
[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Proposed Rules]
[Pages 44544-44550]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18389]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0446; FRL-9703-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Utah; Determination of Clean Data for the 1987 PM10 Standard 
for the Ogden Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to determine that the Ogden City 
nonattainment area in Utah is currently 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 2009 through 2011. The State of Utah 
submitted a letter dated March 30, 2000, requesting EPA to make a clean 
data

[[Page 44545]]

determination for the nonattainment area of Ogden City. Based on our 
proposed determination that the Ogden City nonattainment area is 
currently attaining the PM10 NAAQS, EPA is also proposing to 
determine that Utah's obligation to make submissions to meet certain 
Clean Air Act (CAA) requirements related to attainment of the NAAQS is 
not applicable for as long as the Ogden City nonattainment area 
continues to attain the NAAQS. This action is being taken under the 
CAA.

DATES: Comments must be received on or before August 29, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0446, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: freeman.crystal@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl, Daly, Director, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2012-0446. 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. For additional 
instructions on submitting comments, go to Section I. General 
Information of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
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 www.regulations.gov or in hard copy at the Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, 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, 8:00 a.m. to 4:00 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Crystal Freeman, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6602, freeman.crystal@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
II. Background
    A. PM10 NAAQS
    B. Designation and Classification of Ogden City PM10 
Nonattainment Area
    C. How does EPA make attainment determinations?
III. EPA's Analysis
    A. What is the Ogden City nonattainment area monitoring network?
    B. Do the Ogden City nonattainment area monitors meet minimum 
federal ambient air quality monitoring requirements?
    C. What does the air quality data show for the Ogden City 
nonattainment area?
IV. EPA's Clean Data Policy and the Applicability of the Clean Air 
Act Planning Requirements to the Ogden City Nonattainment Area
V. EPA's Proposed Action
VI. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The initials AQS mean or refer to EPA's Air Quality System 
database.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials NAAQS mean or refer to National Ambient Air 
Quality Standard.
    (v) The initials NSR mean or refer to new source review.
    (vi) The initials PM2.5 mean or refer to particulate matter with an 
aerodynamic diameter equal to or less than 2.5 micrometers (fine 
particulate matter).
    (vii) The initials PM10 mean or refer to particulate matter with an 
aerodynamic diameter equal to or less than 10 micrometers (coarse 
particulate matter).
    (viii) The initials RACM mean or refer to reasonably available 
control measures.
    (ix) The initials RFP mean or refer to reasonable further progress.
    (x) The initials SIP mean or refer to State Implementation Plan.
    (xi) The initials SLAMS mean or refer to state and local air 
monitoring stations.
    (xii) The words State or Utah mean the State of Utah, unless the 
context indicates otherwise.
    (xiii) The initials UDEQ mean or refer to Utah Department of 
Environmental Quality.

I. General Information

A. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the

[[Page 44546]]

public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

A. PM10 NAAQS

    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 PM:10 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.
---------------------------------------------------------------------------

B. Designation and Classification of Ogden City PM10 Nonattainment Area

    The Ogden City 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 81.345 (Ogden Area Weber County (part) City of Ogden). The Ogden 
City designation became effective on September 26, 1995.

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.\4\
---------------------------------------------------------------------------

    \4\ Because the annual PM10 standard was revoked 
effective December 18, 2006, this document discusses only attainment 
of the 24-hour PM10 standard. See 71 FR 61144 (October 
17, 2006).
---------------------------------------------------------------------------

    To demonstrate attainment of the 24-hour 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 percent 
criterion discussed earlier 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 
these criteria 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.

III. EPA's Analysis

A. What is the Ogden City nonattainment area monitoring network?

    The Utah Department of Environmental Quality (UDEQ) has operated 
PM10 monitors in Ogden City since 1987. The first monitor in 
Ogden City was operated by the Ogden Health Department at 2570 Grant 
Avenue until February 15, 2000. The monitor was replaced by the Ogden 
Number 2 monitoring site at 228 32nd Street, which began operation on 
July 2, 2001. Both sites were selected to read maximum concentration 
values near the center of the Ogden City urbanized area.

B. Does the Ogden City nonattainment area monitor meet minimum federal 
ambient air quality monitoring requirements?

    Annually, UDEQ submits monitoring network plan reports to EPA on 
compliance with the applicable reporting requirements in 40 CFR 58.10. 
These reports discuss the status of the

[[Page 44547]]

air monitoring network, as required under 40 CFR part 58. With respect 
to PM10, UDEQ's annual network plans meet the applicable 
requirements under 40 CFR part 58. The Ogden Number 2 monitor samples 
on a daily schedule, which meets the requirements of 40 CFR 58.12(e) 
for monitoring frequency. Also, UDEQ annually certifies that the data 
it submits to AQS are quality-assured.

C. What does the air quality data show for the Ogden City nonattainment 
area?

    Since 1995, when Ogden City was designated as a nonattainment area, 
the data from AQS indicate that six exceedances of the PM10 
standard have been measured in the Ogden City nonattainment area at the 
Ogden Number 2 monitor. From the six total exceedances, one was 
observed in 2002, two were in 2003, one was in 2009, and two were in 
2010. All these exceedances have been flagged by UDEQ as exceptional 
events involving either July 4th fireworks, high winds, or wildfires. 
These exceedances resulted in expected numbers of exceedances of 1.0 
for the period 2001 through 2003, 2002 through 2004, 2008 through 2010, 
and 2009 through 2011, showing that the Ogden City nonattainment area 
has attained the PM10 NAAQS in all years containing complete 
monitoring data from 1995 to present. The available data shows 
attainment of the PM10 standard continuously since 2002, 
even if EPA takes no action to exclude data flagged as exceptional 
events.
    Between 1995 and 2011, an interruption of monitoring occurred 
between February 16, 2000 until July 2, 2001. This prevented EPA from 
determining that Ogden had attained the NAAQS via a clean data 
determination until 3 years of complete monitoring data had been 
collected after 2001. Beginning in 2002, complete data showing 
attainment of the PM10 standard has been collected in AQS 
for the Ogden City PM10 nonattainment area.
    For the purposes of this proposed action, we have reviewed the data 
for the most recent three-year period (2009 through 2011). Table 1 
summarizes the PM10 concentration data collected at the 
Ogden Number 2 monitor over the past three years. As shown in Table 1, 
three exceedances, but no violations, were recorded within the Ogden 
City nonattainment area over the 2009 through 2011 period.

            Table 1--Summary of 2009-2011 PM10 Monitoring Data for Ogden City Nonattainment Area \a\
----------------------------------------------------------------------------------------------------------------
                                                   Highest 24-hour PM10 concentration ([micro]g/     Expected
                                                                       m\3\)                        exceedances
                 Monitoring site                 ------------------------------------------------    per year
                                                                                                 ---------------
                                                       2009            2010            2011          2009-2011
----------------------------------------------------------------------------------------------------------------
Ogden No. 2.....................................             181             216              79             1.0
----------------------------------------------------------------------------------------------------------------
PM10 NAAQS = 150 [mu]g/m\3\
----------------------------------------------------------------------------------------------------------------
\a\ Source: AQS AMP350 report dated June 8, 2012.

    Table 2 expands on Table 1's expected exceedance per year for Ogden 
City's PM10 monitor for years 2009 through 2011. For the 
years 2009 and 2010, there were three exceedances that were flagged as 
exceptional events. However, even though there were exceedances within 
these two years, the Ogden City monitor did not violate the 
PM10 NAAQS.

 Table 2--Summary of Ogden City's PM10 Monitor Data (49-057-0002), 2009-
                   2011 Expected Exceedances per Year
------------------------------------------------------------------------
                   Year                         Monitor  49-057-0002
------------------------------------------------------------------------
2009......................................  1.0 (Wildfire Exceptional
                                             Event Flag).
2010......................................  2.0 (High Wind Exceptional
                                             Event Flag).
2011......................................  0.0.
2009-2011 Three Year Average..............  1.0.
------------------------------------------------------------------------

    During the 2009 through 2011 time period, the data collected by 
UDEQ meets the completeness criterion for all quarters at the Ogden 
Number 2 monitor. As noted above, to be considered ``complete,'' valid 
measurements must be made for 75 percent of all the scheduled sampling 
dates in each quarter of the year, and generally, three years of 
representative monitoring data that meets the 75 percent criterion 
should be utilized, where available.
    Based on our review of the certified, quality-assured data for 2009 
through 2011, we find that the expected number of exceedances per year 
for the Ogden City nonattainment area for the most recent three-year 
period (i.e., 2009 to 2011) was 1.0 day per year. With an annual 
expected exceedance rate for the 24-hour PM10 NAAQS of 1.0, 
these data show attainment of the PM10 standard. The EPA 
proposes to determine that the Ogden City nonattainment area is 
attaining the PM10 NAAQS. Prior to taking final action on 
this proposal, we will review any preliminary data for 2012 submitted 
by UDEQ to AQS for the Ogden City nonattainment area to ensure that 
such preliminary data show continued attainment of the standard.

IV. EPA's Clean Data Policy and the Applicability of the Clean Air Act 
Planning Requirements to the Ogden City Nonattainment Area

    The air quality planning requirements for moderate PM10 
nonattainment areas, such as the Ogden City 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 state 
implementation plans (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

[[Page 44548]]

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. Certain other obligations for PM10 
nonattainment areas, however, are not suspended, such as the NSR 
requirements.
    This interpretation of the CAA 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 DC 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 
has 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 that the legal bases set forth in 
detail in our Phase 2 Final Rule; our May 10, 1995 memorandum from John 
S. Seitz, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard;'' our 
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,'' are equally 
pertinent to the interpretation of provisions of subparts 1 and 4 
applicable to PM10. See, e.g., 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 CAA 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 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

[[Page 44549]]

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 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

[[Page 44550]]

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 Ogden City 
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 Ogden City 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 Ogden City 
nonattainment area is currently attaining the PM10 NAAQS 
(see section III.C above) and as set forth above, we propose to find 
that Utah'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 Ogden City nonattainment 
area continues to monitor attainment of the PM10 NAAQS. 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 Utah that we have determined that the Ogden City nonattainment 
area is no longer attaining the PM10 standard and provide 
notice to the public in the Federal Register.

V. 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 Ogden 
City nonattainment area is currently attaining the 24-hour 
PM10 NAAQS.
    In conjunction with and based upon our proposed determination that 
the Ogden City nonattainment area is currently attaining the standard, 
EPA proposes to determine that Utah's obligation to submit the 
following CAA requirements is not applicable for so long as the Ogden 
City nonattainment area continues to attain the PM10 
standard: An attainment demonstration under CAA section 189(a)(1)(B); 
RACM provisions under CAA section 189(a)(1)(C); RFP provisions under 
CAA section 189(c); and, the attainment demonstration, RACM, RFP and 
contingency measure provisions under CAA section 172 of the Act.
    Any final action resulting from this proposal would not constitute 
a redesignation to attainment under CAA section 107(d)(3) because we 
have neither received nor approved a maintenance plan for the Ogden 
City nonattainment area as meeting the requirements of section 175A of 
the CAA, nor have we determined that the area has met the other CAA 
requirements for redesignation. The classification and designation 
status in 40 CFR part 81 would remain moderate nonattainment for the 
Ogden City nonattainment area until such time as EPA determines that 
Utah has met the CAA requirements for redesignating the Ogden City 
nonattainment area to attainment.

VI. Statutory and Executive Order Reviews

    With this action, we propose to make a determination regarding 
attainment of the PM10 NAAQS based on air quality data and, 
if finalized, this proposed action would result in suspension of 
certain Federal requirements, and would not impose additional 
requirements beyond those imposed by State law or by the CAA. 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 Clean Air Act; 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 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, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: July 10, 2012.
Howard Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2012-18389 Filed 7-27-12; 8:45 am]
BILLING CODE 6560-50-P


