the DFW ozone nonattainment area is currently in 
attainment of the 1997 ozone standard based on the most recent 3 years 
of quality-assured air quality data. Certified ambient air monitoring 
data show that the area has monitored attainment of the 1997 ozone 
NAAQS for the 2012-2014 monitoring period and continues to monitor 
attainment of the NAAQS based on preliminary 2015 data.
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    \1\ The DFW Serious ozone nonattainment area under the 1997 
ozone standard is comprised of Collin, Dallas, Denton, Ellis, 
Johnson, Kaufman, Parker, Rockwall and Tarrant counties.
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    Our Proposal and the technical support document (TSD) that 
accompanied the proposed rule provide our rationale for this 
rulemaking. Please see the docket for these and other documents 
regarding our Proposal. The public comment period for our Proposal 
closed on May 28, 2015.

II. Response to Comments

    We received one comment letter dated May 28, 2015, from the TCEQ 
(the Commenter) regarding our Proposal. A summary of the comments and 
our responses follow.
    Comment: The Commenter agrees with our Proposal to determine that 
the DFW ozone nonattainment area is

[[Page 52631]]

currently in attainment of the 1997 ozone standard based on the most 
recent 3 years of quality-assured air quality data.
    Response: We concur with the Commenter.
    Comment: The Commenter does not support our Proposal to disapprove 
the DFW Serious area attainment demonstration under the 1997 ozone 
standard, given that the EPA's final rule to implement SIP requirements 
under the 2008 ozone standard (the SIP requirements rule or SRR),\2\ 
among other things, revoked the 1997 ozone standard and relieved the 
EPA of its obligation to issue a finding of failure to attain by the 
attainment date or reclassification (i.e., ``bump up'') for such 
standard. The Commenter also states that the disapproval is unnecessary 
and may result in future obligations for the revoked standard and 
expenditure of limited state and federal resources for no true air 
quality benefit.
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    \2\ See 80 FR 12264, March 6, 2015.
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    Response: The Commenter is correct that, as of April 6, 2015, the 
1997 ozone standard is revoked, the EPA is no longer obligated to 
determine pursuant to CAA section 181(b)(2) or section 179(c) whether 
an area attained the 1997 ozone NAAQS by that area's attainment date 
for that NAAQS, and the EPA is also no longer obligated to reclassify 
an area to a higher classification for the 1997 ozone NAAQS based upon 
a determination that the area failed to attain the 1997 ozone NAAQS by 
the area's attainment date for that NAAQS.\3\ However, this rulemaking 
addresses the EPA's obligation to act on the attainment demonstration 
SIP submittal. Pursuant to section 110(k)(2) of the CAA, we have a 
mandatory duty to act on each SIP submittal before us and therefore, it 
is necessary for us to take action on the DFW submittal.\4\ Regardless 
of our revocation of the 1997 ozone standard, because we had yet to act 
on the attainment demonstration submittal and the DFW area did not 
attain the 1997 ozone standard by its June 15, 2013 attainment date, 
EPA is required to disapprove the State's attainment demonstration.
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    \3\ See 80 FR 12264, at 12297; 40 CFR 51.1105(d)(2). On February 
17, 2015, we proposed to determine that the DFW area did not attain 
the 1997 ozone standard by the attainment date and to reclassify the 
area to Severe (see 80 FR 8274). The SRR was published and effective 
shortly thereafter and we have not finalized the proposal to 
reclassify the DFW area to Severe.
    \4\ On October 17, 2014, the Sierra Club filed a lawsuit to 
compel the EPA to comply with the CAA's mandatory duty to act on 
this SIP submittal. Sierra Club v. McCarthy, Case No. 14-CV-00833-
ESH (DC). The parties entered a consent decree on January 23, 2015, 
that requires EPA to finalize action on this submittal by August 31, 
2015.
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    With regard to the Commenter's remark about future obligations that 
may be brought on by this final disapproval, on February 27, 2015, the 
TCEQ requested that we make a Clean Data Determination (CDD) for the 
DFW area with regard to the 1997 ozone standard and we are finalizing 
the CDD proposed on April 28, 2015 in this rulemaking.\5\ Finalizing 
the CDD suspends the requirements for the TCEQ to submit an attainment 
demonstration and 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), and the 18-month sanctions clock associated with 
EPA's disapproval as well as the EPA's obligation to promulgate an 
attainment demonstration FIP within two years of disapproval are also 
tolled for so long as this CDD remains in place. Thus, as long as the 
area is able to maintain air quality meeting the 1997 ozone standard, 
no obligations will accrue from this disapproval. In addition, the 
State is currently working to develop the DFW attainment demonstration 
for the more stringent 2008 ozone standard, and in doing so, the TCEQ 
necessarily must also demonstrate attainment of the 1997 ozone 
standard. The State may also submit a redesignation substitute request 
and upon final approval by the EPA, the clocks to impose sanctions and 
a FIP suspended by this CDD action would lift permanently.\6\ However, 
in the event that the DFW area falls out of attainment of the 1997 
ozone standard prior to obtaining EPA approval of a redesignation 
substitute, even though the EPA has revoked that standard, the CAA 
requires EPA to continue to ensure that the State's plan meets the 
requirements of that standard for purposes of anti-backsliding, 
including the obligations associated with a disapproved attainment 
demonstration. CAA 110(l); see also, South Coast Air Quality Mgmt. 
Dist. v. EPA, 472 F.3d 882, 900 (D.C. Cir. 2006); 78 FR 34178, 34211-
34225; 80 FR 12264, 12300. Further, the EPA does not agree that efforts 
to address the 1997 standard would expend resources for no air quality 
benefit; should air quality in the DFW area worsen to levels above the 
1997 ozone standard prior to approval of a redesignation substitute, 
the subsequent obligations and actions required by the statute to 
reduce ozone levels in the DFW area would be beneficial to achieving 
both the 1997 and 2008 ozone standards.
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    \5\ The State's request is in the docket for this rulemaking.
    \6\ In the SRR, among other things, we revoked the 1997 ozone 
standard and finalized a redesignation substitute procedure for a 
revoked standard. See 80 FR 12264 and 40 CFR 51.1105(b). Under this 
redesignation substitute procedure, the state must demonstrate that 
the area has attained that revoked NAAQS due to permanent and 
enforceable emission reductions and that the area will maintain that 
revoked NAAQS for 10 years from the date of the EPA's approval of 
this showing.
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III. What is the effect of this action?

    A disapproval of an attainment plan as being promulgated here would 
normally start a FIP and sanctions clock. However, in accordance with 
our Clean Data Policy as codified in 40 CFR 51.1118, a determination of 
attainment suspends the requirements for the TCEQ to submit an 
attainment demonstration and other SIPs related to attaining the 1997 
ozone NAAQS in the DFW area for so long as the area continues to attain 
the standard. In addition, the sanctions clock and the EPA's obligation 
to promulgate an attainment demonstration FIP are tolled for so long as 
this CDD remains in place. However, should the area violate the 1997 
ozone standard after the CDD is finalized, the EPA would rescind the 
CDD and the sanctions and FIP clocks would resume.
    Because the revocation of the 1997 ozone standard in the SRR also 
revoked EPA's obligation to determine whether an area attained the 1997 
ozone NAAQS by that area's attainment date and to reclassify an area to 
a higher classification for the 1997 ozone NAAQS based upon a 
determination that the area failed to attain that NAAQS by the area's 
attainment date,\7\ we do not intend to finalize our proposed finding 
of failure to attain and reclassification at 80 FR 8274.
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    \7\ 80 FR 12264, at 12297; 40 CFR 51.1105(d)(2).
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IV. Final Action

    The EPA is disapproving certain elements of the attainment 
demonstration SIP submitted by the TCEQ for the DFW Serious ozone 
nonattainment area under the 1997 ozone NAAQS. Specifically, we are 
disapproving the attainment demonstration, the demonstration for 
reasonably available control measures, and the attainment demonstration 
motor vehicle emission budgets for 2012. The EPA is disapproving these 
SIP revisions because the area failed to attain the standard by its 
June 15, 2013 attainment date, and thus we have determined that the 
plan was insufficient to demonstrate attainment by the attainment date.
    We also find that the DFW ozone nonattainment area has attained the 
1997 ozone standard and continues to attain the standard. Thus, the 
requirements for submitting the

[[Page 52632]]

attainment demonstration and other SIPs related to attainment of the 
1997 ozone NAAQS are suspended for so long as the area is attaining the 
standard, and the sanctions and obligations accruing from EPA's 
disapproval of the attainment demonstration are also suspended during 
that period.

V. Statutory and Executive Order Reviews

    Under the CAA, 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, the EPA's role is to act on state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final action is not a ``significant regulatory action'' under 
the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This final action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., because this final SIP action under section 110 and subchapter I, 
part D of the CAA will not in-and-of itself create any new information 
collection burdens but simply disapproves certain State requirements 
for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of this rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. This rule does not impose 
any requirements or create impacts on small entities. This final SIP 
action under section 110 and subchapter I, part D of the CAA will not 
in-and-of itself create any new requirements but simply disapproves 
certain State requirements for inclusion into the SIP. Accordingly, it 
affords no opportunity for EPA to fashion for small entities less 
burdensome compliance or reporting requirements or timetables or 
exemptions from all or part of the rule. The fact that the CAA 
prescribes that various consequences (e.g., higher offset requirements) 
may or will flow from this disapproval does not mean that the EPA 
either can or must conduct a regulatory flexibility analysis for this 
action. Therefore, this action will not have a significant economic 
impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The EPA has determined that the disapproval action does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This action disapproves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final action does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, this 
final action does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
proposed action is not subject to Executive Order 13045 because it 
because it is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This SIP action under section 110 and 
subchapter I, part D of the CAA will not in-and-of itself create any 
new regulations but simply disapproves certain State requirements from 
inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This final action is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement

[[Page 52633]]

Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs the EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    The EPA believes that this final action is not subject to 
requirements of Section 12(d) of NTTAA because application of those 
requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, the 
EPA's role is to approve or disapprove state choices, based on the 
criteria of the CAA. Accordingly, this action merely disapproves 
certain State requirements from inclusion into the SIP under section 
110 and subchapter I, part D of the CAA and will not in-and-of itself 
create any new requirements. Accordingly, it does not provide the 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.
    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. The 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 2, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposed 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, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: August 21, 2015.
Ron Curry,
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. Section 52.2273 is amended by adding paragraph (i) to read as 
follows:


Sec.  52.2273  Approval status.

* * * * *
    (i) The attainment demonstration for the Dallas/Fort Worth Serious 
ozone nonattainment area under the 1997 ozone standard submitted 
January 17, 2012 is disapproved. The disapproval applies to the 
attainment demonstration, the determination for reasonably available 
control measures, and the attainment demonstration motor vehicle 
emission budgets for 2012.

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


Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (i) Determination of attainment. Effective October 1, 2015 the EPA 
has determined that the Dallas/Fort Worth 8-hour ozone nonattainment 
area has attained the 1997 ozone standard. Under the provisions of the 
EPA's Clean Data Policy, this determination suspends the requirements 
for this area to submit an attainment demonstration and other State 
Implementation Plans related to attainment of the 1997 ozone NAAQS for 
so long as the area continues to attain the 1997 ozone NAAQS.
[FR Doc. 2015-21539 Filed 8-31-15; 8:45 am]
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