[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Proposed Rules]
[Pages 65521-65526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26528]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0782; FRL-9747-1]


Determination of Attainment for the San Francisco Bay Area 
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 San Francisco Bay Area 
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 28, 
2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2012-0782 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 San Francisco Bay Area 
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 this 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

[[Page 65522]]

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 San 
Francisco Bay Area \2\ 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 San Francisco Bay Area PM2.5 nonattainment 
area includes southern Sonoma, Napa, Marin, Contra Costa, San 
Francisco, Alameda, San Mateo, Santa Clara and the western part of 
Solano counties.
    \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 a determination that the San Francisco Bay Area \4\ 
nonattainment area has attained the 2006 PM2.5 NAAQS and 
determine 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 December 8, 2011, 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 
San Francisco Bay Area 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 San Francisco Bay Area PM2.5 nonattainment area, 
the Bay Area Air Quality Management District (BAAQMD) is the agency 
responsible for monitoring ambient air quality.\6\ BAAQMD submits 
annual monitoring network plans to EPA. These plans describe the 
monitoring network operated by BAAQMD in the San Francisco Bay Area 
nonattainment area and discuss the status of the air monitoring 
network, as required under 40 CFR 58.10.
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    \6\ The BAAQMD is one of four monitoring agencies in California 
designated as a Primary Quality Assurance Organization.
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    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 area's network 
plans operated by BAAQMD meet the applicable requirements under 40 CFR 
part 58. See EPA letters to BAAQMD approving its annual network plans 
for years 2009, 2010, and 2011.\7\ EPA also concluded \8\ from its 
Technical System Audit of the BAAQMD Primary Quality Assurance 
Organization (conducted during the summer of 2009), that the ambient 
air monitoring network operated by BAAQMD currently meets or exceeds 
the requirements for the minimum number of SLAMS for PM2.5 
in the San Francisco Bay Area nonattainment area. BAAQMD annually 
certifies that the data it submits to AQS are complete and quality-
assured.\9\
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    \7\ Letter from Joe Lapka, Acting Manager, Air Quality Analysis 
Office, U.S. EPA Region IX, to Gary Kendall, Director of Technical 
Services, BAAQMD (December 17, 2009) (approving ``2008 Air 
Monitoring Network Report''); Letter from Matthew Lakin, Manager, 
Air Quality Analysis Office, U.S. EPA Region IX, to Eric Stevenson, 
Director of Technical Services, BAAQMD (November 1, 2010) (approving 
the ``2009 Air Monitoring Network Review for the Bay Area Air 
Quality Management District''); Letter from Matthew Lakin, Manager, 
Air Quality Analysis Office, U.S. EPA Region IX, to Eric Stevenson, 
Director of Technical Services, BAAQMD (October 31, 2011) (approving 
BAAQMD's ``2010 Air Monitoring Network Report'').
    \8\ Letter from Deborah Jordan, Director, Air Division, U.S. EPA 
Region IX, to Jack Broadbent, Air Pollution Control Officer, BAAQMD, 
transmitting ``System Audit of the Ambient Monitoring Program: Bay 
Area Air Quality Management District, May 26-June 4, 2009,'' with 
enclosure, January 18, 2011.
    \9\ See, e.g., letter from Jack Broadbent, Executive Officer, 
BAAQMD, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 
IX, certifying calendar year 2011 ambient air quality data and 
quality assurance data, April 18, 2012.

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[[Page 65523]]

    There were 10 PM2.5 SLAMS located throughout the San 
Francisco Bay Area 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. Eight of the sites have a spatial scale 
of neighborhood scale,\10\ and the monitoring objective is population 
exposure. Two of the sites (i.e., Oakland (AQS ID 06-001-0009) and San 
Rafael (AQS ID 06-041-0001)) have a spatial scale of middle scale,\11\ 
and the monitoring objective is population exposure.\12\
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    \10\ 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.
    \11\ In this context, ``middle'' spatial scale defines the 
concentration typical of areas up to several city blocks in size 
with dimensions ranging from about 100 meters to 0.5 kilometer. See 
40 CFR part 58, appendix D, section 1.2.
    \12\ See BAAQMD's 2010 Air Monitoring Network Report (July 1, 
2011); U.S. EPA Air Quality System, Monitor Description Report, 
October 15, 2012.
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    Consistent with the requirements contained in 40 CFR part 50, we 
have 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 San 
Francisco Bay Area nonattainment area and have determined that the data 
are complete except for the PM2.5 data collected at the San 
Rafael monitoring site.\13\ With respect to the San Rafael site, 
PM2.5 monitoring began in the last quarter of 2009 and was 
complete for that one quarter. In 2010, valid samples were collected on 
only 72% of the scheduled sampling days at the San Rafael monitor 
during the third quarter of 2010 (July, August, and September) 
resulting in a data set for the third quarter that does not meet the 
completeness criterion of 75%. All other quarters of data collected at 
San Rafael in 2010, and all quarters in 2011 met data completeness 
requirements. Given that the BAAQMD operates more than the minimum 
number of PM2.5 monitoring sites in the San Francisco Bay 
Area,\14\ the overall completeness of data from all sites (other than 
the San Rafael site), and the limited nature of the incomplete data set 
from the San Rafael site during the low PM2.5 concentration 
season, we believe that the data set compiled from the PM2.5 
monitoring network is sufficient for the purposes of determining 
whether the San Francisco Bay Area has attained the PM2.5 
NAAQS. See 40 CFR part 50, appendix N, section 4.2(b).
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    \13\ In March, 2012, a community group based in Marin County, 
California, brought to EPA's attention PM2.5 data 
collected in Marin County that was not available in AQS. EPA has 
reviewed information associated with this monitoring. The monitoring 
was collected with private, non-Federal Reference Method/Federal 
Equivalent Method (FRM/FEM) monitors over approximately three months 
in both winter 2010/2011 and winter 2011/2012. EPA concludes that 
the monitoring does not meet 40 CFR part 50, appendix L or 40 CFR 
part 58, and are therefore not appropriate for regulatory use. EPA 
acknowledges the concerns raised by the community group over wood 
smoke impacts in sheltered inland valleys during the winter months. 
Information on additional steps BAAQMD is taking to address wood 
smoke impacts is described in BAAQMD's September 20, 2012 letter 
from Jean Roggenkamp, Deputy Air Pollution Control Officer, Bay Area 
Air Quality Management District, to Amy Zimpfer, U.S. EPA Region IX.
    \14\ Under EPA monitoring regulations, the minimum number of 
PM2.5 monitoring sites in the San Francisco-Oakland-
Fremont Metropolitan Statistical Area (MSA) is two, but the BAAQMD 
operates six such monitoring sites within the San Francisco-Oakland-
Fremont MSA portion of the San Francisco Bay Area nonattainment 
area, including the San Rafael site.
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B. Evaluation of Current Attainment

    EPA's evaluation of whether the San Francisco Bay Area 
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 \15\ 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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    \15\ Meets the requirements of 40 CFR part 58.
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    Table 1 shows the PM2.5 design values for the San 
Francisco Bay Area 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 San Francisco Bay 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 San Francisco Bay Area Nonattainment
                                                      Area
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                                    AQS Site               98th Percentile ([mu]g/m\3\)              2009-2011
        Monitoring site          identification  ------------------------------------------------  Design values
                                       No.             2009            2010            2011        ([mu]g/m\3\)
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Livermore.....................       06-001-0007            30.7            26.5            27.0              28
Oakland.......................       06-001-0009            24.7            21.7            28.0              25
Concord.......................       06-013-0002            29.2            26.8            24.4              27
San Rafael....................       06-041-0001        \a\ 34.1        \b\ 31.0            25.0          \b\ 30
San Francisco.................       06-075-0005            29.4            24.4            26.4              27
Redwood City..................       06-081-1001            28.0            24.8            24.2              26
Gilroy........................       06-085-0002            25.1            19.6            22.1              22
San Jose......................       06-085-0005            29.8            29.2            30.5              30
Vallejo.......................       06-095-0004            33.5            22.8            31.0              29
Santa Rosa....................       06-097-0003            23.2            22.2            25.9              24
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\a\ PM2.5 monitoring at the San Rafael site began in the last quarter of 2009.
\b\ Does not meet data completeness requirements.
Source: Design Value Report, August 10, 2012 (in the docket to this proposed action).


[[Page 65524]]

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).\16\ 
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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    \16\ 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

[[Page 65525]]

the Act are by their terms not applicable to areas that are currently 
attaining the NAAQS.\17\ 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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    \17\ 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.\18\ 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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    \18\ 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 San Francisco Bay Area 
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 this area 
continues to attain the standard.
    EPA further proposes that, if its proposed determination of 
attainment is made final, the requirements for the San Francisco Bay 
Area 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 San Francisco Bay Area 
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 this area until such time as EPA 
determines that California has met the CAA requirements for 
redesignating the San Francisco Bay Area nonattainment area to 
attainment.
    If the San Francisco Bay Area nonattainment area continues to 
monitor attainment of the 2006 PM2.5 NAAQS, EPA proposes 
that the requirements for the area to submit an

[[Page 65526]]

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 the 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 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. 2012-26528 Filed 10-26-12; 8:45 am]
BILLING CODE 6560-50-P