[Federal Register Volume 77, Number 210 (Tuesday, October 30, 2012)]
[Proposed Rules]
[Pages 65656-65661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26651]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0752; FRL-9746-8]
Determination of Attainment for the Nogales 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 Nogales nonattainment
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 2009-2011 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 November 29,
2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2012-0752 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
PM2.5 NAAQS
B. History and Basis of EPA's Clean Data Policy
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 Nogales 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
[[Page 65657]]
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 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 Nogales
\2\ area in Arizona as nonattainment for the 2006 24-hour
PM2.5 NAAQS.\3\ The boundaries for the nonattainment area
are described in 40 CFR 81.303.
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\2\ Covering 76.1 square miles, the Nogales PM2.5
nonattainment area is located within Santa Cruz County, Arizona,
with the southernmost boundary of the nonattainment area and Santa
Cruz County being the U.S./Mexico border.
\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 Arizona requested that
EPA make a determination that the Nogales \4\ nonattainment area has
attained the 2006 PM2.5 NAAQS. Today's proposal responds to
the State's request.
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\4\ On July 6, 2012, in an email to Lisa Hanf, Manager, Planning
Office, Air Division, U.S. EPA Region IX, Diane Arnst, Planning
Section Manager, Air Quality Division, Arizona Department of
Environmental Quality, requested that EPA determine whether the
Nogales PM2.5 nonattainment area qualified for a
determination of attainment for 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 [mu]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 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 [mu]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
The Arizona Department of Environmental Quality (ADEQ) is the
governmental agency with the authority and responsibility under state
law for collecting ambient air quality data within the Nogales
nonattainment area. Annually, ADEQ 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 ADEQ's
annual network plans meet the applicable requirements under 40 CFR part
58.\6\ Furthermore, we concluded in our Technical System Audit Report
concerning ADEQ's ambient air quality monitoring program that ADEQ'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 Nogales nonattainment area.\7\ Also,
ADEQ annually certifies that the data it submits to AQS are quality-
assured.\8\
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\6\ Letter from Joe Lapka, Acting Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Nancy Wrona, Director, Air Quality
Division, ADEQ (November 12, 2009) (approving ADEQ's ``Final Report
of the State of Arizona Air Monitoring Network Plan for the Year
2009''); Letter from Matthew Lakin, Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Eric Massey, Director, Air Quality
Division, ADEQ (December 10, 2010) (approving ADEQ's ``Final Report
of the State of Arizona Air Monitoring Network Plan for the Year
2010''); Letter from Matthew Lakin, Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Eric Massey, Director, Air Quality
Division, ADEQ (December 1, 2011) (approving ADEQ's ``State of
Arizona Air Monitoring Network Plan: For the Year 2011'').
\7\ Technical System Audit Report transmitted via correspondence
dated September 23, 2010, from Deborah Jordan, Director, Air
Division, EPA Region IX, to Eric Massey, Air Division, ADEQ.
\8\ See, e.g., the letter from Eric C. Massey, Director, Air
Quality Division, ADEQ to Deborah Jordan, Director, Air Division,
EPA Region IX, dated September 21, 2012 certifying the ambient air
quality data collected for year 2011.
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[[Page 65658]]
There was one PM2.5 SLAMS operating during the 2009-2011
period in the Nogales PM2.5 nonattainment area. This site
has been monitoring PM2.5 concentrations since 1999 with a
one-in-six-day sampling frequency. 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 neighborhood scale,\9\ and its monitoring objective (site type) is
population exposure.\10\
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\9\ In this context, ``neighborhood'' spatial scale defines
concentrations within some extended area of the city that has
relatively uniform land use with dimensions in the 0.5 to 4.0
kilometers range. See 40 CFR part 58, appendix D, section 1.2.
\10\ State of Arizona Air Monitoring Network Plan for the Year
2012, Final Report, August 1, 2012. ADEQ also operates a co-located
PM2.5 monitor at the Nogales monitoring site. The co-
located monitor also collects samples on a one-day-in-six schedule.
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For the purposes of this proposed action, we have reviewed the data
for the most recent three-year period (2009-2011) for completeness, and
we determined that the data collected by ADEQ meets the completeness
criterion for all 12 quarters at the Nogales PM2.5 monitor.
While we consider the PM2.5 data set for 2009-2011 to be
complete for the purposes of determining whether the area has attained
the standard, we have also determined that, under our monitoring
regulations, ADEQ should be sampling PM2.5 on a one-in-three
day schedule rather than at the current one-in-six day schedule because
the co-located PM2.5 monitor at the Nogales site is not a
continuously operating monitor, and under those circumstances, a
sampling frequency of at least one day in every three is required under
40 CFR 58.12(d)(1). ADEQ has agreed to increase the monitoring
frequency at the Nogales monitoring site to meet the requirements of 40
CFR 58.12(d)(1), beginning January 2013.\11\ The increased number of
samples would provide sufficient information to evaluate the area's
continued attainment of the 2006 PM2.5 NAAQS if we finalize
this proposed determination of attainment for the Nogales nonattainment
area.
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\11\ See ADEQ's September 11, 2012 letter to Matthew Lakin,
Manager, Air Quality Analysis Office, EPA Region IX, from Eric
Massey, Director, Air Quality Division, ADEQ.
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B. Evaluation of Current Attainment
EPA's evaluation of whether the Nogales 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 Nogales
nonattainment area monitor 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 monitor. Therefore, we are proposing to
determine, based on the complete, quality-assured data for 2009-2011,
that the Nogales 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 Site and Design Value for the Nogales Nonattainment Area
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98th Percentile ([mu]g/m\3\) 2009-2011
Monitoring site AQS site --------------------------------------------------- design values
identification No. 2009 2010 2011 ([mu]g/m\3\)
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Nogales Post Office............................................. 04-023-0004 29.7 31.6 27.2 30
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Source: Design Value Report, August 14, 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 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
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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 (DC Circuit) upheld EPA's rule embodying
the Clean Data Policy for the 1997 8-hour ozone standard. NRDC v. EPA,
571 F.3d 1245 (DC 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 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
[[Page 65660]]
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 Nogales nonattainment area
in Arizona 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 Nogales
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 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
Arizona has met the CAA requirements for redesignating the Nogales
PM2.5 nonattainment area to attainment.
If the Nogales 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 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 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
[[Page 65661]]
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. 2012-26651 Filed 10-29-12; 8:45 am]
BILLING CODE 6560-50-P