[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Proposed Rules]
[Pages 31268-31274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12781]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0234; FRL-9677-7]


Determination of Attainment for the Paul Spur/Douglas 
PM10 Nonattainment Area, 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 Paul Spur/Douglas 
nonattainment area (NA) in Arizona is currently attaining the National 
Ambient Air Quality Standard (NAAQS) for particulate matter with an 
aerodynamic diameter of less than or equal to a nominal ten micrometers 
(PM10) based on certified, quality-assured ambient air 
monitoring data for the years 2009-2011. Based on our proposed 
determination that the Paul Spur/Douglas NA is currently attaining the 
PM10 NAAQS, EPA is also proposing to determine that 
Arizona's obligation to make submissions to meet certain Clean Air Act 
requirements related to attainment of the NAAQS is not applicable for 
as long as the Paul Spur/Douglas NA continues to attain the NAAQS and 
that the obligation on EPA to promulgate a Federal Implementation Plan 
(FIP) to address the State's attainment-related requirements would also 
be suspended for as long as the underlying State obligation is 
suspended.

DATES: Written comments must be received on or before June 25, 2012.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0234, using one of the following methods: Via the Federal 
eRulemaking Portal, at www.regulations.gov, please follow the on-line 
instructions; via Email to [email protected]; via mail or delivery 
to Jerry Wamsley, Air Planning Office, AIR-2, EPA Region IX, 75 
Hawthorne Street, San Francisco, CA 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: Jerry Wamsley, Air Planning Office, 
AIR-2, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105-
3901, telephone number: (415) 947-4111, or email address, 
[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. Background
    A. PM10 NAAQS
    B. Designation and Classification of PM10 
Nonattainment Areas, Including the Paul Spur/Douglas NA
    C. How does EPA make attainment determinations?
II. EPA's Analysis
    A. What is the Paul Spur/Douglas NA monitoring network?
    B. Do the Paul Spur/Douglas NA Monitors meet minimum Federal 
ambient air quality monitoring requirements?
    C. What does the air quality data show for the Paul Spur/Douglas 
NA?
III. EPA's Clean Data Policy and the Applicability of Clean Air Act 
Planning

[[Page 31269]]

Requirements to the Paul Spur/Douglas NA
IV. EPA's Proposed Action and Request for Public Comment
V. Statutory and Executive Order Reviews

I. Background

A. PM10 NAAQS

    EPA sets the NAAQS for certain ambient air pollutants at levels 
required to protect public health and welfare. Particulate matter with 
an aerodynamic diameter less than or equal to a nominal ten 
micrometers, or PM10, is one of these ambient air pollutants 
for which EPA has established health-based standards. On July 1, 1987, 
EPA promulgated two primary standards for PM10: a 24-hour 
standard of 150 micrograms per cubic meter ([mu]g/m\3\); and, an annual 
PM10 standard of 50 [mu]g/m\3\. EPA also promulgated 
secondary PM10 standards that were identical to the primary 
standards. 52 FR 24634; (July 1, 1987).
    Effective December 18, 2006, EPA revoked the annual PM10 
standard but retained the 24-hour PM10 standard. 71 FR 
61144; (October 17, 2006). An area attains the 24-hour PM10 
standard when the expected number of days per calendar year with a 24-
hour concentration in excess of the standard (referred to herein as 
``exceedance''), as determined in accordance with 40 CFR part 50, 
appendix K, is equal to or less than one.\1\ See 40 CFR 50.6 and 40 CFR 
part 50, appendix K.
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    \1\ An exceedance is defined as a daily value that is above the 
level of the 24-hour standard, 150 [mu]g/m\3\, after rounding to the 
nearest 10 [mu]g/m\3\ (i.e., values ending in five or greater are to 
be rounded up). Thus, a recorded value of 154 [mu]g/m\3\ would not 
be an exceedance since it would be rounded to 150 [mu]g/m\3\; 
whereas, a recorded value of 155 [mu]g/m\3\ would be an exceedance 
since it would b rounded to 160 [mu]g/m\3\. See 40 CFR part 50, 
appendix K, section 1.0.
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B. Designation and Classification of PM10 Nonattainment Areas, 
Including the Paul Spur/Douglas NA

    Areas meeting the requirements of section 107(d)(4)(B) of the Clean 
Air Act (CAA or ``Act'') were designated nonattainment for 
PM10 by operation of law and classified ``moderate'' upon 
enactment of the 1990 Clean Air Act Amendments. These areas included 
all former Group I PM10 planning areas identified in 52 FR 
29383, (August 7, 1987), as further clarified in 55 FR 45799, (October 
31, 1990), and any other areas violating the NAAQS for PM10 
prior to January 1, 1989. A Federal Register notice announcing the 
areas designated nonattainment for PM10 upon enactment of 
the 1990 Amendments, known as ``initial'' PM10 nonattainment 
areas, was published on March 15, 1991, (56 FR 11101); and, a 
subsequent Federal Register document correcting the description of some 
of these areas was published on August 8, 1991, (56 FR 37654).
    As a former ``group I'' area, the Paul Spur/Douglas NA\2\ was 
included in the March 1991 list of initial moderate PM10 
nonattainment areas. Later, we codified the PM10 
nonattainment designations and moderate area classifications in 40 CFR 
part 81 (56 FR 56694; November 6, 1991). For ``moderate'' nonattainment 
areas, such as the Paul Spur/Douglas NA, CAA section 188(c) of the 1990 
Amended Act established an attainment date of December 31, 1994. On 
January 11, 2011, pursuant to section 188(b)(2) of the CAA, we 
determined that the Paul Spur/Douglas NA met the PM10 NAAQS 
as of the applicable attainment date, December 31, 1994 (76 FR 1532). 
Consequently, the Paul Spur/Douglas NA was not reclassified to a 
``serious'' PM10 nonattainment area. The designation, 
classification, and boundaries of the Paul Spur/Douglas NA are codified 
at 40 CFR 81.303.
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    \2\ The Paul Spur/Douglas NA covers approximately 220 square 
miles along the border with Mexico within Cochise County. Cities and 
towns within this area include Douglas, 2010 population 17,378, 
(U.S. Census) and Pirtleville, 2010 population 1,744, (U.S. Census). 
The 2010 population of Agua Prieta, Mexico, just across the border 
from Douglas, is 78,138 (Instituto Nacional de Estadistica y 
Geografia).
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C. How does EPA make attainment determinations?

    Generally, EPA determines whether an area's air quality is meeting 
the PM10 NAAQS based upon complete,\3\ quality-assured, and 
certified data gathered at established state and local air monitoring 
stations (SLAMS) in the nonattainment area, and entered into the EPA 
Air Quality System (AQS) database. Data from air monitors operated by 
State, local, or Tribal agencies in compliance with EPA monitoring 
requirements must be submitted to AQS. These monitoring agencies 
certify annually that these data are accurate to the best of their 
knowledge. Accordingly, EPA relies primarily on data in AQS when 
determining the attainment status of an area. See 40 CFR 50.6; 40 CFR 
part 50, appendices J and K; 40 CFR part 53; and, 40 CFR part 58, 
appendices A, C, D, and E. EPA will also consider air quality data from 
other air monitoring stations in the nonattainment area provided those 
stations meet the Federal monitoring requirements for SLAMS, including 
the quality assurance and quality control criteria in 40 CFR part 58, 
appendix A. See 40 CFR 58.14 (2006) and 58.20 (2007)\4\; 71 FR 61236, 
61242; (October 17, 2006). All valid data are reviewed to determine the 
area's air quality status in accordance with 40 CFR part 50, appendix 
K.
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    \3\ For PM10, a ``complete'' set of data includes a 
minimum of 75 percent of the scheduled PM10 samples per 
quarter. See 40 CFR part 50, appendix K, section 2.3(a).
    \4\ EPA promulgated amendments to the ambient air monitoring 
regulations in 40 CFR parts 53 and 58 on October 17, 2006. (See 71 
FR 61236.) The requirements for Special Purpose Monitors were 
revised and moved from 40 CFR 58.14 to 40 CFR 58.20.
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    Attainment of the 24-hour PM10 standard is determined by 
calculating the expected number of exceedances of the standard in a 
year. The 24-hour PM10 standard is attained when the 
expected number of exceedances averaged over a three-year period is 
less than or equal to one at each monitoring site within the 
nonattainment area. Generally, three consecutive years of air quality 
data are required to show attainment of the 24-hour PM10 
standard. See 40 CFR part 50 and appendix K.\5\
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    \5\ Because the annual PM10 standard was revoked 
effective December 18, 2006, this document discusses only attainment 
of the 24-hour PM10 standard. See 71 FR 61144; (October 
17, 2006).
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    To demonstrate attainment of the 24-hour PM10 standard 
at a monitoring site, the monitor must provide sufficient data to 
perform the required calculations in 40 CFR part 50, appendix K. The 
amount of data required varies with the sampling frequency, data 
capture rate, and the number of years of record. In all cases, three 
years of representative monitoring data that meet the 75 percent 
criterion discussed earlier should be utilized, if available. More than 
three years may be considered, if all additional representative years 
of data meeting the 75 percent criterion are utilized. Data not meeting 
these criteria may also suffice to show attainment; however, such 
exceptions must be approved by the appropriate Regional Administrator 
in accordance with EPA guidance. See 40 CFR part 50, appendix K, 
section 2.3.

II. EPA's Analysis

A. What is the Paul Spur/Douglas NA monitoring network?

    The Arizona Department of Environmental Quality (ADEQ) has operated 
PM10 monitors near the Douglas Lime Plant, formerly the 
Chemical Lime Plant, at Paul Spur (``Paul Spur monitor'') and within 
the City of Douglas (``Douglas monitor'') for 20 years or more. Both 
sites are part of the ADEQ's SLAMS network.
    The Paul Spur monitor is located near the intersection of Paul Spur 
Road and State Route 80. This monitor was sited

[[Page 31270]]

to provide PM10 concentration data at a middle scale \6\ for 
the purpose of determining source impacts from the chemical lime plant. 
At the Paul Spur monitoring site, ADEQ replaced the dichot sampler with 
a partisol sampler, and added a second collocated partisol sampler for 
precision measurement purposes. Both monitors run on a one-day-in-six 
monitoring schedule. In January 2012, ADEQ replaced one of the partisol 
samplers with a continuous tapering element oscillating microbalance 
(TEOM) sampler. The TEOM sampler provides daily 24-hour average 
observations of PM10 ambient concentrations.
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    \6\ In this context, ``middle scale'' refers to conditions 
characteristic of areas from 100 meters to several kilometers. See 
40 CFR part 58, appendix D, section 4.6.
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    Prior to 1998, the Douglas monitor was located at 15th Street Park, 
approximately one mile north of the border with Mexico. In 1998, ADEQ 
re-located the Douglas monitor to its current location, the Red Cross 
building just across from the park on 15th Street. The Douglas monitor 
was sited to provide PM10 concentration data at a 
neighborhood scale for the purpose of determining population exposure. 
At the Douglas monitoring site, ADEQ replaced the dichot sampler with a 
partisol sampler. The Douglas monitor operates on a one-day-in six 
monitoring schedule.

B. Do the Paul Spur/Douglas NA monitors meet minimum Federal ambient 
air quality monitoring requirements?

    ADEQ is responsible for monitoring ambient air quality outside the 
metropolitan areas in Arizona. Annually, ADEQ submits monitoring 
network plan reports to EPA. These reports 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 PM10, we have 
found that ADEQ's annual network plans meet the applicable requirements 
under 40 CFR part 58.\7\ 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 all of the criteria pollutants, and that all of 
the monitoring sites are properly located with respect to monitoring 
objectives, spatial scales and other siting criteria.\8\ As noted 
above, in January 2012, ADEQ installed a continuous TEOM sampler at the 
Paul Spur monitoring site. ADEQ's placement of the TEOM monitor ensures 
that the Paul Spur/Douglas NA monitoring network continues to meet the 
requirements of 40 CFR 58.12(e) for monitoring frequency. Also, ADEQ 
annually certifies that the data it submits to AQS are quality-
assured.\9\
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    \7\ See EPA letters to ADEQ concerning ADEQ's annual network 
plan reports for years 2009, 2010, and 2011. These letters are in 
the docket for this rulemaking.
    \8\ See 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.
    \9\ See, e.g., the letter from Eric C. Massey, Director, Air 
Quality Division, ADEQ to Jared Blumenfeld, Regional Administrator, 
EPA Region IX, dated February 28, 2012 certifying the ambient air 
quality data collected at the Paul Spur and Douglas sites for year 
2011.
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C. What does the air quality data show for the Paul/Douglas NA?

    As noted above, we determined that the Paul Spur/Douglas NA 
attained the PM10 NAAQS by its applicable attainment date 
based on our review of data collected during the 1992-1994 period. See 
76 FR 1532; (January 11, 2011). Since 1994, the data from AQS indicate 
that only two exceedances of the PM10 standard have been 
measured in the Paul Spur/Douglas NA; both exceedances were measured at 
the Paul Spur monitoring site. The first exceedance, 206 [micro]g/m\3\, 
was observed in 2003 and the other, 159 [micro]g/m\3\, was observed in 
2008.\10\ No exceedances have been recorded at the Douglas monitoring 
site since 1991.
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    \10\ ADEQ flagged the 2003 and 2008 exceedances as exceptional 
events. EPA has not taken action to evaluate whether these 
exceedances qualify as exceptional events.
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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). Table 1 summarizes 
the PM10 concentration data collected at the Paul Spur and 
Douglas monitors over the past three years. As shown in Table 1, no 
exceedances were recorded within the Paul Spur/Douglas NA over the 
2009-2011 period.

          Table 1--Summary of 2009-2011 PM10 Monitoring Data for Paul Spur/Douglas Nonattainment Area a
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                                            Highest  24-hour PM10  concentration  ([micro]g/        Expected
                                                                  m\3\)                         exceedances  per
             Monitoring site             ------------------------------------------------------       year
                                                                                               -----------------
                                                2009              2010              2011            2009-2011
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Douglas Lime Plant at Paul Spur.........                49                46                85               0.0
Douglas (15th Street Park)..............                97                83               138               0.0
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PM10 NAAQS = 150 [micro]g/m\3\.
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\a\ Source: AQS QuickLook report dated March 19, 2012.

    During the 2009-2011 time period, the data collected by ADEQ meets 
the completeness criterion for all quarters at the Paul Spur monitor 
and for ten of twelve quarters at the Douglas monitor. The two 
incomplete quarters at the Douglas monitor were the first quarter of 
2010 and the fourth quarter of 2011. During the first quarter of 2010, 
the Douglas monitor was three samples short of the 75 percent 
criterion, for a 60 percent (9 of 15 samples) reporting rate, and 
during the fourth quarter of 2011, the Douglas monitor was one sample 
short of the 75 percent criterion, for a 73 percent (11 of 15 samples) 
reporting rate.
    To be considered ``complete,'' valid measurements must be made for 
75 percent of all the scheduled sampling dates in each quarter of the 
year, and generally, three years of representative monitoring data that 
meet the 75 percent criterion should be utilized, where available. As 
noted above, however, EPA may find that data not

[[Page 31271]]

meeting the completeness criterion suffice to show attainment of a 
given NAAQS. See 40 CFR part 50, appendix K, section 2.3(b). Relevant 
considerations that we take into account when evaluating whether data 
not meeting the completeness criterion would suffice include, but are 
not limited to, monitoring site closures/moves, monitoring diligence, 
consistency and levels of the valid concentration measurements that are 
available, and nearby observed ambient concentrations.
    After reviewing the Paul Spur/Douglas NA data for the 2009-2011 
period, for the three reasons discussed below, we find that the 
available data are sufficient to determine whether the Paul Spur/
Douglas NA attained the PM10 standard by December 31, 2011; 
notwithstanding that the Douglas' monitor data did not meet the 75 
percent completeness criterion for two of twelve quarters. First, we 
note the extent to which the maximum monitored levels during the 2009-
2011 period, 85 [micro]g/m\3\ at the Paul Spur monitor and 138 
[micro]g/m\3\ at the Douglas monitor, clearly fall below the applicable 
standard of 150 [micro]g/m\3\. Second, we note that twelve of twelve 
quarters were complete at the Paul Spur monitor and ten of twelve 
quarters were complete at the Douglas monitor. Lastly, we note that the 
Douglas monitor has been in operation for over 20 years and has not 
recorded an exceedance of the PM10 standard since 1991. The 
only two exceedances recorded in the Paul Spur/Douglas NA since 1991 
have been at the Paul Spur monitoring site; the site for which we have 
a complete data set for 2009-2011.
    Therefore, based on our review of the certified, quality-assured 
data for 2009-2011, we find that the expected number of exceedances per 
year for the Paul Spur/Douglas NA for the most recent three-year period 
(i.e., 2009 to 2011) was 0.0 days per year. With an annual expected 
exceedance rate for the 24-hour PM10 NAAQS of less than 1.0, 
these data represent attainment of the PM10 standard. 
Consequently, EPA proposes to determine that the Paul Spur/Douglas NA 
is attaining the PM10 NAAQS. Prior to taking final action on 
this proposal, we will review any preliminary data for 2012 submitted 
by ADEQ to AQS for the Paul Spur/Douglas NA to ensure that such 
preliminary data shows continued attainment of the standard.

III. EPA's Clean Data Policy and the Applicability of Clean Air Act 
Planning Requirements to the Paul Spur/Douglas NA

    The air quality planning requirements for moderate PM10 
nonattainment areas, such as the Paul Spur/Douglas NA, are set out in 
part D, subparts 1 and 4 of title I of the Act. EPA has issued guidance 
in a General Preamble describing how we will review state 
implementation plans (SIPs) and SIP revisions submitted under title I 
of the Act, including those containing moderate PM10 
nonattainment area SIP provisions.\11\
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    \11\ ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' (57 FR 13498; April 16, 1992, 
and supplemented at 57 FR 18070; April 28, 1992); hereafter referred 
to as the General Preamble.
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    The subpart 1 requirements include, among other things, provisions 
for reasonably available control measures or ``RACM'', reasonable 
further progress or ``RFP'', emissions inventories, a permit program 
for construction and operation of new or modified major stationary 
sources in the nonattainment area or ``NSR'', contingency measures, 
conformity, and additional SIP revisions providing for attainment where 
EPA determines that the area has failed to attain the standard by the 
applicable attainment date.
    Subpart 4 requirements in CAA section 189 apply specifically to 
PM10 nonattainment areas. The requirements for moderate 
PM10 nonattainment areas include: (1) An attainment 
demonstration; (2) provisions for RACM; (3) quantitative milestones 
demonstrating RFP toward attainment by the applicable attainment date; 
and, (4) provisions ensuring that the control requirements applicable 
to an area's major stationary sources of PM10 also apply to 
major stationary sources of PM10 precursors, except where 
the Administrator has determined that such sources do not contribute 
significantly to PM10 levels exceeding the NAAQS.
    For nonattainment areas where EPA determines that monitored data 
show that the NAAQS have already been achieved, EPA's interpretation, 
upheld by the Courts, is that the obligation to submit certain 
requirements of part D, subparts 1, 2 and 4 of the Act are suspended 
for so long as the area continues to attain. These include requirements 
for attainment demonstrations, RFP, RACM, and contingency measures, 
because these provisions have the purpose of helping achieve attainment 
of the NAAQS. Certain other obligations for PM10 
nonattainment areas, however, are not suspended, such as the NSR 
requirements.
    This interpretation of the CAA is known as the Clean Data Policy. 
It is the subject of several EPA memoranda and regulations, and 
numerous rulemakings that have been published in the Federal Register 
over more than fifteen years. EPA finalized the statutory 
interpretation set forth in the Clean Data Policy in its final 8-hour 
ozone implementation rule, 40 CFR 51.918, as part of its ``Final Rule 
to Implement the 8-hour Ozone National Ambient Air Quality Standard--
Phase 2'' (Phase 2 Final Rule); see discussion in the preamble to the 
rule at 70 FR 71612, 71645-71646; (November 29, 2005). The D.C. Circuit 
Court upheld this Clean Data regulation as a valid interpretation of 
the CAA; see NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). EPA also 
finalized its interpretation in an implementation rule for the NAAQS 
for particulate matter of 2.5 microns or less (PM2.5); see 
40 CFR 51.1004(c). Thus, EPA has codified the Clean Data Policy when it 
established final rules governing implementation of new or revised 
NAAQS for the pollutants. See 70 FR 71612, 71644-46 (November 29, 
2005); 72 FR 20586, 20665 (April 25, 2007) (PM2.5 
Implementation Rule). Otherwise, EPA applies the Clean Data Policy in 
individual rulemakings related to specific nonattainment areas. See, 
e.g., 75 FR 27944 (May 19, 2010), the determination of attainment of 
the PM10 standard in Coso Junction, California; and, 75 FR 
6571 (February 10, 2010) the determination of attainment of the 1-hour 
ozone standard in Baton Rouge, Louisiana.
    In its many applications of the Clean Data Policy interpretation to 
PM10, EPA has explained that the legal bases set forth in 
detail in our Phase 2 Final rule, our May 10, 1995 memorandum from John 
S. Seitz, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard,'' our 
PM2.5 Implementation Rule, and our December 14, 2004 
memorandum from Stephen D. Page entitled ``Clean Data Policy for the 
Fine Particle National Ambient Air Quality Standards,'' are equally 
pertinent to the interpretation of provisions of subparts 1 and 4 
applicable to PM10. See, e.g., 71 FR 6352 (February 8, 2006) 
(Ajo, Arizona area); 71 FR 13021 (March 14, 2006) (Yuma, Arizona area); 
71 FR 40023 (July 14, 2006) (Weirton, West Virginia area); 71 FR 44920 
(August 8, 2006) (Rillito, Arizona area); 71 FR 63642 (October 30, 
2006) (San Joaquin Valley, California

[[Page 31272]]

area); 72 FR 14422 (March 28, 2007) (Miami, Arizona area); 75 FR 27944 
(May 19, 2010) (Coso Junction, California area); and 76 FR 21807 (April 
19, 2011) (Truckee Meadows, Nevada area). EPA's interpretation that the 
obligation to submit an attainment demonstration, RACM, RFP contingency 
measures, and other measures related to attainment under part D of 
title I of the CAA, pertains whether the standard is PM10, 
ozone or PM2.5.
    In our proposed and final rulemakings determining that the San 
Joaquin Valley nonattainment area attained the PM10 
standard, EPA set forth at length our rationale for applying the Clean 
Data Policy to PM10. The Ninth Circuit Court subsequently 
upheld this rulemaking, and specifically EPA's Clean Data Policy in the 
context of the PM10 standard. See Latino Issues Forum v. 
EPA, Nos. 06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March 
2, 2009. In rejecting petitioner's challenge to the Clean Data Policy 
for PM10, the Court stated:

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

    EPA noted in its prior PM10 rulemakings that the reasons 
for relieving an area that has attained the relevant standard of 
certain obligations under part D, subparts 1 and 2, apply equally to 
part D, subpart 4, which contains specific attainment demonstration and 
RFP provisions for PM10 nonattainment areas. In EPA's Phase 
2 Final Rule and ozone (Seitz) and PM2.5 Clean Data (Page) 
memoranda, EPA established that it is reasonable to interpret 
provisions regarding RFP and attainment demonstrations, along with 
related requirements, so as not to require SIP submissions if an area 
subject to those requirements is already attaining the NAAQS (i.e., 
attainment of the NAAQS is demonstrated with three consecutive years of 
complete, quality-assured, and certified air quality monitoring data). 
Every U.S. Circuit Court of Appeals that has considered the Clean Data 
Policy has upheld EPA rulemakings applying its interpretation, for both 
ozone and PM10. See Sierra Club v. EPA, 99 F.3d 1551 (10th 
Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); Our 
Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 
2005) (memorandum opinion), Latino Issues Forum, supra.
    It has been EPA's longstanding interpretation that the general 
provisions of part D, subpart 1 of the Act (sections 171 and 172) do 
not require the submission of SIP revisions concerning RFP for areas 
already attaining the ozone NAAQS. In the General Preamble, we stated:

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

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

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

    Although this section states that revisions shall contain 
milestones which are to be achieved until the area is redesignated to 
attainment, such milestones are designed to show reasonable further 
progress ``toward attainment by the applicable attainment date,'' as 
defined by section 171. Thus, it is clear that once the area has 
attained the standard, no further milestones are necessary or 
meaningful. This interpretation is supported by language in section 
189(c)(3), which mandates that a State that fails to achieve a 
milestone must submit a plan that assures that the State will achieve 
the next milestone or attain the NAAQS if there is no next milestone. 
Section 189(c)(3) assumes that the requirement to submit and achieve 
milestones does not continue after attainment of the NAAQS.
    In the General Preamble, we noted with respect to section 189(c) 
that the purpose of the milestone requirement ``is `to provide for 
emission reductions adequate to achieve the standards by the applicable 
attainment date' (H.R. Rep. No. 490, 101st Cong., 2d Sess. 267 
(1990)).'' 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.\12\ EPA took this position with respect to 
the general RFP requirement of section 172(c)(2) in the General 
Preamble and also in the Seitz memorandum with respect to the 
requirements of sections 182(b) and (c). In our prior applications of 
the Clean Data Policy to PM10, we have extended that 
interpretation to the specific provisions of part D, subpart 4. See, 
e.g., 71 FR 40952 and 71 FR 63642, the proposed and final determination 
of attainment for San Joaquin Valley; and, 75 FR 13710 and 75 FR 27944, 
the proposed and final determination of attainment for Coso Junction.
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    \12\ Thus, we believe that it is a distinction without a 
difference that section 189(c)(1) speaks of the RFP requirement as 
one to be achieved until an area is ``redesignated attainment,'' as 
opposed to section 172(c)(2), which is silent on the period to which 
the requirement pertains, or the ozone nonattainment area RFP 
requirements in sections 182(b)(1) or 182(c)(2), which refer to the 
RFP requirements as applying until the ``attainment date,'' since 
section 189(c)(1) defines RFP by reference to section 171(1) of the 
Act. Reference to section 171(1) clarifies that, as with the general 
RFP requirements in section 172(c)(2) and the ozone-specific 
requirements of section 182(b)(1) and 182(c)(2), the PM-specific 
requirements may only be required ``for the purpose of ensuring 
attainment of the applicable national ambient air quality standard 
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in 
the text of this rulemaking, EPA interprets the RFP requirements, in 
light of the definition of RFP in section 171(1), and incorporated 
in section 189(c)(1), to be a requirement that no longer applies 
once the standard has been attained.
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    In the General Preamble, we stated, in the context of a discussion 
of the requirements applicable to the evaluation of requests to 
redesignate nonattainment areas to attainment, that the ``requirements 
for RFP will not apply in evaluating a request for redesignation to 
attainment since, at a minimum, the air quality data for the area must 
show that the area has already attained. Showing that the State will 
make RFP towards attainment will, therefore, have no meaning at that 
point.'' 57 FR 13564; (April 16, 1992). See also our September 4, 1992 
memorandum from John Calcagni, entitled ``Procedures for Processing 
Requests to Redesignate Areas to

[[Page 31273]]

Attainment'' (Calcagni memorandum), at page 6.
    Similarly, the requirements of section 189(c)(2) with respect to 
milestones no longer apply so long as an area has attained the 
standard. Section 189(c)(2) provides in relevant part that:

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

    Where the area has attained the standard and there are no further 
milestones, there is no further requirement to make a submission 
showing that such milestones have been met. As noted above, this is 
consistent with the position that EPA took with respect to the general 
RFP requirement of section 172(c)(2) in the General Preamble and also 
in the Seitz memorandum with respect to the requirements of section 
182(b) and (c). In the Seitz memorandum, EPA also noted that section 
182(g), the milestone requirement of subpart 2, which is analogous to 
provisions in section 189(c), is suspended upon a determination that an 
area has attained. The Seitz memorandum, also citing additional 
provisions related to attainment demonstration and RFP requirements, 
stated:

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

See Seitz memorandum at page 5.

    With respect to the attainment demonstration requirements of 
section 189(a)(1)(B), an analogous rationale leads to the same result. 
Section 189(a)(1)(B) requires that the plan provide for ``a 
demonstration (including air quality modeling) that the [SIP] will 
provide for attainment by the applicable attainment date * * *.'' As 
with the RFP requirements, if an area is already monitoring attainment 
of the standard, EPA believes there is no need for an area to make a 
further submission containing additional measures to achieve 
attainment. This is also consistent with the interpretation of the 
section 172(c) requirements provided by EPA in the General Preamble, 
the Page memorandum, and the section 182(b) and (c) requirements set 
forth in the Seitz memorandum. As EPA stated in the General Preamble, 
no other measures to provide for attainment would be needed by areas 
seeking redesignation to attainment since ``attainment will have been 
reached.'' 57 FR at 13564; (April 16, 1992).
    Other SIP submission requirements are linked with these attainment 
demonstration and RFP requirements, and similar reasoning applies to 
them. These requirements include the contingency measure requirements 
of sections 172(c)(9) and 182(c)(9). We have interpreted the 
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as 
no longer applying when an area has attained the standard because those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' See 57 FR 13564; (April 16, 1992), and Seitz 
memorandum, pages 5-6.
    Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to 
assure that reasonably available control measures'' (i.e., RACM) are 
implemented in a nonattainment area. The General Preamble states that 
EPA interprets section 172(c)(1) so that RACM requirements are a 
``component'' of an area's attainment demonstration; see 57 FR 13560; 
(April 16, 1992). Thus, for the same reason the attainment 
demonstration no longer applies by its own terms, the requirement for 
RACM no longer applies. EPA has consistently interpreted this provision 
to require only implementation of potential RACM measures that could 
contribute to reasonable further progress or to attainment. See the 
General Preamble at 57 FR 13498; (April 16, 1992). Thus, where an area 
is already attaining the standard, no additional RACM measures are 
required.\13\ EPA is interpreting section 189(a)(1)(C) consistent with 
its interpretation of section 172(c)(1).
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    \13\ The EPA's interpretation that the statute only requires 
implementation of RACM measures that would advance attainment was 
upheld by the United States Court of Appeals for the Fifth Circuit 
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002)), and by 
the United States Court of Appeals for the D.C. Circuit (Sierra Club 
v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
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    We emphasize that the suspension of the obligation to submit SIP 
revisions concerning these RFP, attainment demonstration, RACM, and 
other related requirements exists only for as long as the Paul Spur/
Douglas NA continues to monitor attainment of the PM10 
standard. If EPA determines, after notice-and-comment rulemaking, that 
the area has monitored a violation of the PM10 NAAQS, the 
basis for suspending the requirements would no longer exist. As a 
result, the Paul Spur/Douglas NA would again be subject to a 
requirement to submit the pertinent SIP revision or revisions and would 
need to address those requirements. Thus, a final determination that 
the area need not submit one of the pertinent SIP submittals amounts to 
no more than a suspension of the requirements for so long as the area 
continues to attain the standard. Only after EPA redesignates the area 
to attainment would the area be relieved of these attainment-related 
submission obligations. Attainment determinations under the Clean Data 
Policy do not suspend an area's obligations unrelated to attainment in 
the area, such as provisions to address pollution transport.
    Based on our proposed determination that the Paul Spur/Douglas NA 
is currently attaining the PM10 NAAQS (see section II.C 
above) and as set forth above, we propose to find that Arizona's 
obligations to submit planning provisions to meet the requirements for 
an attainment demonstration, reasonable further progress plans, 
reasonably available control measures, and contingency measures, no 
longer apply for so long as the Paul Spur/Douglas NA continues to 
monitor attainment of the PM10 NAAQS.\14\ In the future, 
after notice-and-comment rulemaking, if EPA determines that the area 
again violates the PM10 NAAQS, then the basis for suspending 
the attainment demonstration, RFP, RACM, and contingency measure 
requirements would no longer exist. In that event, we would notify 
Arizona that we have determined that the Paul Spur/Douglas NA is no 
longer attaining the PM10 standard and provide notice to the 
public in the Federal Register.
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    \14\ We note that our application of the Clean Data Policy to 
the Paul Spur/Douglas NA is consistent with actions we have taken 
for other PM10 nonattainment areas that we also 
determined were attaining the standard. See, e.g., 71 FR 6352 
(February 8, 2006), for the Ajo, Arizona area; 71 FR 13021 (March 
14, 2006) for the Yuma, Arizona area; 71 FR 40023 (July 14, 2006) 
for the Weirton, West Virginia area; 71 FR 44920 (August 8, 2006) 
for the Rillito, Arizona area; 71 FR 63642 (October 30, 2006) for 
the San Joaquin Valley, California area; 72 FR 14422 (March 28, 
2007) for the Miami, Arizona area; 75 FR 27944 (May 19, 2010) for 
the Coso Junction, California area; and 76 FR 21807 (April 19, 2011) 
for the Truckee Meadows, Nevada area.
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    Lastly, suspension of Arizona's obligation to make submissions of 
certain attainment-related requirements for as long as the Paul Spur/
Douglas NA continues to attain the standard would also serve to suspend 
any EPA obligation to promulgate a Federal Implementation Plan (FIP) to 
address the same attainment-related requirements because the deficiency 
that had led to the FIP obligation would no longer exist, i.e., for so 
long as the related State obligation continues to be suspended. In this 
instance, in 1991, EPA made a finding of failure to submit a moderate 
area PM10 plan for the

[[Page 31274]]

Douglas portion of the Paul Spur/Douglas NA, thereby triggering a FIP 
clock during which EPA had two years under section 110(c) of the CAA to 
promulgate a moderate area PM10 FIP for the Douglas portion 
of the Paul Spur/Douglas NA.\15\ See 57 FR 19906; (May 8, 1992). If 
finalized as proposed, today's proposed action would suspend this FIP 
obligation for so long as the State obligation is suspended, or until 
the area is redesignated to attainment, at which time the FIP 
obligation triggered in 1992 would end permanently.
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    \15\ EPA has been sued to promulgate a FIP for the Douglas 
portion of the Paul Spur/Douglas PM10 nonattainment area. 
Center for Biological Diversity v. Jackson, No. 10-cv-1846-MMC (N.D. 
Cal.). In settling this case, EPA agreed to promulgate a FIP by July 
27, 2012 unless certain other actions (e.g., SIP approval or 
redesignation) are taken prior to that date. See 75 FR 82009; 
(December 29, 2010). The settlement agreement also acknowledges the 
potential for EPA to make a clean data determination for the area in 
lieu of promulgating a FIP and states that such a determination will 
not constitute a violation of the settlement agreement.
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IV. EPA's Proposed Action and Request for Public Comment

    Based on the most recent three-year period of certified, quality-
assured data meeting the requirements of 40 CFR part 50, appendix K and 
for the reasons discussed above, we propose to find that the Paul Spur/
Douglas NA is currently attaining the 24-hour PM10 NAAQS.
    In conjunction with and based upon our proposed determination that 
the Paul Spur/Douglas PM10 NA is currently attaining the 
standard, EPA proposes to determine that Arizona's obligation to submit 
the following CAA requirements is not applicable for so long as the 
Paul Spur/Douglas NA continues to attain the PM10 standard: 
the part D, subpart 4 obligation 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, the attainment 
demonstration, RACM, RFP and contingency measure provisions of part D, 
subpart 1 contained in section 172 of the Act. Furthermore, the 
obligation on EPA to promulgate a FIP to address the same attainment-
related requirements would also be suspended.
    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 Paul Spur/Douglas NA 
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 
moderate nonattainment for the Paul Spur/Douglas NA until such time as 
EPA determines that Arizona has met the CAA requirements for 
redesignating the Paul Spur/Douglas NA to attainment.
    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.

V. Statutory and Executive Order Reviews

    With this action, we propose to make a determination regarding 
attainment of the PM10 NAAQS based on air quality data and, 
if finalized, this proposed action would result in suspension of 
certain Federal requirements, and would not impose additional 
requirements beyond those imposed by State law or by the CAA. For that 
reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed action does not have Tribal implications 
as specified by Executive Order 13175 (65 FR 67249; November 9, 2000), 
because the SIP obligations discussed herein do not apply to Indian 
Tribes and thus will not impose substantial direct costs on Tribal 
governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: May 14, 2012.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
[FR Doc. 2012-12781 Filed 5-24-12; 8:45 am]
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