Determination of Attainment for the West Central Pinal Nonattainment Area for the 2006 Fine Particle Standard; Arizona; Determination Regarding Applicability of Clean Air Act Requirements, 41901-41907 [2013-16760]
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Federal Register / Vol. 78, No. 134 / Friday, July 12, 2013 / Proposed Rules
Instruction. A preliminary
environmental analysis checklist
supporting this determination and a
Categorical Exclusion Determination are
available in the docket where indicated
under ADDRESSES. 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 recordkeeping
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. 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. Add § 165.T05–0529 to read as
follows:
■
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§ 165.T05–0529 Safety Zone; Fireworks
Display, Baltimore Harbor; Baltimore, MD.
(a) Location. The following areas are
a safety zone: (1) All waters of Baltimore
Harbor, Baltimore’s Inner Harbor,
within a 50 yards radius of a fireworks
discharge barge in approximate position
latitude 39°17′03″ N, longitude
076°36′36″ W, located southeast of Pier
1 Inner Harbor at Baltimore, Maryland;
(2) all waters of Baltimore Harbor,
Baltimore’s Inner Harbor, within a 100
yards radius of a fireworks discharge
barge in approximate position latitude
39°16′55″ N, longitude 076°36′17″ W,
located southwest of Pier 6 Inner Harbor
at Baltimore, Maryland; and (3) all
waters of Baltimore Harbor, Baltimore’s
Inner Harbor, within a 200 yards radius
of a fireworks discharge barge in
approximate position latitude 39°16′38″
N, longitude 076°35′55″ W, located
northwest of the Domino Sugar (ASR
Group) refinery wharf at Baltimore,
Maryland. All coordinates refer to
datum NAD 1983.
(b) Regulations. The general safety
zone regulations found in 33 CFR
165.23 apply to the safety zone created
by this temporary section.
(1) All persons are required to comply
with the general regulations governing
safety zones found in 33 CFR 165.23.
(2) Entry into or remaining in this
zone is prohibited unless authorized by
the Coast Guard Captain of the Port
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Baltimore. Vessels already at berth,
mooring, or anchor at the time the safety
zone is implemented do not have to
depart the safety zone. All vessels
underway within this safety zone at the
time it is implemented are to depart the
zone.
(3) Persons desiring to transit the area
of the safety zone must first obtain
authorization from the Captain of the
Port Baltimore or his designated
representative. To seek permission to
transit the area, the Captain of the Port
Baltimore and his designated
representatives can be contacted at
telephone number 410–576–2693 or on
Marine Band Radio VHF–FM channel
16 (156.8 MHz). The Coast Guard
vessels enforcing this section can be
contacted on Marine Band Radio VHF–
FM channel 16 (156.8 MHz). Upon
being hailed by a U.S. Coast Guard
vessel, or other Federal, State, or local
agency vessel, by siren, radio, flashing
light, or other means, the operator of a
vessel shall proceed as directed. If
permission is granted, all persons and
vessels must comply with the
instructions of the Captain of the Port
Baltimore or his designated
representative and proceed at the
minimum speed necessary to maintain a
safe course while within the zone.
(4) Enforcement. The U.S. Coast
Guard may be assisted in the patrol and
enforcement of the zone by Federal,
State, and local agencies.
(c) Definitions. As used in this
section:
Captain of the Port Baltimore means
the Commander, U.S. Coast Guard
Sector Baltimore, Maryland.
Designated representative means any
Coast Guard commissioned, warrant, or
petty officer who has been authorized
by the Captain of the Port Baltimore to
assist in enforcing the safety zone
described in paragraph (a) of this
section.
(d) Enforcement period. This section
will be enforced from 7:30 p.m. through
11:30 p.m. on September 5, 2013.
Dated: June 18, 2013.
Kevin C. Kiefer,
Captain, U.S. Coast Guard, Captain of the
Port Baltimore.
[FR Doc. 2013–16612 Filed 7–11–13; 8:45 am]
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41901
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2013–0449; FRL–9832–5]
Determination of Attainment for the
West Central Pinal Nonattainment Area
for the 2006 Fine Particle Standard;
Arizona; Determination Regarding
Applicability of Clean Air Act
Requirements
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to
determine that the West Central Pinal
area in Arizona has attained the 2006
24-hour fine particle (PM2.5) National
Ambient Air Quality Standard
(NAAQS). This proposed determination
is based upon complete, qualityassured, and certified ambient air
monitoring data showing that the area
has monitored attainment of the 2006
24-hour PM2.5 NAAQS based on the
2010–2012 monitoring period. EPA is
further proposing that, if EPA finalizes
this determination of attainment, the
requirements for the area to submit an
attainment demonstration, together with
reasonably available control measures
(RACM), a reasonable further progress
(RFP) plan, and contingency measures
for failure to meet RFP and attainment
deadlines shall be suspended for so long
as the area continues to attain the 2006
24-hour PM2.5 NAAQS.
DATES: Written comments must be
received on or before August 12, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2013–0449 by one of the following
methods:
1. Federal eRulemaking Portal, at
www.regulations.gov, please follow the
on-line instructions;
2. Email to vagenas.ginger@epa.gov;
or
3. Mail or delivery to Ginger Vagenas,
Air Planning Office, AIR–2, U.S.
Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San
Francisco, California 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at 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 you
consider to be CBI or otherwise
protected should be clearly identified as
such and should not be submitted
SUMMARY:
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Federal Register / Vol. 78, No. 134 / Friday, July 12, 2013 / Proposed Rules
through www.regulations.gov or email.
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 an email
directly to EPA, your email address will
be automatically captured and included
as part of the public comment. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. 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.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: The index to the docket for
this action is available electronically at
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 at
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Ginger Vagenas, (415) 972–3964, or by
email at vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, wherever
‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean
EPA. We are providing the following
outline to aid in locating information in
this proposal.
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Table of Contents
I. What determination is EPA making?
II. What is the background for this action?
A. PM2.5 NAAQS
B. Designation of PM2.5 Nonattainment
Areas
C. How does EPA make attainment
determinations?
III. What is EPA’s analysis of the relevant air
quality data?
A. Monitoring Network and Data
Considerations
B. Evaluation of Current Attainment
IV. What is the effect of a determination of
attainment for the 2006 24-hour PM2.5
NAAQS under subpart 4 of the Clean Air
Act?
A. Background of the Clean Data Policy
B. Application of the Clean Data Policy to
the Attainment-Related Provisions of
Subpart 4
V. EPA’s Proposed Action and Request for
Public Comment
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VI. Statutory and Executive Order Reviews
I. What determination is EPA making?
EPA is proposing to determine that
the West Central Pinal nonattainment
area has clean data for the 2006 24-hour
NAAQS for fine particles (generally
referring to particles less than or equal
to 2.5 micrometers in diameter, PM2.5).
This determination is based upon
complete, quality-assured, and certified
ambient air monitoring data showing
the area has monitored attainment of the
2006 PM2.5 NAAQS based on 2010–2012
monitoring data. Preliminary data in
EPA’s Air Quality System (AQS) for
2013 indicate that the area continues to
attain the 2006 PM2.5 NAAQS. Based on
this determination, we are also
proposing to suspend the obligations on
the State of Arizona to submit certain
state implementation plan (SIP)
revisions related to attainment of this
standard for the area for as long as the
area continues to attain the standard.
II. What is the background for this
action?
A. PM2.5 NAAQS
Under section 109 of the Clean Air
Act (CAA or ‘‘Act’’), EPA has
established national ambient air quality
standards (NAAQS or ‘‘standards’’) for
certain pervasive air pollutants (referred
to as ‘‘criteria pollutants’’) and conducts
periodic reviews of the NAAQS to
determine whether they should be
revised or whether new NAAQS should
be established.
On July 1, 1987 (52 FR 24634), EPA
replaced the original NAAQS for
particulate matter, measured as total
suspended particulate matter
(‘‘TSP’’)(i.e., particles roughly 30
micrometers or less), with new NAAQS
that replaced TSP as the indicator for
particulate matter with a new indicator
that includes only those particles with
an aerodynamic diameter less than or
equal to a nominal 10 micrometers
(PM10).
On July 18, 1997 (62 FR 38652), EPA
revised the NAAQS for particulate
matter by establishing new NAAQS for
particles with an aerodynamic diameter
less than or equal to a nominal 2.5
micrometers (PM2.5). EPA established
primary and secondary 1 annual and
24-hour standards for PM2.5. The annual
standard was set at 15.0 micrograms per
cubic meter (mg/m3), based on a 3-year
1 For a given air pollutant, ‘‘primary’’ national
ambient air quality standards are those determined
by EPA as requisite to protect the public health, and
‘‘secondary’’ standards are those determined by
EPA as requisite to protect the public welfare from
any known or anticipated adverse effects associated
with the presence of such air pollutant in the
ambient air. See CAA section 109(b).
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average of annual mean PM2.5
concentrations, and the 24-hour
standard was set at 65 mg/m3, based on
the 3-year average of the 98th percentile
of 24-hour PM2.5 concentrations at each
population-oriented monitor within an
area.
On October 17, 2006 (71 FR 61144),
EPA revised the level of the 24-hour
PM2.5 NAAQS to 35 mg/m3, based on a
3-year average of the 98th percentile of
24-hour concentrations. Herein, we refer
to the 35 mg/m3 standard as the ‘‘2006
24-hour PM2.5 standard.’’ EPA also
retained the 1997 annual PM2.5 standard
at 15.0 mg/m3 based on a 3-year average
of annual mean PM2.5 concentrations,
but with tighter constraints on the
spatial averaging criteria.
In December 2012, EPA revised the
annual PM2.5 NAAQS to a level of 12
mg/m3, retained the current 24-hour
PM2.5 NAAQS at a level of 35 mg/m3,
and retained the current PM10 NAAQS.
See 78 FR 3086 (January 15, 2013). The
proposed determination in this
document concerns only the 2006 24hour PM2.5 NAAQS, not the 1997 24hour PM2.5 NAAQS or the 1997 or 2012
annual PM2.5 NAAQS, and not the PM10
NAAQS.
B. Designation of PM2.5 Nonattainment
Areas
Effective December 14, 2009, EPA
established the initial air quality
designations for most areas in the
United States for the 2006 24-hour PM2.5
NAAQS. See 74 FR 58688 (November
13, 2009). Pinal County, Arizona is
located within one of three areas that
EPA deferred from designation at that
time.2 However, in a subsequent action
on February 3, 2011, EPA designated a
portion of State lands in Pinal County,
Arizona (‘‘West Central Pinal’’) as
nonattainment for the 2006 PM2.5
NAAQS based on 2006–2008 data.3 4 For
more information on the designation of
West Central Pinal, please see the
February 3, 2011 final rule.
Within 3 years of the effective date of
designations, states with areas
designated as nonattainment for the
2006 PM2.5 NAAQS are required to
submit SIP revisions that, among other
2 With respect to the 1997 annual PM
2.5 NAAQS,
this area is designated as ‘‘unclassifiable/
attainment.’’ EPA has not yet established
designations for the revised annual PM2.5 NAAQS.
3 See 76 FR 6056, February 3, 2011. This action
was effective March 7, 2011. On October 26, 2012,
we designated nearby Indian lands belonging to the
Ak Chin Indian Community and the Gila River
Indian Community, which lie within the deferred
area, as ‘‘unclassifiable/attainment’’ for the 2006
PM2.5 NAAQS based on improved air quality. See
77 FR 65310.
4 The boundaries for the nonattainment area are
described in 40 CFR 81.303.
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elements, provide for implementation of
reasonably available control measures
(RACM), reasonable further progress
(RFP), attainment of the standard as
expeditiously as practicable but no later
than five years from the nonattainment
designation (in this instance, no later
than March 7, 2014), as well as
contingency measures. See CAA section
172(a)(2), 172(c)(1), 172(c)(2), and
172(c)(9). Prior to the due date for
submittal of these SIP revisions, the
State of Arizona requested that EPA
make a determination that the West
Central Pinal nonattainment area has
attained the 2006 PM2.5 NAAQS.5
Today’s proposal responds to the State’s
request.
monitoring site within the area.6 The
PM2.5 24-hour average is considered
valid when 75 percent of the hourly
averages for the 24-hour period are
available. Data completeness
requirements for a given year are met
when at least 75 percent of the
scheduled sampling days for each
quarter have valid data.
III. What is EPA’s analysis of the
relevant air quality data?
41903
frequency was changed to a one-in-three
day schedule.
EPA defines specific monitoring site
types and spatial scales of
representativeness to characterize the
nature and location of required
monitors. The monitor’s spatial scale is
middle scale,10 and its monitoring
objectives (site type) are source oriented
and population exposure.
For the purposes of this proposed
action, we have reviewed the data for
the most recent three-year period (2010–
2012) for completeness, and we
determined that the data collected by
PCAQCD meets the completeness
criterion for all 12 quarters at the West
Central Pinal PM2.5 monitor. We
consider the PM2.5 data set for 2010–
2012 to be complete for the purposes of
determining whether the area has
attained the standard.
A determination of whether an area’s
air quality currently meets the PM2.5
NAAQS is generally based upon the
most recent three years of complete,
quality-assured data gathered at
established State and Local Air
Monitoring Stations (SLAMS) in a
nonattainment area and entered into the
AQS database. Data from air monitors
operated by state/local agencies in
compliance with EPA monitoring
requirements must be submitted to
AQS. Monitoring agencies annually
certify that these data are accurate to the
best of their knowledge. Accordingly,
EPA relies primarily on data in AQS
when determining the attainment status
of areas. See 40 CFR 50.13; 40 CFR part
50, appendix L; 40 CFR part 53; 40 CFR
part 58, and 40 CFR part 58, appendices
A, C, D, and E. All data are reviewed to
determine the area’s air quality status in
accordance with 40 CFR part 50,
appendix N.
Under EPA regulations in 40 CFR part
50, section 50.13 and in accordance
with appendix N, the 2006 24-hour
PM2.5 standard is met when the design
value is less than or equal to 35 mg/m3
(based on the rounding convention in 40
CFR part 50, appendix N) at each
A. Monitoring Network and Data
Considerations
Pinal County Air Quality Control
District (PCAQCD) is the governmental
agency with the authority and
responsibility under state law for
collecting ambient air quality data
within the West Central Pinal
nonattainment area. Annually, PCAQCD
submits monitoring network plans to
EPA. These plans discuss the status of
the air monitoring network, as required
under 40 CFR part 58. EPA reviews
these annual network plans for
compliance with the applicable
reporting requirements in 40 CFR 58.10.
With respect to PM2.5, we have found
that PCAQCD’s annual network plans
meet the applicable requirements under
40 CFR part 58.7 Furthermore, we
concluded in our Technical System
Audit Report concerning PCAQCD’s
ambient air quality monitoring program
that PCAQCD’s ambient air monitoring
network currently meets or exceeds the
requirements for the minimum number
of monitoring sites designated as
SLAMS for PM2.5 in the West Central
Pinal nonattainment area.8 Also,
PCAQCD annually certifies that the data
it submits to AQS are quality-assured.9
There was one PM2.5 SLAMS
operating during the 2010–2012 period
in the West Central Pinal PM2.5
nonattainment area. This site has been
monitoring PM2.5 concentrations since
2005. Historically, this site had
monitored PM2.5 concentrations on a
one-in-six day sampling frequency. In
the beginning of 2012, the sampling
EPA’s evaluation of whether the West
Central Pinal PM2.5 nonattainment area
has attained the 2006 24-hour PM2.5
NAAQS is based on our review of the
monitoring data and takes into account
the adequacy of the PM2.5 monitoring
network in the nonattainment area and
the reliability of the data collected by
the network as discussed in the
previous section of this document.
Table 1 shows the PM2.5 design values
for the West Central Pinal
nonattainment area monitor based on
ambient air quality monitoring data for
the most recent complete three-year
period (2010–2012). The data show that
the design value for the 2010–2012
period was equal to or less than 35 mg/
m3 at the monitor. Therefore, we are
proposing to determine, based on the
complete, quality-assured, and certified
data for 2010–2012, that the West
Central Pinal area has attained the 2006
24-hour PM2.5 standard. Preliminary
data available in AQS for 2013 indicate
that the area continues to attain the
standard.
5 On December 19, 2012, in an email to Colleen
McKaughan, Associate Director, Air Division, U.S.
EPA Region IX, Steven M. Calderon, Manager, State
Implementation Plan Section, Air Quality Division,
Arizona Department of Environmental Quality,
requested that EPA determine whether the West
Central Pinal PM2.5 nonattainment area qualified for
a determination of attainment for the 2006 24-hour
PM2.5 NAAQS. On January 29, 2013, ADEQ
provided an AQS Design Value Report in support
of the request. Both of these items can be found in
the docket for today’s action.
6 The 24-hour PM
2.5 standard design value is the
3-year average of annual 98th percentile 24-hour
average values recorded at each monitoring site (see
40 CFR part 50, appendix N, section 1.0(c)), and the
24-hour PM2.5 NAAQS is met when the 24-hour
standard design value at each monitoring site is less
than or equal to 35 mg/m3.
7 Letter from Matthew Lakin, Manager, Air
Quality Analysis Office, U.S. EPA Region IX, to
Donald Gabrielson, Director, PCAQCD (November
1, 2010) (approving PCAQCD’s ‘‘2010 Ambient
Monitoring Network Plan and 2009 Data
Summary’’); Letter from Matthew Lakin, Manager,
Air Quality Analysis Office, U.S. EPA Region IX, to
Donald Gabrielson, Director, PCAQCD (November
1, 2011) (approving PCAQCD’s ‘‘2011 Annual
Monitoring Network Plan and 2010 Data
Summary’’); Letter from Matthew Lakin, Manager,
Air Quality Analysis Office, U.S. EPA Region IX, to
Donald Gabrielson, Director, PCAQCD (March 27,
2013) (approving PCAQCD’s ‘‘2012 Annual
Monitoring Network Plan and 2011 Data
Summary’’).
8 Technical System Audit Report transmitted via
correspondence dated June 10, 2013, from Deborah
Jordan, Director, Air Division, EPA Region IX, to
Donald Gabrielson, Director, PCAQCD.
9 See, e.g., the letter from Kale Walch, Deputy
Director, PCAQCD to Jared Blumenfeld, Regional
Administrator, EPA Region IX, dated April 26, 2013
certifying the ambient air quality data collected for
year 2012.
10 In this context, ‘‘middle’’ spatial scale defines
concentrations typical of areas up to several city
blocks in size with dimensions ranging from about
100 meters to 0.5 kilometers. See 40 CFR part 58,
appendix D, section 1.2.
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C. How does EPA make attainment
determinations?
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B. Evaluation of Current Attainment
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TABLE 1—2010–2012 24-HOUR PM2.5 MONITORING SITE AND DESIGN VALUES FOR THE WEST CENTRAL PINAL
NONATTAINMENT AREA
98th Percentile (μg/m3)
2010
2011
2012
2010–2012
Design values
(μg/m3)
27.1
27.2
28.9
28
Monitoring site
Cowtown Road ................................................................................................
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Source: Design Value Report, May 23, 2013 (in the docket to this proposed action).
IV. What is the effect of a determination
of attainment for the 2006 24-hour
PM2.5 NAAQS under subpart 4 of the
Clean Air Act?
This section of EPA’s proposal
addresses the effects of a final
determination of attainment for the
West Central Pinal nonattainment area.
For the 1997 annual PM2.5 standard,
40 CFR 51.1004(c) of EPA’s
Implementation Rule embodies EPA’s
‘‘Clean Data Policy’’ interpretation
under subpart 1. The provisions of
§ 51.1004(c) set forth the effects of a
determination of attainment for the 1997
PM2.5 standard. 72 FR 20585, 20665
(April 25, 2007). While the regulatory
provisions of § 51.1004(c) do not
explicitly apply to the 2006 PM2.5
standard, the underlying statutory
interpretation is the same for both
standards. See 77 FR 76427 (Dec. 28,
2012) (proposed determination of
attainment for the 2006 PM2.5 standard
for Milwaukee, WI).
On January 4, 2013, in Natural
Resources Defense Council v. EPA, the
D.C. Circuit remanded to EPA the ‘‘Final
Clean Air Fine Particle Implementation
Rule’’ (72 FR 20586, April 25, 2007) and
the ‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5)’’ final rule (73 FR 28321, May
16, 2008) (collectively, ‘‘1997 PM2.5
Implementation Rule’’ or
‘‘Implementation Rule’’). 706 F.3d 428
(D.C. Cir. 2013). The Court found that
EPA erred in implementing the 1997
PM2.5 NAAQS pursuant solely to the
general implementation provisions of
subpart 1 of Part D of Title I of the CAA,
rather than the particulate-matterspecific provisions of subpart 4 of Part
D of Title I. The Court remanded EPA’s
Implementation Rule for further
proceedings consistent with the Court’s
decision. In light of the Court’s decision
and its remand of the Implementation
Rule, EPA in this proposed rulemaking
addresses the effect of a final
determination of attainment for the
West Central Pinal nonattainment area,
if that area were considered a moderate
nonattainment area under subpart 4.11
11 For the purposes of evaluating the effects of
this proposed determination of attainment under
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it and the rulemakings applying EPA’s
interpretation. 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, v. EPA, Nos. 06–75831
and 08–71238 (9th Cir. March 2, 2009
(Memorandum Opinion)).
As noted above, EPA incorporated its
Clean Data Policy interpretation in both
its 1997 8-hour ozone implementation
rule and in its PM2.5 Implementation
Rule in 40 CFR 51.1004(c). 72 FR 20585,
20665 (April 25, 2007). While the D.C.
A. Background of the Clean Data Policy
Circuit, in its January 4, 2013 decision,
Over the past two decades, EPA has
remanded the 1997 PM2.5
consistently applied its ‘‘Clean Data
Implementation Rule, the court did not
Policy’’ interpretation to attainmentaddress the merits of that regulation, nor
related provisions of subparts 1, 2 and
cast doubt on EPA’s existing
4. The Clean Data Policy is the subject
interpretation of the statutory
of several EPA memoranda and
provisions.
regulations. In addition, numerous
However, in light of the Court’s
individual rulemakings published in the decision, we set forth here EPA’s Clean
Federal Register have applied the
Data Policy interpretation under subpart
interpretation to a spectrum of NAAQS, 4, for the purpose of identifying the
including the 1-hour and 1997 ozone,
effects of a determination of attainment
PM10, PM2.5, CO and lead standards. The for the 2006 PM2.5 standard for the West
D.C. Circuit has upheld the Clean Data
Central Pinal nonattainment area. EPA
Policy interpretation as embodied in
has previously articulated its Clean Data
EPA’s 8-hour ozone Implementation
interpretation under subpart 4 in
Rule, 40 CFR 51.918.12 NRDC v. EPA,
implementing the PM10 standard. See,
571 F. 3d 1245 (D.C. Cir. 2009). Other
e.g., 75 FR 27944 (May 19, 2010)
U.S. Circuit Courts of Appeals that have (determination of attainment of the
considered and reviewed EPA’s Clean
PM10 standard in Coso Junction,
Data Policy interpretation have upheld
California); 75 FR 6571 (February 10,
2010) and 71 FR 6352 (February 8, 2006)
subpart 4, we are considering the West Central
(Ajo, Arizona area); 71 FR 13021 (March
Pinal nonattainment area to be a ‘‘moderate’’ PM2.5
14, 2006) (Yuma, Arizona area); 71 FR
nonattainment area. Under section 188 of the CAA,
40023 (July 14, 2006) (Weirton, West
all areas designated nonattainment areas under
subpart 4 would initially be classified by operation
Virginia area); 71 FR 44920 (August 8,
of law as ‘‘moderate’’ nonattainment areas, and
2006) (Rillito, Arizona area); 71 FR
would remain moderate nonattainment areas unless
63642 (October 30, 2006) (San Joaquin
and until EPA reclassifies the area as a ‘‘serious’’
nonattainment area. Accordingly, EPA believes that
Valley, California area); 72 FR 14422
it is appropriate to limit the evaluation of the
(March 28, 2007) (Miami, Arizona area).
potential impact of subpart 4 requirements to those
Thus EPA has established that, under
that would be applicable to moderate
subpart 4, an attainment determination
nonattainment areas. Sections 189(a) and (c) of
subpart 4 apply to moderate nonattainment areas
suspends the obligations to submit an
and include an attainment demonstration (section
attainment demonstration, RACM, RFP
189(a)(1)(B)); (3) provisions for RACM (section
contingency measures, and other
189(a)(1)(C)); and quantitative milestones
measures related to attainment.
demonstrating RFP toward attainment by the
As set forth in more detail below, under
EPA’s Clean Data Policy interpretation,
a determination that the area has
attained the standard suspends the
State’s obligation to submit attainmentrelated planning requirements of
subpart 4 (and the applicable provisions
of subpart 1) for so long as the area
continues to attain the standard. These
include requirements to submit an
attainment demonstration, RFP, RACM,
and contingency measures, because the
purpose of these provisions is to help
reach attainment—a goal which has
already been achieved.
applicable attainment date (section 189(c)). In
addition, EPA also evaluates the applicable
requirements of subpart 1.
12 ‘‘EPA’s Final Rule to implement the 8-hour
Ozone National Ambient Air Quality Standard—
Phase 2 (Phase 2 Final Rule),’’ 70 FR 71612, 71645–
46 (November 29, 2005).
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B. Application of the Clean Data Policy
to the Attainment-Related Provisions of
Subpart 4
In EPA’s proposed and final
rulemakings determining that the San
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Joaquin Valley nonattainment area
attained the PM10 standard, EPA set
forth at length its rationale for applying
the Clean Data Policy to PM10 under
subpart 4. The Ninth Circuit upheld
EPA’s final rulemaking, and specifically
EPA’s Clean Data Policy, in the context
of subpart 4. Latino Issues Forum v.
EPA, Nos. 06–75831 and 08–71238 (9th
Cir. March 2, 2009 (Memorandum
Opinion)). In rejecting petitioner’s
challenge to the Clean Data Policy under
subpart 4 for PM10, the Ninth Circuit
stated, ‘‘As the EPA explained, if an area
is in compliance with PM10 standards,
then further progress for the purpose of
ensuring attainment is not necessary.’’
The general requirements of subpart 1
apply in conjunction with the more
specific requirements of subpart 4, to
the extent they are not superseded or
subsumed by the subpart 4
requirements. Subpart 1 contains
general air quality planning
requirements for areas designated as
nonattainment. See section 172(c).
Subpart 4 itself contains specific
planning and scheduling requirements
for PM10 nonattainment areas, and
under the Court’s January 4, 2013
decision in NRDC v. EPA, these same
statutory requirements also apply for
PM2.5 nonattainment areas. EPA has
longstanding general guidance that
interprets the 1990 amendments to the
CAA, making recommendations to states
for meeting the statutory requirements
for SIPs for nonattainment areas. See,
‘‘State Implementation Plans; General
Preamble for the Implementation of
Title I of the Clear Air Act Amendments
of 1990,’’ 57 FR 13498 (April 16, 1992)
(the ‘‘General Preamble’’). In the General
Preamble, EPA discussed the
relationship of subpart 1 and subpart 4
SIP requirements, and pointed out that
subpart 1 requirements were to an
extent ‘‘subsumed by, or integrally
related to, the more specific PM10
requirements.’’ 57 FR 13538 (April 16,
1992). These subpart 1 requirements
include, among other things, provisions
for attainment demonstrations,
reasonably available control measures
(RACM), reasonable further progress
(RFP), emissions inventories, and
contingency measures.
EPA has long interpreted the
provisions of part D, subpart 1 of the
Act (sections 171 and 172) as not
requiring the submission of RFP for an
area already attaining the ozone
NAAQS. For an area that is attaining,
showing that the State will make RFP
towards attainment ‘‘will, therefore,
have no meaning at that point.’’ 57 FR
at 13564. See 71 FR 40952 and 71 FR
63642 (proposed and final
determination of attainment for San
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41905
Joaquin Valley); 75 FR 13710 and 75 FR
27944 (proposed and final
determination of attainment for Coso
Junction).
Section 189(c)(1) of subpart 4 states
that:
requirement will have already been
fulfilled.13
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:
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 [section 171(1)] of this title, toward
attainment by the applicable date.
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.
With respect to RFP, section 171(1)
states that, for purposes of part D, 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 PM10 areas of part
D, subpart 4, section 189(c)(1), the
stated purpose of RFP is to ensure
attainment by the applicable attainment
date.
Although section 189(c) 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
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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. 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 14 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
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.
13 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. 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.
14 Memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards,
‘‘Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for
Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,’’ dated
May 10, 1995 (‘‘Seitz memorandum’’).
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1995 Seitz memorandum at 5.
With respect to the attainment
demonstration requirements of section
172(c) and 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
memorandum,15 and the section 182(b)
and (c) requirements set forth in the
Seitz memorandum. 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). We have interpreted
the contingency measure requirements
of section 172(c)(9) (and section
182(c)(9) for ozone) 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 memorandum, pp.
5–6.
CAA section 172(c)(9) provides that
SIPs in nonattainment areas ‘‘shall
provide for the implementation of
specific measures to be undertaken if
the area fails to make reasonable further
progress, or to attain the [NAAQS] by
the attainment date applicable under
this part. Such measures shall be
included in the plan revision as
contingency measures to take effect in
any such case without further action by
the State or [EPA].’’ This contingency
measure requirement is inextricably tied
to the reasonable further progress and
attainment demonstration requirements.
Contingency measures are implemented
if reasonable further progress targets are
not achieved, or if attainment is not
realized by the attainment date. Where
an area has already achieved attainment
15 Memorandum from Stephen Page, Director,
EPA Office of Air Quality Planning and Standards,
‘‘Clean Data Policy for the Fine Particle National
Ambient Air Quality Standards,’’ December 14,
2004 (‘‘Page memorandum’’).
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by the attainment date, it has no need
to rely on contingency measures to
come into attainment or to make further
progress to attainment. As EPA stated in
the General Preamble: ‘‘The section
172(c)(9) requirements for contingency
measures are directed at ensuring RFP
and attainment by the applicable date.’’
See 57 FR 13564. Thus these
requirements no longer apply when an
area has attained the standard.
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.16 EPA is
interpreting section 189(a)(1)(C)
consistent with its interpretation of
section 172(c)(1).
The suspension of the obligations to
submit SIP revisions concerning these
RFP, attainment demonstration, RACM,
contingency measures and other related
requirements exists only for as long as
the area continues to monitor
attainment of the standard. If EPA
determines, after notice-and-comment
rulemaking, that the area has monitored
a violation of the NAAQS, the basis for
the requirements being suspended
would no longer exist. In that case, 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
final determination that the area need
not submit one of the pertinent SIP
submittals amounts to no more than a
suspension of the requirements for so
long as the area continues to attain the
standard. Only if and when EPA
redesignates the area to attainment
would the area be relieved of these
16 EPA’s interpretation that the statute requires
implementation only 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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submission obligations. Attainment
determinations under the Clean Data
Policy do not shield an area from
obligations unrelated to attainment in
the area, such as provisions to address
pollution transport.
As set forth above, based on our
proposed determination that the West
Central Pinal area is currently attaining
the 2006 24-hour PM2.5 NAAQS, we
propose to find that the obligations to
submit planning provisions to meet the
requirements for an attainment
demonstration, reasonable further
progress plans, reasonably available
control measures, contingency measures
are suspended for so long as the area
continues to monitor attainment of the
2006 24-hour PM2.5 NAAQS. If in the
future, EPA determines after notice-andcomment rulemaking that the area again
violates the 2006 24-hour PM2.5
NAAQS, the basis for suspending the
attainment demonstration, RFP, RACM,
and contingency measure obligations
would no longer exist.
V. EPA’s Proposed Action and Request
for Public Comment
EPA proposes to determine, based on
the most recent three years of complete,
quality-assured, and certified data
meeting the requirements of 40 CFR part
50, appendix N, that the West Central
Pinal area is currently attaining the 2006
24-hour PM2.5 NAAQS. In conjunction
with and based upon our proposed
determination that West Central Pinal
has attained and is currently attaining
the standard, EPA proposes to
determine that the obligation to submit
the following attainment-related
planning requirements is not applicable
for so long as the area continues to
attain the 2006 24-hour PM2.5 standard:
The part D, subpart 4 obligations to
provide an attainment demonstration
pursuant to section 189(a)(1)(B), the
RACM provisions of section
189(a)(1)(C), the RFP provisions of
section 189(c), and related attainment
demonstration, RACM, RFP and
contingency measure provisions
requirements of subpart 1, section 172.
This proposed action, if finalized,
would not constitute a redesignation to
attainment under CAA section
107(d)(3).
EPA is soliciting public comments on
the issues discussed in this document or
on other relevant matters. We will
accept comments from the public on
this proposal for the next 30 days. We
will consider these comments before
taking final action.
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VI. Statutory and Executive Order
Reviews
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This action proposes to make a
determination of attainment based on
air quality and to suspend certain
federal requirements, and thus, 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
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 requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address
disproportionate human health or
environmental effects with practical,
appropriate, and legally permissible
methods under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed action does
not have Tribal implications as
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specified by Executive Order 13175 (65
FR 67249, November 9, 2000), because
the SIP obligations discussed herein do
not apply to Indian Tribes and thus this
proposed action will not impose
substantial direct costs on Tribal
governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Particulate matter, Nitrogen
oxides, Sulfur oxides, Reporting and
recordkeeping requirements.
Dated: June 26, 2013.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2013–16760 Filed 7–11–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 423
[EPA–HQ–OW–2009–0819. FRL–9832–7;
EPA–HQ–RCRA–2013–0209]
RIN 2040–AF14
Effluent Limitations Guidelines and
Standards for the Steam Electric
Power Generating Point Source
Category
Environmental Protection
Agency (EPA).
ACTION: Proposed rule, extension of
public-comment period.
AGENCY:
The EPA is extending the
period for providing comments on the
proposed rule entitled, ‘‘Effluent
Limitations Guidelines and Standards
for the Steam Electric Power Generating
Point Source Category,’’ published in
the Federal Register on June 7, 2013, by
45 days.
DATES: Comments. The public-comment
period for the proposed rule published
June 7, 2013, (78 FR 34432) is being
extended by 45 days to September 20,
2013, in order to provide the public
additional time to submit comments and
supporting information.
SUMMARY:
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41907
Comments. Written
comments on the proposed rule may be
submitted to the EPA electronically, by
mail, by facsimile or through hand
delivery/courier. Please refer to the
proposal (78 FR 34432) for the addresses
and detailed instructions.
Docket. Publically available
documents relevant to this action are
available for public inspection either
electronically at https://
www.regulations.gov or in hard copy at
the Water Docket in the EPA Docket
Center, EPA/DC, EPA West, Room 3334,
1301 Constitution Ave. NW.,
Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is 202–
566–1744, and the telephone number for
the Water Docket is 202–566–2426. The
EPA has established the official public
docket No. EPA–HQ–OW–2009–0819.
FOR FURTHER INFORMATION CONTACT: For
technical information, contact Jezebele
Alicea-Virella, Engineering and
Analysis Division, Telephone: 202–566–
1755; Email: alicea.jezebele@epa.gov.
For economic information, contact
James Covington, Engineering and
Analysis Division, Telephone: 202–566–
1034; Email: covington.james@epa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Comment Period
In response to requests from
stakeholders, the EPA is extending the
previously announced public-comment
period by 45 days. The public-comment
period will end on September 20, 2013,
rather than August 6, 2013.
List of Subjects in 40 CFR Part 423
Environmental protection, Electric
power generation, Power plants, Waste
treatment and disposal, Water pollution
control.
Dated: July 3, 2013.
Ellen Gilinsky,
Acting Assistant Administrator.
[FR Doc. 2013–16774 Filed 7–11–13; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 78, Number 134 (Friday, July 12, 2013)]
[Proposed Rules]
[Pages 41901-41907]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16760]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2013-0449; FRL-9832-5]
Determination of Attainment for the West Central Pinal
Nonattainment Area for the 2006 Fine Particle Standard; Arizona;
Determination Regarding Applicability of Clean Air Act Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to determine that the West Central Pinal area
in Arizona has attained the 2006 24-hour fine particle
(PM2.5) National Ambient Air Quality Standard (NAAQS). This
proposed determination is based upon complete, quality-assured, and
certified ambient air monitoring data showing that the area has
monitored attainment of the 2006 24-hour PM2.5 NAAQS based
on the 2010-2012 monitoring period. EPA is further proposing that, if
EPA finalizes this determination of attainment, the requirements for
the area to submit an attainment demonstration, together with
reasonably available control measures (RACM), a reasonable further
progress (RFP) plan, and contingency measures for failure to meet RFP
and attainment deadlines shall be suspended for so long as the area
continues to attain the 2006 24-hour PM2.5 NAAQS.
DATES: Written comments must be received on or before August 12, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2013-0449 by one of the following methods:
1. Federal eRulemaking Portal, at www.regulations.gov, please
follow the on-line instructions;
2. Email to vagenas.ginger@epa.gov; or
3. Mail or delivery to Ginger Vagenas, Air Planning Office, AIR-2,
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street,
San Francisco, California 94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at 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 you consider to
be CBI or otherwise protected should be clearly identified as such and
should not be submitted
[[Page 41902]]
through www.regulations.gov or email. 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 an email directly to EPA, your email address will be
automatically captured and included as part of the public comment. If
you submit an electronic comment, EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. 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. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: The index to the docket for this action is available
electronically at 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 at either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, (415) 972-3964, or by
email at vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'',
``us'' or ``our'' are used, we mean EPA. We are providing the following
outline to aid in locating information in this proposal.
Table of Contents
I. What determination is EPA making?
II. What is the background for this action?
A. PM2.5 NAAQS
B. Designation of PM2.5 Nonattainment Areas
C. How does EPA make attainment determinations?
III. What is EPA's analysis of the relevant air quality data?
A. Monitoring Network and Data Considerations
B. Evaluation of Current Attainment
IV. What is the effect of a determination of attainment for the 2006
24-hour PM2.5 NAAQS under subpart 4 of the Clean Air Act?
A. Background of the Clean Data Policy
B. Application of the Clean Data Policy to the Attainment-
Related Provisions of Subpart 4
V. EPA's Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews
I. What determination is EPA making?
EPA is proposing to determine that the West Central Pinal
nonattainment area has clean data for the 2006 24-hour NAAQS for fine
particles (generally referring to particles less than or equal to 2.5
micrometers in diameter, PM2.5). This determination is based
upon complete, quality-assured, and certified ambient air monitoring
data showing the area has monitored attainment of the 2006
PM2.5 NAAQS based on 2010-2012 monitoring data. Preliminary
data in EPA's Air Quality System (AQS) for 2013 indicate that the area
continues to attain the 2006 PM2.5 NAAQS. Based on this
determination, we are also proposing to suspend the obligations on the
State of Arizona to submit certain state implementation plan (SIP)
revisions related to attainment of this standard for the area for as
long as the area continues to attain the standard.
II. What is the background for this action?
A. PM2.5 NAAQS
Under section 109 of the Clean Air Act (CAA or ``Act''), EPA has
established national ambient air quality standards (NAAQS or
``standards'') for certain pervasive air pollutants (referred to as
``criteria pollutants'') and conducts periodic reviews of the NAAQS to
determine whether they should be revised or whether new NAAQS should be
established.
On July 1, 1987 (52 FR 24634), EPA replaced the original NAAQS for
particulate matter, measured as total suspended particulate matter
(``TSP'')(i.e., particles roughly 30 micrometers or less), with new
NAAQS that replaced TSP as the indicator for particulate matter with a
new indicator that includes only those particles with an aerodynamic
diameter less than or equal to a nominal 10 micrometers
(PM10).
On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for
particulate matter by establishing new NAAQS for particles with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers
(PM2.5). EPA established primary and secondary \1\ annual
and 24-hour standards for PM2.5. The annual standard was set
at 15.0 micrograms per cubic meter ([mu]g/m\3\), based on a 3-year
average of annual mean PM2.5 concentrations, and the 24-hour
standard was set at 65 [mu]g/m\3\, based on the 3-year average of the
98th percentile of 24-hour PM2.5 concentrations at each
population-oriented monitor within an area.
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\1\ For a given air pollutant, ``primary'' national ambient air
quality standards are those determined by EPA as requisite to
protect the public health, and ``secondary'' standards are those
determined by EPA as requisite to protect the public welfare from
any known or anticipated adverse effects associated with the
presence of such air pollutant in the ambient air. See CAA section
109(b).
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On October 17, 2006 (71 FR 61144), EPA revised the level of the 24-
hour PM2.5 NAAQS to 35 [mu]g/m\3\, based on a 3-year average
of the 98th percentile of 24-hour concentrations. Herein, we refer to
the 35 [mu]g/m\3\ standard as the ``2006 24-hour PM2.5
standard.'' EPA also retained the 1997 annual PM2.5 standard
at 15.0 [mu]g/m\3\ based on a 3-year average of annual mean
PM2.5 concentrations, but with tighter constraints on the
spatial averaging criteria.
In December 2012, EPA revised the annual PM2.5 NAAQS to
a level of 12 [mu]g/m\3\, retained the current 24-hour PM2.5
NAAQS at a level of 35 [mu]g/m\3\, and retained the current
PM10 NAAQS. See 78 FR 3086 (January 15, 2013). The proposed
determination in this document concerns only the 2006 24-hour
PM2.5 NAAQS, not the 1997 24-hour PM2.5 NAAQS or
the 1997 or 2012 annual PM2.5 NAAQS, and not the
PM10 NAAQS.
B. Designation of PM2.5 Nonattainment Areas
Effective December 14, 2009, EPA established the initial air
quality designations for most areas in the United States for the 2006
24-hour PM2.5 NAAQS. See 74 FR 58688 (November 13, 2009).
Pinal County, Arizona is located within one of three areas that EPA
deferred from designation at that time.\2\ However, in a subsequent
action on February 3, 2011, EPA designated a portion of State lands in
Pinal County, Arizona (``West Central Pinal'') as nonattainment for the
2006 PM2.5 NAAQS based on 2006-2008 data.3 4 For
more information on the designation of West Central Pinal, please see
the February 3, 2011 final rule.
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\2\ With respect to the 1997 annual PM2.5 NAAQS, this
area is designated as ``unclassifiable/attainment.'' EPA has not yet
established designations for the revised annual PM2.5
NAAQS.
\3\ See 76 FR 6056, February 3, 2011. This action was effective
March 7, 2011. On October 26, 2012, we designated nearby Indian
lands belonging to the Ak Chin Indian Community and the Gila River
Indian Community, which lie within the deferred area, as
``unclassifiable/attainment'' for the 2006 PM2.5 NAAQS
based on improved air quality. See 77 FR 65310.
\4\ The boundaries for the nonattainment area are described in
40 CFR 81.303.
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Within 3 years of the effective date of designations, states with
areas designated as nonattainment for the 2006 PM2.5 NAAQS
are required to submit SIP revisions that, among other
[[Page 41903]]
elements, provide for implementation of reasonably available control
measures (RACM), reasonable further progress (RFP), attainment of the
standard as expeditiously as practicable but no later than five years
from the nonattainment designation (in this instance, no later than
March 7, 2014), as well as contingency measures. See CAA section
172(a)(2), 172(c)(1), 172(c)(2), and 172(c)(9). Prior to the due date
for submittal of these SIP revisions, the State of Arizona requested
that EPA make a determination that the West Central Pinal nonattainment
area has attained the 2006 PM2.5 NAAQS.\5\ Today's proposal
responds to the State's request.
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\5\ On December 19, 2012, in an email to Colleen McKaughan,
Associate Director, Air Division, U.S. EPA Region IX, Steven M.
Calderon, Manager, State Implementation Plan Section, Air Quality
Division, Arizona Department of Environmental Quality, requested
that EPA determine whether the West Central Pinal PM2.5
nonattainment area qualified for a determination of attainment for
the 2006 24-hour PM2.5 NAAQS. On January 29, 2013, ADEQ
provided an AQS Design Value Report in support of the request. Both
of these items can be found in the docket for today's action.
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C. How does EPA make attainment determinations?
A determination of whether an area's air quality currently meets
the PM2.5 NAAQS is generally based upon the most recent
three years of complete, quality-assured data gathered at established
State and Local Air Monitoring Stations (SLAMS) in a nonattainment area
and entered into the AQS database. Data from air monitors operated by
state/local agencies in compliance with EPA monitoring requirements
must be submitted to AQS. Monitoring agencies annually certify that
these data are accurate to the best of their knowledge. Accordingly,
EPA relies primarily on data in AQS when determining the attainment
status of areas. See 40 CFR 50.13; 40 CFR part 50, appendix L; 40 CFR
part 53; 40 CFR part 58, and 40 CFR part 58, appendices A, C, D, and E.
All data are reviewed to determine the area's air quality status in
accordance with 40 CFR part 50, appendix N.
Under EPA regulations in 40 CFR part 50, section 50.13 and in
accordance with appendix N, the 2006 24-hour PM2.5 standard
is met when the design value is less than or equal to 35 [micro]g/m\3\
(based on the rounding convention in 40 CFR part 50, appendix N) at
each monitoring site within the area.\6\ The PM2.5 24-hour
average is considered valid when 75 percent of the hourly averages for
the 24-hour period are available. Data completeness requirements for a
given year are met when at least 75 percent of the scheduled sampling
days for each quarter have valid data.
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\6\ The 24-hour PM2.5 standard design value is the 3-
year average of annual 98th percentile 24-hour average values
recorded at each monitoring site (see 40 CFR part 50, appendix N,
section 1.0(c)), and the 24-hour PM2.5 NAAQS is met when
the 24-hour standard design value at each monitoring site is less
than or equal to 35 [micro]g/m\3\.
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III. What is EPA's analysis of the relevant air quality data?
A. Monitoring Network and Data Considerations
Pinal County Air Quality Control District (PCAQCD) is the
governmental agency with the authority and responsibility under state
law for collecting ambient air quality data within the West Central
Pinal nonattainment area. Annually, PCAQCD submits monitoring network
plans to EPA. These plans discuss the status of the air monitoring
network, as required under 40 CFR part 58. EPA reviews these annual
network plans for compliance with the applicable reporting requirements
in 40 CFR 58.10. With respect to PM2.5, we have found that
PCAQCD's annual network plans meet the applicable requirements under 40
CFR part 58.\7\ Furthermore, we concluded in our Technical System Audit
Report concerning PCAQCD's ambient air quality monitoring program that
PCAQCD's ambient air monitoring network currently meets or exceeds the
requirements for the minimum number of monitoring sites designated as
SLAMS for PM2.5 in the West Central Pinal nonattainment
area.\8\ Also, PCAQCD annually certifies that the data it submits to
AQS are quality-assured.\9\
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\7\ Letter from Matthew Lakin, Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Donald Gabrielson, Director, PCAQCD
(November 1, 2010) (approving PCAQCD's ``2010 Ambient Monitoring
Network Plan and 2009 Data Summary''); Letter from Matthew Lakin,
Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Donald
Gabrielson, Director, PCAQCD (November 1, 2011) (approving PCAQCD's
``2011 Annual Monitoring Network Plan and 2010 Data Summary'');
Letter from Matthew Lakin, Manager, Air Quality Analysis Office,
U.S. EPA Region IX, to Donald Gabrielson, Director, PCAQCD (March
27, 2013) (approving PCAQCD's ``2012 Annual Monitoring Network Plan
and 2011 Data Summary'').
\8\ Technical System Audit Report transmitted via correspondence
dated June 10, 2013, from Deborah Jordan, Director, Air Division,
EPA Region IX, to Donald Gabrielson, Director, PCAQCD.
\9\ See, e.g., the letter from Kale Walch, Deputy Director,
PCAQCD to Jared Blumenfeld, Regional Administrator, EPA Region IX,
dated April 26, 2013 certifying the ambient air quality data
collected for year 2012.
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There was one PM2.5 SLAMS operating during the 2010-2012
period in the West Central Pinal PM2.5 nonattainment area.
This site has been monitoring PM2.5 concentrations since
2005. Historically, this site had monitored PM2.5
concentrations on a one-in-six day sampling frequency. In the beginning
of 2012, the sampling frequency was changed to a one-in-three day
schedule.
EPA defines specific monitoring site types and spatial scales of
representativeness to characterize the nature and location of required
monitors. The monitor's spatial scale is middle scale,\10\ and its
monitoring objectives (site type) are source oriented and population
exposure.
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\10\ In this context, ``middle'' spatial scale defines
concentrations typical of areas up to several city blocks in size
with dimensions ranging from about 100 meters to 0.5 kilometers. See
40 CFR part 58, appendix D, section 1.2.
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For the purposes of this proposed action, we have reviewed the data
for the most recent three-year period (2010-2012) for completeness, and
we determined that the data collected by PCAQCD meets the completeness
criterion for all 12 quarters at the West Central Pinal
PM2.5 monitor. We consider the PM2.5 data set for
2010-2012 to be complete for the purposes of determining whether the
area has attained the standard.
B. Evaluation of Current Attainment
EPA's evaluation of whether the West Central Pinal PM2.5
nonattainment area has attained the 2006 24-hour PM2.5 NAAQS
is based on our review of the monitoring data and takes into account
the adequacy of the PM2.5 monitoring network in the
nonattainment area and the reliability of the data collected by the
network as discussed in the previous section of this document.
Table 1 shows the PM2.5 design values for the West
Central Pinal nonattainment area monitor based on ambient air quality
monitoring data for the most recent complete three-year period (2010-
2012). The data show that the design value for the 2010-2012 period was
equal to or less than 35 [micro]g/m\3\ at the monitor. Therefore, we
are proposing to determine, based on the complete, quality-assured, and
certified data for 2010-2012, that the West Central Pinal area has
attained the 2006 24-hour PM2.5 standard. Preliminary data
available in AQS for 2013 indicate that the area continues to attain
the standard.
[[Page 41904]]
Table 1--2010-2012 24-Hour PM2.5 Monitoring Site and Design Values for the West Central Pinal Nonattainment Area
----------------------------------------------------------------------------------------------------------------
98th Percentile ([micro]g/m\3\) 2010-2012
Monitoring site --------------------------------------------------- Design values
2010 2011 2012 ([micro]g/m\3\)
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Cowtown Road................................ 27.1 27.2 28.9 28
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Source: Design Value Report, May 23, 2013 (in the docket to this proposed action).
IV. What is the effect of a determination of attainment for the 2006
24-hour PM2.5 NAAQS under subpart 4 of the Clean Air Act?
This section of EPA's proposal addresses the effects of a final
determination of attainment for the West Central Pinal nonattainment
area.
For the 1997 annual PM2.5 standard, 40 CFR 51.1004(c) of
EPA's Implementation Rule embodies EPA's ``Clean Data Policy''
interpretation under subpart 1. The provisions of Sec. 51.1004(c) set
forth the effects of a determination of attainment for the 1997
PM2.5 standard. 72 FR 20585, 20665 (April 25, 2007). While
the regulatory provisions of Sec. 51.1004(c) do not explicitly apply
to the 2006 PM2.5 standard, the underlying statutory
interpretation is the same for both standards. See 77 FR 76427 (Dec.
28, 2012) (proposed determination of attainment for the 2006
PM2.5 standard for Milwaukee, WI).
On January 4, 2013, in Natural Resources Defense Council v. EPA,
the D.C. Circuit remanded to EPA the ``Final Clean Air Fine Particle
Implementation Rule'' (72 FR 20586, April 25, 2007) and the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR
28321, May 16, 2008) (collectively, ``1997 PM2.5
Implementation Rule'' or ``Implementation Rule''). 706 F.3d 428 (D.C.
Cir. 2013). The Court found that EPA erred in implementing the 1997
PM2.5 NAAQS pursuant solely to the general implementation
provisions of subpart 1 of Part D of Title I of the CAA, rather than
the particulate-matter-specific provisions of subpart 4 of Part D of
Title I. The Court remanded EPA's Implementation Rule for further
proceedings consistent with the Court's decision. In light of the
Court's decision and its remand of the Implementation Rule, EPA in this
proposed rulemaking addresses the effect of a final determination of
attainment for the West Central Pinal nonattainment area, if that area
were considered a moderate nonattainment area under subpart 4.\11\ As
set forth in more detail below, under EPA's Clean Data Policy
interpretation, a determination that the area has attained the standard
suspends the State's obligation to submit attainment-related planning
requirements of subpart 4 (and the applicable provisions of subpart 1)
for so long as the area continues to attain the standard. These include
requirements to submit an attainment demonstration, RFP, RACM, and
contingency measures, because the purpose of these provisions is to
help reach attainment--a goal which has already been achieved.
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\11\ For the purposes of evaluating the effects of this proposed
determination of attainment under subpart 4, we are considering the
West Central Pinal nonattainment area to be a ``moderate''
PM2.5 nonattainment area. Under section 188 of the CAA,
all areas designated nonattainment areas under subpart 4 would
initially be classified by operation of law as ``moderate''
nonattainment areas, and would remain moderate nonattainment areas
unless and until EPA reclassifies the area as a ``serious''
nonattainment area. Accordingly, EPA believes that it is appropriate
to limit the evaluation of the potential impact of subpart 4
requirements to those that would be applicable to moderate
nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to
moderate nonattainment areas and include an attainment demonstration
(section 189(a)(1)(B)); (3) provisions for RACM (section
189(a)(1)(C)); and quantitative milestones demonstrating RFP toward
attainment by the applicable attainment date (section 189(c)). In
addition, EPA also evaluates the applicable requirements of subpart
1.
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A. Background of the Clean Data Policy
Over the past two decades, EPA has consistently applied its ``Clean
Data Policy'' interpretation to attainment-related provisions of
subparts 1, 2 and 4. The Clean Data Policy is the subject of several
EPA memoranda and regulations. In addition, numerous individual
rulemakings published in the Federal Register have applied the
interpretation to a spectrum of NAAQS, including the 1-hour and 1997
ozone, PM10, PM2.5, CO and lead standards. The
D.C. Circuit has upheld the Clean Data Policy interpretation as
embodied in EPA's 8-hour ozone Implementation Rule, 40 CFR 51.918.\12\
NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009). Other U.S. Circuit Courts
of Appeals that have considered and reviewed EPA's Clean Data Policy
interpretation have upheld it and the rulemakings applying EPA's
interpretation. 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, v. EPA, Nos. 06-75831 and 08-71238 (9th
Cir. March 2, 2009 (Memorandum Opinion)).
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\12\ ``EPA's Final Rule to implement the 8-hour Ozone National
Ambient Air Quality Standard--Phase 2 (Phase 2 Final Rule),'' 70 FR
71612, 71645-46 (November 29, 2005).
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As noted above, EPA incorporated its Clean Data Policy
interpretation in both its 1997 8-hour ozone implementation rule and in
its PM2.5 Implementation Rule in 40 CFR 51.1004(c). 72 FR
20585, 20665 (April 25, 2007). While the D.C. Circuit, in its January
4, 2013 decision, remanded the 1997 PM2.5 Implementation
Rule, the court did not address the merits of that regulation, nor cast
doubt on EPA's existing interpretation of the statutory provisions.
However, in light of the Court's decision, we set forth here EPA's
Clean Data Policy interpretation under subpart 4, for the purpose of
identifying the effects of a determination of attainment for the 2006
PM2.5 standard for the West Central Pinal nonattainment
area. EPA has previously articulated its Clean Data interpretation
under subpart 4 in implementing the PM10 standard. See,
e.g., 75 FR 27944 (May 19, 2010) (determination of attainment of the
PM10 standard in Coso Junction, California); 75 FR 6571
(February 10, 2010) and 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); 72 FR 14422 (March 28, 2007) (Miami,
Arizona area). Thus EPA has established that, under subpart 4, an
attainment determination suspends the obligations to submit an
attainment demonstration, RACM, RFP contingency measures, and other
measures related to attainment.
B. Application of the Clean Data Policy to the Attainment-Related
Provisions of Subpart 4
In EPA's proposed and final rulemakings determining that the San
[[Page 41905]]
Joaquin Valley nonattainment area attained the PM10
standard, EPA set forth at length its rationale for applying the Clean
Data Policy to PM10 under subpart 4. The Ninth Circuit
upheld EPA's final rulemaking, and specifically EPA's Clean Data
Policy, in the context of subpart 4. Latino Issues Forum v. EPA, Nos.
06-75831 and 08-71238 (9th Cir. March 2, 2009 (Memorandum Opinion)). In
rejecting petitioner's challenge to the Clean Data Policy under subpart
4 for PM10, the Ninth Circuit stated, ``As the EPA
explained, if an area is in compliance with PM10 standards,
then further progress for the purpose of ensuring attainment is not
necessary.''
The general requirements of subpart 1 apply in conjunction with the
more specific requirements of subpart 4, to the extent they are not
superseded or subsumed by the subpart 4 requirements. Subpart 1
contains general air quality planning requirements for areas designated
as nonattainment. See section 172(c). Subpart 4 itself contains
specific planning and scheduling requirements for PM10
nonattainment areas, and under the Court's January 4, 2013 decision in
NRDC v. EPA, these same statutory requirements also apply for
PM2.5 nonattainment areas. EPA has longstanding general
guidance that interprets the 1990 amendments to the CAA, making
recommendations to states for meeting the statutory requirements for
SIPs for nonattainment areas. See, ``State Implementation Plans;
General Preamble for the Implementation of Title I of the Clear Air Act
Amendments of 1990,'' 57 FR 13498 (April 16, 1992) (the ``General
Preamble''). In the General Preamble, EPA discussed the relationship of
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart
1 requirements were to an extent ``subsumed by, or integrally related
to, the more specific PM10 requirements.'' 57 FR 13538
(April 16, 1992). These subpart 1 requirements include, among other
things, provisions for attainment demonstrations, reasonably available
control measures (RACM), reasonable further progress (RFP), emissions
inventories, and contingency measures.
EPA has long interpreted the provisions of part D, subpart 1 of the
Act (sections 171 and 172) as not requiring the submission of RFP for
an area already attaining the ozone NAAQS. For an area that is
attaining, showing that the State will make RFP towards attainment
``will, therefore, have no meaning at that point.'' 57 FR at 13564. See
71 FR 40952 and 71 FR 63642 (proposed and final determination of
attainment for San Joaquin Valley); 75 FR 13710 and 75 FR 27944
(proposed and final determination of attainment for Coso Junction).
Section 189(c)(1) of subpart 4 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 [section 171(1)] of this
title, toward attainment by the applicable date.
With respect to RFP, section 171(1) states that, for purposes of
part D, 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 PM10 areas of part D, subpart
4, section 189(c)(1), the stated purpose of RFP is to ensure attainment
by the applicable attainment date.
Although section 189(c) 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.\13\
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\13\ 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. 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. 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 \14\ 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:
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\14\ Memorandum from John S. Seitz, Director, Office of Air
Quality Planning and Standards, ``Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' dated May 10, 1995 (``Seitz memorandum'').
Inasmuch as each of these requirements is linked with the
attainment demonstration or RFP requirements of section 182(b)(1) or
182(c)(2), if an area is not subject to the requirement to submit
the underlying attainment demonstration or RFP plan, it need not
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submit the related SIP submission either.
[[Page 41906]]
1995 Seitz memorandum at 5.
With respect to the attainment demonstration requirements of
section 172(c) and 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 memorandum,\15\ and the section 182(b) and (c) requirements
set forth in the Seitz memorandum. 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.
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\15\ Memorandum from Stephen Page, Director, EPA Office of Air
Quality Planning and Standards, ``Clean Data Policy for the Fine
Particle National Ambient Air Quality Standards,'' December 14, 2004
(``Page memorandum'').
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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). We have interpreted the contingency measure
requirements of section 172(c)(9) (and section 182(c)(9) for ozone) 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 memorandum, pp. 5-6.
CAA section 172(c)(9) provides that SIPs in nonattainment areas
``shall provide for the implementation of specific measures to be
undertaken if the area fails to make reasonable further progress, or to
attain the [NAAQS] by the attainment date applicable under this part.
Such measures shall be included in the plan revision as contingency
measures to take effect in any such case without further action by the
State or [EPA].'' This contingency measure requirement is inextricably
tied to the reasonable further progress and attainment demonstration
requirements. Contingency measures are implemented if reasonable
further progress targets are not achieved, or if attainment is not
realized by the attainment date. Where an area has already achieved
attainment by the attainment date, it has no need to rely on
contingency measures to come into attainment or to make further
progress to attainment. As EPA stated in the General Preamble: ``The
section 172(c)(9) requirements for contingency measures are directed at
ensuring RFP and attainment by the applicable date.'' See 57 FR 13564.
Thus these requirements no longer apply when an area has attained the
standard.
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.\16\ EPA is interpreting section
189(a)(1)(C) consistent with its interpretation of section 172(c)(1).
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\16\ EPA's interpretation that the statute requires
implementation only 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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The suspension of the obligations to submit SIP revisions
concerning these RFP, attainment demonstration, RACM, contingency
measures and other related requirements exists only for as long as the
area continues to monitor attainment of the standard. If EPA
determines, after notice-and-comment rulemaking, that the area has
monitored a violation of the NAAQS, the basis for the requirements
being suspended would no longer exist. In that case, 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
final determination that the area need not submit one of the pertinent
SIP submittals amounts to no more than a suspension of the requirements
for so long as the area continues to attain the standard. Only if and
when EPA redesignates the area to attainment would the area be relieved
of these submission obligations. Attainment determinations under the
Clean Data Policy do not shield an area from obligations unrelated to
attainment in the area, such as provisions to address pollution
transport.
As set forth above, based on our proposed determination that the
West Central Pinal area is currently attaining the 2006 24-hour
PM2.5 NAAQS, we propose to find that the obligations to
submit planning provisions to meet the requirements for an attainment
demonstration, reasonable further progress plans, reasonably available
control measures, contingency measures are suspended for so long as the
area continues to monitor attainment of the 2006 24-hour
PM2.5 NAAQS. If in the future, EPA determines after notice-
and-comment rulemaking that the area again violates the 2006 24-hour
PM2.5 NAAQS, the basis for suspending the attainment
demonstration, RFP, RACM, and contingency measure obligations would no
longer exist.
V. EPA's Proposed Action and Request for Public Comment
EPA proposes to determine, based on the most recent three years of
complete, quality-assured, and certified data meeting the requirements
of 40 CFR part 50, appendix N, that the West Central Pinal area is
currently attaining the 2006 24-hour PM2.5 NAAQS. In
conjunction with and based upon our proposed determination that West
Central Pinal has attained and is currently attaining the standard, EPA
proposes to determine that the obligation to submit the following
attainment-related planning requirements is not applicable for so long
as the area continues to attain the 2006 24-hour PM2.5
standard: The part D, subpart 4 obligations to provide an attainment
demonstration pursuant to section 189(a)(1)(B), the RACM provisions of
section 189(a)(1)(C), the RFP provisions of section 189(c), and related
attainment demonstration, RACM, RFP and contingency measure provisions
requirements of subpart 1, section 172. This proposed action, if
finalized, would not constitute a redesignation to attainment under CAA
section 107(d)(3).
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. We will accept comments from the
public on this proposal for the next 30 days. We will consider these
comments before taking final action.
[[Page 41907]]
VI. Statutory and Executive Order Reviews
This action proposes to make a determination of attainment based on
air quality and to suspend certain federal requirements, and thus,
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 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 requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action does not have Tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP obligations discussed herein do not apply to Indian
Tribes and thus this proposed action will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Nitrogen oxides, Sulfur oxides,
Reporting and recordkeeping requirements.
Dated: June 26, 2013.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2013-16760 Filed 7-11-13; 8:45 am]
BILLING CODE 6560-50-P
