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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

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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.

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FOR FURTHER INFORMATION CONTACT:

Carrie Paige, (214) 665-6521, paige.carrie@epa.gov.

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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.

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 Start Printed Page 52631currently 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.

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.

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.

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.

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 Start Printed Page 52632attainment 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 Start Printed Page 52633Act 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).)

Start List of Subjects

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
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Dated: August 21, 2015.

Ron Curry,

Regional Administrator, Region 6.

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40 CFR part 52 is amended as follows:

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PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

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Subpart SS—Texas

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2. Section 52.2273 is amended by adding paragraph (i) to read as follows:

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Approval status.
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(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.

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

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Control strategy and regulations: Ozone.
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(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.

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Footnotes

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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2.  See 80 FR 12264, March 6, 2015.

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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.

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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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5.  The State's request is in the docket for this rulemaking.

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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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[FR Doc. 2015-21539 Filed 8-31-15; 8:45 am]

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