[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Rules and Regulations]
[Pages 78688-78691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26585]



[[Page 78687]]

Vol. 81

Tuesday,

No. 216

November 8, 2016

Part II





Environmental Protection Agency





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40 CFR Parts 52 and 81





 Clean Air Act Redesignation Substitute for the Dallas-Fort Worth 1-
Hour Ozone and 1997 8-Hour Ozone Nonattainment Areas; Texas; Clean Air 
Act Redesignation Substitute for the Houston-Galveston-Brazoria 1997 8-
Hour Ozone Nonattainment Area; Texas; Final Rules

  Federal Register / Vol. 81 , No. 216 / Tuesday, November 8, 2016 / 
Rules and Regulations  

[[Page 78688]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-OAR-2015-0721; FRL-9953-93-Region 6]


Clean Air Act Redesignation Substitute for the Dallas-Fort Worth 
1-Hour Ozone and 1997 8-Hour Ozone Nonattainment Areas; Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
redesignation substitute and making finding of attainment for both the 
revoked 1-hour and the revoked 1997 8-hour ozone National Ambient Air 
Quality Standards (NAAQS) for the Dallas-Fort Worth ozone nonattainment 
areas (DFW area).

DATES: This rule is effective on December 8, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2015-0721. 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 form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Tracie Donaldson, 214-665-6633, 
[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 May 
25, 2016 proposal (81 FR 33161). In that document we proposed to 
approve a redesignation substitute and make a finding of attainment for 
both the 1-hour and the 1997 8-hour ozone NAAQS for the Dallas-Fort 
Worth 1-hour and 1997 8-hour ozone nonattainment areas (DFW areas). The 
redesignation substitute demonstration indicates that the area has 
attained the revoked 1-hour and the revoked 1997 8-hour ozone NAAQS due 
to permanent and enforceable emission reductions and that it will 
maintain those NAAQS for ten years from the date of the EPA's approval 
of this demonstration. Final approval of the redesignation substitute 
results in the area no longer being subject to any remaining applicable 
anti-backsliding requirements, including nonattainment new source 
review associated with the revoked NAAQS. In general, final approval of 
the redesignation substitute allows Texas to seek to revise the Texas 
State Implementation Plan (SIP) for the area to remove anti-backsliding 
measures from the active portion of its SIP if it can demonstrate, 
pursuant to CAA section 110(1), that such revision would not interfere 
with attainment or maintenance of any applicable NAAQS, or any other 
requirement of the CAA. Because the EPA believes Texas does not need to 
revise its SIP to alter certain provisions for NNSR effective in the 
DFW area, the offset and threshold requirements applicable in the DFW 
area for NNSR will be automatically altered upon finalization of the 
redesignation substitute.
    We received comments on the proposal from three commenters. Our 
response to the comments is below.

II. Response to Comments

    Comment: Two commenters recognized the progress of the area and the 
work of TCEQ in making such significant air quality improvements in the 
DFW area and urged the EPA to finalize this action to reflect the 
changes in the area.
    Response: We agree with the commenters that DFW area has made 
progress in meeting air quality standards. No changes were made to the 
final action based on these comments.
    Comment: One of the supportive commenters urged the EPA to approve 
revisions to the Texas SIP to reflect changes to certain provisions for 
the NNSR program effective in the DFW area as a result of the EPA's 
approval of the redesignation substitute. The commenter also asserted 
that approval of the redesignation substitute will result in the area 
no longer being subject to any remaining applicable anti-backsliding 
requirements.
    Response: Due to the drafting of the Texas SIP, no revision is 
necessary to alter NNSR requirements applicable in the DFW area 
following finalization of this redesignation substitute. The NNSR 
provisions in the existing Texas SIP contains 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. Therefore, the EPA's approval of the redesignation 
substitute automatically updates the applicable NNSR requirements. 
Following finalization of this rule, the NNSR requirements applicable 
in the DFW area will be in accordance with the DFW area's current 
classification for the 2008 ozone NAAQS for newly permitted sources.\1\ 
We note that approval of this redesignation substitute does not relieve 
sources in the area of their obligations under previously established 
permit conditions.\2\ 81 FR 33161, 33165. The Texas SIP includes a 
suite of approved permitting regulations for the Minor and Major NSR, 
which will continue to apply after approval of the redesignation 
substitute in the DFW area. Each of these programs has been evaluated 
and approved by EPA as consistent with the requirements of the CAA and 
protective of air quality, including the requirements at 40 CFR 51.160 
whereby the TCEQ cannot issue a permit or authorize an activity that 
will result in a violation of applicable portions of the control 
strategy or that will interfere with attainment or maintenance of a 
national standard. So moving forward to a time when the DFW area has a 
moderate designation as the only applicable nonattainment designation, 
new sources and modifications will continue to be permitted and 
authorized under the existing SIP requirements if they are determined 
to be protective of air quality.
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    \1\ See Section D of the TSD for this action in the docket for 
this rulemaking for additional information.
    \2\ See Final Implementation Rule for 2008 Ozone Standard, 80 FR 
12264, at 12299, footnote 83 and at 12304, footnote 91.
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    The EPA agrees that approval of the redesignation substitute will 
result in the DFW area no longer being subject to the regulatory anti-
backsliding requirements for the 1997 ozone standard established 
pursuant to the principles of CAA section 172(e). However if an anti-
backsliding provision is in the Texas SIP and needs to be changed to 
reflect the change in this area's status, such change is subject to the 
SIP revision process, which in turn is subject to review under CAA 
sections 110 and 193, if applicable. To date, Texas has not submitted a 
SIP revision concerning any anti-backsliding provisions for the EPA's 
consideration.
    Comment: One commenter objected to the use of the redesignation 
substitute mechanism and the implications of such an action. The 
commenter incorporates

[[Page 78689]]

by reference the relevant portions of a brief filed in a petition 
challenging the EPA's promulgation of the redesignation substitute. See 
South Coast Air Quality Mgmt. Dist. v. EPA, No. 15-1115 (D.C. Cir.). 
They contend that the DFW area continues to have unhealthy levels of 
ozone pollution, therefore, raising the NNSR thresholds and lowering 
the offset requirements for the area is inappropriate. The commenter 
further states that our action will result ``in great expense and 
inefficiency: because some sources will not prevent pollution, they and 
other sources may have to retrofit at greater expense.'' The commenter 
asks the EPA to either disapprove the redesignation substitute or delay 
action until the underlying litigation is resolved.
    Response: The EPA disagrees with the commenter that it is 
inappropriate to approve redesignation substitutes for the DFW area for 
the 1-hour and the 1997 8-hour ozone standards. As the commenter noted, 
the EPA created the redesignation substitute in the 2008 ozone SIP 
Requirements Rule as one of two acceptable procedures through which a 
state may demonstrate that it is no longer required to adopt any 
additional applicable requirements for an area which have not already 
been approved into the SIP for a revoked ozone NAAQS. 80 FR 12264, 
12304 (March 6, 2015).
    The EPA acknowledges that this rule has been challenged in the D.C. 
Circuit by the commenter. However, the rule has not been stayed pending 
resolution of the litigation, and as such, it is appropriate to 
continue to implement the 2008 ozone SIP Requirements Rule during the 
pendency of the litigation.
    The EPA believes the redesignation substitute is an appropriate 
mechanism because it serves as a successor to a redesignation to 
attainment, for which these areas would have been eligible if the EPA 
had not revoked the 1-hour and 1997 ozone standards. For a more 
detailed description of why the EPA has determined the DFW area has met 
the redesignation criteria for the revoked 1997 ozone standard, see 81 
FR 33161 for the proposal and Technical Support Document. Upon approval 
of a redesignation substitute, a state may request to revise its SIP to 
shift regulatory anti-backsliding requirements contained in the active 
portion of the SIP to the contingency measures portion of the SIP, 
subject to a showing of consistency with the general anti-backsliding 
checks in CAA sections 110(l) and 193 (if applicable). The EPA approval 
of the redesignation substitute has the same effect on these areas' 
nonattainment regulatory anti-backsliding requirements as would a 
redesignation to attainment for the revoked standard. The EPA believes 
that, under any view of anti-backsliding for a revoked standard, it 
should not mean imposing requirements greater than those that would 
apply if the standard had not been revoked.
    An approvable redesignation substitute must include more than a 
determination of attainment of the prior NAAQS, and show that it 
addresses redesignation criteria for that NAAQS. Moreover, the state 
remains subject to ongoing requirements to meet the new more stringent 
2008 ozone standard in that area. In this context, the EPA believes 
finalizing of this action is appropriate--it recognizes and supports 
Texas's progress in having attained the prior standards in the DFW area 
due to permanent and enforceable emissions reductions, and reinforces 
continued attainment by demonstrating that the DFW area can maintain 
the revoked standard. See 80 FR 12264, 12305.

III. Final Action

    We find that Texas has successfully demonstrated it has met the 
requirements for approval of a redesignation substitute for the revoked 
1-hour and the revoked 1997 8-hour ozone NAAQS for the DFW area. We are 
approving the redesignation substitute for the DFW area based on our 
determination that the demonstration provided by the State of Texas 
shows that the DFW area has attained the revoked 1-hour and the revoked 
1997 8-hour ozone NAAQS due to permanent and enforceable emission 
reductions, and that it will maintain these NAAQS for ten years from 
the date of the EPA's approval of this demonstration. As we no longer 
redesignate nonattainment areas to attainment for the revoked 1-hour 
and the revoked 1997 8-hour ozone NAAQS, approval of the demonstration 
serves as a redesignation substitute under the EPA's implementing 
regulations. As a result of this action, Texas is no longer required to 
adopt any additional applicable 1-hour and 1997 8-hour ozone NAAQS 
requirements for the area which have not already been approved into the 
SIP (40 CFR 51.1105(b)(1)). It also allows the state to request that 
the EPA approve the shifting of planning and control requirements 
implemented pursuant to the 1-hour and the 1997 8-hour ozone NAAQS from 
the active portion of the SIP to the contingency measures portion of 
the SIP, upon a showing of consistency with CAA sections 110(l) and 193 
(if applicable) (40 CFR 51.1105(b)(2)).

IV. Statutory and Executive Order Reviews

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this action is not a 
``significant regulatory action'' and therefore is not subject to 
review by the Office of Management and Budget. For this reason, this 
action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely 
approves a demonstration provided by the State of Texas and finds that 
the DFW area is no longer subject to the regulatory anti-backsliding 
requirements under the principles of CAA section 172(e) for the revoked 
1-hour ozone and the revoked 1997 8-hour ozone NAAQS; and imposes no 
additional requirements. Accordingly, I certify that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this rule does not impose any additional enforceable duties, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial 
direct effect on one or more Indian Tribes, on the relationship between 
the Federal Government and Indian Tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000), nor will it 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 (64 FR 43255, 
August 10, 1999), because it merely approves a demonstration provided 
by the State of Texas and find that the DFW area is no longer subject 
to the regulatory anti-backsliding requirements under the principles of 
CAA section 172(e) for the revoked 1-hour ozone and the revoked 1997 8-
hour ozone NAAQS; and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
rule also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant.
    The rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

[[Page 78690]]

Additionally, this rule does not involve establishment of technical 
standards, and thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. 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 
has determined that this rule will not have disproportionately high and 
adverse human health or environmental effects on minority or low-income 
populations because it does not affect the level of protection provided 
to human health or the environment.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 9, 2017. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control.

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

    Dated: October 27, 2016.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    40 CFR parts 52 and 81 are 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 52.2275 is amended by adding paragraph (m) to read as 
follows:


Sec.  52.2275   Control strategy and regulations: Ozone.

* * * * *
    (m) Approval of Redesignation Substitute for the Dallas-Fort Worth 
1-hour Ozone and 1997 Ozone Nonattainment Areas. EPA has approved the 
redesignation substitute for the Dallas-Fort Worth 1-hour ozone and 
1997 ozone nonattainment areas submitted by the State of Texas on 
August 18, 2015. The State is no longer being required to adopt any 
additional applicable to 1-hour ozone and 1997 ozone NAAQS requirements 
for the area.

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

0
3. The authority citation for part 81 continues to read as follows:

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


0
4. Section 81.344 is amended:
0
a. In the table entitled ``Texas--Ozone (1-Hour Standard)'' by revising 
the entries for ``Dallas-Fort Worth Area'' and adding footnote 3; and
0
b. In the table titled ``Texas--1997 8-Hour Ozone NAAQS (Primary and 
Secondary)'' by revising the entries for ``Dallas-Fort Worth, TX'' and 
adding footnotes 5 and 6.
    The revisions and additions read as follows:


Sec.  81.344  Texas.

* * * * *

                                                                    Texas--Ozone \2\
                                                                    [1-Hour standard]
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                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
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                                                                      * * * * * * *
Dallas-Fort Worth Area:
    Collin County \3\...................     11/15/90  Nonattainment............................      3/20/98  Serious.
    Dallas County \3\...................     11/15/90  Nonattainment............................      3/20/98  Serious.
    Denton County \3\...................     11/15/90  Nonattainment............................      3/20/98  Serious.
    Tarrant County \3\..................     11/15/90  Nonattainment............................      3/20/98  Serious.
 
                                                                      * * * * * * *
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\1\ This date is October 18, 2000, unless otherwise noted.
\2\ The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Texas except the San Antonio area where it is revoked effective April
  15, 2009.
\3\ A Redesignation Substitute was approved on November 8, 2016.

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                                                             Texas--1997 8-Hour Ozone NAAQS
                                                                 [Primary and secondary]
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                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
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                                                                      * * * * * * *
Dallas-Fort Worth, TX:
    Collin County 5 6...................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Dallas County 5 6...................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Denton County 5 6...................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Ellis County 5 6....................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Johnson County 5 6..................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Kaufman County 5 6..................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Parker County 5 6...................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Rockwall County 5 6.................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
    Tarrant County 5 6..................  ...........  Nonattainment............................        (\5\)  Subpart 2/Serious.
 
                                                                      * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
 * * * * * * *
\5\ Effective January 19, 2011.
\6\ A Redesignation Substitute was approved on November 8, 2016.

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[FR Doc. 2016-26585 Filed 11-7-16; 8:45 am]
 BILLING CODE 6560-50-P