[Federal Register Volume 78, Number 138 (Thursday, July 18, 2013)]
[Proposed Rules]
[Pages 42905-42910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17267]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2012-0760; FRL-9835-2]


Revision to the Washington State Implementation Plan; Approval of 
Motor Vehicle Emission Budgets and Determination of Attainment for the 
2006 24-Hour Fine Particulate Standard; Tacoma-Pierce County 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a request submitted by the 
Washington Department of Ecology (Ecology) dated November 28, 2012, to 
establish motor vehicle emission budgets for the Tacoma-Pierce County 
Fine Particulate Matter (PM2.5) nonattainment area to meet 
transportation conformity requirements. Under the Clean Air Act (CAA), 
new transportation plans, programs, and projects, such as the 
construction of new highways, must ``conform'' to (i.e., be consistent 
with) the State Implementation Plan (SIP). The CAA requires federal 
actions in nonattainment and maintenance areas to ``conform to'' the 
goals of SIP. This means that such actions will not cause or contribute 
to violations of the National Ambient Air Quality Standards (NAAQS), 
worsen the severity of an existing violation, or delay timely 
attainment of any NAAQS or any interim milestone.
    Under the Transportation Conformity Rule, the EPA can approve motor 
vehicle emission budgets based on the most recent year of clean data if 
the EPA approves the request in the rulemaking that determines that the 
area has attained the NAAQS for which the area is designated 
nonattainment. In September 2012, the EPA finalized an attainment 
finding for the Tacoma-Pierce County PM2.5 nonattainment 
area (hereafter referred to as ``Tacoma-Pierce County Area'' or ``the 
area''). This finding, also called a clean data determination, was 
based upon quality-assured, quality-controlled, and certified ambient 
air monitoring data showing that the area had monitored attainment of 
the 2006 PM2.5 NAAQS based on the 2009-2011 data available 
in the EPA's Air Quality System database. This action proposes to 
update the previous finding of attainment with more recent 2010-2012 
data and proposes to approve motor vehicle emission budgets under the 
Transportation Conformity Rule.

DATES: Written comments must be received on or before August 19, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2012-0760, by any of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Mail: Jeff Hunt, EPA Region 10, Office of Air, Waste and 
Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
     Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue, 
Suite 900, Seattle, WA 98101. Attention: Jeff Hunt, Office of Air, 
Waste and Toxics, AWT-107. Such deliveries are only accepted during 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2012-0760. EPA's policy is that all comments received 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 information claimed to be Confidential 
Business Information (CBI) or other information the disclosure of which 
is restricted by statute. Do not submit information that you consider 
to be CBI or otherwise protected through www.regulations.gov or email. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. 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: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index,

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some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy. Publicly available 
docket materials are available either electronically in 
www.regulations.gov or in hard copy during normal business hours at the 
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, 
Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt at telephone number: (206) 
553-0256, email address: [email protected], or the above EPA, Region 10 
address.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    The following outline is provided to aid in locating information in 
this preamble.
I. Background
II. Description of Attainment Year (Clean Data) MVEBs
III. Analysis of the Relevant Air Quality Data
IV. Effect of Determination of Attainment for 2006 PM2.5 
Under Subpart 4
V. Application of the Clean Data Policy to Attainment-Related 
Provisions of Subpart 4
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. Background

    The 2006 PM2.5 NAAQS set forth at 40 CFR 50.13 became 
effective on December 18, 2006 and promulgated a 24-hour standard of 35 
micrograms per cubic meter ([mu]g/m\3\) based on a 3-year average of 
the 98th percentile of 24-hour concentration (71 FR 61144, October 17, 
2006). Effective December 14, 2009, the EPA designated Tacoma-Pierce 
County (partial county designation) as a nonattainment area for the 
2006 24-hour PM2.5 standard (74 FR 58688, November 13, 
2009). Under 40 CFR 51.1002, states were required to submit within 
three years of the effective date of a nonattainment designation a 
revision to the SIP that meets nonattainment planning requirements. 
Prior to Washington's SIP revision submittal, the EPA issued a proposed 
finding of attainment on July 5, 2012, also called a clean data 
determination, based upon certified ambient air monitoring data showing 
that the Tacoma-Pierce County Area had met the 2006 PM2.5 
NAAQS for the most recent 2009-2011 monitoring period (77 FR 39657). 
The EPA received no comments on the proposal and issued a final finding 
of attainment on September 4, 2012 (77 FR 53772). In accordance with 40 
CFR 51.1004(c), in effect at that time, the September 4, 2012 finding 
of attainment suspended the requirements for Washington to submit an 
attainment demonstration, associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
most other planning SIP revisions related to attainment of the standard 
for so long as the nonattainment area continues to meet the 2006 
PM2.5 NAAQS. However, a finding of attainment does not 
suspend the CAA section 176(c) obligation to meet transportation 
conformity requirements.
    As described in 40 CFR 93.109(c)(5) of the Transportation 
Conformity Rule, a state may request that motor vehicle emissions 
budgets (MVEBs) calculated for the most recent year of attainment be 
used to satisfy the budget test as set forth in 40 CFR 93.118. Under 
this option, the EPA approves the MVEBs request in a rulemaking that 
determines the area has attained the NAAQS for which the area is 
designated nonattainment. In this action, the EPA is reaffirming the 
previous finding of attainment with updated 2010-2012 data and is 
proposing to approve MVEBs under 40 CFR 93.109(c)(5)(iii) for the 
Tacoma-Pierce County Area.

II. Description of Attainment Year (Clean Data) MVEBs

    The Transportation Conformity Rule allows the state air quality 
agency to request that motor vehicle emissions in the most recent year 
of clean data be used as budgets. The EPA must approve that request in 
the rulemaking that determines that the area has attained the relevant 
NAAQS (40 CFR 93.109(c)(5)(iii)). On November 28, 2012, Ecology 
requested that the EPA establish MVEBs for PM2.5 and 
nitrogen oxide (NOX) calculated for 2011, the first year of 
attainment for the Tacoma-Pierce County Area. These budgets were 
calculated using the Motor Vehicle Emissions Simulator emissions model 
(MOVES). See ``Policy Guidance on the Use of MOVES2010 and Subsequent 
Minor Model Revisions for State Implementation Plan Development, 
Transportation Conformity, and Other Purposes'' (EPA, April 2012).
    Under the Transportation Conformity Rule, 40 CFR 93.102(b)(1) and 
(2)(iv) and (v), only MVEBs for PM2.5 and NOX for 
the 2011 attainment year are applicable for meeting conformity 
requirements in the Tacoma-Pierce County Area. The Transportation 
Conformity Rule requires that MVEBs must address direct 
PM2.5 emissions. NOX emissions must also be 
included unless the EPA and state have made a finding that 
transportation-related emissions of NOX are not a 
significant contributor to the area's PM2.5 problem. There 
was no such finding in this case. Therefore, Ecology requested that 
MVEBs be established for on-road emissions of direct PM2.5 
and NOX.
    Under the Transportation Conformity Rule, PM2.5 
precursors volatile organic compounds (VOCs), sulfur dioxide 
(SO2) and ammonia (NH3) must be addressed before 
a SIP is submitted if either the EPA or the state air agency makes a 
finding that on-road emissions of any of these precursors is a 
significant contributor to the area's PM2.5 problem. Neither 
the EPA nor Ecology has made such a finding with regard to any of these 
precursors. Therefore, consistent with the Transportation Conformity 
Rule, the State did not request that MVEBs be established for VOCs, 
SO2 or NH3.
    The EPA promulgated conformity regulations to implement the 1997 
PM2.5 NAAQS in July 2004 and May 2005 (69 FR 40004, July 1, 
2004 and 70 FR 24280, May 6, 2005). Subsequently, the EPA promulgated 
conformity regulations to implement the 2006 PM2.5 NAAQS in 
March 2010 (75 FR 14260, March 24, 2010). Those actions were not part 
of the final rules remanded to the EPA by the Court of Appeals for the 
District of Columbia in Natural Resources Defense Council v. EPA, 706 
F.3d 428 (D.C. Cir. 2013) (NRDC v. EPA). The Court remanded to the EPA 
the ``Final Clean Air Fine Particle Implementation Rule'' (72 FR 20586; 
April 25, 2007) and the ``Implementation of the New Source Review (NSR) 
Program for Particulate Matter Less than 2.5 Micrometers 
(PM2.5)'' final rule (73 FR 28321, May 16, 2008) 
(collectively, ``1997 PM2.5 Implementation Rule'' or 
``Implementation Rule'') because it concluded that the EPA must 
implement the PM2.5 NAAQS pursuant to the PM-specific 
provisions of subpart 4 of part D of title I of the CAA, rather than 
solely under the general provisions of subpart 1. This decision does 
not affect the EPA's proposed approval of the Tacoma-Pierce County 
MVEBs. The EPA's conformity rules implementing the PM2.5 
NAAQS were separate actions from the overall PM2.5 
implementation rule addressed by the Court and were not considered or 
disturbed by the decision. Therefore, the conformity regulations were 
not at issue in NRDC v. EPA.\1\
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    \1\ The 2004 rulemaking addressed most of the transportation 
conformity requirements that apply in PM2.5 nonattainment 
and maintenance areas. The 2005 conformity rule included provisions 
addressing treatment of PM2.5 precursors in MVEBs. See 40 
CFR 93.102(b)(2). The 2010 rulemaking addressed requirements for the 
2006 PM2.5 NAAQS. While none of these provisions were 
challenged in the NRDC v. EPA case, the EPA also notes that the 
court declined to address challenges to the EPA's presumptions 
regarding PM2.5 precursors in the PM2.5 
implementation rule. NRDC v. EPA, 706 F.3d 437.

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[[Page 42907]]

    The Transportation Conformity Rule's adequacy criteria at 40 CFR 
93.118(e)(4)(i)-(v) are not directly applicable because they apply to 
budgets that are part of a SIP submittal and the budgets that are under 
review in this action were submitted under the Transportation 
Conformity Rule provision that allows a state to request that budgets 
be established through the EPA's clean data determination process. 
However, these criteria establish a general framework for the review of 
any MVEBs before those budgets are made effective for use in 
transportation conformity determinations. For this reason, the EPA has 
reviewed the direct PM2.5 and NOX MVEBs submitted 
by the State by applying the general requirements of the criteria.
    Briefly, our review has determined:
     The request to establish these budgets was made by the 
appropriate State official (letter addressed to Dennis M. McLerran, 
Regional Administrator, EPA Region 10, from Ted Sturdevant, Director, 
Washington State Department of Ecology, November 28, 2012, included in 
the docket for this action).
     The request for establishment of MVEBs underwent full 
interagency consultation including consultation with representatives 
from the following agencies: EPA, Federal Highway Administration, 
Federal Transit Administration, Washington State Department of 
Transportation, Puget Sound Clean Air Agency, and Puget Sound Regional 
Council. All meetings of the interagency air quality consultation 
partners were open to the public, and the EPA raised no concerns with 
the MVEBs or calculation methodology as part of the consultation 
process.
     As shown below in Table 1, the budgets are clearly 
identified and precisely quantified.
     The budgets are consistent with attainment of the 2006 24-
hour PM2.5 NAAQS as they have been established for 2011, 
which was the most recent year of clean data available at the time the 
submittal was made in November 2012, and the area was attaining the for 
the 2009-2011 period.
     The budgets are based on results from the EPA's approved 
motor vehicle emission factor model, MOVES2010b. The modeling analyses 
are based on the most recent planning information for the area and 
include consideration of all relevant national regulations as well as 
all previously established local transportation control measures.

   Table 1--2011 Motor Vehicle Emission Budgets for the Tacoma-Pierce
         County 2006 Fine Particulate Matter Nonattainment Area
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                                                             Emissions
                        Pollutant                           (pounds per
                                                            winter day)
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PM2.5...................................................           3,002
NOX.....................................................          71,598
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III. Analysis of the Relevant Air Quality Data

    The EPA has reviewed the ambient air monitoring data for 
PM2.5, consistent with the requirements contained in 40 CFR 
part 50 for the Tacoma-Pierce County Area. All data considered have 
been recorded in the Air Quality System (AQS) database, certified as 
meeting quality assurance requirements, and determined to have met data 
completeness requirements. On the basis of this review, the EPA has 
concluded that the area continued to attain the 2006 24-hour 
PM2.5 NAAQS during the 2010-2012 monitoring period. The EPA 
regulations at 40 CFR 50.7 provide that ``The 24-hour primary and 
secondary PM2.5 standards are met when the 98th percentile 
24-hour concentration, as determined in accordance with appendix N of 
this part, is less than or equal to 35 [mu]g/m3.'' This calculation, 
made in accordance with 40 CFR part 50, appendix N for determining 
compliance with the 2006 24-hour PM2.5 NAAQS, is commonly 
called a design value. Because the 2010-2012 design value at the 
Federal Reference Method monitor (Tacoma South L Street) is 28 [mu]g/
m\3\, the EPA is proposing to determine that the area continues to have 
monitored attainment for this NAAQS. Additional information about 
design values for the Tacoma-Pierce County Area can be found at http://www.epa.gov/airtrends/values.html.

IV. Effect of Determination of Attainment for 2006 PM2.5 
Under Subpart 4

    This section of the EPA's proposal addresses the effects of a final 
determination of attainment for the Tacoma-Pierce County Area. For the 
1997 PM2.5 standard, 40 CFR 51.004 of the EPA's 
Implementation Rule sets forth the EPA's ``Clean Data Policy'' 
interpretation under subpart 1 and the effects of a determination of 
attainment with that standard (72 FR 20585, 20665, April 25, 2007). 
While the regulatory provisions of Sec.  51.1004(c) do not explicitly 
apply to the 2006 PM2.5 standard, the underlying statutory 
interpretation is the same for both standards. See 77 FR 76427, 
December 28, 2012 (proposed determination of attainment for the 2006 
PM2.5 standard for Milwaukee, Wisconsin).
    As noted above, the D.C. Circuit Court of Appeals recently remanded 
to the EPA the 1997 PM2.5 Implementation Rule. The Court 
directed the EPA to re-promulgate the 1997 PM2.5 
Implementation Rule consistent with the Court's opinion. NRDC v. EPA, 
706 F.3d 428. The Court found that the EPA erred in limiting 
implementation of the 1997 PM2.5 NAAQS to the general 
implementation provisions of subpart 1 of part D of title I of the CAA, 
rather than the particulate-matter-specific provisions of subpart 4 of 
part D of title I. In light of the remand of the Implementation Rule, 
in the immediate action, the EPA addresses the effect of a final 
determination of attainment for the Tacoma-Pierce County Area, assuming 
the area is classified as a moderate nonattainment area under subpart 
4.\2\ As set forth in more detail below, under the EPA's Clean Data 
Policy, a determination that the area has attained the standard 
suspends the State's obligation to submit attainment-related planning 
requirements of subpart 4 (and the applicable provisions of subpart 1) 
so long as the area continues to attain the standard. The suspended 
requirements include submission of an attainment demonstration (CAA 
section 189(a)(1)(B)), meeting quantitative milestones demonstrating 
reasonable further progress (RFP) toward attainment by the applicable 
attainment date (CAA section 189(c)), provisions for reasonably 
available control measures (RACM) (CAA section 189(a)(1)(C)), and 
contingency measures (CAA section 172(c)(9). These requirements are 
suspended because

[[Page 42908]]

their purpose is to help reach attainment, a goal which the Tacoma-
Pierce County Area has already achieved.
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    \2\ For the purposes of evaluating the effects of this proposed 
determination of attainment under subpart 4, we are considering the 
Tacoma-Pierce County Area to be a ``moderate'' PM2.5 
nonattainment area. Under section 188 of the CAA, all areas 
designated nonattainment areas under subpart 4 would initially be 
classified by operation of law as ``moderate'' nonattainment areas, 
and would remain moderate nonattainment areas unless and until the 
EPA reclassifies the area as a ``serious'' nonattainment area or the 
area fails to attain the standard by the attainment date and would 
be reclassified to ``serious'' by operation of law. Accordingly, the 
EPA believes that it is appropriate to limit the evaluation of the 
potential impact of subpart 4 requirements to those that would be 
applicable to moderate nonattainment areas. In addition, in 
reviewing Ecology's submittal the EPA also evaluates the applicable 
requirements of subpart 1.
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Background on Clean Data Policy
    Over the past two decades, the EPA has consistently applied its 
``Clean Data Policy'' to attainment-related provisions of subparts 1, 2 
and 4. The Clean Data Policy is the subject of several EPA memoranda 
and regulations. In addition, numerous individual rulemakings published 
in the Federal Register have applied the policy to a spectrum of NAAQS, 
including the ozone, PM10, PM2.5, CO and lead 
standards. The D.C. Circuit Court of Appeals has upheld the Clean Data 
Policy as embodied in the EPA's 8-hour ozone Implementation Rule, 40 
CFR 51.918.\3\ See NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009). Other 
federal Courts of Appeals that have considered and reviewed the EPA's 
Clean Data Policy interpretation have upheld it and the rulemakings 
applying the EPA's interpretation. 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, N. 04-73032 (9th Cir. June 28, 
2005) (memorandum opinion), Latino Issues Forum, v. EPA, Nos. 06-75831 
and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 2009.
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    \3\ ``EPA's Final Rule to implement the 8-hour Ozone National 
Ambient Air Quality Standard--Phase 2 (Phase 2 Final Rule)''. 70 FR 
71612, 71645-46, November 29, 2005.
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    As noted above, the EPA incorporated its Clean Data Policy 
interpretation in both its 1997 8-hour Ozone Implementation Rule and in 
its PM2.5 Implementation Rule in 40 CFR 51.1004(c) (72 FR 
20585, 20665; April 25, 2007). While the D.C. Circuit Court of Appeal, 
in its January 4, 2013 opinion, remanded to the EPA the 1997 
PM2.5 Implementation Rule, the Court's opinion did not 
address the merits of that regulation, nor cast doubt on EPA's existing 
interpretation of the statutory provisions.
    However, in light of the Court's opinion, we set forth here the 
EPA's Clean Data Policy interpretation under subpart 4, for the purpose 
of identifying the effects of a determination of attainment for the 
2006 PM2.5 standard for the Tacoma-Pierce County Area. The 
EPA has previously articulated its Clean Data Policy interpretation 
under subpart 4 in implementing the PM10 standard. See, 
e.g., 75 FR 27944, May 19, 2010 (determination of attainment of the PM-
10 standard in Coso Junction, California); 75 FR 6571, February 10, 
2010; 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 area); 72 FR 14422, March 28, 2007 (Miami, Arizona area); 75 
FR 27944, May 19, 2010 (Coso Junction, California area). In these 
determinations the EPA has established that, under subpart 4, an 
attainment determination suspends the obligations to submit an 
attainment demonstration, RACM, RFP contingency measures, and other 
measures related to attainment.

V. Application of the Clean Data Policy to Attainment-Related 
Provisions of Subpart 4

    In the EPA's proposed and final rulemakings determining that the 
San Joaquin Valley nonattainment area attained the PM10 
standard, the EPA set forth at length its rationale for applying our 
interpretation of the Clean Data Policy to PM10 under 
subpart 4. The Ninth Circuit upheld the EPA's final rulemaking, and 
specifically the EPA's application of the Clean Data Policy, in the 
context of subpart 4. Latino Issues Forum v. EPA, supra. Nos. 06-75831 
and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 2009. In 
rejecting the petitioner's challenge to the Clean Data Policy under 
subpart 4 for PM10, the Ninth Circuit stated, ``As the EPA 
explained, if an area is in compliance with PM10 standards, 
then further progress for the purpose of ensuring attainment is not 
necessary.''
    The general requirements of subpart 1 apply in conjunction with the 
more specific requirements of subpart 4 to the extent they are not 
superseded or subsumed by the subpart 4 requirements. Subpart 1 
contains general air quality planning requirements for areas designated 
as nonattainment. See CAA section 172(c). Subpart 4 itself contains 
specific planning and scheduling requirements for PM10 
nonattainment areas, and under the Court's January 4, 2013 opinion in 
NRDC v. EPA, these same statutory requirements also apply to 
PM2.5 nonattainment areas. The EPA has longstanding general 
guidance interpreting the 1990 amendments to the CAA, for use by states 
in meeting the statutory requirements for SIPs for nonattainment areas. 
See, ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clear Air Act Amendments of 1990,'' 
(57 FR 13498, April 16, 1992) (the ``General Preamble''). In the 
General Preamble, the EPA discussed the relationship of subpart 1 and 
subpart 4 SIP requirements, and pointed out that subpart 1 requirements 
were to an extent ``subsumed by, or integrally related to, the more 
specific PM10 requirements.'' 57 FR 13538, April 16, 1992. 
These subpart 1 requirements include, among other things, provisions 
for attainment demonstrations, RACM, RFP, emissions inventories, and 
contingency measures.
    The EPA has long interpreted the provisions of part D, subpart 1 of 
the Act (sections 171 and 172) as not requiring the submission of RFP 
for an area already attaining the NAAQS. For an area that is attaining, 
showing that the state will make RFP towards attainment ``will, 
therefore, have no meaning at that point.'' (57 FR at 13564). See 71 FR 
40952 and 71 FR 63642 (proposed and final determination of attainment 
for San Joaquin Valley); 75 FR 13710 and 75 FR 27944 (proposed and 
final determination of attainment for Coso Junction). CAA section 
189(c)(1) of subpart 4 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 [section 171(1)] of this 
title, toward attainment by the applicable date.

    With respect to RFP, CAA section 171(1) states that, for purposes 
of part D, 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 CAA section 
172(c)(2), the ozone-specific RFP requirements of CAA sections 182(b) 
and (c), or the specific RFP requirements for PM10 areas of 
part D, subpart 4, CAA section 189(c)(1), the stated purpose of RFP is 
to ensure attainment by the applicable attainment date.
    The General Preamble, states that with respect to CAA 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. If an area has in fact attained the standard, 
the stated purpose of the RFP

[[Page 42909]]

requirement will have already been fulfilled.\4\
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    \4\ 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. 7501(1). As discussed in the 
text of this rulemaking, the 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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    Similarly, the requirements of CAA section 189(c)(2) with respect 
to milestones no longer apply so long as an area has attained the 
standard. CAA 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. This is consistent with the 
position that the EPA took with respect to the general RFP requirement 
of CAA section 172(c)(2) in the April 16, 1992 General Preamble and 
also in the May 10, 1995 Seitz memorandum with respect to the 
requirements of CAA section 182(b) and (c). In the May 10, 1995 Seitz 
memorandum, titled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Meeting the Ozone National 
Ambient Air Quality Standard,'' the EPA also noted that CAA section 
182(g), the milestone requirement of subpart 2, which is analogous to 
provisions in CAA section 189(c), is suspended upon a determination 
that an area has attained. The 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.

1995 Seitz memorandum at 5.

    With respect to the attainment demonstration requirements of CAA 
section 172(c) and section 189(a)(1)(B), an analogous rationale leads 
to the same result. CAA 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, the 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 CAA section 172(c) requirements provided by the EPA in the General 
Preamble, the December 14, 2004 Page memorandum titled ``Clean Data 
Policy for the Fine Particulate National Ambient Air Quality 
Standards'', and the CAA section 182(b) and (c) requirements set forth 
in the Seitz memorandum. As the 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 13564.
    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 CAA sections 172(c)(9). We have interpreted the contingency measure 
requirements of CAA sections 172(c)(9) \5\ 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.'' 
57 FR 13564; Seitz memorandum, pp. 5-6.
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    \5\ And section 182(c)(9) for ozone.
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    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].

The contingency measure requirement is inextricably tied to the RFP and 
attainment demonstration requirements. Contingency measures are 
implemented if RFP 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 the 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.'' 57 FR 13564. Thus these requirements no longer apply 
when an area has attained the standard.
    Both CAA 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 (57 FR 13560) 
states that the EPA interprets CAA section 172(c)(1) so that RACM 
requirements are a ``component'' of an area's attainment demonstration. 
Thus, for the same reason the attainment demonstration no longer 
applies by its own terms, the requirement for RACM no longer applies. 
The EPA has consistently interpreted this provision to require only 
implementation of potential RACM measures that could contribute to 
reasonable further progress or to attainment. 57 FR 13498. Thus, where 
an area is already attaining the standard, no additional RACM measures 
are required.\6\ The EPA is interpreting CAA section 189(a)(1)(C) 
consistent with its interpretation of CAA section 172(c)(1).
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    \6\ The EPA's interpretation that the statute requires 
implementation only 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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    The suspension of the obligations to submit SIP revisions 
concerning these RFP, attainment demonstration, RACM, contingency 
measures and other related requirements exists only for as long as the 
area continues to monitor attainment of the standard. If the EPA 
determines, after notice-and-comment rulemaking, that the area has a 
monitored violation of the NAAQS, the basis for the requirements being 
suspended would no longer exist. Only if and when the EPA redesignates 
the area to attainment would the area be relieved of these submission 
obligations. Attainment determinations under the Clean Data Policy do 
not shield an area from obligations unrelated to attainment in the 
area.
    As set forth above, based on our proposed determination that the 
Tacoma-Pierce County Area has attained the 2006 24-hour 
PM2.5 NAAQS, we propose to find that the obligations to 
submit planning provisions to meet the requirements for an attainment 
demonstration, RFP, RACM, and

[[Page 42910]]

contingency measures continue to be suspended for so long as the area 
continues to monitor attainment of the 2006 24-hour PM2.5 
NAAQS. If, in the future, the EPA determines after notice-and-comment 
rulemaking that the area again violates the 2006 24-hour 
PM2.5 NAAQS, the basis for suspending the attainment 
demonstration, RFP, RACM, and contingency measure obligations would no 
longer exist.

VI. Proposed Action

    The EPA proposes to determine, based on the most recent three years 
of complete, quality-assured data meeting the requirements of 40 CFR 
part 50, appendix N, that the Tacoma-Pierce County Area is currently 
attaining the 2006 24-hour PM2.5 NAAQS. In conjunction with 
and based upon our proposed determination that Tacoma-Pierce County 
Area is attaining the standard, the EPA proposes to determine that the 
obligation to submit the following attainment-related planning 
requirements are not applicable for so long as the area continues to 
attain the PM2.5 standard: The part D, subpart 4 obligations 
to provide an attainment demonstration pursuant to CAA section 
189(a)(1)(B), the RACM provisions of CAA section 189(a)(1)(C), the RFP 
provisions of CAA section 189(c), and related attainment demonstration, 
RACM, RFP and contingency measure provisions requirements of subpart 1, 
CAA section 172. This proposed action, if finalized, would not 
constitute a redesignation to attainment under CAA section 107(d)(3). 
In conjunction with this proposed finding of attainment, the EPA is 
proposing to approve MVEBs calculated for the 2011 attainment year, the 
year that the Tacoma-Pierce County first attained the 2006 24-hour 
PM2.5 NAAQS. The EPA is proposing approval of MVEBs pursuant 
to 40 CFR 93.109(c)(5)(iii), as described in the Transportation 
Conformity Rule and the preamble of the Transportation Conformity 
Restructuring Amendments (77 FR 14982, March 14, 2012).

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does 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 (Public Law 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, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it will not impose substantial direct costs on tribal 
governments or preempt tribal law. The SIP is not approved to apply in 
Indian country located in the State, except for non-trust land within 
the exterior boundaries of the Puyallup Indian Reservation, also known 
as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement 
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and 
local agencies in Washington authority over activities on non-trust 
lands within the 1873 Survey Area and the EPA is therefore approving 
this SIP on such lands. Consistent with EPA policy, the EPA provided a 
consultation opportunity to the Puyallup Tribe in a letter dated 
December 11, 2012. The EPA did not receive a request for consultation.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: July 8, 2013.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2013-17267 Filed 7-17-13; 8:45 am]
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