[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Proposed Rules]
[Pages 13710-13715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6338]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2010-0172; FRL-9129-3]
Approval and Promulgation of Implementation Plans; Designation of
Areas for Air Quality Planning Purposes; State of California; PM-10;
Determination of Attainment for the Coso Junction Nonattainment Area;
Determination Regarding Applicability of Certain Clean Air Act
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to determine that the Coso Junction
nonattainment area (CJNA) in California has attained the 24-hour
National Ambient Air Quality Standard (NAAQS) for particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10). This proposed determination is based upon
monitored air quality data for the PM-10 NAAQS during the years 2006-
2008. In addition, data for 2009 contained in EPA's Air Quality System
(AQS) shows the CJNA continued to attain the PM-10 NAAQS through 2009,
and preliminary data for 2010 available to date show no exceedances of
the 24-hour NAAQS have been recorded at the CJNA monitoring site. EPA
is also proposing to determine that, because the CJNA has attained the
PM-10 NAAQS, the obligation to make submissions to meet certain Clean
Air Act (CAA or the Act) requirements is not applicable for as long as
the CJNA continues to attain the PM-10 NAAQS.
DATES: Written comments must be received on or before April 22, 2010.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0172, by one of the following methods:
(1) Federal eRulemaking portal: http://www.regulations.gov. Follow
the on-line instructions.
(2) E-mail: [email protected].
(3) Mail or deliver: Sarvy Mahdavi (AIR-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://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 that
[[Page 13711]]
you consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through the http://www.regulations.gov
or e-mail. http://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 e-mail directly to
EPA, your e-mail address will be automatically captured and included as
part of the public comment. 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.
Docket: The index to the docket for this action is available
electronically at http://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 in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.
FOR FURTHER INFORMATION CONTACT: Sarvy Mahdavi, EPA Region IX, (415)
972-3173, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' are used, we mean EPA.
Table of Contents
I. Background
A. The NAAQS for PM-10
B. Designation, Classification and Air Quality Planning for PM-
10 for the CJNA
C. Attainment Determinations
II. Proposed Attainment Determination for the CJNA
III. Applicability of Clean Air Act Planning Requirements
IV. EPA's Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. The NAAQS for PM-10
Particulate matter with an aerodynamic diameter of less than or
equal to 10 micrometers (PM-10) is the subject of this proposed action.
The NAAQS are limits for certain ambient air pollutants set by EPA to
protect public health and welfare. PM-10 is among the ambient air
pollutants for which EPA has established a health-based standard.
On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for
particulate matter with an indicator that includes only those particles
with an aerodynamic diameter less than or equal to a nominal 10
micrometers. The 24-hour primary PM-10 standard was set at 150
micrograms per cubic meter ([mu]g/m\3\) with no more than one expected
exceedance per year. The annual primary PM-10 standard was set at 50
[mu]g/m\3\ as an annual arithmetic mean. The secondary PM-10 standards,
promulgated to protect against adverse welfare effects, were identical
to the primary standards.
On October 17, 2006, EPA revised the primary PM-10 standards by
revoking the annual standard of 50 [mu]g/m\3\, but retained the 24-hour
standard of 150 [mu]g/m\3\. EPA also revised the secondary PM-10
standards to be the same as the primary standards. The revised PM-10
NAAQS became effective on December 18, 2006. See 71 FR 61144 and 40 CFR
50.6.
B. Designation, Classification and Air Quality Planning for PM-10 for
the CJNA
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the PM-10 NAAQS. On the date of
enactment of the 1990 Clean Air Act Amendments, PM-10 areas meeting the
qualifications of section 107(d)(4)(B) of the amended Act were
designated nonattainment by operation of law. See 56 FR 11101 (March
15, 1991). At that time, the CJNA was within the boundaries of the
Searles Valley planning area and EPA codified the boundaries of the
Searles Valley planning area at 40 CFR 81.305; however, EPA
subsequently changed the boundaries of the Searles Valley area by
dividing it into three separate nonattainment areas: The CJNA, Indian
Wells and Trona planning areas. 67 FR 50805 (August 6, 2002).
Once an area is designated nonattainment for PM-10, section 188 of
the CAA outlines the process for classifying the area and establishes
the area's initial attainment deadline. In accordance with section
188(a), at the time of designation, all PM-10 nonattainment areas, such
as the Searles Valley, were initially classified as moderate
nonattainment. When EPA changed the boundaries of the Searles Valley
area, the Agency also classified the newly created CJNA, Indian Wells
and Trona planning areas as moderate. In the same action, EPA
determined that the Trona planning area had attained the PM-10 NAAQS by
the statutory attainment deadline. 67 FR 50805. EPA redesignated the
Indian Wells planning area to attainment for the PM-10 NAAQS on
December 17, 2002. 67 FR 77196. This proposed action concerns only the
moderate CJNA.
C. Attainment Determinations
We generally determine whether an area's air quality meets the PM-
10 NAAQS for purposes of sections 179(c)(1) and 188(b)(2) based upon
data gathered at established state and local air monitoring stations
(SLAMS) in the nonattainment area and entered into the EPA Air Quality
System (AQS) database. Data from air monitors operated by state/local
agencies in compliance with EPA monitoring requirements must be
submitted to the EPA AQS database. Heads of monitoring agencies
annually certify that these data are accurate to the best of their
knowledge. Accordingly, EPA relies primarily on data in its AQS
database when determining the attainment status of areas. See 40 CFR
50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58,
appendices A, C, D and E. We will also consider air quality data from
other air monitoring stations in the nonattainment area regardless of
whether they have been entered into the EPA AQS database if the
stations meet the federal monitoring requirements for SLAMS. See 40 CFR
58.20 and August 22, 1997 Memorandum ``Agency Policy on the Use of
Special Purpose Monitoring Data,'' from John S. Seitz, Director, Office
of Air Quality Planning and Standards, to the Regional Air Directors.
All data are reviewed to determine the area's air quality status in
accordance with our guidance at 40 CFR part 50, appendix K.
Attainment of the 24-hour PM-10 standard is determined by
calculating the expected number of days in a year with PM-10
concentrations greater than 150 [mu]g/m\3\. The 24-hour standard is
attained when the expected number of days per year with levels above
150 [mu]g/m\3\ (averaged over a three-year period) is less than or
equal to one. Three consecutive years of air quality data are necessary
to show attainment of the 24-hour standard for PM-10. See 40 CFR part
50, appendix K. A complete year of air quality data, as referred to in
40 CFR part 50, appendix K, includes all four calendar quarters with
each quarter containing data from at least 75 percent of the scheduled
sampling days.
II. Proposed Attainment Determination for the CJNA
The CJNA has one SLAMS site operated by the Great Basin Unified Air
Pollution Control District (District or GBUAPCD). This monitoring site
is located in the Rose Valley of Coso Junction at the southern end of
Inyo County and currently has a continuous
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PM-10 analyzer which records PM-10 concentrations on an hourly
basis.\1\
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\1\ The Federal Reference Method (FRM) for PM-10 monitoring
sites is a manual sampler operated on a once every six day schedule.
These samplers draw ambient air through a quartz fiber filter which
is weighed before and after sampling in order to determine the mass
of PM-10 that is collected after the 24-hour run period. The GBUAPCD
was operating two FRMs at the CJNA monitoring site on a staggered
once every six day schedule that enabled the District to collect a
24-hour PM-10 sample every three days until June 30, 2006 when the
FRMs were terminated. See EPA AQS Database, Monitor Description
Report. Prior to terminating the FRMS, the GBUAPCD added a tapered
element oscillating microbalance (TEOM) analyzer on May 11, 2006.
Id. The TEOM analyzer, which records PM-10 levels continuously, is
not a FRM but has been designated a Federal equivalent method (FEM)
by EPA. All exceedances monitored from 2006 to date were recorded by
this TEOM.
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PM-10 data collected in the CJNA is reported by the GBUAPCD to the
EPA AQS database. The database contains three consecutive years of
complete, quality-assured and certified data for 2006-2008 for CJNA.
Table 1 summarizes the exceedances of the 24-hour PM-10 NAAQS of 150
[mu]g/m\3\ measured in the CJNA during the 2006-2008 period. This table
also summarizes data for 2009 that are contained in the AQS database
but not yet certified.
Table 1--CJNA 24-Hour PM-10 Exceedances, 2006-2009
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Number of Number of
Date of Maximum ([mu]g/ expected expected
Monitoring site exceedance m\3\) exceedances exceedances 2007-
2006-2008 2009
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Coso Junction........................... 12/8/06 295 1 1
6/5/07 217
12/6/07 283
*12/22/09 *168
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Source: EPA AQS Database.
* The 2009 data have been submitted to the AQS database but are not yet certified.
As noted above, the 24-hour PM-10 standard is attained when the
expected number of days per year with levels above 150 [micro]g/m\3\
(averaged over a three-year period) is less than or equal to one. As
can be seen from Table 1, there were three exceedances of the 24-hour
PM-10 NAAQS for both the 2006-2008 and 2007-2009 periods; therefore the
expected number of days per year with levels above 150 [micro]g/m\3\
(averaged over that three-year period) for both of these periods is
one.2 3 EPA is not aware of any exceedances to date during
the year 2010. Thus, based on quality-assured and certified data for
the period 2006-2008 and data in AQS for the period 2007-2009 that show
the area continues to attain, we propose to find that the CJNA has
attained the 24-hour PM-10 NAAQS. Before EPA finalizes its rulemaking
on a determination of attainment for CJNA, the Agency will consider the
most current data available at that time.
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\2\ Based on data from the EPA AQS database.
\3\ We note that the GBUAPCD has reported the 4th quarter data
for 2009 before the deadline. Under 40 CFR 58.16(b), quarterly data
are not required to be reported in the AQS database until 90 days
after the quarter; thus the data for the 4th quarter of 2009 must be
reported by no later than March 31, 2010. The AQS data for the year
2009 must be certified by May 1, 2010. See 40 CFR 58.15.
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III. Applicability of Clean Air Act Planning Requirements
The air quality planning requirements for moderate PM-10
nonattainment areas, such as the CJNA, are set out in part D, subparts
1 and 4 of title I of the Act. EPA has issued guidance in a General
Preamble \4\ describing how we will review state implementation plans
(SIPs) and SIP revisions submitted under title I of the Act, including
those containing moderate PM-10 nonattainment area SIP provisions.
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\4\ ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990,'' 57 FR 13498 (April 16, 1992), as
supplemented at 57 FR 18070 (April 28, 1992).
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In nonattainment areas where monitored data demonstrate that the
NAAQS have already been achieved, EPA has determined that certain
requirements of part D, subparts 1 and 2 of the Act do not apply.
Therefore, we do not require certain submissions for an area that has
attained the NAAQS. These include reasonable further progress (RFP)
requirements, attainment demonstrations, reasonably available control
measures (RACM), and contingency measures, because these provisions
have the purpose of helping achieve attainment of the NAAQS.
This interpretation of the CAA is known as the Clean Data Policy
and is the subject of two EPA memoranda. EPA also finalized the
statutory interpretation set forth in the policy in its final rule, 40
CFR 51.918, as part of its ``Final Rule to Implement the 8-hour Ozone
National Ambient Air Quality Standard--Phase 2'' (Phase 2 Final Rule).
See discussion in the preamble to the rule at 70 FR 71612, 71645-46
(November 29, 2005). The D.C. Circuit upheld this Clean Data regulation
as a valid interpretation of the Clean Air Act NRDC v. EPA, 571 F. 3d
1245 (D.C. Cir. 2009). EPA also finalized its interpretation in a
regulation that was part of its Implementation Rulemaking for the PM2.5
NAAQS. 40 CFR 51.1004(c). Thus, EPA has codified the policy when it
established final rules governing implementation of new or revised
NAAQS for the pollutants. 70 FR 71612, 71644-46 (November 29, 2005)
(ozone); 72 FR 20585, 20665 (April 25, 2007) (PM-2.5). Otherwise, it
applies the policy in individual rulemakings related to specific
nonattainment areas. See, e.g., 75 FR 6571 (February 10, 2010). EPA
believes that the legal bases set forth in detail in our Phase 2 Final
rule, our May 10, 1995 memorandum from John S. Seitz, entitled
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,'' our PM-2.5 implementation rule, and our
December 14, 2004 memorandum from Stephen D. Page entitled ``Clean Data
Policy for the Fine Particle National Ambient Air Quality Standards'',
are equally pertinent to the interpretation of provisions of subparts 1
and 4 applicable to PM-10. Our interpretation that an area that is
attaining the standards is relieved of obligations to demonstrate RFP
and to provide an attainment demonstration, RACM and contingency
measures pursuant to part D of the CAA, pertains whether the standard
is PM-10, ozone or PM-2.5.
In our recent proposed and final rulemakings determining that the
San Joaquin Valley nonattainment area attained the PM-10 standard, EPA
set forth at length our rationale for applying the Clean Data Policy to
PM-10. The
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Ninth Circuit subsequently upheld this rulemaking, and specifically
EPA's Clean Data Policy in the context of the PM-10 standard. Latino
Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir.) Memorandum
Opinion, March 2, 2009. In rejecting petitioner's challenge to the
Clean Data Policy for PM-10, the Court stated:
As the EPA rationally explained, if an area is in compliance
with PM-10 standards, then further progress for the purpose of
ensuring attainment is not necessary.
The reasons for relieving an area that has attained the relevant
standard of certain part D, subparts 1 and 2 obligations, applies
equally to part D, subpart 4, which contains specific attainment
demonstration and RFP provisions for PM-10 nonattainment areas. As we
have explained in the Phase 2 Final Rule and our ozone and PM-2.5 clean
data memoranda, EPA believes that it is reasonable to interpret
provisions regarding RFP and attainment demonstrations, along with
related requirements, so as not to require SIP submissions if an area
subject to those requirements is already attaining the NAAQS (i.e.
attainment of the NAAQS is demonstrated with three consecutive years of
complete, quality-assured air quality monitoring data). Every U.S.
Circuit Court of Appeals that has considered the Clean Data Policy has
upheld EPA rulemakings applying its interpretation, for both ozone and
PM-10. 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, supra.
It has been EPA's longstanding interpretation that the general
provisions of part D, subpart 1 of the Act (sections 171 and 172) do
not require the submission of SIP revisions concerning RFP for areas
already attaining the ozone NAAQS. In the General Preamble, we stated:
[R]equirements for RFP will not apply in evaluating a request
for redesignation to attainment since, at a minimum, the air quality
data for the area must show that the area has already attained.
Showing that the State will make RFP towards attainment will,
therefore, have no meaning at that point.
57 FR at 13564. EPA believes the same reasoning applies to the PM-10
provision of part D, subpart 4.
With respect to RFP, section 171(1) states that, for purposes of
part D of title I, RFP ``means such annual incremental reductions in
emissions of the relevant air pollutant as are required by this part or
may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable NAAQS by the applicable date.''
Thus, whether dealing with the general RFP requirement of section
172(c)(2), the ozone-specific RFP requirements of sections 182(b) and
(c), or the specific RFP requirements for PM-10 areas of part D,
subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure
attainment by the applicable attainment date. Section 189(c)(1) states
that:
Plan revisions demonstrating attainment submitted to the
Administrator for approval under this subpart shall contain
quantitative milestones which are to be achieved every 3 years until
the area is redesignated attainment and which demonstrate reasonable
further progress, as defined in section 7501(1) of this title,
toward attainment by the applicable date.
Although this section states that revisions shall contain
milestones which are to be achieved until the area is redesignated to
attainment, such milestones are designed to show reasonable further
progress ``toward attainment by the applicable attainment date,'' as
defined by section 171. Thus, it is clear that once the area has
attained the standard, no further milestones are necessary or
meaningful. This interpretation is supported by language in section
189(c)(3), which mandates that a state that fails to achieve a
milestone must submit a plan that assures that the state will achieve
the next milestone or attain the NAAQS if there is no next milestone.
Section 189(c)(3) assumes that the requirement to submit and achieve
milestones does not continue after attainment of the NAAQS.
In the General Preamble, we noted with respect to section 189(c)
that ``the purpose of the milestone requirement is to `provide for
emission reductions adequate to achieve the standards by the applicable
attainment date' (H.R. Rep. No. 490 101st Cong., 2d Sess. 267
(1990)).'' 57 FR 13539 (April 16, 1992). If an area has in fact
attained the standard, the stated purpose of the RFP requirement will
have already been fulfilled.\5\ EPA took this position with respect to
the general RFP requirement of section 172(c)(2) in the April 16, 1992
General Preamble and also in the May 10, 1995 memorandum with respect
to the requirements of sections 182(b) and (c). We are extending that
interpretation to the specific provisions of part D, subpart 4. In the
General Preamble, we stated, in the context of a discussion of the
requirements applicable to the evaluation of requests to redesignate
nonattainment areas to attainment, that the ``requirements for RFP will
not apply in evaluating a request for redesignation to attainment
since, at a minimum, the air quality data for the area must show that
the area has already attained. Showing that the State will make RFP
towards attainment will, therefore, have no meaning at that point.''
(57 FR 13564). See also our September 4, 1992 memorandum from John
Calcagni, entitled ``Procedures for Processing Requests to Redesignate
Areas to Attainment'' (Calcagni memo), p. 6.
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\5\ Thus, we believe that it is a distinction without a
difference that section 189(c)(1) speaks of the RFP requirement as
one to be achieved until an area is ``redesignated attainment,'' as
opposed to section 172(c)(2), which is silent on the period to which
the requirement pertains, or the ozone nonattainment area RFP
requirements in sections 182(b)(1) or 182 (c)(2), which refer to the
RFP requirements as applying until the ``attainment date,'' since
section 189(c)(1) defines RFP by reference to section 171(1) of the
Act. Reference to section 171(1) clarifies that, as with the general
RFP requirements in section 172(c)(2) and the ozone-specific
requirements of section 182(b)(1) and 182(c)(2), the PM-specific
requirements may only be required ``for the purpose of ensuring
attainment of the applicable national ambient air quality standard
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in
the text of this rulemaking, EPA interprets the RFP requirements, in
light of the definition of RFP in section 171(1), and incorporated
in section 189(c)(1), to be a requirement that no longer applies
once the standard has been attained.
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Similarly, the requirements of section 189(c)(2) with respect to
milestones no longer apply so long as an area has attained the
standard. Section 189(c)(2) provides in relevant part that:
Not later than 90 days after the date on which a milestone
applicable to the area occurs, each State in which all or part of
such area is located shall submit to the Administrator a
demonstration * * * that the milestone has been met.
Where the area has attained the standard and there are no further
milestones, there is no further requirement to make a submission
showing that such milestones have been met. As noted above, this is
consistent with the position that EPA took with respect to the general
RFP requirement of section 172(c)(2) in the April 16, 1992 General
Preamble and also in the May 10, 1995 Seitz memorandum with respect to
the requirements of section 182(b) and (c). In the May 10, 1995 Seitz
memorandum, EPA also noted that section 182(g), the milestone
requirement of Subpart 2, which is analogous to provisions in section
189(c), is suspended upon a determination that an area has attained.
The 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
[[Page 13714]]
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
section 189(a)(1)(B), an analogous rationale leads to the same result.
Section 189(a)(1)(B) requires that the plan provide for ``a
demonstration (including air quality modeling) that the [SIP] will
provide for attainment by the applicable attainment date * * *.'' As
with the RFP requirements, if an area is already monitoring attainment
of the standard, EPA believes there is no need for an area to make a
further submission containing additional measures to achieve
attainment. This is also consistent with the interpretation of the
section 172(c) requirements provided by EPA in the General Preamble,
the Page memo, and the section 182(b) and (c) requirements set forth in
the Seitz memo. As EPA stated in the General Preamble, no other
measures to provide for attainment would be needed by areas seeking
redesignation to attainment since ``attainment will have been
reached.'' (57 FR at 13564).
Other SIP submission requirements are linked with these attainment
demonstration and RFP requirements, and similar reasoning applies to
them. These requirements include the contingency measure requirements
of sections 172(c)(9) and 182(c)(9). We have interpreted the
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as
no longer applying when an area has attained the standard because those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564); Seitz memo, pp. 5-6.
Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to
assure that reasonably available control measures'' (i.e., RACM) are
implemented in a nonattainment area. The General Preamble, 57 FR at
13560 (April 16, 1992), states that EPA interprets 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. EPA has consistently interpreted this provision to require
only implementation of potential RACM measures that could contribute to
reasonable further progress or to attainment. General Preamble, 57 FR
at 13498. Thus, where an area is already attaining the standard, no
additional RACM measures are required.\6\ EPA is interpreting section
189(a)(1)(C) consistent with its interpretation of section 172(c)(1).
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\6\ The EPA's interpretation that the statute only requires
implementation of RACM measures that would advance attainment was
upheld by the United States Court of Appeals for the Fifth Circuit
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002), and by
the United States Court of Appeals for the D.C. Circuit (Sierra Club
v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
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Here, as in both our Phase 2 Final Rule and ozone and PM-2.5 clean
data memoranda, we emphasize that the suspension of a requirement to
submit SIP revisions concerning these RFP, attainment demonstration,
RACM, and other related requirements exists only for as long as a
nonattainment area continues to monitor attainment of the standard. If
such an area experiences a violation of the NAAQS, the basis for the
requirements being suspended would no longer exist. Therefore, the area
would again be subject to a requirement to submit the pertinent SIP
revision or revisions and would need to address those requirements.
Thus, a determination that an area need not submit one of the SIP
submittals amounts to no more than a suspension of the requirements for
so long as the area continues to attain the standard. However, once EPA
ultimately redesignates the area to attainment, the area will be
entirely relieved of these requirements to the extent the maintenance
plan for the area does not rely on them.
Should EPA at some future time determine that an area that has
attained the standard, but which has not yet been redesignated as
attainment for a NAAQS, has violated the relevant standard, the area
would again be required to submit the pertinent SIP requirements for
the area. Attainment determinations under the policy do not shield an
area from other required actions, such as provisions to address
pollution transport.
As set forth above, EPA finds that because the CJNA is attaining
the PM-10 NAAQS, the requirements to submit an attainment
demonstration, reasonable further progress, reasonably available
control measures and contingency measures no longer apply for so long
as the area continues to monitor attainment of the PM-10 NAAQS.\7\ If
in the future EPA determines, after notice and comment rulemaking, that
the CJNA violates the PM-10 NAAQS, the basis for the attainment
demonstration, RFP, RACM and contingency measure requirements being
suspended would no longer exist. In that event, we would notify the
State that we have determined that the area is no longer attaining the
PM-10 standard and provide notice to the public in the Federal
Register.
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\7\ We note that our application of the Clean Data Policy to the
CJNA is consistent with actions we have taken for other PM-10
nonattainment areas that we also determined were attaining the
standard. See 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) and 72 FR 14422 (March 28, 2007)
(Miami, Arizona area).
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IV. EPA's Proposed Action
Based on the most recent three years of complete, quality-assured
data meeting the requirements of 40 CFR part 50, appendix K, we propose
to determine that the CJNA has attained the 24-hour PM-10 NAAQS.
Preliminary data indicate that the area continues to attain the
standard. This proposed action, if finalized, would not constitute a
redesignation to attainment under CAA section 107(d)(3) because we
would not yet have approved a maintenance plan as required under
section 175(A) of the CAA or determined that the area has met the other
CAA requirements for redesignation. The classification and designation
status in 40 CFR part 81 would remain moderate nonattainment for this
area until such time as California meets the CAA requirements for
redesignation of the CJNA to attainment.
EPA also finds that, because the CJNA is attaining the NAAQS, the
obligation to submit the following CAA requirements is not applicable
for so long as the CJNA continues to attain the PM-10 standard: The
part D, subpart 4 obligations to provide an attainment demonstration
pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C),
the RFP provisions established by section 189(c)(1), and the attainment
demonstration, RACM, RFP and contingency measure provisions of part D,
subpart 1 contained in section 172 of the Act.
V. Statutory and Executive Order Reviews
This action proposes to make a determination of attainment based on
air quality, and would, if finalized; result in the suspension of
certain Federal requirements, and 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
[[Page 13715]]
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 the requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, 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 the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects
40 CFR Parts 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Reporting and recordkeeping
requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: March 15, 2010.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2010-6338 Filed 3-22-10; 8:45 am]
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