Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; State of California; PM-10; Determination of Attainment for the Coso Junction Nonattainment Area; Determination Regarding Applicability of Certain Clean Air Act Requirements, 13710-13715 [2010-6338]
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Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Proposed Rules
Security Management Directive 023–01
and Commandant Instruction
M16475.lD, which guide the Coast
Guard in complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have made a preliminary determination
that this action is one of a category of
actions that do not individually or
cumulatively have a significant effect on
the human environment. A preliminary
environmental analysis checklist
supporting this preliminary
determination is available in the docket
where indicated under ADDRESSES. This
proposed rule is categorically excluded,
under figure 2–1, paragraph 34(g) of the
Instruction. This proposed rule amends
permanent safety zones established in
the Captain of the Port Lake Michigan
Zone to protect the public from the
hazards associated during annual
events. We seek any comments or
information that may lead to the
discovery of a significant environmental
impact from this proposed rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and record keeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR Part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for Part 165
continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Pub. L. 107–295, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
2. Amend § 165.929 to revise
(a)(15)(i), (a)(52)(i), and (a)(65)(i); and to
add paragraphs (a)(82) and (a)(83) to
read as follows:
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§ 165.929 Safety Zones; Annual events
requiring safety zones in the Captain of the
Port Lake Michigan zone.
(a) * * *
(15) Taste of Chicago Fireworks;
Chicago, IL.
(i) Location. All waters of Monroe
Harbor and all waters of Lake Michigan
bounded by a line drawn from 41°53′24″
N, 087°35′59″ W; then east to 41°53′15″
N, 087°35′26″ W; then south to
41°52′49″ N, 087°35′26″ W; then
southwest to 41°52′27″ N, 087°36′37″ W;
then north to 41°53′15″ N, 087°36′33″
W; then east returning to the point of
origin. (NAD 83)
*
*
*
*
*
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(52) Gary Air and Water Show; Gary,
IN.
(i) Location. All waters of Lake
Michigan bounded by a line drawn from
41°37′42″ N, 087°16′38″ W; then east to
41°37′54″ N, 087°14′00″ W; then south
to 41°37′30″ N, 087°13′56″ W; then west
to 41°37′17″ N, 087°16′36″ W; then
north returning to the point of origin.
(NAD 83)
*
*
*
*
*
(65) Venetian Night Fireworks;
Chicago, IL.
(i) Location. All waters of Monroe
Harbor and all waters of Lake Michigan
bounded by a line drawn from 41°53′03″
N, 087°36′36″ W; then east to 41°53′03″
N, 087°36′21″ W; then south to
41°52′27″ N, 087°36′21″ W; then west to
41°52′27″ N, 087°36′37″ W; then north
returning to the point of origin. (NAD
83)
*
*
*
*
*
(82) Cochrane Cup; Blue Island, IL.
(i) Location. All waters of the Calumet
Sag Channel from the South Halstead
Street Bridge at 41°39′27″ N, 087°38′29″
W; to the Crawford Avenue Bridge at
41°39′05″ N, 087°43′08″ W; and the
Little Calumet River from the Ashland
Avenue Bridge at 41°39′7″ N, 087°39′38″
W; to the junction of the Calumet Sag
Channel at 41°39′23″ N, 087°39′ W
(NAD 83).
(ii) Enforcement date and time. The
first Saturday of May; 6:30 a.m. to
5 p.m.
*
*
*
*
*
(83) World War II Beach Invasion Reenactment; St. Joseph, MI.
(i) Location. All waters of Lake
Michigan in the vicinity of Tiscornia
Park in St. Joseph, MI beginning at
42°06.55N, 086°29.23W; then west/
northwest along the north breakwater to
42°06.59 N, 086°29.41 W; the northwest
100 yards to 42°07.01 N, 086°29.44 W;
then northeast 2,243 yards to 42°07.50N,
086°28.43 W; the southeast to the
shoreline at 42°07.39N, 086°28.27 W;
then southwest along the shoreline to
the point of origin (NAD 83).
(ii) Enforcement date and time. The
third Saturday of June; 8 a.m. to 2 p.m.
*
*
*
*
*
Dated: March 8, 2010.
L. Barndt,
Captain, U.S. Coast Guard, Captain of the
Port Lake Michigan.
[FR Doc. 2010–6294 Filed 3–22–10; 8:45 am]
BILLING CODE 9110–04–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R09–OAR–2010–0172; FRL–9129–3]
Approval and Promulgation of
Implementation Plans; Designation of
Areas for Air Quality Planning
Purposes; State of California; PM–10;
Determination of Attainment for the
Coso Junction Nonattainment Area;
Determination Regarding Applicability
of Certain Clean Air Act Requirements
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing to
determine that the Coso Junction
nonattainment area (CJNA) in California
has attained the 24-hour National
Ambient Air Quality Standard (NAAQS)
for particulate matter with an
aerodynamic diameter less than or equal
to a nominal 10 micrometers (PM–10).
This proposed determination is based
upon monitored air quality data for the
PM–10 NAAQS during the years 2006–
2008. In addition, data for 2009
contained in EPA’s Air Quality System
(AQS) shows the CJNA continued to
attain the PM–10 NAAQS through 2009,
and preliminary data for 2010 available
to date show no exceedances of the 24hour NAAQS have been recorded at the
CJNA monitoring site. EPA is also
proposing to determine that, because the
CJNA has attained the PM–10 NAAQS,
the obligation to make submissions to
meet certain Clean Air Act (CAA or the
Act) requirements is not applicable for
as long as the CJNA continues to attain
the PM–10 NAAQS.
DATES: Written comments must be
received on or before April 22, 2010.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2010–0172, by one of the
following methods:
(1) Federal eRulemaking portal:
https://www.regulations.gov. Follow the
on-line instructions.
(2) E-mail: mahdavi.sarvy@epa.gov.
(3) Mail or deliver: Sarvy Mahdavi
(AIR–2), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
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you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through the
https://www.regulations.gov or e-mail.
https://www.regulations.gov is an
anonymous access system, and EPA will
not know your identity or contact
information unless you provide it in the
body of your comment. If you send
e-mail directly to EPA, your e-mail
address will be automatically captured
and included as part of the public
comment. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed directly
below.
FOR FURTHER INFORMATION CONTACT:
Sarvy Mahdavi, EPA Region IX, (415)
972–3173, mahdavi.sarvy@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used, we mean
EPA.
Table of Contents
I. Background
A. The NAAQS for PM–10
B. Designation, Classification and Air
Quality Planning for PM–10 for the CJNA
C. Attainment Determinations
II. Proposed Attainment Determination for
the CJNA
III. Applicability of Clean Air Act Planning
Requirements
IV. EPA’s Proposed Action
V. Statutory and Executive Order Reviews
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I. Background
A. The NAAQS for PM–10
Particulate matter with an
aerodynamic diameter of less than or
equal to 10 micrometers (PM–10) is the
subject of this proposed action. The
NAAQS are limits for certain ambient
air pollutants set by EPA to protect
public health and welfare. PM–10 is
among the ambient air pollutants for
which EPA has established a healthbased standard.
On July 1, 1987 (52 FR 24634), EPA
revised the NAAQS for particulate
matter with an indicator that includes
only those particles with an
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aerodynamic diameter less than or equal
to a nominal 10 micrometers. The 24hour primary PM–10 standard was set at
150 micrograms per cubic meter (μg/m3)
with no more than one expected
exceedance per year. The annual
primary PM–10 standard was set at 50
μg/m3 as an annual arithmetic mean.
The secondary PM–10 standards,
promulgated to protect against adverse
welfare effects, were identical to the
primary standards.
On October 17, 2006, EPA revised the
primary PM–10 standards by revoking
the annual standard of 50 μg/m3, but
retained the 24-hour standard of 150 μg/
m3. EPA also revised the secondary PM–
10 standards to be the same as the
primary standards. The revised PM–10
NAAQS became effective on December
18, 2006. See 71 FR 61144 and 40 CFR
50.6.
B. Designation, Classification and Air
Quality Planning for PM–10 for the
CJNA
In 1990, Congress amended the Clean
Air Act to address, among other things,
continued nonattainment of the PM–10
NAAQS. On the date of enactment of
the 1990 Clean Air Act Amendments,
PM–10 areas meeting the qualifications
of section 107(d)(4)(B) of the amended
Act were designated nonattainment by
operation of law. See 56 FR 11101
(March 15, 1991). At that time, the CJNA
was within the boundaries of the Searles
Valley planning area and EPA codified
the boundaries of the Searles Valley
planning area at 40 CFR 81.305;
however, EPA subsequently changed the
boundaries of the Searles Valley area by
dividing it into three separate
nonattainment areas: The CJNA, Indian
Wells and Trona planning areas. 67 FR
50805 (August 6, 2002).
Once an area is designated
nonattainment for PM–10, section 188
of the CAA outlines the process for
classifying the area and establishes the
area’s initial attainment deadline. In
accordance with section 188(a), at the
time of designation, all PM–10
nonattainment areas, such as the Searles
Valley, were initially classified as
moderate nonattainment. When EPA
changed the boundaries of the Searles
Valley area, the Agency also classified
the newly created CJNA, Indian Wells
and Trona planning areas as moderate.
In the same action, EPA determined that
the Trona planning area had attained
the PM–10 NAAQS by the statutory
attainment deadline. 67 FR 50805. EPA
redesignated the Indian Wells planning
area to attainment for the PM–10
NAAQS on December 17, 2002. 67 FR
77196. This proposed action concerns
only the moderate CJNA.
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C. Attainment Determinations
We generally determine whether an
area’s air quality meets the PM–10
NAAQS for purposes of sections
179(c)(1) and 188(b)(2) based upon data
gathered at established state and local
air monitoring stations (SLAMS) in the
nonattainment area and entered into the
EPA Air Quality System (AQS)
database. Data from air monitors
operated by state/local agencies in
compliance with EPA monitoring
requirements must be submitted to the
EPA AQS database. Heads of monitoring
agencies annually certify that these data
are accurate to the best of their
knowledge. Accordingly, EPA relies
primarily on data in its AQS database
when determining the attainment status
of areas. See 40 CFR 50.6; 40 CFR part
50, appendix J; 40 CFR part 53; 40 CFR
part 58, appendices A, C, D and E. We
will also consider air quality data from
other air monitoring stations in the
nonattainment area regardless of
whether they have been entered into the
EPA AQS database if the stations meet
the federal monitoring requirements for
SLAMS. See 40 CFR 58.20 and August
22, 1997 Memorandum ‘‘Agency Policy
on the Use of Special Purpose
Monitoring Data,’’ from John S. Seitz,
Director, Office of Air Quality Planning
and Standards, to the Regional Air
Directors. All data are reviewed to
determine the area’s air quality status in
accordance with our guidance at 40 CFR
part 50, appendix K.
Attainment of the 24-hour PM–10
standard is determined by calculating
the expected number of days in a year
with PM–10 concentrations greater than
150 μg/m3. The 24-hour standard is
attained when the expected number of
days per year with levels above 150 μg/
m3 (averaged over a three-year period) is
less than or equal to one. Three
consecutive years of air quality data are
necessary to show attainment of the 24hour standard for PM–10. See 40 CFR
part 50, appendix K. A complete year of
air quality data, as referred to in 40 CFR
part 50, appendix K, includes all four
calendar quarters with each quarter
containing data from at least 75 percent
of the scheduled sampling days.
II. Proposed Attainment Determination
for the CJNA
The CJNA has one SLAMS site
operated by the Great Basin Unified Air
Pollution Control District (District or
GBUAPCD). This monitoring site is
located in the Rose Valley of Coso
Junction at the southern end of Inyo
County and currently has a continuous
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PM–10 analyzer which records PM–10
concentrations on an hourly basis.1
PM–10 data collected in the CJNA is
reported by the GBUAPCD to the EPA
AQS database. The database contains
three consecutive years of complete,
quality-assured and certified data for
2006–2008 for CJNA. Table 1
summarizes the exceedances of the 24hour PM–10 NAAQS of 150 μg/m3
measured in the CJNA during the 2006–
2008 period. This table also summarizes
data for 2009 that are contained in the
AQS database but not yet certified.
TABLE 1—CJNA 24-HOUR PM–10 EXCEEDANCES, 2006–2009
Date of
exceedance
Monitoring site
Coso Junction ..................................................................................
Maximum
(μg/m3)
12/8/06
6/5/07
12/6/07
*12/22/09
Number of
expected
exceedances
2006–2008
295
217
283
*168
Number of
expected
exceedances
2007–2009
1
1
Source: EPA AQS Database.
* The 2009 data have been submitted to the AQS database but are not yet certified.
The air quality planning requirements
for moderate PM–10 nonattainment
areas, such as the CJNA, are set out in
part D, subparts 1 and 4 of title I of the
Act. EPA has issued guidance in a
General Preamble 4 describing how we
will review state implementation plans
(SIPs) and SIP revisions submitted
under title I of the Act, including those
containing moderate PM–10
nonattainment area SIP provisions.
In nonattainment areas where
monitored data demonstrate that the
NAAQS have already been achieved,
EPA has determined that certain
requirements of part D, subparts 1 and
2 of the Act do not apply. Therefore, we
do not require certain submissions for
an area that has attained the NAAQS.
These include reasonable further
progress (RFP) requirements, attainment
demonstrations, reasonably available
control measures (RACM), and
contingency measures, because these
provisions have the purpose of helping
achieve attainment of the NAAQS.
This interpretation of the CAA is
known as the Clean Data Policy and is
the subject of two EPA memoranda. EPA
also finalized the statutory
interpretation set forth in the policy in
its final rule, 40 CFR 51.918, as part of
its ‘‘Final Rule to Implement the 8-hour
Ozone National Ambient Air Quality
Standard—Phase 2’’ (Phase 2 Final
Rule). See discussion in the preamble to
the rule at 70 FR 71612, 71645–46
(November 29, 2005). The D.C. Circuit
upheld this Clean Data regulation as a
valid interpretation of the Clean Air Act
NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir.
2009). EPA also finalized its
interpretation in a regulation that was
part of its Implementation Rulemaking
for the PM2.5 NAAQS. 40 CFR
51.1004(c). Thus, EPA has codified the
policy when it established final rules
governing implementation of new or
revised NAAQS for the pollutants. 70
FR 71612, 71644–46 (November 29,
2005) (ozone); 72 FR 20585, 20665
(April 25, 2007) (PM–2.5). Otherwise, it
applies the policy in individual
rulemakings related to specific
nonattainment areas. See, e.g., 75 FR
6571 (February 10, 2010). EPA believes
that the legal bases set forth in detail in
our Phase 2 Final rule, our May 10, 1995
memorandum from John S. Seitz,
entitled ‘‘Reasonable Further Progress,
Attainment Demonstration, and Related
Requirements for Ozone Nonattainment
Areas Meeting the Ozone National
Ambient Air Quality Standard,’’ our
PM–2.5 implementation rule, and our
December 14, 2004 memorandum from
Stephen D. Page entitled ‘‘Clean Data
Policy for the Fine Particle National
Ambient Air Quality Standards’’, are
equally pertinent to the interpretation of
provisions of subparts 1 and 4
applicable to PM–10. Our interpretation
that an area that is attaining the
standards is relieved of obligations to
demonstrate RFP and to provide an
attainment demonstration, RACM and
contingency measures pursuant to part
D of the CAA, pertains whether the
standard is PM–10, ozone or PM–2.5.
In our recent proposed and final
rulemakings determining that the San
Joaquin Valley nonattainment area
attained the PM–10 standard, EPA set
forth at length our rationale for applying
the Clean Data Policy to PM–10. The
1 The Federal Reference Method (FRM) for PM–
10 monitoring sites is a manual sampler operated
on a once every six day schedule. These samplers
draw ambient air through a quartz fiber filter which
is weighed before and after sampling in order to
determine the mass of PM–10 that is collected after
the 24-hour run period. The GBUAPCD was
operating two FRMs at the CJNA monitoring site on
a staggered once every six day schedule that
enabled the District to collect a 24-hour PM–10
sample every three days until June 30, 2006 when
the FRMs were terminated. See EPA AQS Database,
Monitor Description Report. Prior to terminating the
FRMS, the GBUAPCD added a tapered element
oscillating microbalance (TEOM) analyzer on May
11, 2006. Id. The TEOM analyzer, which records
PM–10 levels continuously, is not a FRM but has
been designated a Federal equivalent method (FEM)
by EPA. All exceedances monitored from 2006 to
date were recorded by this TEOM.
2 Based on data from the EPA AQS database.
3 We note that the GBUAPCD has reported the 4th
quarter data for 2009 before the deadline. Under 40
CFR 58.16(b), quarterly data are not required to be
reported in the AQS database until 90 days after the
quarter; thus the data for the 4th quarter of 2009
must be reported by no later than March 31, 2010.
The AQS data for the year 2009 must be certified
by May 1, 2010. See 40 CFR 58.15.
4 ‘‘General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990,’’
57 FR 13498 (April 16, 1992), as supplemented at
57 FR 18070 (April 28, 1992).
As noted above, the 24-hour PM–10
standard is attained when the expected
number of days per year with levels
above 150 μg/m3 (averaged over a threeyear period) is less than or equal to one.
As can be seen from Table 1, there were
three exceedances of the 24-hour PM–10
NAAQS for both the 2006–2008 and
2007–2009 periods; therefore the
expected number of days per year with
levels above 150 μg/m3 (averaged over
that three-year period) for both of these
periods is one.2 3 EPA is not aware of
any exceedances to date during the year
2010. Thus, based on quality-assured
and certified data for the period 2006–
2008 and data in AQS for the period
2007–2009 that show the area continues
to attain, we propose to find that the
CJNA has attained the 24-hour PM–10
NAAQS. Before EPA finalizes its
rulemaking on a determination of
attainment for CJNA, the Agency will
consider the most current data available
at that time.
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III. Applicability of Clean Air Act
Planning Requirements
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Ninth Circuit subsequently upheld this
rulemaking, and specifically EPA’s
Clean Data Policy in the context of the
PM–10 standard. Latino Issues Forum v.
EPA, Nos. 06–75831 and 08–71238 (9th
Cir.) Memorandum Opinion, March 2,
2009. In rejecting petitioner’s challenge
to the Clean Data Policy for PM–10, the
Court stated:
As the EPA rationally explained, if an area
is in compliance with PM–10 standards, then
further progress for the purpose of ensuring
attainment is not necessary.
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The reasons for relieving an area that
has attained the relevant standard of
certain part D, subparts 1 and 2
obligations, applies equally to part D,
subpart 4, which contains specific
attainment demonstration and RFP
provisions for PM–10 nonattainment
areas. As we have explained in the
Phase 2 Final Rule and our ozone and
PM–2.5 clean data memoranda, EPA
believes that it is reasonable to interpret
provisions regarding RFP and
attainment demonstrations, along with
related requirements, so as not to
require SIP submissions if an area
subject to those requirements is already
attaining the NAAQS (i.e. attainment of
the NAAQS is demonstrated with three
consecutive years of complete, qualityassured air quality monitoring data).
Every U.S. Circuit Court of Appeals that
has considered the Clean Data Policy
has upheld EPA rulemakings applying
its interpretation, for both ozone and
PM–10. Sierra Club v. EPA, 99 F.3d
1551 (10th Cir. 1996); Sierra Club v.
EPA, 375 F. 3d 537 (7th Cir. 2004); Our
Children’s Earth Foundation v. EPA, N.
04–73032 (9th Cir. June 28, 2005)
(memorandum opinion), Latino Issues
Forum, supra.
It has been EPA’s longstanding
interpretation that the general
provisions of part D, subpart 1 of the
Act (sections 171 and 172) do not
require the submission of SIP revisions
concerning RFP for areas already
attaining the ozone NAAQS. In the
General Preamble, we stated:
[R]equirements for RFP will not apply in
evaluating a request for redesignation to
attainment since, at a minimum, the air
quality data for the area must show that the
area has already attained. Showing that the
State will make RFP towards attainment will,
therefore, have no meaning at that point.
57 FR at 13564. EPA believes the same
reasoning applies to the PM–10
provision of part D, subpart 4.
With respect to RFP, section 171(1)
states that, for purposes of part D of title
I, RFP ‘‘means such annual incremental
reductions in emissions of the relevant
air pollutant as are required by this part
or may reasonably be required by the
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Administrator for the purpose of
ensuring attainment of the applicable
NAAQS by the applicable date.’’ Thus,
whether dealing with the general RFP
requirement of section 172(c)(2), the
ozone-specific RFP requirements of
sections 182(b) and (c), or the specific
RFP requirements for PM–10 areas of
part D, subpart 4, section 189(c)(1), the
stated purpose of RFP is to ensure
attainment by the applicable attainment
date. Section 189(c)(1) states that:
Plan revisions demonstrating attainment
submitted to the Administrator for approval
under this subpart shall contain quantitative
milestones which are to be achieved every 3
years until the area is redesignated
attainment and which demonstrate
reasonable further progress, as defined in
section 7501(1) of this title, toward
attainment by the applicable date.
Although this section states that
revisions shall contain milestones
which are to be achieved until the area
is redesignated to attainment, such
milestones are designed to show
reasonable further progress ‘‘toward
attainment by the applicable attainment
date,’’ as defined by section 171. Thus,
it is clear that once the area has attained
the standard, no further milestones are
necessary or meaningful. This
interpretation is supported by language
in section 189(c)(3), which mandates
that a state that fails to achieve a
milestone must submit a plan that
assures that the state will achieve the
next milestone or attain the NAAQS if
there is no next milestone. Section
189(c)(3) assumes that the requirement
to submit and achieve milestones does
not continue after attainment of the
NAAQS.
In the General Preamble, we noted
with respect to section 189(c) that ‘‘the
purpose of the milestone requirement is
to ‘provide for emission reductions
adequate to achieve the standards by the
applicable attainment date’ (H.R. Rep.
No. 490 101st Cong., 2d Sess. 267
(1990)).’’ 57 FR 13539 (April 16, 1992).
If an area has in fact attained the
standard, the stated purpose of the RFP
requirement will have already been
fulfilled.5 EPA took this position with
5 Thus, we believe that it is a distinction without
a difference that section 189(c)(1) speaks of the RFP
requirement as one to be achieved until an area is
‘‘redesignated attainment,’’ as opposed to section
172(c)(2), which is silent on the period to which the
requirement pertains, or the ozone nonattainment
area RFP requirements in sections 182(b)(1) or 182
(c)(2), which refer to the RFP requirements as
applying until the ‘‘attainment date,’’ since section
189(c)(1) defines RFP by reference to section 171(1)
of the Act. Reference to section 171(1) clarifies that,
as with the general RFP requirements in section
172(c)(2) and the ozone-specific requirements of
section 182(b)(1) and 182(c)(2), the PM-specific
requirements may only be required ‘‘for the purpose
of ensuring attainment of the applicable national
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13713
respect to the general RFP requirement
of section 172(c)(2) in the April 16, 1992
General Preamble and also in the May
10, 1995 memorandum with respect to
the requirements of sections 182(b) and
(c). We are extending that interpretation
to the specific provisions of part D,
subpart 4. In the General Preamble, we
stated, in the context of a discussion of
the requirements applicable to the
evaluation of requests to redesignate
nonattainment areas to attainment, that
the ‘‘requirements for RFP will not apply
in evaluating a request for redesignation
to attainment since, at a minimum, the
air quality data for the area must show
that the area has already attained.
Showing that the State will make RFP
towards attainment will, therefore, have
no meaning at that point.’’ (57 FR
13564). See also our September 4, 1992
memorandum from John Calcagni,
entitled ‘‘Procedures for Processing
Requests to Redesignate Areas to
Attainment’’ (Calcagni memo), p. 6.
Similarly, the requirements of section
189(c)(2) with respect to milestones no
longer apply so long as an area has
attained the standard. Section 189(c)(2)
provides in relevant part that:
Not later than 90 days after the date on
which a milestone applicable to the area
occurs, each State in which all or part of such
area is located shall submit to the
Administrator a demonstration * * * that
the milestone has been met.
Where the area has attained the
standard and there are no further
milestones, there is no further
requirement to make a submission
showing that such milestones have been
met. As noted above, this is consistent
with the position that EPA took with
respect to the general RFP requirement
of section 172(c)(2) in the April 16, 1992
General Preamble and also in the May
10, 1995 Seitz memorandum with
respect to the requirements of section
182(b) and (c). In the May 10, 1995 Seitz
memorandum, EPA also noted that
section 182(g), the milestone
requirement of Subpart 2, which is
analogous to provisions in section
189(c), is suspended upon a
determination that an area has attained.
The memorandum, also citing
additional provisions related to
attainment demonstration and RFP
requirements, stated:
Inasmuch as each of these requirements is
linked with the attainment demonstration or
RFP requirements of section 182(b)(1) or
ambient air quality standard by the applicable
date.’’ 42 U.S.C. section 7501(1). As discussed in the
text of this rulemaking, EPA interprets the RFP
requirements, in light of the definition of RFP in
section 171(1), and incorporated in section
189(c)(1), to be a requirement that no longer applies
once the standard has been attained.
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wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
182(c)(2), if an area is not subject to the
requirement to submit the underlying
attainment demonstration or RFP plan, it
need not submit the related SIP submission
either.
1995 Seitz memorandum at 5.
With respect to the attainment
demonstration requirements of section
189(a)(1)(B), an analogous rationale
leads to the same result. Section
189(a)(1)(B) requires that the plan
provide for ‘‘a demonstration (including
air quality modeling) that the [SIP] will
provide for attainment by the applicable
attainment date * * *.’’ As with the RFP
requirements, if an area is already
monitoring attainment of the standard,
EPA believes there is no need for an
area to make a further submission
containing additional measures to
achieve attainment. This is also
consistent with the interpretation of the
section 172(c) requirements provided by
EPA in the General Preamble, the Page
memo, and the section 182(b) and (c)
requirements set forth in the Seitz
memo. As EPA stated in the General
Preamble, no other measures to provide
for attainment would be needed by areas
seeking redesignation to attainment
since ‘‘attainment will have been
reached.’’ (57 FR at 13564).
Other SIP submission requirements
are linked with these attainment
demonstration and RFP requirements,
and similar reasoning applies to them.
These requirements include the
contingency measure requirements of
sections 172(c)(9) and 182(c)(9). We
have interpreted the contingency
measure requirements of sections
172(c)(9) and 182(c)(9) as no longer
applying when an area has attained the
standard because those ‘‘contingency
measures are directed at ensuring RFP
and attainment by the applicable date.’’
(57 FR at 13564); Seitz memo, pp. 5–6.
Both sections 172(c)(1) and
189(a)(1)(C) require ‘‘provisions to
assure that reasonably available control
measures’’ (i.e., RACM) are implemented
in a nonattainment area. The General
Preamble, 57 FR at 13560 (April 16,
1992), states that EPA interprets section
172(c)(1) so that RACM requirements
are a ‘‘component’’ of an area’s
attainment demonstration. Thus, for the
same reason the attainment
demonstration no longer applies by its
own terms, the requirement for RACM
no longer applies. EPA has consistently
interpreted this provision to require
only implementation of potential RACM
measures that could contribute to
reasonable further progress or to
attainment. General Preamble, 57 FR at
13498. Thus, where an area is already
attaining the standard, no additional
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RACM measures are required.6 EPA is
interpreting section 189(a)(1)(C)
consistent with its interpretation of
section 172(c)(1).
Here, as in both our Phase 2 Final
Rule and ozone and PM–2.5 clean data
memoranda, we emphasize that the
suspension of a requirement to submit
SIP revisions concerning these RFP,
attainment demonstration, RACM, and
other related requirements exists only
for as long as a nonattainment area
continues to monitor attainment of the
standard. If such an area experiences a
violation of the NAAQS, the basis for
the requirements being suspended
would no longer exist. Therefore, the
area would again be subject to a
requirement to submit the pertinent SIP
revision or revisions and would need to
address those requirements. Thus, a
determination that an area need not
submit one of the SIP submittals
amounts to no more than a suspension
of the requirements for so long as the
area continues to attain the standard.
However, once EPA ultimately
redesignates the area to attainment, the
area will be entirely relieved of these
requirements to the extent the
maintenance plan for the area does not
rely on them.
Should EPA at some future time
determine that an area that has attained
the standard, but which has not yet been
redesignated as attainment for a
NAAQS, has violated the relevant
standard, the area would again be
required to submit the pertinent SIP
requirements for the area. Attainment
determinations under the policy do not
shield an area from other required
actions, such as provisions to address
pollution transport.
As set forth above, EPA finds that
because the CJNA is attaining the
PM–10 NAAQS, the requirements to
submit an attainment demonstration,
reasonable further progress, reasonably
available control measures and
contingency measures no longer apply
for so long as the area continues to
monitor attainment of the PM–10
NAAQS.7 If in the future EPA
6 The
EPA’s interpretation that the statute only
requires implementation of RACM measures that
would advance attainment was upheld by the
United States Court of Appeals for the Fifth Circuit
(Sierra Club v. EPA, 314 F.3d 735, 743–745 (5th Cir.
2002), and by the United States Court of Appeals
for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d
155, 162–163 (D.C. Cir. 2002)).
7 We note that our application of the Clean Data
Policy to the CJNA is consistent with actions we
have taken for other PM–10 nonattainment areas
that we also determined were attaining the
standard. See 71 FR 6352 (February 8, 2006) (Ajo,
Arizona area); 71 FR 13021 (March 14, 2006)
(Yuma, Arizona area); 71 FR 40023 (July 14, 2006)
(Weirton, West Virginia area); 71 FR 44920 (August
8, 2006) (Rillito, Arizona area); 71 FR 63642
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determines, after notice and comment
rulemaking, that the CJNA violates the
PM–10 NAAQS, the basis for the
attainment demonstration, RFP, RACM
and contingency measure requirements
being suspended would no longer exist.
In that event, we would notify the State
that we have determined that the area is
no longer attaining the PM–10 standard
and provide notice to the public in the
Federal Register.
IV. EPA’s Proposed Action
Based on the most recent three years
of complete, quality-assured data
meeting the requirements of 40 CFR part
50, appendix K, we propose to
determine that the CJNA has attained
the 24-hour PM–10 NAAQS.
Preliminary data indicate that the area
continues to attain the standard. This
proposed action, if finalized, would not
constitute a redesignation to attainment
under CAA section 107(d)(3) because
we would not yet have approved a
maintenance plan as required under
section 175(A) of the CAA or
determined that the area has met the
other CAA requirements for
redesignation. The classification and
designation status in 40 CFR part 81
would remain moderate nonattainment
for this area until such time as
California meets the CAA requirements
for redesignation of the CJNA to
attainment.
EPA also finds that, because the CJNA
is attaining the NAAQS, the obligation
to submit the following CAA
requirements is not applicable for so
long as the CJNA continues to attain the
PM–10 standard: The part D, subpart 4
obligations to provide an attainment
demonstration pursuant to section
189(a)(1)(B), the RACM provisions of
189(a)(1)(C), the RFP provisions
established by section 189(c)(1), and the
attainment demonstration, RACM, RFP
and contingency measure provisions of
part D, subpart 1 contained in section
172 of the Act.
V. Statutory and Executive Order
Reviews
This action proposes to make a
determination of attainment based on
air quality, and would, if finalized;
result in the suspension of certain
Federal requirements, and would not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
(October 30, 2006) (San Joaquin Valley, California
area) and 72 FR 14422 (March 28, 2007) (Miami,
Arizona area).
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Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Proposed Rules
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to the requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
40 CFR Parts 52
wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Environmental protection, Air
pollution control, Incorporation by
reference, Particulate matter, Reporting
and recordkeeping requirements.
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: March 15, 2010.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2010–6338 Filed 3–22–10; 8:45 am]
BILLING CODE 6560–50–P
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Coast Guard
46 CFR Parts 10, 11, 12, and 15
[Docket No. USCG–2004–17914]
RIN 1625–AA16
Implementation of the 1995
Amendments to the International
Convention on Standards of Training,
Certification and Watchkeeping for
Seafarers, 1978
Coast Guard, DHS.
Supplemental Notice of
Proposed Rulemaking; next stage.
AGENCY:
ACTION:
(STCW Convention), on June 10, 1991.
On November 17, 2009, the Coast Guard
published a NPRM on the
Implementation of the 1995
Amendments to the STCW Convention.
The Coast Guard held five public
meetings and received a large number of
comments to the rulemaking docket in
response to the NPRM.
The International Maritime
Organization (IMO) is currently
developing amendments to the STCW
Convention that are expected to be
adopted at a diplomatic conference in
June 2010. If adopted, these
amendments will change the minimum
training requirements for seafarers. They
are expected to enter into force in
accordance with Article XII of the
Convention on January 1, 2012 for all
countries that are party to the STCW
Convention.
In response to feedback we have
received and to the expected adoption
of the 2010 amendments to the
Convention under development at the
IMO, the Coast Guard is reviewing the
approach outlined in the NPRM. As
such, we are considering publishing a
Supplemental NPRM (SNPRM) as a next
step. The SNPRM would describe any
proposed changes from the NPRM, and
seek comments from the public on those
proposed changes.
This document is issued under
authority of 5 U.S.C. 552(a).
SUMMARY: The Coast Guard announces
that it is revisiting the approach
proposed in the Notice of Proposed
Rulemaking (NPRM) on the
Implementation of the 1995
Amendments to the International
Convention on Standards of Training,
Certification and Watchkeeping for
Seafarers, 1978, as published in the
Federal Register on November 17, 2009.
DATES: The Coast Guard published its
NPRM on the Implementation of the
1995 Amendments to the International
Convention on Standards of Training,
Certification and Watchkeeping for
Seafarers, 1978, in the Federal Register
on November 17, 2009 (74 FR 59354).
Comments on the NPRM were due by
February 16, 2010.
ADDRESSES: The docket for this
rulemaking is available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
You may also find this docket on the
Internet by going to https://
www.regulations.gov, inserting USCG–
2004–17914 in the ‘‘Keyword’’ box, and
then clicking ‘‘Search.’’
FOR FURTHER INFORMATION CONTACT: If
you have questions on this document,
call or e-mail Mayte Medina, U.S. Coast
Guard; telephone 202–372–1406, e-mail
Mayte.Medina2@uscg.mil. If you have
questions on viewing or submitting
material to the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
Background and Purpose
The United States ratified the
International Convention on Standards
of Training, Certification and
Watchkeeping for Seafarers, 1978
List of Subjects
40 CFR Part 81
DEPARTMENT OF HOMELAND
SECURITY
13715
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the comment period on the
proposed revision of critical habitat for
the bull trout (Salvelinus confluentus)
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Dated: March 17, 2010.
F.J. Sturm,
Deputy Director, Office of Commercial
Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2010–6297 Filed 3–22–10; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R1–ES–2009–0085; MO
92210–0–0009]
RIN 1018–AW88
Endangered and Threatened Wildlife
and Plants; Revised Designation of
Critical Habitat for Bull Trout in the
Coterminous United States
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]]>Agencies
[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Proposed Rules]
[Pages 13710-13715]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-6338]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2010-0172; FRL-9129-3]
Approval and Promulgation of Implementation Plans; Designation of
Areas for Air Quality Planning Purposes; State of California; PM-10;
Determination of Attainment for the Coso Junction Nonattainment Area;
Determination Regarding Applicability of Certain Clean Air Act
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to determine that the Coso Junction
nonattainment area (CJNA) in California has attained the 24-hour
National Ambient Air Quality Standard (NAAQS) for particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10). This proposed determination is based upon
monitored air quality data for the PM-10 NAAQS during the years 2006-
2008. In addition, data for 2009 contained in EPA's Air Quality System
(AQS) shows the CJNA continued to attain the PM-10 NAAQS through 2009,
and preliminary data for 2010 available to date show no exceedances of
the 24-hour NAAQS have been recorded at the CJNA monitoring site. EPA
is also proposing to determine that, because the CJNA has attained the
PM-10 NAAQS, the obligation to make submissions to meet certain Clean
Air Act (CAA or the Act) requirements is not applicable for as long as
the CJNA continues to attain the PM-10 NAAQS.
DATES: Written comments must be received on or before April 22, 2010.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0172, by one of the following methods:
(1) Federal eRulemaking portal: https://www.regulations.gov. Follow
the on-line instructions.
(2) E-mail: mahdavi.sarvy@epa.gov.
(3) Mail or deliver: Sarvy Mahdavi (AIR-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at https://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that
[[Page 13711]]
you consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through the https://www.regulations.gov
or e-mail. https://www.regulations.gov is an anonymous access system,
and EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send e-mail directly to
EPA, your e-mail address will be automatically captured and included as
part of the public comment. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.
FOR FURTHER INFORMATION CONTACT: Sarvy Mahdavi, EPA Region IX, (415)
972-3173, mahdavi.sarvy@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' are used, we mean EPA.
Table of Contents
I. Background
A. The NAAQS for PM-10
B. Designation, Classification and Air Quality Planning for PM-
10 for the CJNA
C. Attainment Determinations
II. Proposed Attainment Determination for the CJNA
III. Applicability of Clean Air Act Planning Requirements
IV. EPA's Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. The NAAQS for PM-10
Particulate matter with an aerodynamic diameter of less than or
equal to 10 micrometers (PM-10) is the subject of this proposed action.
The NAAQS are limits for certain ambient air pollutants set by EPA to
protect public health and welfare. PM-10 is among the ambient air
pollutants for which EPA has established a health-based standard.
On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for
particulate matter with an indicator that includes only those particles
with an aerodynamic diameter less than or equal to a nominal 10
micrometers. The 24-hour primary PM-10 standard was set at 150
micrograms per cubic meter ([mu]g/m\3\) with no more than one expected
exceedance per year. The annual primary PM-10 standard was set at 50
[mu]g/m\3\ as an annual arithmetic mean. The secondary PM-10 standards,
promulgated to protect against adverse welfare effects, were identical
to the primary standards.
On October 17, 2006, EPA revised the primary PM-10 standards by
revoking the annual standard of 50 [mu]g/m\3\, but retained the 24-hour
standard of 150 [mu]g/m\3\. EPA also revised the secondary PM-10
standards to be the same as the primary standards. The revised PM-10
NAAQS became effective on December 18, 2006. See 71 FR 61144 and 40 CFR
50.6.
B. Designation, Classification and Air Quality Planning for PM-10 for
the CJNA
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the PM-10 NAAQS. On the date of
enactment of the 1990 Clean Air Act Amendments, PM-10 areas meeting the
qualifications of section 107(d)(4)(B) of the amended Act were
designated nonattainment by operation of law. See 56 FR 11101 (March
15, 1991). At that time, the CJNA was within the boundaries of the
Searles Valley planning area and EPA codified the boundaries of the
Searles Valley planning area at 40 CFR 81.305; however, EPA
subsequently changed the boundaries of the Searles Valley area by
dividing it into three separate nonattainment areas: The CJNA, Indian
Wells and Trona planning areas. 67 FR 50805 (August 6, 2002).
Once an area is designated nonattainment for PM-10, section 188 of
the CAA outlines the process for classifying the area and establishes
the area's initial attainment deadline. In accordance with section
188(a), at the time of designation, all PM-10 nonattainment areas, such
as the Searles Valley, were initially classified as moderate
nonattainment. When EPA changed the boundaries of the Searles Valley
area, the Agency also classified the newly created CJNA, Indian Wells
and Trona planning areas as moderate. In the same action, EPA
determined that the Trona planning area had attained the PM-10 NAAQS by
the statutory attainment deadline. 67 FR 50805. EPA redesignated the
Indian Wells planning area to attainment for the PM-10 NAAQS on
December 17, 2002. 67 FR 77196. This proposed action concerns only the
moderate CJNA.
C. Attainment Determinations
We generally determine whether an area's air quality meets the PM-
10 NAAQS for purposes of sections 179(c)(1) and 188(b)(2) based upon
data gathered at established state and local air monitoring stations
(SLAMS) in the nonattainment area and entered into the EPA Air Quality
System (AQS) database. Data from air monitors operated by state/local
agencies in compliance with EPA monitoring requirements must be
submitted to the EPA AQS database. Heads of monitoring agencies
annually certify that these data are accurate to the best of their
knowledge. Accordingly, EPA relies primarily on data in its AQS
database when determining the attainment status of areas. See 40 CFR
50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58,
appendices A, C, D and E. We will also consider air quality data from
other air monitoring stations in the nonattainment area regardless of
whether they have been entered into the EPA AQS database if the
stations meet the federal monitoring requirements for SLAMS. See 40 CFR
58.20 and August 22, 1997 Memorandum ``Agency Policy on the Use of
Special Purpose Monitoring Data,'' from John S. Seitz, Director, Office
of Air Quality Planning and Standards, to the Regional Air Directors.
All data are reviewed to determine the area's air quality status in
accordance with our guidance at 40 CFR part 50, appendix K.
Attainment of the 24-hour PM-10 standard is determined by
calculating the expected number of days in a year with PM-10
concentrations greater than 150 [mu]g/m\3\. The 24-hour standard is
attained when the expected number of days per year with levels above
150 [mu]g/m\3\ (averaged over a three-year period) is less than or
equal to one. Three consecutive years of air quality data are necessary
to show attainment of the 24-hour standard for PM-10. See 40 CFR part
50, appendix K. A complete year of air quality data, as referred to in
40 CFR part 50, appendix K, includes all four calendar quarters with
each quarter containing data from at least 75 percent of the scheduled
sampling days.
II. Proposed Attainment Determination for the CJNA
The CJNA has one SLAMS site operated by the Great Basin Unified Air
Pollution Control District (District or GBUAPCD). This monitoring site
is located in the Rose Valley of Coso Junction at the southern end of
Inyo County and currently has a continuous
[[Page 13712]]
PM-10 analyzer which records PM-10 concentrations on an hourly
basis.\1\
---------------------------------------------------------------------------
\1\ The Federal Reference Method (FRM) for PM-10 monitoring
sites is a manual sampler operated on a once every six day schedule.
These samplers draw ambient air through a quartz fiber filter which
is weighed before and after sampling in order to determine the mass
of PM-10 that is collected after the 24-hour run period. The GBUAPCD
was operating two FRMs at the CJNA monitoring site on a staggered
once every six day schedule that enabled the District to collect a
24-hour PM-10 sample every three days until June 30, 2006 when the
FRMs were terminated. See EPA AQS Database, Monitor Description
Report. Prior to terminating the FRMS, the GBUAPCD added a tapered
element oscillating microbalance (TEOM) analyzer on May 11, 2006.
Id. The TEOM analyzer, which records PM-10 levels continuously, is
not a FRM but has been designated a Federal equivalent method (FEM)
by EPA. All exceedances monitored from 2006 to date were recorded by
this TEOM.
---------------------------------------------------------------------------
PM-10 data collected in the CJNA is reported by the GBUAPCD to the
EPA AQS database. The database contains three consecutive years of
complete, quality-assured and certified data for 2006-2008 for CJNA.
Table 1 summarizes the exceedances of the 24-hour PM-10 NAAQS of 150
[mu]g/m\3\ measured in the CJNA during the 2006-2008 period. This table
also summarizes data for 2009 that are contained in the AQS database
but not yet certified.
Table 1--CJNA 24-Hour PM-10 Exceedances, 2006-2009
----------------------------------------------------------------------------------------------------------------
Number of Number of
Date of Maximum ([mu]g/ expected expected
Monitoring site exceedance m\3\) exceedances exceedances 2007-
2006-2008 2009
----------------------------------------------------------------------------------------------------------------
Coso Junction........................... 12/8/06 295 1 1
6/5/07 217
12/6/07 283
*12/22/09 *168
----------------------------------------------------------------------------------------------------------------
Source: EPA AQS Database.
* The 2009 data have been submitted to the AQS database but are not yet certified.
As noted above, the 24-hour PM-10 standard is attained when the
expected number of days per year with levels above 150 [micro]g/m\3\
(averaged over a three-year period) is less than or equal to one. As
can be seen from Table 1, there were three exceedances of the 24-hour
PM-10 NAAQS for both the 2006-2008 and 2007-2009 periods; therefore the
expected number of days per year with levels above 150 [micro]g/m\3\
(averaged over that three-year period) for both of these periods is
one.2 3 EPA is not aware of any exceedances to date during
the year 2010. Thus, based on quality-assured and certified data for
the period 2006-2008 and data in AQS for the period 2007-2009 that show
the area continues to attain, we propose to find that the CJNA has
attained the 24-hour PM-10 NAAQS. Before EPA finalizes its rulemaking
on a determination of attainment for CJNA, the Agency will consider the
most current data available at that time.
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\2\ Based on data from the EPA AQS database.
\3\ We note that the GBUAPCD has reported the 4th quarter data
for 2009 before the deadline. Under 40 CFR 58.16(b), quarterly data
are not required to be reported in the AQS database until 90 days
after the quarter; thus the data for the 4th quarter of 2009 must be
reported by no later than March 31, 2010. The AQS data for the year
2009 must be certified by May 1, 2010. See 40 CFR 58.15.
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III. Applicability of Clean Air Act Planning Requirements
The air quality planning requirements for moderate PM-10
nonattainment areas, such as the CJNA, are set out in part D, subparts
1 and 4 of title I of the Act. EPA has issued guidance in a General
Preamble \4\ describing how we will review state implementation plans
(SIPs) and SIP revisions submitted under title I of the Act, including
those containing moderate PM-10 nonattainment area SIP provisions.
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\4\ ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990,'' 57 FR 13498 (April 16, 1992), as
supplemented at 57 FR 18070 (April 28, 1992).
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In nonattainment areas where monitored data demonstrate that the
NAAQS have already been achieved, EPA has determined that certain
requirements of part D, subparts 1 and 2 of the Act do not apply.
Therefore, we do not require certain submissions for an area that has
attained the NAAQS. These include reasonable further progress (RFP)
requirements, attainment demonstrations, reasonably available control
measures (RACM), and contingency measures, because these provisions
have the purpose of helping achieve attainment of the NAAQS.
This interpretation of the CAA is known as the Clean Data Policy
and is the subject of two EPA memoranda. EPA also finalized the
statutory interpretation set forth in the policy in its final rule, 40
CFR 51.918, as part of its ``Final Rule to Implement the 8-hour Ozone
National Ambient Air Quality Standard--Phase 2'' (Phase 2 Final Rule).
See discussion in the preamble to the rule at 70 FR 71612, 71645-46
(November 29, 2005). The D.C. Circuit upheld this Clean Data regulation
as a valid interpretation of the Clean Air Act NRDC v. EPA, 571 F. 3d
1245 (D.C. Cir. 2009). EPA also finalized its interpretation in a
regulation that was part of its Implementation Rulemaking for the PM2.5
NAAQS. 40 CFR 51.1004(c). Thus, EPA has codified the policy when it
established final rules governing implementation of new or revised
NAAQS for the pollutants. 70 FR 71612, 71644-46 (November 29, 2005)
(ozone); 72 FR 20585, 20665 (April 25, 2007) (PM-2.5). Otherwise, it
applies the policy in individual rulemakings related to specific
nonattainment areas. See, e.g., 75 FR 6571 (February 10, 2010). EPA
believes that the legal bases set forth in detail in our Phase 2 Final
rule, our May 10, 1995 memorandum from John S. Seitz, entitled
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,'' our PM-2.5 implementation rule, and our
December 14, 2004 memorandum from Stephen D. Page entitled ``Clean Data
Policy for the Fine Particle National Ambient Air Quality Standards'',
are equally pertinent to the interpretation of provisions of subparts 1
and 4 applicable to PM-10. Our interpretation that an area that is
attaining the standards is relieved of obligations to demonstrate RFP
and to provide an attainment demonstration, RACM and contingency
measures pursuant to part D of the CAA, pertains whether the standard
is PM-10, ozone or PM-2.5.
In our recent proposed and final rulemakings determining that the
San Joaquin Valley nonattainment area attained the PM-10 standard, EPA
set forth at length our rationale for applying the Clean Data Policy to
PM-10. The
[[Page 13713]]
Ninth Circuit subsequently upheld this rulemaking, and specifically
EPA's Clean Data Policy in the context of the PM-10 standard. Latino
Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir.) Memorandum
Opinion, March 2, 2009. In rejecting petitioner's challenge to the
Clean Data Policy for PM-10, the Court stated:
As the EPA rationally explained, if an area is in compliance
with PM-10 standards, then further progress for the purpose of
ensuring attainment is not necessary.
The reasons for relieving an area that has attained the relevant
standard of certain part D, subparts 1 and 2 obligations, applies
equally to part D, subpart 4, which contains specific attainment
demonstration and RFP provisions for PM-10 nonattainment areas. As we
have explained in the Phase 2 Final Rule and our ozone and PM-2.5 clean
data memoranda, EPA believes that it is reasonable to interpret
provisions regarding RFP and attainment demonstrations, along with
related requirements, so as not to require SIP submissions if an area
subject to those requirements is already attaining the NAAQS (i.e.
attainment of the NAAQS is demonstrated with three consecutive years of
complete, quality-assured air quality monitoring data). Every U.S.
Circuit Court of Appeals that has considered the Clean Data Policy has
upheld EPA rulemakings applying its interpretation, for both ozone and
PM-10. Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club
v. EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's Earth Foundation
v. EPA, N. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion),
Latino Issues Forum, supra.
It has been EPA's longstanding interpretation that the general
provisions of part D, subpart 1 of the Act (sections 171 and 172) do
not require the submission of SIP revisions concerning RFP for areas
already attaining the ozone NAAQS. In the General Preamble, we stated:
[R]equirements for RFP will not apply in evaluating a request
for redesignation to attainment since, at a minimum, the air quality
data for the area must show that the area has already attained.
Showing that the State will make RFP towards attainment will,
therefore, have no meaning at that point.
57 FR at 13564. EPA believes the same reasoning applies to the PM-10
provision of part D, subpart 4.
With respect to RFP, section 171(1) states that, for purposes of
part D of title I, RFP ``means such annual incremental reductions in
emissions of the relevant air pollutant as are required by this part or
may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable NAAQS by the applicable date.''
Thus, whether dealing with the general RFP requirement of section
172(c)(2), the ozone-specific RFP requirements of sections 182(b) and
(c), or the specific RFP requirements for PM-10 areas of part D,
subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure
attainment by the applicable attainment date. Section 189(c)(1) states
that:
Plan revisions demonstrating attainment submitted to the
Administrator for approval under this subpart shall contain
quantitative milestones which are to be achieved every 3 years until
the area is redesignated attainment and which demonstrate reasonable
further progress, as defined in section 7501(1) of this title,
toward attainment by the applicable date.
Although this section states that revisions shall contain
milestones which are to be achieved until the area is redesignated to
attainment, such milestones are designed to show reasonable further
progress ``toward attainment by the applicable attainment date,'' as
defined by section 171. Thus, it is clear that once the area has
attained the standard, no further milestones are necessary or
meaningful. This interpretation is supported by language in section
189(c)(3), which mandates that a state that fails to achieve a
milestone must submit a plan that assures that the state will achieve
the next milestone or attain the NAAQS if there is no next milestone.
Section 189(c)(3) assumes that the requirement to submit and achieve
milestones does not continue after attainment of the NAAQS.
In the General Preamble, we noted with respect to section 189(c)
that ``the purpose of the milestone requirement is to `provide for
emission reductions adequate to achieve the standards by the applicable
attainment date' (H.R. Rep. No. 490 101st Cong., 2d Sess. 267
(1990)).'' 57 FR 13539 (April 16, 1992). If an area has in fact
attained the standard, the stated purpose of the RFP requirement will
have already been fulfilled.\5\ EPA took this position with respect to
the general RFP requirement of section 172(c)(2) in the April 16, 1992
General Preamble and also in the May 10, 1995 memorandum with respect
to the requirements of sections 182(b) and (c). We are extending that
interpretation to the specific provisions of part D, subpart 4. In the
General Preamble, we stated, in the context of a discussion of the
requirements applicable to the evaluation of requests to redesignate
nonattainment areas to attainment, that the ``requirements for RFP will
not apply in evaluating a request for redesignation to attainment
since, at a minimum, the air quality data for the area must show that
the area has already attained. Showing that the State will make RFP
towards attainment will, therefore, have no meaning at that point.''
(57 FR 13564). See also our September 4, 1992 memorandum from John
Calcagni, entitled ``Procedures for Processing Requests to Redesignate
Areas to Attainment'' (Calcagni memo), p. 6.
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\5\ Thus, we believe that it is a distinction without a
difference that section 189(c)(1) speaks of the RFP requirement as
one to be achieved until an area is ``redesignated attainment,'' as
opposed to section 172(c)(2), which is silent on the period to which
the requirement pertains, or the ozone nonattainment area RFP
requirements in sections 182(b)(1) or 182 (c)(2), which refer to the
RFP requirements as applying until the ``attainment date,'' since
section 189(c)(1) defines RFP by reference to section 171(1) of the
Act. Reference to section 171(1) clarifies that, as with the general
RFP requirements in section 172(c)(2) and the ozone-specific
requirements of section 182(b)(1) and 182(c)(2), the PM-specific
requirements may only be required ``for the purpose of ensuring
attainment of the applicable national ambient air quality standard
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in
the text of this rulemaking, EPA interprets the RFP requirements, in
light of the definition of RFP in section 171(1), and incorporated
in section 189(c)(1), to be a requirement that no longer applies
once the standard has been attained.
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Similarly, the requirements of section 189(c)(2) with respect to
milestones no longer apply so long as an area has attained the
standard. Section 189(c)(2) provides in relevant part that:
Not later than 90 days after the date on which a milestone
applicable to the area occurs, each State in which all or part of
such area is located shall submit to the Administrator a
demonstration * * * that the milestone has been met.
Where the area has attained the standard and there are no further
milestones, there is no further requirement to make a submission
showing that such milestones have been met. As noted above, this is
consistent with the position that EPA took with respect to the general
RFP requirement of section 172(c)(2) in the April 16, 1992 General
Preamble and also in the May 10, 1995 Seitz memorandum with respect to
the requirements of section 182(b) and (c). In the May 10, 1995 Seitz
memorandum, EPA also noted that section 182(g), the milestone
requirement of Subpart 2, which is analogous to provisions in section
189(c), is suspended upon a determination that an area has attained.
The memorandum, also citing additional provisions related to attainment
demonstration and RFP requirements, stated:
Inasmuch as each of these requirements is linked with the
attainment demonstration or RFP requirements of section 182(b)(1) or
[[Page 13714]]
182(c)(2), if an area is not subject to the requirement to submit
the underlying attainment demonstration or RFP plan, it need not
submit the related SIP submission either.
1995 Seitz memorandum at 5.
With respect to the attainment demonstration requirements of
section 189(a)(1)(B), an analogous rationale leads to the same result.
Section 189(a)(1)(B) requires that the plan provide for ``a
demonstration (including air quality modeling) that the [SIP] will
provide for attainment by the applicable attainment date * * *.'' As
with the RFP requirements, if an area is already monitoring attainment
of the standard, EPA believes there is no need for an area to make a
further submission containing additional measures to achieve
attainment. This is also consistent with the interpretation of the
section 172(c) requirements provided by EPA in the General Preamble,
the Page memo, and the section 182(b) and (c) requirements set forth in
the Seitz memo. As EPA stated in the General Preamble, no other
measures to provide for attainment would be needed by areas seeking
redesignation to attainment since ``attainment will have been
reached.'' (57 FR at 13564).
Other SIP submission requirements are linked with these attainment
demonstration and RFP requirements, and similar reasoning applies to
them. These requirements include the contingency measure requirements
of sections 172(c)(9) and 182(c)(9). We have interpreted the
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as
no longer applying when an area has attained the standard because those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564); Seitz memo, pp. 5-6.
Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to
assure that reasonably available control measures'' (i.e., RACM) are
implemented in a nonattainment area. The General Preamble, 57 FR at
13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so
that RACM requirements are a ``component'' of an area's attainment
demonstration. Thus, for the same reason the attainment demonstration
no longer applies by its own terms, the requirement for RACM no longer
applies. EPA has consistently interpreted this provision to require
only implementation of potential RACM measures that could contribute to
reasonable further progress or to attainment. General Preamble, 57 FR
at 13498. Thus, where an area is already attaining the standard, no
additional RACM measures are required.\6\ EPA is interpreting section
189(a)(1)(C) consistent with its interpretation of section 172(c)(1).
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\6\ The EPA's interpretation that the statute only requires
implementation of RACM measures that would advance attainment was
upheld by the United States Court of Appeals for the Fifth Circuit
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002), and by
the United States Court of Appeals for the D.C. Circuit (Sierra Club
v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
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Here, as in both our Phase 2 Final Rule and ozone and PM-2.5 clean
data memoranda, we emphasize that the suspension of a requirement to
submit SIP revisions concerning these RFP, attainment demonstration,
RACM, and other related requirements exists only for as long as a
nonattainment area continues to monitor attainment of the standard. If
such an area experiences a violation of the NAAQS, the basis for the
requirements being suspended would no longer exist. Therefore, the area
would again be subject to a requirement to submit the pertinent SIP
revision or revisions and would need to address those requirements.
Thus, a determination that an area need not submit one of the SIP
submittals amounts to no more than a suspension of the requirements for
so long as the area continues to attain the standard. However, once EPA
ultimately redesignates the area to attainment, the area will be
entirely relieved of these requirements to the extent the maintenance
plan for the area does not rely on them.
Should EPA at some future time determine that an area that has
attained the standard, but which has not yet been redesignated as
attainment for a NAAQS, has violated the relevant standard, the area
would again be required to submit the pertinent SIP requirements for
the area. Attainment determinations under the policy do not shield an
area from other required actions, such as provisions to address
pollution transport.
As set forth above, EPA finds that because the CJNA is attaining
the PM-10 NAAQS, the requirements to submit an attainment
demonstration, reasonable further progress, reasonably available
control measures and contingency measures no longer apply for so long
as the area continues to monitor attainment of the PM-10 NAAQS.\7\ If
in the future EPA determines, after notice and comment rulemaking, that
the CJNA violates the PM-10 NAAQS, the basis for the attainment
demonstration, RFP, RACM and contingency measure requirements being
suspended would no longer exist. In that event, we would notify the
State that we have determined that the area is no longer attaining the
PM-10 standard and provide notice to the public in the Federal
Register.
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\7\ We note that our application of the Clean Data Policy to the
CJNA is consistent with actions we have taken for other PM-10
nonattainment areas that we also determined were attaining the
standard. See 71 FR 6352 (February 8, 2006) (Ajo, Arizona area); 71
FR 13021 (March 14, 2006) (Yuma, Arizona area); 71 FR 40023 (July
14, 2006) (Weirton, West Virginia area); 71 FR 44920 (August 8,
2006) (Rillito, Arizona area); 71 FR 63642 (October 30, 2006) (San
Joaquin Valley, California area) and 72 FR 14422 (March 28, 2007)
(Miami, Arizona area).
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IV. EPA's Proposed Action
Based on the most recent three years of complete, quality-assured
data meeting the requirements of 40 CFR part 50, appendix K, we propose
to determine that the CJNA has attained the 24-hour PM-10 NAAQS.
Preliminary data indicate that the area continues to attain the
standard. This proposed action, if finalized, would not constitute a
redesignation to attainment under CAA section 107(d)(3) because we
would not yet have approved a maintenance plan as required under
section 175(A) of the CAA or determined that the area has met the other
CAA requirements for redesignation. The classification and designation
status in 40 CFR part 81 would remain moderate nonattainment for this
area until such time as California meets the CAA requirements for
redesignation of the CJNA to attainment.
EPA also finds that, because the CJNA is attaining the NAAQS, the
obligation to submit the following CAA requirements is not applicable
for so long as the CJNA continues to attain the PM-10 standard: The
part D, subpart 4 obligations to provide an attainment demonstration
pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C),
the RFP provisions established by section 189(c)(1), and the attainment
demonstration, RACM, RFP and contingency measure provisions of part D,
subpart 1 contained in section 172 of the Act.
V. Statutory and Executive Order Reviews
This action proposes to make a determination of attainment based on
air quality, and would, if finalized; result in the suspension of
certain Federal requirements, and would not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under
[[Page 13715]]
Executive Order 12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to the requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects
40 CFR Parts 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Reporting and recordkeeping
requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: March 15, 2010.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2010-6338 Filed 3-22-10; 8:45 am]
BILLING CODE 6560-50-P
