
[Federal Register Volume 78, Number 178 (Friday, September 13, 2013)]
[Proposed Rules]
[Pages 56633-56639]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22356]



[[Page 56633]]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2013-0618; FRL-9900-93-Region 2]


Approval and Promulgation of Air Quality Implementation Plans; 
New York; Determination of Clean Data for the 1987 PM10 
Standard for the New York County Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to determine that the New York County 
nonattainment area in New York is attaining the National Ambient Air 
Quality Standard (NAAQS) for particulate matter with an aerodynamic 
diameter of less than or equal to a nominal ten micrometers 
(PM10) based on certified, quality-assured ambient air 
monitoring data for the years 2010 through 2012. The State of New York 
submitted a letter dated January 14, 2013, requesting EPA to make a 
clean data determination for the nonattainment area of New York County.
    Based on our proposed determination that the New York County 
nonattainment area is attaining the PM10 NAAQS, EPA is also 
proposing to determine that New York's obligation to make submissions 
to meet certain Clean Air Act requirements related to attainment of the 
NAAQS is not applicable for as long as the New York County 
nonattainment area continues to attain the NAAQS.

DATES: Comments must be received on or before October 15, 2013.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2013-0618, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: ruvo.richard@epa.gov.
     Fax: 212-637-3901.
     Mail: Richard Ruvo, Chief, Air Planning Section, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, Chief, Air Planning Section, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2013-0618. EPA's policy is that all comments received 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 information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. 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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning 
today's proposed action, please contact Henry Feingersh, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, telephone number (212) 637-3382, fax number 
(212) 637-3901, email feingersh.henry@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing?
II. What is the effect of this action?
III. What is the Background for this action?
    A. PM10 NAAQS in New York County
    B. Designation and Classification of New York County 
PM10 Nonattainment Area
    C. How does EPA make attainment determinations?
IV. What is EPA's analysis of the relevant air quality data?
V. EPA's Clean Data Policy and the Applicability of the Clean Air 
Act Planning Requirements to the New York County Nonattainment Area
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing to determine that the New York County 
nonattainment area for particulate matter with an aerodynamic diameter 
equal to or less than 10 micrometers (PM10) is attaining the 
PM10 National Ambient Air Quality Standards (NAAQS). This 
proposed determination is based upon quality-assured, quality-
controlled, and certified ambient air monitoring data that show that 
the area has monitored attainment of the PM10 NAAQS. The New 
York County PM10 nonattainment area consists solely of the 
County of New York, also known as the borough of Manhattan. EPA is 
soliciting public comments on this document and these comments will be 
considered before taking final action.

II. What is the effect of this action?

    This proposed determination, if finalized, would: (1) Suspend the 
requirements for New York to submit an attainment demonstration, 
reasonably available control measures, reasonable further progress 
plan, and contingency measures related to attainment of the 
PM10 NAAQS in the New York PM10 nonattainment 
area; and (2) continue until such time, if any, that EPA subsequently 
determines that the area has violated the PM10 NAAQS. If 
this rulemaking is finalized and EPA subsequently determines, after 
notice-and-comment rulemaking in the Federal Register (FR), that the 
area has violated the PM10 NAAQS, the basis for the 
suspension of the specific requirements would no longer exist, and the 
area

[[Page 56634]]

would thereafter have to address the pertinent requirements.
    The determination that EPA proposes with this FR action, that the 
air quality data shows attainment of the PM10 NAAQS, is not 
equivalent to the redesignation of the area to attainment. EPA does not 
act on redesignations for revoked standards.
    This proposed action is limited to a determination that the New 
York PM10 nonattainment area has attained the 
PM10 NAAQS. If this proposed determination is made final and 
the New York PM10 nonattainment area continues to monitor 
attainment of the PM10 NAAQS, the requirements for New York 
to submit attainment demonstrations, reasonably available control 
measures, reasonable further progress plans, and contingency measures 
related to attainment of the PM10 NAAQS would remain 
suspended, even though EPA designated this area as a nonattainment area 
for purposes of the PM10 NAAQS.

III. What is the background for this action?

A. PM10 NAAQS in New York County

    EPA sets the NAAQS for certain ambient air pollutants at levels 
required to protect public health and welfare. Particulate matter with 
an aerodynamic diameter less than or equal to a nominal ten 
micrometers, or PM10, is one of these ambient air pollutants 
for which EPA has established health-based standards. On July 1, 1987, 
EPA promulgated two primary standards for PM10: A 24-hour 
standard of 150 micrograms per cubic meter ([mu]g/m\3\); and, an annual 
PM10 standard of 50 [mu]g/m\3\. EPA also promulgated 
secondary PM10 standards that were identical to the primary 
standards. See 52 FR 24634 (July 1, 1987).
    Effective December 18, 2006, EPA revoked the annual PM10 
standard but retained the 24-hour PM10 standard. See 71 FR 
61144 (October 17, 2006). An area attains the 24-hour PM10 
standard when the expected number of days per calendar year with a 24-
hour concentration in excess of the standard (referred to herein as an 
``exceedance''), as determined in accordance with 40 CFR part 50, 
appendix K, is equal to or less than one.\1\ See 40 CFR 50.6 and 40 CFR 
part 50, appendix K.
---------------------------------------------------------------------------

    \1\ An exceedance is defined as a daily value that is above the 
level of the 24-hour standard, 150 [mu]g/m\3\, after rounding to the 
nearest 10 [mu]g/m\3\ (i.e., values ending in five or greater are to 
be rounded up). Thus, a recorded value of 154 [mu]g/m\3\ would not 
be an exceedance since it would be rounded to 150 [mu]g/m\3\; 
whereas, a recorded value of 155 [mu]g/m\3\ would be an exceedance 
since it would be rounded to 160 [mu]g/m\3\. See 40 CFR part 50, 
appendix K, section 1.0.
---------------------------------------------------------------------------

    New York's ambient air monitoring network has undergone a number of 
changes over the years. The monitor, which originally exceeded the 
NAAQS in 1992, was shut down in 2010 because it showed attainment of 
the NAAQS since 1992. In addition, the monitor has had very low 
readings, well below the attainment level, since 2008. More recent 
PM10 data at other monitoring sites located in New York 
County shows that New York County has met both the current and revoked 
standards. New York has now had clean PM10 data since 1992.
    New York made a partial PM10 State Implementation Plan 
(SIP) submission for New York County on July 20, 1995. On September 29, 
1996, New York submitted the final attainment demonstration portion of 
the SIP. In a letter to EPA dated January 14, 2013, New York asserted 
that it was withdrawing its PM10 SIP. This proposed clean 
data notice will alleviate the need for New York to submit all 
PM10 SIP requirements for the New York County area, with the 
exception of the emission inventory. The emission inventory, a required 
SIP element, was included in New York's October 27, 2009 attainment SIP 
for particulate matter with an aerodynamic diameter equal to or less 
than 2.5 micrometers (PM2.5). EPA will address the submittal 
of New York's emission inventories for particulate matter in a separate 
action.

B. Designation and Classification of New York County PM10 Nonattainment 
Area

    The New York County nonattainment area was designated nonattainment 
for PM10 and classified as moderate under section 107(d)(3) 
of the CAA, on July 28, 1995. See 60 FR 38726 (July 28, 1995) and 40 
CFR Part 81.333 (New York County). The New York County nonattainment 
designation became effective on September 26, 1995. This designation 
was based on violations of the annual PM10 standard only; 
there are no documented exceedances of the 24-hour PM10 
standard in the State of New York. Violations of the annual 
PM10 standard were due to emissions from localized 
construction in the area at that time. However, New York has been 
attaining the annual PM10 standard since 1992.

C. How does EPA make attainment determinations?

    Generally, EPA determines whether an area's air quality is meeting 
the PM10 NAAQS based on complete,\2\ quality-assured, and 
certified data gathered at established state and local air monitoring 
stations (SLAMS) in the nonattainment area, and entered into the EPA 
Air Quality System (AQS) database. Data from air monitors operated by 
State, local, or Tribal agencies in compliance with EPA monitoring 
requirements must be submitted to AQS. These monitoring agencies 
certify annually 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 an area. See 40 CFR 50.6; 40 CFR 
part 50, appendix J and K; 40 CFR part 53; and, 40 CFR part 58, 
appendices A, C, D, and E. EPA will also consider air quality data from 
other air monitoring stations in the nonattainment area provided those 
stations meet the Federal monitoring requirements for SLAMS, including 
the quality assurance and quality control criteria in 40 CFR part 58, 
appendix A. See 40 CFR 58.14 (2006) and 58.20 (2007); \3\ 71 FR 61236, 
61242 (October 17, 2006). All valid data are reviewed to determine the 
area's air quality status in accordance with 40 CFR part 50, appendix 
K.
---------------------------------------------------------------------------

    \2\ For PM10, a ``complete'' set of data includes a 
minimum of 75 percent of the scheduled PM10 samples per 
quarter. See 40 CFR part 50, appendix K, section 2.3(a).
    \3\ EPA promulgated amendments to the ambient air monitoring 
regulations in 40 CFR parts 53 and 58 on October 17, 2006. (See 71 
FR 61236.) The requirements for Special Purpose Monitors were 
revised and moved from 40 CFR 58.14 to 40 CFR 58.20.
---------------------------------------------------------------------------

    Attainment of the 24-hour PM10 standard is determined by 
calculating the expected number of exceedances of the standard in a 
year. The 24-hour PM10 standard is attained when the 
expected number of exceedances averaged over a three-year period is 
less than or equal to one at each monitoring site within the 
nonattainment area. Generally, three consecutive years of complete air 
quality data are required to show attainment of the 24-hour 
PM10 standard. See 40 CFR part 50 and appendix K. In 
addition, the Annual Standard was attained when the annual arithmetic 
mean, averaged over 3 years, was less than or equal to 50 [mu]g/m\3\.
    To demonstrate attainment of the PM10 standard at a 
monitoring site, the monitor must provide sufficient data to perform 
the required calculations in 40 CFR part 50, appendix K. The amount of 
data required varies with the sampling frequency, data capture rate, 
and the number of years of record. In all cases, three years of 
representative monitoring data that meet the 75

[[Page 56635]]

percent criterion discussed in footnote 2 should be utilized, if 
available. More than three years may be considered, if all additional 
representative years of data meeting the 75 percent criterion are 
utilized. Data not meeting the criteria in 40 CFR part 50 may also 
suffice to show attainment; however, such exceptions must be approved 
by the appropriate Regional Administrator in accordance with EPA 
guidance. See 40 CFR part 50, appendix K, section 2.3.

IV. What is EPA's analysis of the relevant air quality data?

    EPA has reviewed the ambient air monitoring data for 
PM10, consistent with the requirements contained in 40 CFR 
part 50 and recorded in the EPA Air Quality System database for the New 
York PM10 nonattainment area, and has concluded that this 
area has been attaining both the current 24-Hr PM10 NAAQS 
and the revoked annual PM10 NAAQS since 1992. This 
designation was based on violations of the annual PM10 
standard only; there are no documented exceedances of the 24-hour 
PM10 standard in the State of New York.
    EPA is presenting the last 10 years of data from New York's January 
14, 2013 letter and is updating it to the present in the following 
tables to show how the area has been attaining both the 24-hour and 
revoked annual PM10 standard.
    Tables 1 and 2 show the maximum 24-Hour PM10 
concentrations and maximum annual average PM10 
concentrations respectively for monitoring sites located in the New 
York County PM10 nonattainment area for the years 2002 
through 2012. The PS 19 monitoring site is located at 185 1st Avenue. 
The Division Street monitoring site is located at 40 Division Street. 
The PS 59 monitoring site is located at 228 E. 57th Street. The Canal 
Street monitoring site is located at 350 Canal Street.

    Table 1--Maximum 24-Hour PM10 Concentrations in New York County in Micrograms per Cubic Meter ([mu]g/m\3\)
                           [The standard for the 24-hour PM10 NAAQS is 150 [mu]g/m\3\]
----------------------------------------------------------------------------------------------------------------
                                                                           Monitor name
                                                 ---------------------------------------------------------------
                      Year                                         Division St.
                                                     PS 19 \a\          \b\          PS 59 \c\     Canal St. \d\
----------------------------------------------------------------------------------------------------------------
2002............................................  ..............  ..............  ..............              89
2003............................................  ..............  ..............  ..............              81
2004............................................  ..............  ..............  ..............              61
2005............................................  ..............  ..............  ..............              63
2006............................................  ..............  ..............              67              60
2007............................................  ..............              56              57  ..............
2008............................................  ..............              60              53  ..............
2009............................................              61              62  ..............  ..............
2010............................................              55              56  ..............  ..............
2011............................................              57              57  ..............  ..............
2012............................................              49              51  ..............  ..............
----------------------------------------------------------------------------------------------------------------
\a\ Collected data 03/2009-Present.
\b\ Collected data 03/2007-Present.
\c\ Collected data 04/1986-12/1998 and 10/2005-06/2008.
\d\ Collected data 12/2001-03/2007.


    Table 2--Maximum Annual PM10 Concentrations in New York County in Micrograms per Cubic Meter ([mu]g/m\3\)
                           [The standard for the annual PM10 NAAQS was 50 [mu]g/m\3\]
----------------------------------------------------------------------------------------------------------------
                                                                           Monitor name
                                                 ---------------------------------------------------------------
                      Year                                         Division St.
                                                     PS 19 \a\          \b\          PS 59 \c\     Canal St. \d\
----------------------------------------------------------------------------------------------------------------
2002............................................  ..............  ..............  ..............            25.6
2003............................................  ..............  ..............  ..............            26.5
2004............................................  ..............  ..............  ..............            24.2
2005............................................  ..............  ..............  ..............            26.2
2006............................................  ..............  ..............            23.2            23.0
2007............................................  ..............            25.3            25.5  ..............
2008............................................  ..............            24.0            25.9  ..............
2009............................................            19.8            21.1  ..............  ..............
2010............................................            20.2            21.0  ..............  ..............
2011............................................            20.0            21.6  ..............  ..............
2012............................................            19.4            19.7  ..............  ..............
----------------------------------------------------------------------------------------------------------------
\a\ Collected data 03/2009-Present.
\b\ Collected data 03/2007-Present.
\c\ Collected data 04/1986-12/1998 and 10/2005-06/2008.
\d\ Collected data 12/2001-03/2007.


[[Page 56636]]

    EPA's review of these data indicates that the New York County 
PM10 nonattainment area has met and continues to meet both 
the current 24-Hr PM10 NAAQS and the revoked annual 
PM10 NAAQS. Data from 2010 through 2012 shows that 
PM10 levels in New York County are less than 37% of the 24-
hr PM10 NAAQS and less than 42% of the revoked annual 
PM10 NAAQS.

V. EPA's Clean Data Policy and the Applicability of the Clean Air Act 
Planning Requirements to the New York County Nonattainment Area \4\
---------------------------------------------------------------------------

    \4\ This section parallels the discussion in 77 FR 44544 (July 
30, 2012), a clean data determination for the Ogden Utah 
nonattainment area. That rule was finalized in 78 FR 885 (Jan. 7, 
2013).
---------------------------------------------------------------------------

    The air quality planning requirements for moderate PM10 
nonattainment areas, such as the New York County nonattainment area, 
are set out in part D, subparts 1 and 4, of title I of the Act. EPA has 
issued guidance in a General Preamble describing how we will review 
SIPs and SIP revisions submitted under title I of the Act, including 
those containing moderate PM10 nonattainment area SIP 
provisions.\5\
---------------------------------------------------------------------------

    \5\ ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' (57 FR 13498 (April 16, 1992), 
and supplemented at 57 FR 18070 (April 28, 1992)); hereafter 
referred to as the General Preamble.
---------------------------------------------------------------------------

    The subpart 1 requirements include, among other things, provisions 
for reasonably available control measures or ``RACM'', reasonable 
further progress or ``RFP'', emissions inventories, a permit program 
for construction and operation of new or modified major stationary 
sources in the nonattainment area or ``NSR'', contingency measures, 
conformity, and additional SIP revisions providing for attainment where 
EPA determines that the area has failed to attain the standard by the 
applicable attainment date.
    Subpart 4 requirements in CAA section 189 apply specifically to 
PM10 nonattainment areas. The requirements for moderate 
PM10 nonattainment areas include: (1) An attainment 
demonstration; (2) provisions for RACM; (3) quantitative milestones 
demonstrating RFP toward attainment by the applicable attainment date; 
and, (4) provisions ensuring that the control requirements applicable 
to an area's major stationary sources of PM10 also apply to 
major stationary sources of PM10 precursors, except where 
the Administrator has determined that such sources do not contribute 
significantly to PM10 levels exceeding the NAAQS.
    For nonattainment areas where EPA determines that monitored data 
show that the NAAQS have already been achieved, EPA's interpretation, 
upheld by the Courts, is that the obligation to submit certain 
requirements of part D, subparts 1, 2, and 4 of the Act are suspended 
for so long as the area continues to attain. These include requirements 
for attainment demonstrations, RFP, RACM, and contingency measures, 
because these provisions have the purpose of helping achieve attainment 
of the NAAQS. New York's NSR requirements continue and are not 
suspended in PM10 nonattainment areas. Certain other 
obligations for PM10 nonattainment areas, however, are not 
suspended, such as the NSR requirements.
    This interpretation of the Clean Air Act is known as the Clean Data 
Policy. It is the subject of several EPA memoranda and regulations, and 
numerous rulemakings that have been published in the Federal Register 
over more than fifteen years. EPA finalized the statutory 
interpretation set forth in the Clean Data Policy as part of its 
``Final Rule to Implement the 8-hour Ozone National Ambient Air Quality 
Standard--Phase 2'' (Phase 2 Final Rule); see 40 CFR 51.918 and 
discussion in the preamble to the rule at 70 FR 71612, 71645-71646 
(November 29, 2005). The D.C. Circuit Court upheld this Clean Data 
regulation as a valid interpretation of the CAA; see NRDC v. EPA, 571 
F. 3d 1245 (D.C. Cir. 2009). EPA also finalized its interpretation in 
an implementation rule for the NAAQS for particulate matter of 2.5 
microns or less (PM2.5); see 40 CFR 51.1004(c). Thus, EPA 
codified the Clean Data Policy when it established final rules 
governing implementation of new or revised NAAQS. See 70 FR 71612, 
71644-46 (November 29, 2005); 72 FR 20586, 20665 (April 25, 2007) 
(PM2.5 Implementation Rule). Otherwise, EPA applies the 
Clean Data Policy in individual rulemakings related to specific 
nonattainment areas. See, e.g., 75 FR 27944 (May 19, 2010) (the 
determination of attainment of the PM10 standard in Coso 
Junction, California), and 75 FR 6571 (February 10, 2010) (the 
determination of attainment of the 1-hour ozone standard in Baton 
Rouge, Louisiana).
    In its many applications of the Clean Data Policy interpretation to 
PM10, EPA has explained the legal bases set forth in detail 
in our Phase 2 Final Rule; our May 10, 1995 memorandum from John S. 
Seitz, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard''; our 
PM2.5 Implementation Rule; and our December 14, 2004 
memorandum from Stephen D. Page entitled ``Clean Data Policy for the 
Fine Particle National Ambient Air Quality Standards''. EPA has found 
that such legal bases are equally pertinent to the interpretation of 
provisions of subparts 1 and 4 applicable to PM10. See, 
e.g., 77 FR 44544 (7/30/12) and 78 FR 885 (1/7/13) (Ogden Utah area); 
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); 75 FR 27944 
(May 19, 2010) (Coso Junction, California area); and 76 FR 21807 (April 
19, 2011) (Truckee Meadows, Nevada area). EPA's interpretation that the 
obligation to submit an attainment demonstration, RACM, RFP, 
contingency measures, and other measures related to attainment under 
part D of title I of the Clean Air Act is suspended while the area is 
attaining the NAAQS, applies whether the standard is PM10, 
ozone, or PM2.5.
    In EPA's proposed and final rulemakings determining that the San 
Joaquin Valley nonattainment area attained the PM10 
standard, EPA set forth at length its rationale for applying the Clean 
Data Policy to PM10. The Ninth Circuit Court subsequently 
upheld this rulemaking, and specifically EPA's Clean Data Policy, in 
the context of the PM10 standard. See Latino Issues Forum v. 
EPA, Nos. 06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March 
2, 2009. In rejecting petitioner's challenge to the Clean Data Policy 
for PM10, the Court stated:

    As the EPA rationally explained, if an area is in compliance 
with PM10 standards, then further progress for the 
purpose of ensuring attainment is not necessary.

    EPA noted in its prior PM10 rulemakings that the reasons 
for relieving an area that has attained the relevant standard of 
certain obligations under part D, subparts 1 and 2, apply equally to 
part D, subpart 4, which contains specific attainment demonstration and 
RFP provisions for PM10 nonattainment areas. In EPA's Phase 
2 Final Rule and ozone (Seitz) and PM2.5 Clean Data (Page) 
memoranda, EPA established that it is reasonable to interpret 
provisions regarding RFP and attainment demonstrations, along with 
related requirements, so as not to require SIP submissions if an area 
subject to those requirements is already attaining the

[[Page 56637]]

NAAQS (i.e., attainment of the NAAQS is demonstrated with three 
consecutive years of complete, quality-assured, and certified air 
quality monitoring data). Every U.S. Circuit Court of Appeals that has 
considered the Clean Data Policy has upheld EPA rulemakings applying 
its interpretation, for both ozone and PM10. See 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, No. 04-73032 
(9th Cir. June 28, 2005) (memorandum opinion), Latino Issues Forum, 
supra.
    It has been EPA's longstanding interpretation that the general 
provisions of part D, subpart 1 of the Act (sections 171 and 172) do 
not require the submission of SIP revisions concerning RFP for areas 
already attaining the ozone NAAQS. In the General Preamble, we stated:

    [R]equirements for RFP will not apply in evaluating a request 
for redesignation to attainment since, at a minimum, the air quality 
data for the area must show that the area has already attained. 
Showing that the State will make RFP towards attainment will, 
therefore, have no meaning at that point.

See 57 FR 13564 (April 16, 1992). EPA's prior determinations of 
attainment for PM10, e.g., for the San Joaquin Valley and 
Coso Junction areas in California, make clear that the same reasoning 
applies to the PM10 provisions of part D, subpart 4. See 71 
FR 40952 and 71 FR 63642 (proposed and final determination of 
attainment for San Joaquin Valley) and 75 FR 13710 and 75 FR 27944 
(proposed and final determination of attainment for Coso Junction).
    With respect to RFP, section 171(1) states that, for purposes of 
part D of title I, RFP ``means such annual incremental reductions in 
emissions of the relevant air pollutant as are required by this part or 
may reasonably be required by the Administrator for the purpose of 
ensuring attainment of the applicable NAAQS by the applicable date.'' 
Thus, whether dealing with the general RFP requirement of section 
172(c)(2), the ozone-specific RFP requirements of sections 182(b) and 
(c), or the specific RFP requirements for 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. Section 189(c)(1) states 
that:

    Plan revisions demonstrating attainment submitted to the 
Administrator for approval under this subpart shall contain 
quantitative milestones which are to be achieved every 3 years until 
the area is redesignated attainment and which demonstrate reasonable 
further progress, as defined in section 7501(1) of this title, 
toward attainment by the applicable date.

    Although this section states that revisions shall contain 
milestones which are to be achieved until the area is redesignated to 
attainment, such milestones are designed to show reasonable further 
progress ``toward attainment by the applicable attainment date,'' as 
defined by section 171. Thus, it is clear that once the area has 
attained the standard, no further milestones are necessary or 
meaningful. This interpretation is supported by language in section 
189(c)(3), which mandates that a State that fails to achieve a 
milestone must submit a plan that assures that the State will achieve 
the next milestone or attain the NAAQS if there is no next milestone. 
Section 189(c)(3) assumes that the requirement to submit and achieve 
milestones does not continue after attainment of the NAAQS.
    In the General Preamble, we noted with respect to section 189(c) 
that the purpose of the milestone requirement ``is `to provide for 
emission reductions adequate to achieve the standards by the applicable 
attainment date' (H.R. Rep. No. 490, 101st Cong., 2d Sess. 267 
(1990)).'' See 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.\6\ EPA took this position with respect to 
the general RFP requirement of section 172(c)(2) in the General 
Preamble and also in the Seitz memorandum with respect to the 
requirements of sections 182(b) and (c). In our prior applications of 
the Clean Data Policy to PM10, we have extended that 
interpretation to the specific provisions of part D, subpart 4. See, 
e.g., 71 FR 40952 and 71 FR 63642, the proposed and final determination 
of attainment for San Joaquin Valley, and 75 FR 13710 and 75 FR 27944, 
the proposed and final determination of attainment for Coso Junction.
---------------------------------------------------------------------------

    \6\ Thus, we believe that it is a distinction without a 
difference that section 189(c)(1) speaks of the RFP requirement as 
one to be achieved until an area is ``redesignated attainment,'' as 
opposed to section 172(c)(2), which is silent on the period to which 
the requirement pertains, or the ozone nonattainment area RFP 
requirements in sections 182(b)(1) or 182(c)(2), which refer to the 
RFP requirements as applying until the ``attainment date,'' since 
section 189(c)(1) defines RFP by reference to section 171(1) of the 
Act. Reference to section 171(1) clarifies that, as with the general 
RFP requirements in section 172(c)(2) and the ozone-specific 
requirements of section 182(b)(1) and 182(c)(2), the PM-specific 
requirements may only be required ``for the purpose of ensuring 
attainment of the applicable national ambient air quality standard 
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in 
the text of this rulemaking, EPA interprets the RFP requirements, in 
light of the definition of RFP in section 171(1), and incorporated 
in section 189(c)(1), to be a requirement that no longer applies 
once the standard has been attained.
---------------------------------------------------------------------------

    In the General Preamble, we stated, in the context of a discussion 
of the requirements applicable to the evaluation of requests to 
redesignate nonattainment areas to attainment, that the ``requirements 
for RFP will not apply in evaluating a request for redesignation to 
attainment since, at a minimum, the air quality data for the area must 
show that the area has already attained. Showing that the State will 
make RFP towards attainment will, therefore, have no meaning at that 
point.'' See 57 FR 13564 (April 16, 1992). See also our September 4, 
1992 memorandum from John Calcagni, entitled ``Procedures for 
Processing Requests to Redesignate Areas to Attainment'' (Calcagni 
memorandum), at page 6.
    Similarly, the requirements of section 189(c)(2) with respect to 
milestones no longer apply so long as an area has attained the 
standard. Section 189(c)(2) provides in relevant part that:

    Not later than 90 days after the date on which a milestone 
applicable to the area occurs, each State in which all or part of 
such area is located shall submit to the Administrator a 
demonstration * * * that the milestone has been met.

    Where the area has attained the standard and there are no further 
milestones, there is no further requirement to make a submission 
showing that such milestones have been met. As noted above, this is 
consistent with the position that EPA took with respect to the general 
RFP requirement of section 172(c)(2) in the General Preamble and also 
in the Seitz memorandum with respect to the requirements of section 
182(b) and (c). In the 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 Seitz 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.

See Seitz memorandum at page 5.
    With respect to the attainment demonstration requirements of 
section 189(a)(1)(B), an analogous rationale leads to the same result. 
Section

[[Page 56638]]

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, 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.'' See 57 FR at 13564 (April 16, 1992).
    Other SIP submission requirements are linked with these attainment 
demonstration and RFP requirements, and similar reasoning applies to 
them. These requirements include the contingency measure requirements 
of sections 172(c)(9) and 182(c)(9). We have interpreted the 
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as 
no longer applying when an area has attained the standard because those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' See 57 FR 13564 (April 16, 1992) and Seitz 
memorandum, pages 5-6.
    Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to 
assure that reasonably available control measures'' (i.e., RACM) are 
implemented in a nonattainment area. The General Preamble states that 
EPA interprets section 172(c)(1) so that RACM requirements are a 
``component'' of an area's attainment demonstration. See 57 FR 13560 
(April 16, 1992). 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. See the 
General Preamble at 57 FR 13498 (April 16, 1992). Thus, where an area 
is already attaining the standard, no additional RACM measures are 
required.\7\ EPA is interpreting section 189(a)(1)(C) consistent with 
its interpretation of section 172(c)(1).
---------------------------------------------------------------------------

    \7\ The EPA's interpretation that the statute only requires 
implementation of RACM measures that would advance attainment was 
upheld by the United States Court of Appeals for the Fifth Circuit 
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002)), and by 
the United States Court of Appeals for the D.C. Circuit (Sierra Club 
v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
---------------------------------------------------------------------------

    We emphasize that the suspension of the obligation to submit SIP 
revisions concerning these RFP, attainment demonstration, RACM, and 
other related requirements exists only for as long as the New York 
County nonattainment area continues to monitor attainment of the 
PM10 standard. If EPA determines, after notice-and-comment 
rulemaking, that the area has monitored a violation of the 
PM10 NAAQS, the basis for suspending the requirements would 
no longer exist. As a result, the New York County nonattainment 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 after EPA redesignates the area to attainment would the area be 
relieved of these attainment-related submission obligations. Attainment 
determinations under the Clean Data Policy do not suspend an area's 
obligations unrelated to attainment in the area, such as provisions to 
address pollution transport.
    Based on our proposed determination that the New York County 
nonattainment area is currently attaining the PM10 NAAQS and 
as set forth above, we propose to find that New York's obligations to 
submit planning provisions to meet the requirements for an attainment 
demonstration, reasonable further progress plans, reasonably available 
control measures, and contingency measures, no longer apply for so long 
as the New York County nonattainment area continues to monitor 
attainment of the PM10 NAAQS. As noted earlier, on January 
14, 2013, New York withdrew its previously submitted July 20, 1995 and 
September 29, 1996 p.m.10 SIP, therefore EPA no longer has a 
PM10 SIP for New York County before us for review. In the 
future, after notice-and-comment rulemaking, if EPA determines that the 
area again violates the PM10 NAAQS, then the basis for 
suspending the attainment demonstration, RFP, RACM, and contingency 
measure requirements would no longer exist. In that event, we would 
notify New York that we have determined that the New York County 
nonattainment area is no longer attaining the PM10 standard 
and provide notice to the public in the Federal Register.

VI. EPA's Proposed Action

    Based on the most recent three-year period of certified, quality-
assured data meeting the requirements of 40 CFR part 50, appendix K, 
and for the reasons discussed above, we propose to find that the New 
York County nonattainment area is currently attaining both the 24-hour 
PM10 NAAQS and the revoked annual PM10 NAAQS.
    In conjunction with and based upon our proposed determination that 
the New York County nonattainment area is currently attaining the 
standard, EPA proposes to determine that New York's obligation to 
submit the following Clean Air Act requirements is not applicable for 
so long as the New York County nonattainment area continues to attain 
the PM10 standard: an attainment demonstration under Clean 
Air Act section 189(a)(1)(B); RACM provisions under Clean Air Act 
section 189(a)(1)(C); RFP provisions under Clean Air Act section 
189(c); and, the attainment demonstration, RACM, RFP and contingency 
measure provisions under Clean Air Act section 172 of the Act.
    The classification and designation status in 40 CFR part 81 would 
remain moderate nonattainment for the New York County nonattainment 
area.

VII. Statutory and Executive Order Reviews

    This action proposes to make a determination based on air quality 
data, and would, if finalized, result in the suspension of certain 
Federal requirements. 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);

[[Page 56639]]

    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, 
as appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications, as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: September 3, 2013.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2013-22356 Filed 9-12-13; 8:45 am]
BILLING CODE 6560-50-P


