[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Rules and Regulations]
[Pages 887-889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31639]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0752; FRL-9766-8]


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: Final rule.

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SUMMARY: EPA is taking final action 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 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. Based on the above determination, 
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 are suspended for so long 
as the area continues to attain the 2006 24-hour PM2.5 
NAAQS.

DATES: This rule is effective on February 6, 2013.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0752 for 
this action. Generally, documents in the docket for this action are 
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 at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps, multi-volume reports), and 
some may not be publicly available in either location (e.g., 
Confidential Business Information). 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.

[[Page 888]]


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.

Table of Contents

I. Summary of Proposed Action
II. Public Comments and EPA Responses
III. EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

    On October 30, 2012 (77 FR 65656), EPA proposed to determine that 
the Nogales nonattainment area \1\ has attained the 2006 24-hour NAAQS 
\2\ for fine particles (generally referring to particles less than or 
equal to 2.5 micrometers in diameter, PM2.5).
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    \1\ 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.
    \2\ The 2006 24-hour PM2.5 NAAQS is 35 micrograms per 
cubic meter ([mu]g/m\3\), based on a 3-year average of the 98th 
percentile of 24-hour concentrations.
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    In our proposed rule, we explained how EPA makes an attainment 
determination for the 2006 24-hour PM2.5 NAAQS by reference 
to complete, quality-assured data gathered at a State and Local Air 
Monitoring Station(s) (SLAMS) and entered into EPA's Air Quality System 
(AQS) database and by reference to 40 CFR 50.13 (``National primary and 
secondary ambient air quality standards for PM2.5'') and 
appendix N to [40 CFR] part 50 (``Interpretation of the National 
Ambient Air Quality Standards for PM2.5''). EPA proposed the 
determination of attainment for the Nogales area based upon a review of 
the monitoring network operated by the Arizona Department of 
Environmental Quality (ADEQ) and the data collected at the one 
monitoring site operating during the most recent complete three-year 
period (i.e., 2009 to 2011). Based on this review, EPA found that 
complete, quality-assured and certified data for the Nogales area 
showed that the 24-hour design value for the 2009-2011 period was equal 
to or less than 35 [mu]/m\3\ at the monitor site. See the data summary 
table on page 65658 of the October 30, 2012 proposed rule. We also 
noted that preliminary data available in AQS for 2012 indicates that 
the Nogales area continues to attain the NAAQS.
    In our proposed rule, based on the proposed determination of 
attainment, we also proposed to apply EPA's Clean Data Policy to the 
2006 PM2.5 NAAQS and thereby suspend the requirements for 
this area to submit an attainment demonstration, associated reasonably 
available control measures (RACM), a reasonable further progress (RFP) 
plan, and contingency measures for so long as the area continues to 
attain the 2006 24-hour PM2.5 NAAQS. See pages 65658-65660 
of our October 30, 2012 proposed rule. In proposing to apply the Clean 
Data Policy to the 2006 PM2.5 NAAQS, we explained how we are 
applying the same statutory interpretation with respect to the 
implications of clean data determinations that the Agency has long 
applied in regulations for the 1997 8-hour ozone and PM2.5 
NAAQS and in individual rulemakings for the 1-hour ozone, 
PM10 and lead NAAQS.
    Please see the October 30, 2012 proposed rule for more detailed 
information concerning the PM2.5 NAAQS, designations of 
PM2.5 nonattainment areas, the regulatory basis for 
determining attainment of the NAAQS, ADEQ's PM2.5 monitoring 
network, EPA's review and evaluation of the data, and the rationale and 
implications for application of the Clean Data Policy to the 2006 
PM2.5 NAAQS.

II. Public Comments and EPA Responses

    EPA's proposed rule provided a 30-day public comment period. During 
this period, we received no comments.

III. EPA's Final Action

    For the reasons provided in the proposed rule and summarized 
herein, EPA is taking final action to determine that the Nogales 
nonattainment area in Arizona has attained the 2006 24-hour 
PM2.5 NAAQS based on the most recent three years of 
complete, quality-assured, and certified data in AQS for 2009-2011. 
Preliminary data available in AQS for 2012 show that this area 
continues to attain the standard.
    EPA is also taking final action, based on the above determination 
of attainment, to suspend 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 for so long as 
the area continues to attain the 2006 PM2.5 NAAQS. EPA's 
final action 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)).
    Today's final action does not constitute a redesignation of the 
Nogales nonattainment area to attainment for the 2006 24-hour 
PM2.5 NAAQS under CAA section 107(d)(3) because we have not 
yet approved a maintenance plan for the Nogales 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 remain 
nonattainment for this area until such time as EPA determines that 
Arizona has met the CAA requirements for redesignating the Nogales 
nonattainment area to attainment.
    If the Nogales nonattainment area continues to monitor attainment 
of the 2006 PM2.5 NAAQS, 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 
after today's action 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.

IV. Statutory and Executive Order Reviews

    This final action makes a determination of attainment based on air 
quality and suspends certain federal requirements, and thus, this 
action would not impose additional requirements beyond those imposed by 
state law. For this reason, the final 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

[[Page 889]]

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 final 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 action will not impose substantial direct costs 
on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 8, 2013. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

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: December 18, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.131 is added to read as follows:


Sec.  52.131  Control Strategy and regulations: Fine Particle Matter.

    (a) Determination of Attainment: Effective February 6, 2013, EPA 
has determined that, based on 2009 to 2011 ambient air quality data, 
the Nogales PM2.5 nonattainment area has attained the 2006 
24-hour PM2.5 NAAQS. This determination suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment for as long as this area continues to attain the 2006 24-
hour PM2.5 NAAQS. If EPA determines, after notice-and-
comment rulemaking, that this area no longer meets the 2006 
PM2.5 NAAQS, the corresponding determination of attainment 
for that area shall be withdrawn.
    (b) [Reserved]

[FR Doc. 2012-31639 Filed 1-4-13; 8:45 am]
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