
[Federal Register Volume 78, Number 134 (Friday, July 12, 2013)]
[Proposed Rules]
[Pages 41901-41907]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16760]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2013-0449; FRL-9832-5]


Determination of Attainment for the West Central Pinal 
Nonattainment Area for the 2006 Fine Particle Standard; Arizona; 
Determination Regarding Applicability of Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the West Central Pinal area 
in Arizona has attained the 2006 24-hour fine particle 
(PM2.5) National Ambient Air Quality Standard (NAAQS). This 
proposed determination is based upon complete, quality-assured, and 
certified ambient air monitoring data showing that the area has 
monitored attainment of the 2006 24-hour PM2.5 NAAQS based 
on the 2010-2012 monitoring period. EPA is further proposing that, if 
EPA finalizes this determination of attainment, the requirements for 
the area to submit an attainment demonstration, together with 
reasonably available control measures (RACM), a reasonable further 
progress (RFP) plan, and contingency measures for failure to meet RFP 
and attainment deadlines shall be suspended for so long as the area 
continues to attain the 2006 24-hour PM2.5 NAAQS.

DATES: Written comments must be received on or before August 12, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2013-0449 by one of the following methods:
    1. Federal eRulemaking Portal, at www.regulations.gov, please 
follow the on-line instructions;
    2. Email to vagenas.ginger@epa.gov; or
    3. Mail or delivery to Ginger Vagenas, Air Planning Office, AIR-2, 
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, 
San Francisco, California 94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information you consider to 
be CBI or otherwise protected should be clearly identified as such and 
should not be submitted

[[Page 41902]]

through www.regulations.gov or email. www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an email directly to EPA, your email address will be 
automatically captured and included as part of the public comment. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, (415) 972-3964, or by 
email at vagenas.ginger@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'', 
``us'' or ``our'' are used, we mean EPA. We are providing the following 
outline to aid in locating information in this proposal.

Table of Contents

I. What determination is EPA making?
II. What is the background for this action?
    A. PM2.5 NAAQS
    B. Designation of PM2.5 Nonattainment Areas
    C. How does EPA make attainment determinations?
III. What is EPA's analysis of the relevant air quality data?
    A. Monitoring Network and Data Considerations
    B. Evaluation of Current Attainment
IV. What is the effect of a determination of attainment for the 2006 
24-hour PM2.5 NAAQS under subpart 4 of the Clean Air Act?
    A. Background of the Clean Data Policy
    B. Application of the Clean Data Policy to the Attainment-
Related Provisions of Subpart 4
V. EPA's Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews

I. What determination is EPA making?

    EPA is proposing to determine that the West Central Pinal 
nonattainment area has clean data for the 2006 24-hour NAAQS for fine 
particles (generally referring to particles less than or equal to 2.5 
micrometers in diameter, PM2.5). This determination is based 
upon complete, quality-assured, and certified ambient air monitoring 
data showing the area has monitored attainment of the 2006 
PM2.5 NAAQS based on 2010-2012 monitoring data. Preliminary 
data in EPA's Air Quality System (AQS) for 2013 indicate that the area 
continues to attain the 2006 PM2.5 NAAQS. Based on this 
determination, we are also proposing to suspend the obligations on the 
State of Arizona to submit certain state implementation plan (SIP) 
revisions related to attainment of this standard for the area for as 
long as the area continues to attain the standard.

II. What is the background for this action?

A. PM2.5 NAAQS

    Under section 109 of the Clean Air Act (CAA or ``Act''), EPA has 
established national ambient air quality standards (NAAQS or 
``standards'') for certain pervasive air pollutants (referred to as 
``criteria pollutants'') and conducts periodic reviews of the NAAQS to 
determine whether they should be revised or whether new NAAQS should be 
established.
    On July 1, 1987 (52 FR 24634), EPA replaced the original NAAQS for 
particulate matter, measured as total suspended particulate matter 
(``TSP'')(i.e., particles roughly 30 micrometers or less), with new 
NAAQS that replaced TSP as the indicator for particulate matter with a 
new indicator that includes only those particles with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers 
(PM10).
    On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for 
particulate matter by establishing new NAAQS for particles with an 
aerodynamic diameter less than or equal to a nominal 2.5 micrometers 
(PM2.5). EPA established primary and secondary \1\ annual 
and 24-hour standards for PM2.5. The annual standard was set 
at 15.0 micrograms per cubic meter ([mu]g/m\3\), based on a 3-year 
average of annual mean PM2.5 concentrations, and the 24-hour 
standard was set at 65 [mu]g/m\3\, based on the 3-year average of the 
98th percentile of 24-hour PM2.5 concentrations at each 
population-oriented monitor within an area.
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    \1\ For a given air pollutant, ``primary'' national ambient air 
quality standards are those determined by EPA as requisite to 
protect the public health, and ``secondary'' standards are those 
determined by EPA as requisite to protect the public welfare from 
any known or anticipated adverse effects associated with the 
presence of such air pollutant in the ambient air. See CAA section 
109(b).
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    On October 17, 2006 (71 FR 61144), EPA revised the level of the 24-
hour PM2.5 NAAQS to 35 [mu]g/m\3\, based on a 3-year average 
of the 98th percentile of 24-hour concentrations. Herein, we refer to 
the 35 [mu]g/m\3\ standard as the ``2006 24-hour PM2.5 
standard.'' EPA also retained the 1997 annual PM2.5 standard 
at 15.0 [mu]g/m\3\ based on a 3-year average of annual mean 
PM2.5 concentrations, but with tighter constraints on the 
spatial averaging criteria.
    In December 2012, EPA revised the annual PM2.5 NAAQS to 
a level of 12 [mu]g/m\3\, retained the current 24-hour PM2.5 
NAAQS at a level of 35 [mu]g/m\3\, and retained the current 
PM10 NAAQS. See 78 FR 3086 (January 15, 2013). The proposed 
determination in this document concerns only the 2006 24-hour 
PM2.5 NAAQS, not the 1997 24-hour PM2.5 NAAQS or 
the 1997 or 2012 annual PM2.5 NAAQS, and not the 
PM10 NAAQS.

B. Designation of PM2.5 Nonattainment Areas

    Effective December 14, 2009, EPA established the initial air 
quality designations for most areas in the United States for the 2006 
24-hour PM2.5 NAAQS. See 74 FR 58688 (November 13, 2009). 
Pinal County, Arizona is located within one of three areas that EPA 
deferred from designation at that time.\2\ However, in a subsequent 
action on February 3, 2011, EPA designated a portion of State lands in 
Pinal County, Arizona (``West Central Pinal'') as nonattainment for the 
2006 PM2.5 NAAQS based on 2006-2008 data.3 4 For 
more information on the designation of West Central Pinal, please see 
the February 3, 2011 final rule.
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    \2\ With respect to the 1997 annual PM2.5 NAAQS, this 
area is designated as ``unclassifiable/attainment.'' EPA has not yet 
established designations for the revised annual PM2.5 
NAAQS.
    \3\ See 76 FR 6056, February 3, 2011. This action was effective 
March 7, 2011. On October 26, 2012, we designated nearby Indian 
lands belonging to the Ak Chin Indian Community and the Gila River 
Indian Community, which lie within the deferred area, as 
``unclassifiable/attainment'' for the 2006 PM2.5 NAAQS 
based on improved air quality. See 77 FR 65310.
    \4\ The boundaries for the nonattainment area are described in 
40 CFR 81.303.
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    Within 3 years of the effective date of designations, states with 
areas designated as nonattainment for the 2006 PM2.5 NAAQS 
are required to submit SIP revisions that, among other

[[Page 41903]]

elements, provide for implementation of reasonably available control 
measures (RACM), reasonable further progress (RFP), attainment of the 
standard as expeditiously as practicable but no later than five years 
from the nonattainment designation (in this instance, no later than 
March 7, 2014), as well as contingency measures. See CAA section 
172(a)(2), 172(c)(1), 172(c)(2), and 172(c)(9). Prior to the due date 
for submittal of these SIP revisions, the State of Arizona requested 
that EPA make a determination that the West Central Pinal nonattainment 
area has attained the 2006 PM2.5 NAAQS.\5\ Today's proposal 
responds to the State's request.
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    \5\ On December 19, 2012, in an email to Colleen McKaughan, 
Associate Director, Air Division, U.S. EPA Region IX, Steven M. 
Calderon, Manager, State Implementation Plan Section, Air Quality 
Division, Arizona Department of Environmental Quality, requested 
that EPA determine whether the West Central Pinal PM2.5 
nonattainment area qualified for a determination of attainment for 
the 2006 24-hour PM2.5 NAAQS. On January 29, 2013, ADEQ 
provided an AQS Design Value Report in support of the request. Both 
of these items can be found in the docket for today's action.
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C. How does EPA make attainment determinations?

    A determination of whether an area's air quality currently meets 
the PM2.5 NAAQS is generally based upon the most recent 
three years of complete, quality-assured data gathered at established 
State and Local Air Monitoring Stations (SLAMS) in a nonattainment area 
and entered into the AQS database. Data from air monitors operated by 
state/local agencies in compliance with EPA monitoring requirements 
must be submitted to AQS. Monitoring agencies annually certify that 
these data are accurate to the best of their knowledge. Accordingly, 
EPA relies primarily on data in AQS when determining the attainment 
status of areas. See 40 CFR 50.13; 40 CFR part 50, appendix L; 40 CFR 
part 53; 40 CFR part 58, and 40 CFR part 58, appendices A, C, D, and E. 
All data are reviewed to determine the area's air quality status in 
accordance with 40 CFR part 50, appendix N.
    Under EPA regulations in 40 CFR part 50, section 50.13 and in 
accordance with appendix N, the 2006 24-hour PM2.5 standard 
is met when the design value is less than or equal to 35 [micro]g/m\3\ 
(based on the rounding convention in 40 CFR part 50, appendix N) at 
each monitoring site within the area.\6\ The PM2.5 24-hour 
average is considered valid when 75 percent of the hourly averages for 
the 24-hour period are available. Data completeness requirements for a 
given year are met when at least 75 percent of the scheduled sampling 
days for each quarter have valid data.
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    \6\ The 24-hour PM2.5 standard design value is the 3-
year average of annual 98th percentile 24-hour average values 
recorded at each monitoring site (see 40 CFR part 50, appendix N, 
section 1.0(c)), and the 24-hour PM2.5 NAAQS is met when 
the 24-hour standard design value at each monitoring site is less 
than or equal to 35 [micro]g/m\3\.
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III. What is EPA's analysis of the relevant air quality data?

A. Monitoring Network and Data Considerations

    Pinal County Air Quality Control District (PCAQCD) is the 
governmental agency with the authority and responsibility under state 
law for collecting ambient air quality data within the West Central 
Pinal nonattainment area. Annually, PCAQCD submits monitoring network 
plans to EPA. These plans discuss the status of the air monitoring 
network, as required under 40 CFR part 58. EPA reviews these annual 
network plans for compliance with the applicable reporting requirements 
in 40 CFR 58.10. With respect to PM2.5, we have found that 
PCAQCD's annual network plans meet the applicable requirements under 40 
CFR part 58.\7\ Furthermore, we concluded in our Technical System Audit 
Report concerning PCAQCD's ambient air quality monitoring program that 
PCAQCD's ambient air monitoring network currently meets or exceeds the 
requirements for the minimum number of monitoring sites designated as 
SLAMS for PM2.5 in the West Central Pinal nonattainment 
area.\8\ Also, PCAQCD annually certifies that the data it submits to 
AQS are quality-assured.\9\
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    \7\ Letter from Matthew Lakin, Manager, Air Quality Analysis 
Office, U.S. EPA Region IX, to Donald Gabrielson, Director, PCAQCD 
(November 1, 2010) (approving PCAQCD's ``2010 Ambient Monitoring 
Network Plan and 2009 Data Summary''); Letter from Matthew Lakin, 
Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Donald 
Gabrielson, Director, PCAQCD (November 1, 2011) (approving PCAQCD's 
``2011 Annual Monitoring Network Plan and 2010 Data Summary''); 
Letter from Matthew Lakin, Manager, Air Quality Analysis Office, 
U.S. EPA Region IX, to Donald Gabrielson, Director, PCAQCD (March 
27, 2013) (approving PCAQCD's ``2012 Annual Monitoring Network Plan 
and 2011 Data Summary'').
    \8\ Technical System Audit Report transmitted via correspondence 
dated June 10, 2013, from Deborah Jordan, Director, Air Division, 
EPA Region IX, to Donald Gabrielson, Director, PCAQCD.
    \9\ See, e.g., the letter from Kale Walch, Deputy Director, 
PCAQCD to Jared Blumenfeld, Regional Administrator, EPA Region IX, 
dated April 26, 2013 certifying the ambient air quality data 
collected for year 2012.
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    There was one PM2.5 SLAMS operating during the 2010-2012 
period in the West Central Pinal PM2.5 nonattainment area. 
This site has been monitoring PM2.5 concentrations since 
2005. Historically, this site had monitored PM2.5 
concentrations on a one-in-six day sampling frequency. In the beginning 
of 2012, the sampling frequency was changed to a one-in-three day 
schedule.
    EPA defines specific monitoring site types and spatial scales of 
representativeness to characterize the nature and location of required 
monitors. The monitor's spatial scale is middle scale,\10\ and its 
monitoring objectives (site type) are source oriented and population 
exposure.
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    \10\ In this context, ``middle'' spatial scale defines 
concentrations typical of areas up to several city blocks in size 
with dimensions ranging from about 100 meters to 0.5 kilometers. See 
40 CFR part 58, appendix D, section 1.2.
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    For the purposes of this proposed action, we have reviewed the data 
for the most recent three-year period (2010-2012) for completeness, and 
we determined that the data collected by PCAQCD meets the completeness 
criterion for all 12 quarters at the West Central Pinal 
PM2.5 monitor. We consider the PM2.5 data set for 
2010-2012 to be complete for the purposes of determining whether the 
area has attained the standard.

B. Evaluation of Current Attainment

    EPA's evaluation of whether the West Central Pinal PM2.5 
nonattainment area has attained the 2006 24-hour PM2.5 NAAQS 
is based on our review of the monitoring data and takes into account 
the adequacy of the PM2.5 monitoring network in the 
nonattainment area and the reliability of the data collected by the 
network as discussed in the previous section of this document.
    Table 1 shows the PM2.5 design values for the West 
Central Pinal nonattainment area monitor based on ambient air quality 
monitoring data for the most recent complete three-year period (2010-
2012). The data show that the design value for the 2010-2012 period was 
equal to or less than 35 [micro]g/m\3\ at the monitor. Therefore, we 
are proposing to determine, based on the complete, quality-assured, and 
certified data for 2010-2012, that the West Central Pinal area has 
attained the 2006 24-hour PM2.5 standard. Preliminary data 
available in AQS for 2013 indicate that the area continues to attain 
the standard.

[[Page 41904]]



Table 1--2010-2012 24-Hour PM2.5 Monitoring Site and Design Values for the West Central Pinal Nonattainment Area
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                                                       98th Percentile ([micro]g/m\3\)              2010-2012
               Monitoring site               ---------------------------------------------------  Design values
                                                    2010             2011             2012       ([micro]g/m\3\)
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Cowtown Road................................            27.1             27.2             28.9               28
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Source: Design Value Report, May 23, 2013 (in the docket to this proposed action).

IV. What is the effect of a determination of attainment for the 2006 
24-hour PM2.5 NAAQS under subpart 4 of the Clean Air Act?

    This section of EPA's proposal addresses the effects of a final 
determination of attainment for the West Central Pinal nonattainment 
area.
    For the 1997 annual PM2.5 standard, 40 CFR 51.1004(c) of 
EPA's Implementation Rule embodies EPA's ``Clean Data Policy'' 
interpretation under subpart 1. The provisions of Sec.  51.1004(c) set 
forth the effects of a determination of attainment for the 1997 
PM2.5 standard. 72 FR 20585, 20665 (April 25, 2007). While 
the regulatory provisions of Sec.  51.1004(c) do not explicitly apply 
to the 2006 PM2.5 standard, the underlying statutory 
interpretation is the same for both standards. See 77 FR 76427 (Dec. 
28, 2012) (proposed determination of attainment for the 2006 
PM2.5 standard for Milwaukee, WI).
    On January 4, 2013, in Natural Resources Defense Council v. EPA, 
the D.C. Circuit remanded to EPA the ``Final Clean Air Fine Particle 
Implementation Rule'' (72 FR 20586, April 25, 2007) and the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR 
28321, May 16, 2008) (collectively, ``1997 PM2.5 
Implementation Rule'' or ``Implementation Rule''). 706 F.3d 428 (D.C. 
Cir. 2013). The Court found that EPA erred in implementing the 1997 
PM2.5 NAAQS pursuant solely to the general implementation 
provisions of subpart 1 of Part D of Title I of the CAA, rather than 
the particulate-matter-specific provisions of subpart 4 of Part D of 
Title I. The Court remanded EPA's Implementation Rule for further 
proceedings consistent with the Court's decision. In light of the 
Court's decision and its remand of the Implementation Rule, EPA in this 
proposed rulemaking addresses the effect of a final determination of 
attainment for the West Central Pinal nonattainment area, if that area 
were considered a moderate nonattainment area under subpart 4.\11\ As 
set forth in more detail below, under EPA's Clean Data Policy 
interpretation, a determination that the area has attained the standard 
suspends the State's obligation to submit attainment-related planning 
requirements of subpart 4 (and the applicable provisions of subpart 1) 
for so long as the area continues to attain the standard. These include 
requirements to submit an attainment demonstration, RFP, RACM, and 
contingency measures, because the purpose of these provisions is to 
help reach attainment--a goal which has already been achieved.
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    \11\ For the purposes of evaluating the effects of this proposed 
determination of attainment under subpart 4, we are considering the 
West Central Pinal nonattainment area to be a ``moderate'' 
PM2.5 nonattainment area. Under section 188 of the CAA, 
all areas designated nonattainment areas under subpart 4 would 
initially be classified by operation of law as ``moderate'' 
nonattainment areas, and would remain moderate nonattainment areas 
unless and until EPA reclassifies the area as a ``serious'' 
nonattainment area. Accordingly, EPA believes that it is appropriate 
to limit the evaluation of the potential impact of subpart 4 
requirements to those that would be applicable to moderate 
nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to 
moderate nonattainment areas and include an attainment demonstration 
(section 189(a)(1)(B)); (3) provisions for RACM (section 
189(a)(1)(C)); and quantitative milestones demonstrating RFP toward 
attainment by the applicable attainment date (section 189(c)). In 
addition, EPA also evaluates the applicable requirements of subpart 
1.
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A. Background of the Clean Data Policy

    Over the past two decades, EPA has consistently applied its ``Clean 
Data Policy'' interpretation to attainment-related provisions of 
subparts 1, 2 and 4. The Clean Data Policy is the subject of several 
EPA memoranda and regulations. In addition, numerous individual 
rulemakings published in the Federal Register have applied the 
interpretation to a spectrum of NAAQS, including the 1-hour and 1997 
ozone, PM10, PM2.5, CO and lead standards. The 
D.C. Circuit has upheld the Clean Data Policy interpretation as 
embodied in EPA's 8-hour ozone Implementation Rule, 40 CFR 51.918.\12\ 
NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009). Other U.S. Circuit Courts 
of Appeals that have considered and reviewed EPA's Clean Data Policy 
interpretation have upheld it and the rulemakings applying EPA's 
interpretation. Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996); 
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's Earth 
Foundation v. EPA, N. 04-73032 (9th Cir. June 28, 2005 (Memorandum 
Opinion)), Latino Issues Forum, v. EPA, Nos. 06-75831 and 08-71238 (9th 
Cir. March 2, 2009 (Memorandum Opinion)).
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    \12\ ``EPA's Final Rule to implement the 8-hour Ozone National 
Ambient Air Quality Standard--Phase 2 (Phase 2 Final Rule),'' 70 FR 
71612, 71645-46 (November 29, 2005).
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    As noted above, EPA incorporated its Clean Data Policy 
interpretation in both its 1997 8-hour ozone implementation rule and in 
its PM2.5 Implementation Rule in 40 CFR 51.1004(c). 72 FR 
20585, 20665 (April 25, 2007). While the D.C. Circuit, in its January 
4, 2013 decision, remanded the 1997 PM2.5 Implementation 
Rule, the court did not address the merits of that regulation, nor cast 
doubt on EPA's existing interpretation of the statutory provisions.
    However, in light of the Court's decision, we set forth here EPA's 
Clean Data Policy interpretation under subpart 4, for the purpose of 
identifying the effects of a determination of attainment for the 2006 
PM2.5 standard for the West Central Pinal nonattainment 
area. EPA has previously articulated its Clean Data interpretation 
under subpart 4 in implementing the PM10 standard. See, 
e.g., 75 FR 27944 (May 19, 2010) (determination of attainment of the 
PM10 standard in Coso Junction, California); 75 FR 6571 
(February 10, 2010) and 71 FR 6352 (February 8, 2006) (Ajo, Arizona 
area); 71 FR 13021 (March 14, 2006) (Yuma, Arizona area); 71 FR 40023 
(July 14, 2006) (Weirton, West Virginia area); 71 FR 44920 (August 8, 
2006) (Rillito, Arizona area); 71 FR 63642 (October 30, 2006) (San 
Joaquin Valley, California area); 72 FR 14422 (March 28, 2007) (Miami, 
Arizona area). Thus EPA has established that, under subpart 4, an 
attainment determination suspends the obligations to submit an 
attainment demonstration, RACM, RFP contingency measures, and other 
measures related to attainment.

B. Application of the Clean Data Policy to the Attainment-Related 
Provisions of Subpart 4

    In EPA's proposed and final rulemakings determining that the San

[[Page 41905]]

Joaquin Valley nonattainment area attained the PM10 
standard, EPA set forth at length its rationale for applying the Clean 
Data Policy to PM10 under subpart 4. The Ninth Circuit 
upheld EPA's final rulemaking, and specifically EPA's Clean Data 
Policy, in the context of subpart 4. Latino Issues Forum v. EPA, Nos. 
06-75831 and 08-71238 (9th Cir. March 2, 2009 (Memorandum Opinion)). In 
rejecting petitioner's challenge to the Clean Data Policy under subpart 
4 for PM10, the Ninth Circuit stated, ``As the EPA 
explained, if an area is in compliance with PM10 standards, 
then further progress for the purpose of ensuring attainment is not 
necessary.''
    The general requirements of subpart 1 apply in conjunction with the 
more specific requirements of subpart 4, to the extent they are not 
superseded or subsumed by the subpart 4 requirements. Subpart 1 
contains general air quality planning requirements for areas designated 
as nonattainment. See section 172(c). Subpart 4 itself contains 
specific planning and scheduling requirements for PM10 
nonattainment areas, and under the Court's January 4, 2013 decision in 
NRDC v. EPA, these same statutory requirements also apply for 
PM2.5 nonattainment areas. EPA has longstanding general 
guidance that interprets the 1990 amendments to the CAA, making 
recommendations to states for meeting the statutory requirements for 
SIPs for nonattainment areas. See, ``State Implementation Plans; 
General Preamble for the Implementation of Title I of the Clear Air Act 
Amendments of 1990,'' 57 FR 13498 (April 16, 1992) (the ``General 
Preamble''). In the General Preamble, EPA discussed the relationship of 
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 
1 requirements were to an extent ``subsumed by, or integrally related 
to, the more specific PM10 requirements.'' 57 FR 13538 
(April 16, 1992). These subpart 1 requirements include, among other 
things, provisions for attainment demonstrations, reasonably available 
control measures (RACM), reasonable further progress (RFP), emissions 
inventories, and contingency measures.
    EPA has long interpreted the provisions of part D, subpart 1 of the 
Act (sections 171 and 172) as not requiring the submission of RFP for 
an area already attaining the ozone NAAQS. For an area that is 
attaining, showing that the State will make RFP towards attainment 
``will, therefore, have no meaning at that point.'' 57 FR at 13564. See 
71 FR 40952 and 71 FR 63642 (proposed and final determination of 
attainment for San Joaquin Valley); 75 FR 13710 and 75 FR 27944 
(proposed and final determination of attainment for Coso Junction).
    Section 189(c)(1) of subpart 4 states that:

    Plan revisions demonstrating attainment submitted to the 
Administrator for approval under this subpart shall contain 
quantitative milestones which are to be achieved every 3 years until 
the area is redesignated attainment and which demonstrate reasonable 
further progress, as defined in section [section 171(1)] of this 
title, toward attainment by the applicable date.

    With respect to RFP, section 171(1) states that, for purposes of 
part D, RFP ``means such annual incremental reductions in emissions of 
the relevant air pollutant as are required by this part or may 
reasonably be required by the Administrator for the purpose of ensuring 
attainment of the applicable NAAQS by the applicable date.'' Thus, 
whether dealing with the general RFP requirement of section 172(c)(2), 
the ozone-specific RFP requirements of sections 182(b) and (c), or the 
specific RFP requirements for PM10 areas of part D, subpart 
4, section 189(c)(1), the stated purpose of RFP is to ensure attainment 
by the applicable attainment date.
    Although section 189(c) states that revisions shall contain 
milestones which are to be achieved until the area is redesignated to 
attainment, such milestones are designed to show reasonable further 
progress ``toward attainment by the applicable attainment date,'' as 
defined by section 171. Thus, it is clear that once the area has 
attained the standard, no further milestones are necessary or 
meaningful. This interpretation is supported by language in section 
189(c)(3), which mandates that a State that fails to achieve a 
milestone must submit a plan that assures that the State will achieve 
the next milestone or attain the NAAQS if there is no next milestone. 
Section 189(c)(3) assumes that the requirement to submit and achieve 
milestones does not continue after attainment of the NAAQS.
    In the General Preamble, we noted with respect to section 189(c) 
that the purpose of the milestone requirement ``is `to provide for 
emission reductions adequate to achieve the standards by the applicable 
attainment date' (H.R. Rep. No. 490, 101st Cong., 2d Sess. 267 
(1990)).'' 57 FR 13539 (April 16, 1992). If an area has in fact 
attained the standard, the stated purpose of the RFP requirement will 
have already been fulfilled.\13\
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    \13\ Thus, we believe that it is a distinction without a 
difference that section 189(c)(1) speaks of the RFP requirement as 
one to be achieved until an area is ``redesignated attainment,'' as 
opposed to section 172(c)(2), which is silent on the period to which 
the requirement pertains, or the ozone nonattainment area RFP 
requirements in sections 182(b)(1) or 182(c)(2), which refer to the 
RFP requirements as applying until the ``attainment date,'' since 
section 189(c)(1) defines RFP by reference to section 171(1) of the 
Act. Reference to section 171(1) clarifies that, as with the general 
RFP requirements in section 172(c)(2) and the ozone-specific 
requirements of section 182(b)(1) and 182(c)(2), the PM-specific 
requirements may only be required ``for the purpose of ensuring 
attainment of the applicable national ambient air quality standard 
by the applicable date.'' 42 U.S.C. 7501(1). As discussed in the 
text of this rulemaking, EPA interprets the RFP requirements, in 
light of the definition of RFP in section 171(1), and incorporated 
in section 189(c)(1), to be a requirement that no longer applies 
once the standard has been attained.
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    Similarly, the requirements of section 189(c)(2) with respect to 
milestones no longer apply so long as an area has attained the 
standard. Section 189(c)(2) provides in relevant part that:

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

    Where the area has attained the standard and there are no further 
milestones, there is no further requirement to make a submission 
showing that such milestones have been met. This is consistent with the 
position that EPA took with respect to the general RFP requirement of 
section 172(c)(2) in the April 16, 1992 General Preamble and also in 
the May 10, 1995 Seitz memorandum \14\ with respect to the requirements 
of section 182(b) and (c). In the May 10, 1995 Seitz memorandum, EPA 
also noted that section 182(g), the milestone requirement of subpart 2, 
which is analogous to provisions in section 189(c), is suspended upon a 
determination that an area has attained. The memorandum, also citing 
additional provisions related to attainment demonstration and RFP 
requirements, stated:
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    \14\ Memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard,'' dated May 10, 1995 (``Seitz memorandum'').

    Inasmuch as each of these requirements is linked with the 
attainment demonstration or RFP requirements of section 182(b)(1) or 
182(c)(2), if an area is not subject to the requirement to submit 
the underlying attainment demonstration or RFP plan, it need not 
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submit the related SIP submission either.


[[Page 41906]]


1995 Seitz memorandum at 5.
    With respect to the attainment demonstration requirements of 
section 172(c) and section 189(a)(1)(B), an analogous rationale leads 
to the same result. Section 189(a)(1)(B) requires that the plan provide 
for ``a demonstration (including air quality modeling) that the [SIP] 
will provide for attainment by the applicable attainment date . . ..'' 
As with the RFP requirements, if an area is already monitoring 
attainment of the standard, EPA believes there is no need for an area 
to make a further submission containing additional measures to achieve 
attainment. This is also consistent with the interpretation of the 
section 172(c) requirements provided by EPA in the General Preamble, 
the Page memorandum,\15\ and the section 182(b) and (c) requirements 
set forth in the Seitz memorandum. As EPA stated in the General 
Preamble, no other measures to provide for attainment would be needed 
by areas seeking redesignation to attainment since ``attainment will 
have been reached.'' 57 FR at 13564.
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    \15\ Memorandum from Stephen Page, Director, EPA Office of Air 
Quality Planning and Standards, ``Clean Data Policy for the Fine 
Particle National Ambient Air Quality Standards,'' December 14, 2004 
(``Page memorandum'').
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    Other SIP submission requirements are linked with these attainment 
demonstration and RFP requirements, and similar reasoning applies to 
them. These requirements include the contingency measure requirements 
of sections 172(c)(9). We have interpreted the contingency measure 
requirements of section 172(c)(9) (and section 182(c)(9) for ozone) as 
no longer applying when an area has attained the standard because those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' 57 FR at 13564; Seitz memorandum, pp. 5-6.
    CAA section 172(c)(9) provides that SIPs in nonattainment areas 
``shall provide for the implementation of specific measures to be 
undertaken if the area fails to make reasonable further progress, or to 
attain the [NAAQS] by the attainment date applicable under this part. 
Such measures shall be included in the plan revision as contingency 
measures to take effect in any such case without further action by the 
State or [EPA].'' This contingency measure requirement is inextricably 
tied to the reasonable further progress and attainment demonstration 
requirements. Contingency measures are implemented if reasonable 
further progress targets are not achieved, or if attainment is not 
realized by the attainment date. Where an area has already achieved 
attainment by the attainment date, it has no need to rely on 
contingency measures to come into attainment or to make further 
progress to attainment. As EPA stated in the General Preamble: ``The 
section 172(c)(9) requirements for contingency measures are directed at 
ensuring RFP and attainment by the applicable date.'' See 57 FR 13564. 
Thus these requirements no longer apply when an area has attained the 
standard.
    Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to 
assure that reasonably available control measures'' (i.e., RACM) are 
implemented in a nonattainment area. The General Preamble, 57 FR at 
13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so 
that RACM requirements are a ``component'' of an area's attainment 
demonstration. Thus, for the same reason the attainment demonstration 
no longer applies by its own terms, the requirement for RACM no longer 
applies. EPA has consistently interpreted this provision to require 
only implementation of potential RACM measures that could contribute to 
reasonable further progress or to attainment. General Preamble, 57 FR 
at 13498. Thus, where an area is already attaining the standard, no 
additional RACM measures are required.\16\ EPA is interpreting section 
189(a)(1)(C) consistent with its interpretation of section 172(c)(1).
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    \16\ EPA's interpretation that the statute requires 
implementation only of RACM measures that would advance attainment 
was upheld by the United States Court of Appeals for the Fifth 
Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002), 
and by the United States Court of Appeals for the D.C. Circuit 
(Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
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    The suspension of the obligations to submit SIP revisions 
concerning these RFP, attainment demonstration, RACM, contingency 
measures and other related requirements exists only for as long as the 
area continues to monitor attainment of the standard. If EPA 
determines, after notice-and-comment rulemaking, that the area has 
monitored a violation of the NAAQS, the basis for the requirements 
being suspended would no longer exist. In that case, the area would 
again be subject to a requirement to submit the pertinent SIP revision 
or revisions and would need to address those requirements. Thus, a 
final determination that the area need not submit one of the pertinent 
SIP submittals amounts to no more than a suspension of the requirements 
for so long as the area continues to attain the standard. Only if and 
when EPA redesignates the area to attainment would the area be relieved 
of these submission obligations. Attainment determinations under the 
Clean Data Policy do not shield an area from obligations unrelated to 
attainment in the area, such as provisions to address pollution 
transport.
    As set forth above, based on our proposed determination that the 
West Central Pinal area is currently attaining the 2006 24-hour 
PM2.5 NAAQS, we propose to find that the obligations to 
submit planning provisions to meet the requirements for an attainment 
demonstration, reasonable further progress plans, reasonably available 
control measures, contingency measures are suspended for so long as the 
area continues to monitor attainment of the 2006 24-hour 
PM2.5 NAAQS. If in the future, EPA determines after notice-
and-comment rulemaking that the area again violates the 2006 24-hour 
PM2.5 NAAQS, the basis for suspending the attainment 
demonstration, RFP, RACM, and contingency measure obligations would no 
longer exist.

V. EPA's Proposed Action and Request for Public Comment

    EPA proposes to determine, based on the most recent three years of 
complete, quality-assured, and certified data meeting the requirements 
of 40 CFR part 50, appendix N, that the West Central Pinal area is 
currently attaining the 2006 24-hour PM2.5 NAAQS. In 
conjunction with and based upon our proposed determination that West 
Central Pinal has attained and is currently attaining the standard, EPA 
proposes to determine that the obligation to submit the following 
attainment-related planning requirements is not applicable for so long 
as the area continues to attain the 2006 24-hour PM2.5 
standard: The part D, subpart 4 obligations to provide an attainment 
demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 
section 189(a)(1)(C), the RFP provisions of section 189(c), and related 
attainment demonstration, RACM, RFP and contingency measure provisions 
requirements of subpart 1, section 172. This proposed action, if 
finalized, would not constitute a redesignation to attainment under CAA 
section 107(d)(3).
    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. We will accept comments from the 
public on this proposal for the next 30 days. We will consider these 
comments before taking final action.

[[Page 41907]]

VI. Statutory and Executive Order Reviews

    This action proposes to make a determination of attainment based on 
air quality and to suspend certain federal requirements, and thus, 
would not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed action does not have Tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP obligations discussed herein do not apply to Indian 
Tribes and thus this proposed action will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

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

    Dated: June 26, 2013.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2013-16760 Filed 7-11-13; 8:45 am]
BILLING CODE 6560-50-P


