[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Proposed Rules]
[Pages 65346-65351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26417]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0799; FRL-9747-3]
Determination of Attainment for the Sacramento Nonattainment Area
for the 2006 Fine Particle Standard; California; 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 Sacramento
nonattainment area in California 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 this
area has monitored attainment of the 2006 24-hour PM2.5
NAAQS based on the 2009-2011 monitoring period. EPA is further
proposing that, if EPA finalizes this determination of attainment, the
requirements for this 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 November 26,
2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2012-0799 by one of the following methods:
1. Federal eRulemaking Portal, at www.regulations.gov, please
follow the on-line instructions;
2. Email to [email protected]; or
3. Mail or delivery to John Ungvarsky, 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 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: John Ungvarsky, (415) 972-3963, or by
email at [email protected].
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. How does EPA's Clean Data Policy apply to this action?
A. Application of EPA's Clean Data Policy to the 2006
p.m.2.5 NAAQS
B. History and Basis of EPA's Clean Data Policy
V. EPA's Proposed Action and Request for Public Comment
[[Page 65347]]
VI. Statutory and Executive Order Reviews
I. What determination is EPA making?
EPA is proposing to determine that the Sacramento 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 2009-2011 monitoring data. Preliminary data in EPA's Air
Quality System (AQS) for 2012 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
California to submit certain state implementation plan (SIP) revisions
related to attainment of this standard for the Sacramento nonattainment
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 18, 1997, EPA revised the NAAQS for particulate matter to
add new standards for PM2.5, using PM2.5 as the
indicator for the pollutant. EPA established primary and secondary \1\
annual and 24-hour standards for PM2.5 (62 FR 38652). 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. 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.
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).
Among the various areas designated in 2009, EPA designated the
Sacramento \2\ area in California as nonattainment for the 2006 24-hour
PM2.5 NAAQS.\3\ The boundaries for this area are described
in 40 CFR 81.305.
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\2\ The Sacramento PM2.5 nonattainment area includes
Sacramento County, the western portions of El Dorado and Placer
counties, and the eastern portions of Solano and Yolo counties.
Other than the El Dorado County portion of the nonattainment area,
the Sacramento PM2.5 nonattainment area lies within the
Sacramento Valley Air Basin.
\3\ With respect to the annual PM2.5 NAAQS, this area
is designated as ``unclassifiable/attainment.''
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Within three 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 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 December 14,
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 California requested
that EPA make determinations that the Sacramento \4\ nonattainment area
has attained the 2006 PM2.5 NAAQS and that attainment-
related SIP submittal requirements are not applicable for as long as
the area continues to attain the standard. Today's proposal responds to
the State's request.
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\4\ On May 2, 2012, James Goldstene, Executive Officer of the
California Air Resources Board, submitted a request to Jared
Blumenfeld, Regional Administrator, U.S. EPA Region IX, to find the
Sacramento PM2.5 nonattainment area had attained the 2006
24-hour PM2.5 NAAQS.
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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.\5\ 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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\5\ The PM2.5 24-hour 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
In the Sacramento PM2.5 nonattainment area, the agencies
responsible for assuring that the area meets air quality monitoring
requirements include CARB, Sacramento Metropolitan Air Quality
Management District (SMAQMD), Placer County Air Pollution Control
District (PCAPCD) and Yolo-Solano Air Quality Management District
(YSAQMD). Both CARB and SMAQMD submit annual monitoring network plans
to EPA. SMAQMD network plans describe the monitoring network operated
by SMAQMD and CARB in Sacramento County, and CARB's network plans
describe the monitoring sites CARB operates, in addition to monitoring
sites operated by smaller air districts, namely, PCAPCD and YSAQMD.
These plans discuss the status of the air monitoring network, as
required under 40 CFR 58.10.
[[Page 65348]]
Since 2007, EPA regularly reviews these annual plans for compliance
with the applicable reporting requirements in 40 CFR part 58. With
respect to PM2.5, EPA has found that the areas' network
plans, submitted by CARB and SMAQMD, meet the applicable requirements
under 40 CFR part 58. See EPA letters to CARB and SMAQMD approving
their annual network plans for years 2009, 2010, and
2011.6 7 EPA also concluded \8\ from its Technical System
Audit of the CARB Primary Quality Assurance Organization (PQAO)
(conducted during the summer of 2007), that the combined ambient air
monitoring network operated by CARB and the local air districts in
their PQAO (which includes SMAQMD, PCAPCD, and YSAQMD) currently meets
or exceeds the requirements for the minimum number of SLAMS for
PM2.5 in the Sacramento nonattainment area. CARB annually
certifies that the data it submits to AQS are complete and quality-
assured.\9\
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\6\ Letter from Joe Lapka, Acting Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Karen Magliano, Chief, Air Quality
Data Branch, Planning and Technical Support Division, CARB (November
24, 2009) (approving CARB's ``2009 Annual Monitoring Network Report
for Small Districts in California''); Letter from Matthew Lakin,
Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Karen
Magliano, Chief, Air Quality Data Branch, Planning and Technical
Support Division, CARB (October 29, 2010) (approving CARB's ``2010
Annual Monitoring Network Plan for the Small Districts in
California''); Letter from Matthew Lakin, Manager, Air Quality
Analysis Office, U.S. EPA Region IX, to Karen Magliano, Chief, Air
Quality Data Branch, Planning and Technical Support Division, CARB
(November 1, 2011) (approving CARB's ``2011 Annual Monitoring
Network Plan for the Small Districts in California'').
\7\ Letter from Joe Lapka, Acting Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Larry Greene, Air Pollution Control
Officer, SMAQMD (September 29, 2009) (approving the 2009 Air
Monitoring Network Plan for the Sacramento Metropolitan Air Quality
Management District); Letter from Matthew Lakin, Manager, Air
Quality Analysis Office, U.S. EPA Region IX, to Larry Greene, Air
Pollution Control Officer, SMAQMD (November 1, 2010) (approving the
``Sacramento Metropolitan Air Quality Management District's 2010
Annual Monitoring Network Plan''); Letter from Matthew Lakin,
Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Larry
Greene, Air Pollution Control Officer, SMAQMD (October 31, 2011)
(approving the ``Sacramento Metropolitan Air Quality Management
District's 2011 Annual Monitoring Network Plan'').
\8\ See letter from Deborah Jordan, Director, Air Division, U.S.
EPA Region IX, to James Goldstene, Executive Officer, CARB,
transmitting ``Technical System Audit of the California
Environmental Protection Agency Air Resources Board: 2007,'' with
enclosure, August 18, 2008.
\9\ See, e.g., letter from Karen Magliano, Chief, Air Quality
Data Branch, Planning and Technical Support Division, CARB, to Jared
Blumenfeld, Regional Administrator, U.S. EPA Region IX, certifying
calendar year 2011 ambient air quality data and quality assurance
data, May 1, 2012.
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There were five PM2.5 SLAMS located throughout the
Sacramento PM2.5 nonattainment area in calendar years 2009,
2010, and 2011. EPA defines specific monitoring site types and spatial
scales of representativeness to characterize the nature and location of
required monitors. For the five sites, the spatial scale is
neighborhood scale, and monitoring objective is population exposure. In
addition, the Sacramento-Del Paso Manor site has a monitoring objective
of highest concentration.\10\
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\10\ See CARB's 2011 Annual Monitoring Network Report for Small
Districts in California and SMAQMD's 2011 Annual Monitoring Network
Plan; U.S. EPA Air Quality System, Monitor Description Report,
September 14, 2012.
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Consistent with the requirements contained in 40 CFR part 50, EPA
has reviewed the quality-assured, and certified PM2.5
ambient air monitoring data as recorded in AQS for the applicable
monitoring period collected at the monitoring sites in the Sacramento
nonattainment area and determined that the data are complete.
B. Evaluation of Current Attainment
EPA's evaluation of whether the Sacramento 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 \11\ 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.
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\11\ Meets the requirements of 40 CFR part 58.
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Table 1 shows the PM2.5 design values for the Sacramento
nonattainment area monitors based on ambient air quality monitoring
data for the most recent complete three-year period (2009-2011). The
data show that the design value for the 2009-2011 period was equal to
or less than 35 [mu]g/m\3\ at the monitors. Therefore, we are proposing
to determine, based on the complete, quality-assured data for 2009-
2011, that the Sacramento area has attained the 2006 24-hour
PM2.5 standard. Preliminary data available in AQS for 2012
indicate that the area continues to attain the standard.
Table 1--2009-2011 24-Hour PM2.5 Monitoring Sites and Design Values for the Sacramento Nonattainment Area
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98th Percentile ([mu]g/m\3\) 2009-2011
AQS site --------------------------------------- Design
Monitoring site identification values
No. 2009 2010 2011 ([mu]g/
m\3\)
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Roseville................................ 06-061-0006 21.3 20.3 23.0 22
Sacramento-Del Paso Manor................ 06-067-0006 38.7 27.0 39.8 35\a\
Sacramento-1309 T Street................. 06-067-0010 27.2 27.3 45.1 33
Sacramento Health Dept--Stockton Blvd.... 06-067-4001 34.9 26.5 44.8 35\a\
Woodland................................. 06-113-1003 27.4 18.6 25.8 24
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\a\ The average of the 98th percentile values for 2009-2011 equals 35.2 and 35.4 at the Del Paso Manor and
Stockton Blvd. sites, respectively, but consistent with applicable rounding conventions in 40 CFR part 50,
Appendix N, section 4.3, 24-hour standard design values are rounded to the nearest 1 [mu]g/m\3\ (decimals 0.5
and greater are rounded up to the nearest whole number, and any decimal lower than 0.5 is rounded down to the
nearest whole number).
Source: Design Value Report, August 31, 2012 (in the docket to this proposed action).
IV. How does EPA's Clean Data Policy apply to this action?
A. Application of EPA's Clean Data Policy to the 2006 PM2.5 NAAQS
In April 2007, EPA issued its PM2.5 Implementation Rule
for the 1997 PM2.5 standard. 72 FR 20586; (April 25, 2007).
In March, 2012, EPA published implementation guidance for the 2006
PM2.5 standard. See Memorandum from Stephen D. Page,
Director, Office of Air Quality Planning and Standards,
``Implementation Guidance for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS)''
(March 2, 2012). In that guidance, EPA stated its view ``that the
overall framework and policy approach of the 2007 PM2.5
Implementation Rule continues to provide effective and
[[Page 65349]]
appropriate guidance on the EPA's interpretation of the general
statutory requirements that states should address in their SIPs. In
general, the EPA believes that the interpretations of the statute in
the framework of the 2007 PM2.5 Implementation Rule are
relevant to the statutory requirements for the 2006 24-hour
PM2.5 NAAQS * * *'' Id., page 1. With respect to the
statutory provisions applicable to 2006 PM2.5
implementation, the guidance emphasized that ``EPA outlined its
interpretation of many of these provisions in the 2007 PM2.5
Implementation Rule. In addition to regulatory provisions, the EPA
provided substantial general guidance for attainment plans for
PM2.5 in the preamble to the final the [sic] 2007
PM2.5 Implementation Rule.'' Id., page 2. In keeping with
the principles set forth in the guidance, and with respect to the
effect of a determination of attainment for the 2006 PM2.5
standard, EPA is applying the same interpretation with respect to the
implications of clean data determinations that it set forth in the
preamble to the 1997 PM2.5 standard and in the regulation
that embodies this interpretation. 40 CFR 51.1004(c).\12\ EPA has long
applied this interpretation in regulations and individual rulemakings
for the 1-hour ozone and 1997 8-hour ozone standards, the PM-10
standard, and the lead standard.
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\12\ While EPA recognizes that 40 CFR 51.1004(c) does not itself
expressly apply to the 2006 PM2.5 standard, the statutory
interpretation that it embodies is identical and is applicable to
both the 1997 and 2006 PM2.5 standards.
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B. History and Basis of EPA's Clean Data Policy
Following enactment of the CAA Amendments of 1990, EPA promulgated
its interpretation of the requirements for implementing the NAAQS in
the General Preamble for the Implementation of Title I of the CAA
Amendments of 1990 (General Preamble) 57 FR 13498, 13564 (April 16,
1992). In 1995, based on the interpretation of CAA sections 171 and
172, and section 182 in the General Preamble, EPA set forth what has
become known as its ``Clean Data Policy'' for the 1-hour ozone NAAQS.
See 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'' (May 10,
1995). In 2004, EPA indicated its intention to extend the Clean Data
Policy to the PM2.5 NAAQS. See Memorandum from Steve 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).
Since 1995, EPA has applied its interpretation under the Clean Data
Policy in many rulemakings, suspending certain attainment-related
planning requirements for individual areas, based on a determination of
attainment. See 60 FR 36723 (July 18, 1995) (Salt Lake and Davis
Counties, Utah, 1-hour ozone); 61 FR 20458 (May 7, 1996) (Cleveland-
Akron-Lorain, Ohio, 1-hour ozone); 61 FR 31832 (June 21, 1996) (Grand
Rapids, Michigan, 1-hour ozone); 65 FR 37879 (June 19, 2000)
(Cincinnati-Hamilton, Ohio-Kentucky, 1-hour ozone); 66 FR 53094
(October 19, 2001) (Pittsburgh-Beaver Valley, Pennsylvania, 1-hour
ozone); 68 FR 25418 (May 12, 2003) (St. Louis, Missouri-Illinois, 1-
hour ozone); 69 FR 21717 (April 22, 2004) (San Francisco Bay Area,
California, 1-hour ozone); 75 FR 6570 (February 10, 2010) (Baton Rouge,
Louisiana, 1-hour ozone); 75 FR 27944 (May 19, 2010) (Coso Junction,
California, PM10).
EPA also incorporated its interpretation under the Clean Data
Policy in several implementation rules. See Clean Air Fine Particle
Implementation Rule, 72 FR 20586 (April 25, 2007); Final Rule To
Implement the 8-Hour Ozone National Ambient Air Quality Standard--Phase
2, 70 FR 71612 (November 29, 2005). The Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) upheld EPA's rule embodying
the Clean Data Policy for the 1997 8-hour ozone standard. NRDC v. EPA,
571 F.3d 1245 (D.C. Cir. 2009). Other courts have reviewed and
considered individual rulemakings applying EPA's Clean Data Policy, and
have consistently upheld them in every case. 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 v. EPA, Nos.
06-75831 and 08-71238 (9th Cir. March 2, 2009 (Memorandum Opinion)).
EPA sets forth below a brief explanation of the statutory
interpretations in the Clean Data Policy. EPA also incorporates the
discussions of its interpretation set forth in prior rulemakings,
including the 1997 PM2.5 implementation rulemaking. See 72
FR 20586, at 20603-20605 (April 25, 2007). See also 75 FR 31288 (June
3, 2010) (Providence, Rhode Island, 1997 8-hour ozone); 75 FR 62470
(October 12, 2010) (Knoxville, Tennessee, 1997 8-hour ozone); 75 FR
53219 (August 31, 2010) (Greater Connecticut Area, 1997 8-hour ozone);
75 FR 54778 (September 9, 2010) (Baton Rouge, Louisiana, 1997 8-hour
ozone); 75 FR 64949 (October 21, 2010) (Providence, Rhode Island, 1997
8-hour ozone); 76 FR 11080 (March 1, 2011) (Milwaukee-Racine and
Sheboygan Areas, Wisconsin, 1997 8-hour ozone); 76 FR 31237 (May 31,
2011) (Pittsburgh-Beaver Valley, Pennsylvania, 1997 8-hour ozone); 76
FR 33647 (June 9, 2011) (St. Louis, Missouri-Illinois, 1997 8-hour
ozone); 76 FR 70656 (November 15, 2011) (Charlotte-Gastonia-Rock Hill,
North Carolina-South Carolina, 1997 8-hour ozone); 77 FR 31496 (May 29,
2012) (Boston-Lawrence-Worchester, Massachusetts, 1997 8-hour ozone).
See also, 75 FR 56 (January 4, 2010) (Greensboro-Winston-Salem-High
Point, North Carolina, 1997 PM2.5); 75 FR 230 (January 5,
2010) (Hickory-Morganton-Lenoir, North Carolina, 1997
PM2.5); 76 FR 12860 (March 9, 2011) (Louisville, Kentucky-
Indiana, 1997 PM2.5); 76 FR 18650 (April 5, 2011) (Rome,
Georgia, 1997 PM2.5); 76 FR 31239 (May 31, 2011)
(Chattanooga, Tennessee-Georgia-Alabama, 1997 PM2.5); 76 FR
31858 (June 2, 2011) (Macon, Georgia, 1997 PM2.5); 76 FR
36873 (June 23, 2011) (Atlanta, Georgia, 1997 PM2.5); 76 FR
38023 (June 29, 2011) (Birmingham, Alabama, 1997 PM2.5); 76
FR 55542 (September 7, 2011) (Huntington-Ashland, West Virginia-
Kentucky-Ohio, 1997 PM2.5); 76 FR 60373 (September 29, 2011)
(Cincinnati, Ohio-Kentucky-Indiana, 1997 PM2.5); 77 FR 18922
(March 29, 2012) (Harrisburg-Lebanon-Carlisle-York, Allentown,
Johnstown and Lancaster, Pennsylvania, 1997 PM2.5).
The Clean Data Policy represents EPA's interpretation that certain
requirements of subpart 1 of part D of the Act are by their terms not
applicable to areas that are currently attaining the NAAQS.\13\ As
explained below, the specific requirements that are inapplicable to an
area attaining the standard are the requirements to submit a SIP that
provides for: attainment of the NAAQS; implementation of all reasonably
available control measures; reasonable further progress (RFP); and
implementation of contingency measures for failure to meet deadlines
for RFP and attainment.
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\13\ This discussion refers to subpart 1 because subpart 1
contains the requirements relating to attainment of the 2006
PM2.5 NAAQS.
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CAA section 172(c)(1), the requirement for an attainment
demonstration, provides in relevant part that SIPs ``shall provide for
attainment
[[Page 65350]]
of the [NAAQS].'' EPA has interpreted this requirement as not applying
to areas that have already attained the standard. If an area has
attained the standard, there is no need to submit a plan demonstrating
how the area will reach attainment. In the General Preamble (57 FR
13564), EPA stated that no other measures to provide for attainment
would be needed by areas seeking redesignation to attainment since
``attainment will have been reached.'' See also Memorandum from John
Calcagni, ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' (September 4, 1992), at page 6.
A component of the attainment plan specified under section
172(c)(1) is the requirement to provide for ``the implementation of all
reasonably available control measures as expeditiously as practicable''
(RACM). Since RACM is an element of the attainment demonstration, see
General Preamble (57 FR 13560), for the same reason the attainment
demonstration no longer applies by its own terms, RACM also no longer
applies to areas that EPA has determined have clean air. Furthermore,
EPA has consistently interpreted this provision to require only
implementation of such potential RACM measures that could advance
attainment.\14\ Thus, where an area is already attaining the standard,
no additional RACM measures are required. EPA's interpretation that the
statute requires only implementation of the 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). See also
the final rulemakings for Pittsburgh-Beaver Valley, Pennsylvania, 66 FR
53096 (October 19, 2001) and St. Louis, Missouri-Illinois, 68 FR 25418
(May 12, 2003).
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\14\ This interpretation was adopted in the General Preamble,
see 57 FR 13498, and has been upheld as applied to the Clean Data
Policy, as well as to nonattainment SIP submissions. See NRDC v.
EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d
155 (D.C. Cir. 2002).
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CAA section 172(c)(2) provides that SIP provisions in nonattainment
areas must require ``reasonable further progress.'' The term
``reasonable further progress'' is defined in section 171(1) as ``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, by definition, the
``reasonable further progress'' provision under subpart 1 requires only
such reductions in emissions as are necessary to attain the NAAQS. If
an area has attained the NAAQS, the purpose of the RFP requirement has
been fulfilled, and since the area has already attained, showing that
the State will make RFP towards attainment ``[has] no meaning at that
point.'' General Preamble, 57 FR 13498, 13564 (April 16, 1992).
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, 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.
It is important to note that should an area attain the 2006
PM2.5 standard based on three years of data, its obligation
to submit an attainment demonstration and related planning submissions
is suspended only for so long as the area continues to attain the
standard. If EPA subsequently determines, after notice-and-comment
rulemaking, that the area has violated the NAAQS, the requirements for
the State to submit a SIP to meet the previously suspended requirements
would be reinstated. It is likewise important to note that the area
remains designated nonattainment pending a further redesignation
action.
V. EPA's Proposed Action and Request for Public Comment
EPA is proposing to determine that the Sacramento nonattainment
area in California has attained the 2006 24-hour PM2.5
standard based on the most recent three years of complete, quality-
assured, and certified data for 2009-2011. Preliminary data available
in AQS for 2012 show that the area continues to attain the standard.
EPA further proposes that, if its proposed determination of
attainment is made final, the requirements for the Sacramento
nonattainment area to submit an attainment demonstration and associated
RACM, a RFP plan, contingency measures, and any other planning SIPs
related to attainment of the 2006 PM2.5 NAAQS would be
suspended for so long as the area continues to attain the 2006
PM2.5 NAAQS. EPA's proposal is consistent and in keeping
with its long-held interpretation of CAA requirements, as well as with
EPA's regulations for similar determinations for ozone (see 40 CFR
51.918) and the 1997 fine particulate matter standards (see 40 CFR
51.1004(c)). As described below, any such determination would not be
equivalent to the redesignation of the area to attainment for the 2006
PM2.5 NAAQS.
Any final action resulting from this proposal would not constitute
a redesignation to attainment under CAA section 107(d)(3) because we
have not yet approved a maintenance plan for the Sacramento
nonattainment area as meeting the requirements of section 175A of the
CAA or determined that the area has met the other CAA requirements for
redesignation. The classification and designation status in 40 CFR part
81 would remain nonattainment for the area until such time as EPA
determines that California has met the CAA requirements for
redesignating the Sacramento nonattainment area to attainment.
If the Sacramento nonattainment area continues to monitor
attainment of the 2006 PM2.5 NAAQS, EPA proposes that the
requirements for the area to submit an attainment demonstration and
associated RACM, a RFP plan, contingency measures, and any other
planning requirements related to attainment of the 2006
PM2.5 NAAQS will remain suspended. If this proposed
rulemaking is finalized and EPA subsequently determines, after notice-
and-comment rulemaking in the Federal Register, that the area has
violated the 2006 PM2.5 NAAQS, the basis for the suspension
of these attainment planning requirements for the Sacramento
nonattainment area would no longer exist, and the area would thereafter
have to address such requirements.
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
[[Page 65351]]
will consider these comments before taking final action.
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: October 15, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-26417 Filed 10-25-12; 8:45 am]
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