80 FR 19935 - Determinations of Attainment of the 1997 Annual Fine Particulate Matter Standards for the Libby, Montana Nonattainment Area
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 80, Issue 71 (April 14, 2015)
Federal Register Volume 80, Issue 71 (April 14, 2015)
| Page Range | 19935-19941 | |
| FR Document | 2015-08405 |
[Federal Register Volume 80, Number 71 (Tuesday, April 14, 2015)] [Proposed Rules] [Pages 19935-19941] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-08405] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2014-0254; FRL-9926-00-Region 8] Determinations of Attainment of the 1997 Annual Fine Particulate Matter Standards for the Libby, Montana Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to make two separate and independent determinations regarding the Libby, Montana nonattainment area for the 1997 annual fine particulate matter (PM2.5 ) National Ambient Air Quality Standard (NAAQS). First, EPA is proposing to determine that the Libby nonattainment area attained the 1997 annual PM2.5 NAAQS by the applicable attainment date, April 2010. This proposed determination is based on quality-assured and certified ambient air quality data for the 2007- 2009 monitoring period. Second, EPA is proposing that the Libby nonattainment area has continued to attain the 1997 annual PM2.5 NAAQS, based on quality-assured and certified ambient air quality data for the 2012-2014 monitoring period. Based on the second determination, EPA also proposes to suspend certain nonattainment area planning obligations. These determinations do not constitute a redesignation to attainment. The Libby nonattainment area will remain designated nonattainment for the 1997 annual PM2.5 NAAQS until such time as EPA determines that the Libby nonattainment area meets the Clean Air Act (CAA) requirements for redesignation to attainment, including an approved maintenance plan. These proposed actions are being taken under the CAA. DATES: Written comments must be received on or before May 14, 2015. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08- OAR-2014-0254, by one of the following methods:http://www.regulations.gov. Follow the on-line instructions for submitting comments. Email: ostigaard.crystal@epa.gov. Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). Mail: Carl Daly, Director, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Hand Delivery: Carl Daly, Director, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-R08-OAR- 2014-0254. EPA's policy is that all comments received 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 information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://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 http://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 [[Page 19936]] 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. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, 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, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Crystal Ostigaard, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6602, ostigaard.crystal@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information 1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments. When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). b. Follow directions--The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. Background A. The PM2.5 NAAQS On July 18, 1997 (62 FR 38652), EPA established a health-based PM 2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) based on a 3-year average of annual mean PM2.5 concentrations (``the 1997 annual PM2.5 NAAQS'' or ``the 1997 annual standard''). At that time, EPA also established a 24-hour standard of 65 [mu]g/m\3\ (the ``1997 24-hour standard''). See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM2.5 NAAQS at 15 [mu]g/m\3\ based on a 3-year average of annual mean PM2.5 concentrations, and promulgated a 24-hour standard of 35 [mu]g/m\3\ based on a 3-year average of the 98th percentile of 24-hour concentrations (the ``2006 24-hour standard''). On January 15, 2013 (78 FR 3086), EPA lowered the primary annual PM2.5 NAAQS from 15.0 to 12.0 [mu]g/m\3\. EPA retained the 2006 24-hour PM2.5 NAAQS, and the 1997 secondary annual PM2.5 NAAQS. EPA also retained the existing standards for coarse particulate pollution (PM10 ). This rulemaking action proposes determinations solely for the 1997 annual PM2.5 standard. It does not address the 1997 or 2006 24-hour PM2.5 standards or the 2012 PM2.5 annual NAAQS. B. The Libby Nonattainment Area On January 5, 2005 (70 FR 944), EPA promulgated our air quality designations for the 1997 PM2.5 NAAQS based upon air quality monitoring data for calendar years 2001-2003. These designations became effective on April 5, 2005. The Libby nonattainment area is comprised of the City of Libby within Lincoln County. See 40 CFR 81.327. In response, the State of Montana submitted State Implementation Plan (SIP) revisions on June 26, 2006 and March 26, 2008 intended to meet planning requirements for the Libby nonattainment area. In particular, based on section 172(a)(2)(A) of the CAA and the April 5, 2005 effective date of designation as nonattainment, the attainment plan identified April 2010 as the applicable attainment date.\1\ The state's attainment plan accordingly showed attainment by that date. --------------------------------------------------------------------------- \1\ Under CAA section 172(a)(2)(A), the attainment date for a nonattainment area is ``the date by which attainment can be achieved as expeditiously as practicable, but no later than five years from the date such area was designated nonattainment,'' except that EPA may extend the attainment date as appropriate ``for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures.'' --------------------------------------------------------------------------- On September 14, 2010 (75 FR 55713), EPA proposed to approve Montana's attainment plan. EPA proposed this action in accordance with the ``Final Clean Air Fine Particle Implementation Rule,'' 72 FR 20586 (Apr. 25, 2007), which EPA issued to assist states in their development of SIPs to meet the Act's attainment planning requirements for the 1997 PM2.5 NAAQS. We received no adverse comments on our proposal, which we finalized on March 17, 2011 (76 FR 14584). III. Summary of Proposed Action EPA is proposing two separate and independent determinations regarding the Libby nonattainment area. First, pursuant to section 188(b)(2) of the CAA, EPA is proposing to make a determination that the Libby nonattainment area attained the 1997 annual PM2.5 NAAQS by the area's attainment date, April 2010. This proposed determination is based upon quality-assured and certified ambient air monitoring data for the 2007-2009 monitoring period that shows the area has monitored attainment of the 1997 PM2.5 annual NAAQS for that period. EPA is also proposing to make a determination that the Libby nonattainment area continues to attain the 1997 annual PM2.5 NAAQS. This proposed ``clean data'' determination is based upon quality-assured and certified ambient air monitoring data that shows the area has monitored attainment of the 1997 PM2.5 NAAQS for the 2012-2014 monitoring period. If EPA finalizes this determination, any remaining requirements for the Libby [[Page 19937]] nonattainment area under subpart 4, part D, title I of the CAA regarding an attainment demonstration, reasonably available control measures (RACM), reasonable further progress (RFP), and contingency measures related to attainment of the 1997 annual PM2.5 NAAQS shall be suspended for so long as the area continues to attain the NAAQS.\2\ --------------------------------------------------------------------------- \2\ Even if these requirements are suspended, EPA is not precluded from acting upon these elements at any time if submitted by the State to EPA for review and approval. --------------------------------------------------------------------------- IV. EPA's Analysis of the Relevant Air Quality Data The Montana Department of Environmental Quality (MDEQ) submitted quality-assured air quality monitoring data into the EPA Air Quality System (AQS) database for 2007-2009 and subsequently certified that data. EPA's evaluation of this data shows that the Libby nonattainment area had attained the 1997 annual PM2.5 NAAQS by April 2010. Additionally, the data set from the three most recent years, 2012-2014 (which is also quality-assured and certified), shows that the Libby nonattainment area continues to attain the 1997 annual PM2.5 NAAQS. The data is summarized in Tables 1 and 2 below. Additional information on the air quality data found in AQS for the Libby nonattainment area can be found in the docket for this action. The criteria for determining if an area is attaining the 1997 annual PM2.5 NAAQS are set out in 40 CFR 50.13 and 40 CFR part 50, Appendix N. The 1997 annual PM2.5 primary and secondary standards are met when the annual design value is less than or equal to 15.0 [mu]g/m\3\. Three years of valid annual means are required to produce a valid annual standard design value. A year meets data completeness requirements when at least 75 percent of the scheduled sampling days for each quarter have valid data. The use of less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence, and nearby concentrations in determining whether to use such data. This proposed determination of attainment for the Libby nonattainment area is based on EPA's evaluation of quality-controlled, quality-assured, and certified annual PM2.5 air quality data for the 2007-2009 and 2012-2014 monitoring periods. There is one PM2.5 monitor in the Libby nonattainment area (AQS Site ID 30-053-0018). This monitor had complete data for all quarters in the years 2007 through 2014, except for one calendar quarter in 2011.\3\ The monitoring data and calculated design values for the Libby nonattainment area are summarized in Table 1 for the 2007-2009 monitoring period and in Table 2 for the 2012-2014 monitoring period. --------------------------------------------------------------------------- \3\ The Libby nonattainment area monitor had less than complete data capture in 2011, due to quality assurance issues. Table 1--2007-2009 Libby Nonattainment Area Annual PM2.5 Monitoring Data and Completeness -------------------------------------------------------------------------------------------------------------------------------------------------------- Annual mean 2007-2009 Complete quarters Location Site ID ------------------------------------ Design Value ------------------------------------ Complete data? 2007 2008 2009 ([micro]g/m\3\) 2007 2008 2009 -------------------------------------------------------------------------------------------------------------------------------------------------------- City of Libby................ 30-053-0018 13.0 12.9 10.7 12.2 4 4 4 Yes. -------------------------------------------------------------------------------------------------------------------------------------------------------- Table 2--2012-2014 Libby Nonattainment Area Annual PM2.5 Monitoring Data and Completeness -------------------------------------------------------------------------------------------------------------------------------------------------------- Annual mean 2007-2009 Complete quarters Location Site ID ------------------------------------ Design Value ------------------------------------ Complete data? 2012 2013 2014 ([micro]g/m\3\) 2012 2013 2014 -------------------------------------------------------------------------------------------------------------------------------------------------------- City of Libby................ 30-053-0018 11.3 10.9 9.3 10.5 4 4 4 Yes. -------------------------------------------------------------------------------------------------------------------------------------------------------- Consistent with the requirements contained in 40 CFR part 50, EPA has reviewed the PM2.5 ambient air monitoring data for the monitoring periods 2007-2009 and 2012-2014 for the Libby nonattainment area, as recorded in the AQS database. On the basis of that review, EPA proposes to determine that the Libby nonattainment area (1) attained the 1997 annual PM2.5 NAAQS by the attainment date, based on data for the 2007-2009 monitoring period, and (2) continued to attain during the 2012-2014 monitoring period. V. Effect of Proposed Determinations of Attainment for 1997 PM2.5 NAAQS Under Subpart 4 of Part D of Title I of the CAA (Subpart 4) This section and section VI of EPA's proposal addresses the effects of a final clean data determination and a final determination of attainment by the attainment date for the Libby nonattainment area. For the 1997 annual PM2.5 standard, EPA's ``Final Clean Air Fine Particle Implementation Rule,'' 72 FR 20586 (Apr. 25, 2007), embodied EPA's ``Clean Data Policy'' interpretation under subpart 1 of Part D of Title I of the CAA (subpart 1). As promulgated by the rule, the provisions of 40 CFR 51.004 set forth the effects of a determination of attainment for the 1997 PM2.5 standard. On January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), the D.C. Circuit remanded to EPA the ``Final Clean Air Fine Particle Implementation Rule'' 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''). The Court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant solely to the general implementation provisions of subpart 1, part D, title I of the CAA, rather than the particulate-matter-specific provisions of subpart 4. The Court remanded EPA's Implementation Rule for further proceedings consistent with the Court's decision. In light of the Court's decision and its remand of the Implementation Rule, EPA finalized the ``Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particulate (PM2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS'' on June 2, 2014 (79 FR 31566), (``PM2.5 Classification and Deadline Rule''). This rulemaking classified the Libby nonattainment area as ``Moderate'' for the 1997 annual PM2.5 NAAQS. Under [[Page 19938]] section 188 of the CAA, all areas designated nonattainment under subpart 4 would initially be classified by operation of law as ``Moderate'' nonattainment areas, and would remain Moderate nonattainment areas unless and until EPA reclassifies the area as a ``Serious'' nonattainment area or redesignates the area to attainment. Accordingly, 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. Sections 189(a) and (c) of subpart 4 apply to Moderate nonattainment areas and include an attainment demonstration (section 189(a)(1)(B)); provisions for RACM (section 189(a)(1)(C)); and quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)). As set forth in more detail below, under EPA's Clean Data Policy interpretation, 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) for so long as the area continues to attain the standard. These include requirements to submit an attainment demonstration, RFP, RACM, and contingency measures, because the purpose of these provisions is to help reach attainment, a goal which has already been achieved. A. Background on Clean Data Policy Over the past two decades, EPA has consistently applied its Clean Data Policy interpretation 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 interpretation to a spectrum of NAAQS, including the 1-hour and 1997 ozone, PM10 , PM2.5 , carbon monoxide (CO) and lead (Pb) standards. The D.C. Circuit has upheld the Clean Data Policy interpretation as embodied in EPA's 1997 8-Hour Ozone Implementation Rule, 40 CFR 51.918.\4\ NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009). Other U.S. Circuit Courts of Appeals that have considered and reviewed EPA's Clean Data Policy interpretation have upheld it and the rulemakings applying 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, No. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion); Latino Issues Forum, v. EPA, Nos. 06-75831 and 08-71238 (9th Cir. Mar. 2, 2009) (memorandum opinion). --------------------------------------------------------------------------- \4\ ``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). --------------------------------------------------------------------------- As noted above, EPA incorporated its Clean Data Policy interpretation in both its 8-Hour Ozone Implementation Rule and in its PM2.5 Implementation Rule. While the D.C. Circuit, in its January 4, 2013 decision, remanded the 1997 PM2.5 Implementation Rule, the Court did not address the merits of that portion of the rule, nor cast doubt on EPA's existing interpretation of the statutory provisions. However, in light of the Court's decision, EPA's Clean Data Policy interpretation under subpart 4 is set forth here, for the purpose of identifying the effects of a determination of attainment for the 1997 annual PM2.5 standard for the Libby nonattainment area. EPA has previously articulated its Clean Data interpretation under subpart 4 in implementing the PM10 standard. See, e.g., 75 FR 27944 (May 19, 2010) (determination of attainment of the PM10 standard in Coso Junction, California); 71 FR 6352 (Feb. 8, 2006) (Ajo, Arizona Area); 71 FR 13021 (Mar. 14, 2006) (Yuma, Arizona Area); 71 FR 40023 (July 14, 2006) (Weirton, West Virginia Area); 71 FR 44920 (Aug. 8, 2006) (Rillito, Arizona Area); 71 FR 63642 (Oct. 30, 2006) (San Joaquin Valley, California Area); 72 FR 14422 (Mar. 28, 2007) (Miami, Arizona Area); 75 FR 27944 (May 19, 2010) (Coso Junction, California Area). Thus, EPA has repeatedly 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. B. Application of the Clean Data Policy to Attainment-Related Provisions of Subpart 4 In EPA's proposed and final rulemaking actions determining that the San Joaquin Valley nonattainment area attained the PM10 standard, EPA set forth at length its rationale for applying the Clean Data Policy to PM10 under subpart 4. The Ninth Circuit upheld EPA's final rulemaking, and specifically EPA's Clean Data Policy, in the context of subpart 4. Latino Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir. Mar. 2, 2009) (memorandum opinion). 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 section 172(c). Subpart 4, itself, contains specific planning and scheduling requirements for PM10 nonattainment areas, and under the Court's January 4, 2013 decision in NRDC v. EPA, these same statutory requirements also apply for PM2.5 nonattainment areas. EPA has longstanding general guidance that interprets the 1990 amendments to the CAA, making recommendations to states for meeting the statutory requirements for SIPs for nonattainment areas. See, ``State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 FR 13498 (Apr. 16, 1992) (the ``General Preamble''). In the General Preamble, 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.'' Id. at 13538. These subpart 1 requirements include, among other things, provisions for attainment demonstrations, RACM, RFP, emissions inventories, and contingency measures. EPA has long interpreted the provisions of subpart 1 (section 171 and 172) as not requiring the submission of RFP for an area already attaining the ozone NAAQS. For an area that is attaining, showing that the state will make RFP towards attainment ``will, therefore, have no meaning at that point.'' General Preamble, 57 FR 13564. See also 71 FR 40952 (July 19, 2006) and 71 FR 63642 (October 30, 2006) (proposed and final determination of attainment for San Joaquin Valley); 75 FR 13710 (March 23, 2010) and 75 FR 27944 (May 19, 2010) (proposed and final determination of attainment for Coso Junction). 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, section 171(1) states that, for purposes of part D, RFP [[Page 19939]] ``means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.'' Thus, whether dealing with the general RFP requirement of section 172(c)(2), the ozone- specific RFP requirements of sections 182(b) and (c), or the specific RFP requirements for PM10 areas of section 189(c)(1), the stated purpose of RFP is to ensure attainment by the applicable attainment date. Although section 189(c) states that revisions shall contain milestones which are to be achieved until the area is redesignated to attainment, such milestones are designed to show RFP ``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 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, EPA 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. If an area has in fact attained the standard, the stated purpose of the RFP requirement will have already been fulfilled.\5\ --------------------------------------------------------------------------- \5\ Thus, EPA believes 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 CAA. The 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, 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. --------------------------------------------------------------------------- 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. 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 EPA memorandum from John S. Seitz, ``Reasonable Further Progress, Attainment Demonstrations, and Related Requirements for the Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,'' (the ``1995 Seitz memorandum'') with respect to the requirements of section 182(b) and (c). In the 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 182(c)(2), if an area is not subject to the requirement to submit the underlying attainment demonstration or RFP plan, it need not submit the related SIP submission either. See, 1995 Seitz memorandum at page 5. With respect to the attainment demonstration requirements of section 172(c) and 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, and the section 182(b) and (c) requirements set forth in the 1995 Seitz memorandum. As EPA stated in the General Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since ``attainment will have been reached.'' 57 FR 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). EPA has interpreted the contingency measure requirements of sections 172(c)(9) \6\ 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; 1995 Seitz memorandum, pp. 5-6. --------------------------------------------------------------------------- \6\ And section 182(c)(9) for ozone. --------------------------------------------------------------------------- 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 by the attainment date, 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. 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 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 RFP [[Page 19940]] or to attainment. General Preamble, 57 FR 13498. Thus, where an area is already attaining the standard, no additional RACM measures are required.\7\ EPA is interpreting section 189(a)(1)(C) consistent with its interpretation of section 172(c)(1). --------------------------------------------------------------------------- \7\ 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 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). --------------------------------------------------------------------------- The suspension of the obligations to submit SIP revisions concerning these RFP, attainment demonstration, RACM, contingency measure and other related requirements exists only for as long as the area continues to monitor attainment of the standard. If EPA determines, after notice-and-comment rulemaking, that the area has monitored a violation of the NAAQS, the basis for the requirements being suspended would no longer exist. In that case, 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 final determination that the area need not submit one of the pertinent SIP submittals amounts to no more than a suspension of the requirements for so long as the area continues to attain the standard. Only if and when 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, such as provisions to address pollution transport. As set forth previously, based on our proposed determination that the Libby nonattainment area is currently attaining the 1997 annual PM2.5 NAAQS, EPA proposes to find that any remaining obligations under subpart 4 to submit planning provisions to meet the requirements for an attainment demonstration, RFP plans, RACM, and contingency measures are suspended for so long as the area continues to monitor attainment of the 1997 annual PM2.5 NAAQS. If in the future, EPA determines after notice-and-comment rulemaking that the area again violates the 1997 annual PM2.5 NAAQS, the basis for suspending the attainment demonstration, RFP, RACM, and contingency measure obligations would no longer exist. VI. Determination of Attainment by the Attainment Date As discussed in the Background section, on March 17, 2011 EPA approved April 2010 as the applicable attainment date for the Libby nonattainment area.\8\ Consistent with the D.C. Circuit's 2013 decision and its remand of the Implementation Rule, on June 2, 2014 (79 FR 31566), EPA published a final rule classifying all areas currently designated nonattainment for the 1997 and/or 2006 PM2.5 standards as Moderate under subpart 4. EPA also established a deadline of December 31, 2014 for states to submit attainment-related and nonattainment new source review SIP elements required for these areas under subpart 4. This rulemaking did not affect any action that EPA had previously taken under section 110(k) of the Act on a SIP for a PM2.5 nonattainment area. Accordingly, EPA's March 17, 2011 approval of the April 2010 attainment date for the Libby nonattainment area remains in effect. Based on monitoring data from 2007-2009, EPA is proposing to determine that the Libby nonattainment area attained the 1997 annual PM2.5 NAAQS by that attainment date. If we finalize this proposal, this will discharge EPA's obligation under CAA section 188(b)(2) to determine whether the area attained the standard by the applicable attainment date. --------------------------------------------------------------------------- \8\ EPA's approval did not specifically identify the fifth of April as the attainment date. Regardless of the specific day in April, the monitoring data from the 2007-2009 period shows attainment by April 2010. --------------------------------------------------------------------------- VII. Proposed Action Pursuant to section 188(b)(2) of the CAA, EPA is proposing to determine that the Libby nonattainment area has attained the 1997 annual PM2.5 NAAQS by the area's attainment date, April 2010. Separately and independently, EPA is proposing to determine, based on the most recent three years of quality-assured and certified data meeting the requirements of 40 CFR part 50, Appendix N, that the Libby nonattainment area is currently attaining the 1997 annual PM2.5 NAAQS. In conjunction with and based upon our proposed determination that the Libby nonattainment area has attained and is currently attaining the standard, EPA proposes to determine that any remaining obligations under subpart 4, part D, title I of the CAA to submit the following attainment-related planning requirements are not applicable for so long as the area continues to attain the PM2.5 standard: An attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), and the RFP provisions of section 189(c). This proposed rulemaking action, if finalized, would not constitute a redesignation to attainment under CAA section 107(d)(3). These proposed determinations are based upon quality-assured and quality certified ambient air monitoring data that show the area has monitored attainment of the 1997 annual PM2.5 NAAQS for the 2007-2009 and 2012-2014 monitoring periods. VIII. Statutory and Executive Orders Review This rulemaking action proposes to make determinations of attainment based on air quality data, 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, these proposed determinations of attainment:Are 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); do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); are 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.); do 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); do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); are not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); are 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 do 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). [[Page 19941]] In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: March 25, 2015. Shaun L. McGrath, Regional Administrator. [FR Doc. 2015-08405 Filed 4-13-15; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 80, No. 71 / Tuesday, April 14, 2015 / Proposed Rules 19935
IV. Statutory and Executive Order costs on tribal governments or preempt an approved maintenance plan. These
Reviews tribal law. proposed actions are being taken under
Under the Clean Air Act, the the CAA.
List of Subjects in 40 CFR Part 52
Administrator is required to approve a DATES: Written comments must be
Environmental protection, Air received on or before May 14, 2015.
SIP submission that complies with the
pollution control, Intergovernmental ADDRESSES: Submit your comments,
provisions of the Act and applicable
relations, Incorporation by reference, identified by Docket ID No. EPA–R08–
Federal regulations. 42 U.S.C. 7410(k);
Ozone, Particulate matter, Reporting OAR–2014–0254, by one of the
40 CFR 52.02(a). Thus, in reviewing SIP
and recordkeeping requirements, following methods:
submissions, EPA’s role is to approve
Volatile organic compounds. • http://www.regulations.gov. Follow
State choices, provided that they meet
the criteria of the Clean Air Act. Authority: 42 U.S.C. 7401 et seq. the on-line instructions for submitting
Accordingly, this action merely Dated: March 20, 2015. comments.
approves State law as meeting Federal Jared Blumenfeld, • Email: ostigaard.crystal@epa.gov.
requirements and does not impose Regional Administrator, Region IX.
• Fax: (303) 312–6064 (please alert
additional requirements beyond those the individual listed in the FOR FURTHER
[FR Doc. 2015–08467 Filed 4–13–15; 8:45 am]
imposed by State law. For that reason, INFORMATION CONTACT if you are faxing
BILLING CODE 6560–50–P
this action: comments).
• Is not a ‘‘significant regulatory • Mail: Carl Daly, Director, Air
action’’ subject to review by the Office Program, U.S. Environmental Protection
ENVIRONMENTAL PROTECTION
of Management and Budget under Agency (EPA), Region 8, Mailcode 8P–
AGENCY
Executive Order 12866 (58 FR 51735, AR, 1595 Wynkoop Street, Denver,
October 4, 1993); 40 CFR Part 52 Colorado 80202–1129.
• does not impose an information • Hand Delivery: Carl Daly, Director,
collection burden under the provisions [EPA–R08–OAR–2014–0254; FRL–9926–00– Air Program, U.S. Environmental
Region 8] Protection Agency (EPA), Region 8,
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.); Mailcode 8P–AR, 1595 Wynkoop Street,
Determinations of Attainment of the
• is certified as not having a 1997 Annual Fine Particulate Matter
Denver, Colorado 80202–1129. Such
significant economic impact on a deliveries are only accepted Monday
Standards for the Libby, Montana
substantial number of small entities through Friday, 8:00 a.m. to 4:30 p.m.,
Nonattainment Area
under the Regulatory Flexibility Act (5 excluding Federal holidays. Special
U.S.C. 601 et seq.); AGENCY: Environmental Protection arrangements should be made for
• does not contain any unfunded Agency (EPA). deliveries of boxed information.
mandate or significantly or uniquely ACTION: Proposed rule. Instructions: Direct your comments to
affect small governments, as described Docket ID No. EPA–R08–OAR–2014–
in the Unfunded Mandates Reform Act SUMMARY: The Environmental Protection 0254. EPA’s policy is that all comments
of 1995 (Pub. L. 104–4); Agency (EPA) is proposing to make two received will be included in the public
• does not have Federalism separate and independent docket without change and may be
implications as specified in Executive determinations regarding the Libby, made available online at http://
Order 13132 (64 FR 43255, August 10, Montana nonattainment area for the www.regulations.gov, including any
1999); 1997 annual fine particulate matter personal information provided, unless
• is not an economically significant (PM2.5) National Ambient Air Quality the comment includes information
regulatory action based on health or Standard (NAAQS). First, EPA is claimed to be Confidential Business
safety risks subject to Executive Order proposing to determine that the Libby Information (CBI) or other information
13045 (62 FR 19885, April 23, 1997); nonattainment area attained the 1997 whose disclosure is restricted by statute.
• is not a significant regulatory action annual PM2.5 NAAQS by the applicable Do not submit information that you
subject to Executive Order 13211 (66 FR attainment date, April 2010. This consider to be CBI or otherwise
28355, May 22, 2001); proposed determination is based on protected through http://
• is not subject to requirements of quality-assured and certified ambient air www.regulations.gov or email. The
Section 12(d) of the National quality data for the 2007–2009 http://www.regulations.gov Web site is
Technology Transfer and Advancement monitoring period. Second, EPA is an ‘‘anonymous access’’ system, which
Act of 1995 (15 U.S.C. 272 note) because proposing that the Libby nonattainment means EPA will not know your identity
application of those requirements would area has continued to attain the 1997 or contact information unless you
be inconsistent with the Clean Air Act; annual PM2.5 NAAQS, based on quality- provide it in the body of your comment.
and assured and certified ambient air quality If you send an email comment directly
• does not provide EPA with the data for the 2012–2014 monitoring to EPA, without going through http://
discretionary authority to address period. Based on the second www.regulations.gov, your email
disproportionate human health or determination, EPA also proposes to address will be automatically captured
environmental effects with practical, suspend certain nonattainment area and included as part of the comment
appropriate, and legally permissible planning obligations. These that is placed in the public docket and
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
methods under Executive Order 12898 determinations do not constitute a made available on the Internet. If you
(59 FR 7629, February 16, 1994). redesignation to attainment. The Libby submit an electronic comment, EPA
In addition, this proposed action does nonattainment area will remain recommends that you include your
not have tribal implications as specified designated nonattainment for the 1997 name and other contact information in
by Executive Order 13175 (65 FR 67249, annual PM2.5 NAAQS until such time as the body of your comment and with any
November 9, 2000), because the SIP is EPA determines that the Libby disk or CD–ROM you submit. If EPA
not approved to apply in Indian country nonattainment area meets the Clean Air cannot read your comment due to
located in the State, and EPA notes that Act (CAA) requirements for technical difficulties and cannot contact
it will not impose substantial direct redesignation to attainment, including you for clarification, EPA may not be
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![19938 Federal Register / Vol. 80, No. 71 / Tuesday, April 14, 2015 / Proposed Rules
section 188 of the CAA, all areas EPA, 375 F. 3d 537 (7th Cir. 2004); Our then further progress for the purpose of
designated nonattainment under subpart Children’s Earth Foundation v. EPA, No. ensuring attainment is not necessary.’’
4 would initially be classified by 04–73032 (9th Cir. June 28, 2005) The general requirements of subpart 1
operation of law as ‘‘Moderate’’ (memorandum opinion); Latino Issues apply in conjunction with the more
nonattainment areas, and would remain Forum, v. EPA, Nos. 06–75831 and 08– specific requirements of subpart 4, to
Moderate nonattainment areas unless 71238 (9th Cir. Mar. 2, 2009) the extent they are not superseded or
and until EPA reclassifies the area as a (memorandum opinion). subsumed by the subpart 4
‘‘Serious’’ nonattainment area or As noted above, EPA incorporated its requirements. Subpart 1 contains
redesignates the area to attainment. Clean Data Policy interpretation in both general air quality planning
Accordingly, it is appropriate to limit its 8-Hour Ozone Implementation Rule requirements for areas designated as
the evaluation of the potential impact of and in its PM2.5 Implementation Rule. nonattainment. See section 172(c).
subpart 4 requirements to those that While the D.C. Circuit, in its January 4, Subpart 4, itself, contains specific
would be applicable to Moderate 2013 decision, remanded the 1997 PM2.5 planning and scheduling requirements
nonattainment areas. Sections 189(a) Implementation Rule, the Court did not for PM10 nonattainment areas, and
and (c) of subpart 4 apply to Moderate address the merits of that portion of the under the Court’s January 4, 2013
nonattainment areas and include an rule, nor cast doubt on EPA’s existing decision in NRDC v. EPA, these same
attainment demonstration (section interpretation of the statutory statutory requirements also apply for
189(a)(1)(B)); provisions for RACM provisions. PM2.5 nonattainment areas. EPA has
(section 189(a)(1)(C)); and quantitative However, in light of the Court’s longstanding general guidance that
milestones demonstrating RFP toward decision, EPA’s Clean Data Policy interprets the 1990 amendments to the
attainment by the applicable attainment interpretation under subpart 4 is set CAA, making recommendations to states
date (section 189(c)). forth here, for the purpose of identifying for meeting the statutory requirements
As set forth in more detail below, the effects of a determination of for SIPs for nonattainment areas. See,
under EPA’s Clean Data Policy attainment for the 1997 annual PM2.5 ‘‘State Implementation Plans; General
interpretation, a determination that the standard for the Libby nonattainment Preamble for the Implementation of
area has attained the standard suspends area. EPA has previously articulated its Title I of the Clean Air Act Amendments
the state’s obligation to submit Clean Data interpretation under subpart of 1990,’’ 57 FR 13498 (Apr. 16, 1992)
attainment-related planning 4 in implementing the PM10 standard. (the ‘‘General Preamble’’). In the General
requirements of subpart 4 (and the See, e.g., 75 FR 27944 (May 19, 2010) Preamble, EPA discussed the
applicable provisions of subpart 1) for (determination of attainment of the relationship of subpart 1 and subpart 4
so long as the area continues to attain PM10 standard in Coso Junction, SIP requirements, and pointed out that
the standard. These include California); 71 FR 6352 (Feb. 8, 2006) subpart 1 requirements were to an
(Ajo, Arizona Area); 71 FR 13021 (Mar. extent ‘‘subsumed by, or integrally
requirements to submit an attainment
14, 2006) (Yuma, Arizona Area); 71 FR related to, the more specific PM10
demonstration, RFP, RACM, and
40023 (July 14, 2006) (Weirton, West requirements.’’ Id. at 13538. These
contingency measures, because the
Virginia Area); 71 FR 44920 (Aug. 8, subpart 1 requirements include, among
purpose of these provisions is to help
2006) (Rillito, Arizona Area); 71 FR other things, provisions for attainment
reach attainment, a goal which has
63642 (Oct. 30, 2006) (San Joaquin demonstrations, RACM, RFP, emissions
already been achieved.
Valley, California Area); 72 FR 14422 inventories, and contingency measures.
A. Background on Clean Data Policy (Mar. 28, 2007) (Miami, Arizona Area); EPA has long interpreted the
Over the past two decades, EPA has 75 FR 27944 (May 19, 2010) (Coso provisions of subpart 1 (section 171 and
consistently applied its Clean Data Junction, California Area). Thus, EPA 172) as not requiring the submission of
has repeatedly established that, under RFP for an area already attaining the
Policy interpretation to attainment-
subpart 4, an attainment determination ozone NAAQS. For an area that is
related provisions of subparts 1, 2, and
suspends the obligations to submit an attaining, showing that the state will
4. The Clean Data Policy is the subject
attainment demonstration, RACM, RFP, make RFP towards attainment ‘‘will,
of several EPA memoranda and
contingency measures, and other therefore, have no meaning at that
regulations. In addition, numerous
measures related to attainment. point.’’ General Preamble, 57 FR 13564.
individual rulemakings published in the
Federal Register have applied the B. Application of the Clean Data Policy See also 71 FR 40952 (July 19, 2006) and
interpretation to a spectrum of NAAQS, to Attainment-Related Provisions of 71 FR 63642 (October 30, 2006)
including the 1-hour and 1997 ozone, Subpart 4 (proposed and final determination of
PM10, PM2.5, carbon monoxide (CO) and attainment for San Joaquin Valley); 75
In EPA’s proposed and final FR 13710 (March 23, 2010) and 75 FR
lead (Pb) standards. The D.C. Circuit has rulemaking actions determining that the
upheld the Clean Data Policy 27944 (May 19, 2010) (proposed and
San Joaquin Valley nonattainment area final determination of attainment for
interpretation as embodied in EPA’s attained the PM10 standard, EPA set
1997 8-Hour Ozone Implementation Coso Junction).
forth at length its rationale for applying Section 189(c)(1) of subpart 4 states
Rule, 40 CFR 51.918.4 NRDC v. EPA, 571 the Clean Data Policy to PM10 under
F. 3d 1245 (D.C. Cir. 2009). Other U.S. that:
subpart 4. The Ninth Circuit upheld
Circuit Courts of Appeals that have EPA’s final rulemaking, and specifically Plan revisions demonstrating attainment
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
considered and reviewed EPA’s Clean submitted to the Administrator for approval
EPA’s Clean Data Policy, in the context under this subpart shall contain quantitative
Data Policy interpretation have upheld of subpart 4. Latino Issues Forum v. milestones which are to be achieved every 3
it and the rulemakings applying EPA’s EPA, Nos. 06–75831 and 08–71238 (9th years until the area is redesignated
interpretation. Sierra Club v. EPA, 99 F. Cir. Mar. 2, 2009) (memorandum attainment and which demonstrate
3d 1551 (10th Cir. 1996); Sierra Club v. opinion). In rejecting the petitioner’s reasonable further progress, as defined in
challenge to the Clean Data Policy under section [section 171(1)] of this title, toward
4 ‘‘EPA’s Final Rule to implement the 8-Hour
subpart 4 for PM10, the Ninth Circuit attainment by the applicable date.
Ozone National Ambient Air Quality Standard-
Phase 2 (Phase 2 Final Rule)’’ (70 FR 71612, 71645– stated, ‘‘As the EPA explained, if an area With respect to RFP, section 171(1)
46; November 29, 2005). is in compliance with PM10 standards, states that, for purposes of part D, RFP
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![Federal Register / Vol. 80, No. 71 / Tuesday, April 14, 2015 / Proposed Rules 19939
‘‘means such annual incremental longer apply so long as an area has attainment would be needed by areas
reductions in emissions of the relevant attained the standard. Section 189(c)(2) seeking redesignation to attainment
air pollutant as are required by this part provides in relevant part that: since ‘‘attainment will have been
or may reasonably be required by the Not later than 90 days after the date on which reached.’’ 57 FR 13564.
Administrator for the purpose of a milestone applicable to the area occurs, Other SIP submission requirements
ensuring attainment of the applicable each State in which all or part of such area are linked with these attainment
NAAQS by the applicable date.’’ Thus, is located shall submit to the Administrator demonstration and RFP requirements,
whether dealing with the general RFP a demonstration . . . that the milestone has and similar reasoning applies to them.
requirement of section 172(c)(2), the been met. These requirements include the
ozone-specific RFP requirements of Where the area has attained the contingency measure requirements of
sections 182(b) and (c), or the specific standard and there are no further sections 172(c)(9). EPA has interpreted
RFP requirements for PM10 areas of milestones, there is no further the contingency measure requirements
section 189(c)(1), the stated purpose of requirement to make a submission of sections 172(c)(9) 6 as no longer
RFP is to ensure attainment by the showing that such milestones have been applying when an area has attained the
applicable attainment date. met. This is consistent with the position standard because those ‘‘contingency
Although section 189(c) states that that EPA took with respect to the measures are directed at ensuring RFP
revisions shall contain milestones general RFP requirement of section and attainment by the applicable date.’’
which are to be achieved until the area 172(c)(2) in the April 16, 1992 General 57 FR 13564; 1995 Seitz memorandum,
is redesignated to attainment, such Preamble and also in the May 10, 1995 pp. 5–6.
milestones are designed to show RFP EPA memorandum from John S. Seitz, Section 172(c)(9) provides that SIPs in
‘‘toward attainment by the applicable ‘‘Reasonable Further Progress, nonattainment areas:
attainment date,’’ as defined by section Attainment Demonstrations, and . . . shall provide for the implementation of
171. Thus, it is clear that once the area Related Requirements for the Ozone specific measures to be undertaken if the area
has attained the standard, no further Nonattainment Areas Meeting the fails to make reasonable further progress, or
milestones are necessary or meaningful. Ozone National Ambient Air Quality to attain the [NAAQS] by the attainment date
This interpretation is supported by Standard,’’ (the ‘‘1995 Seitz applicable under this part. Such measures
language in section 189(c)(3), which shall be included in the plan revision as
memorandum’’) with respect to the contingency measures to take effect in any
mandates that a state that fails to requirements of section 182(b) and (c). such case without further action by the State
achieve a milestone must submit a plan In the 1995 Seitz memorandum, EPA or [EPA].
that assures that the state will achieve also noted that section 182(g), the
the milestone or attain the NAAQS if milestone requirement of subpart 2, The contingency measure requirement
there is no next milestone. Section which is analogous to provisions in is inextricably tied to the RFP and
189(c)(3) assumes that the requirement section 189(c), is suspended upon a attainment demonstration requirements.
to submit and achieve milestones does determination that an area has attained. Contingency measures are implemented
not continue after attainment of the The memorandum, also citing if RFP targets are not achieved, or if
NAAQS. additional provisions related to attainment is not realized by the
In the General Preamble, EPA noted attainment demonstration and RFP attainment date. Where an area has
with respect to section 189(c) that the requirements, stated: already achieved attainment by the
purpose of the milestone requirement attainment date, it has no need to rely
Inasmuch as each of these requirements is on contingency measures to come into
‘‘is to ‘provide for emission reductions linked with the attainment demonstration or
adequate to achieve the standards by the RFP requirements of section 182(b)(1) or
attainment or to make further progress
applicable attainment date’ (H.R. Rep. 182(c)(2), if an area is not subject to the to attainment. As EPA stated in the
No. 490 101st Cong., 2d Sess. 267 requirement to submit the underlying General Preamble: ‘‘The section
(1990)).’’ 57 FR 13539. If an area has in attainment demonstration or RFP plan, it 172(c)(9) requirements for contingency
fact attained the standard, the stated need not submit the related SIP submission measures are directed at ensuring RFP
purpose of the RFP requirement will either. See, 1995 Seitz memorandum at page and attainment by the applicable date.’’
have already been fulfilled.5 5. See 57 FR 13564. Thus these
Similarly, the requirements of section With respect to the attainment requirements no longer apply when an
189(c)(2) with respect to milestones no demonstration requirements of section area has attained the standard.
172(c) and section 189(a)(1)(B), an Both sections 172(c)(1) and
5 Thus, EPA believes that it is a distinction
analogous rationale leads to the same 189(a)(1)(C) require ‘‘provisions to
without a difference that section 189(c)(1) speaks of result. Section 189(a)(1)(B) requires that assure that reasonably available control
the RFP requirement as one to be achieved until an
area is ‘‘redesignated attainment,’’ as opposed to the plan provide for ‘‘a demonstration measures’’ (i.e., RACM) are
section 172(c)(2), which is silent on the period to (including air quality modeling) that the implemented in a nonattainment area.
which the requirement pertains, or the ozone [SIP] will provide for attainment by the The General Preamble, (57 FR 13560;
nonattainment area RFP requirements in sections applicable attainment date . . .’’ As April 16, 1992), states that EPA
182(b)(1) or 182(c)(2), which refer to the RFP
requirements as applying until the ‘‘attainment with the RFP requirements, if an area is interprets section 172(c)(1) so that
date,’’ since section 189(c)(1) defines RFP by already monitoring attainment of the RACM requirements are a ‘‘component’’
reference to section 171(1) of the CAA. The standard, EPA believes there is no need of an area’s attainment demonstration.
reference to section 171(1) clarifies that, as with the
for an area to make a further submission Thus, for the same reason the
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
general RFP requirements in section 172(c)(2) and
the ozone-specific requirements of section 182(b)(1) containing additional measures to attainment demonstration no longer
and 182(c)(2), the PM-specific requirements may achieve attainment. This is also applies by its own terms, the
only be required ‘‘for the purpose of ensuring consistent with the interpretation of the requirement for RACM no longer
attainment of the applicable national ambient air
quality standard by the applicable date.’’ 42 U.S.C. section 172(c) requirements provided by applies. EPA has consistently
7501(1). As discussed in the text of this rulemaking, EPA in the General Preamble, and the interpreted this provision to require
EPA interprets the RFP requirements, in light of the section 182(b) and (c) requirements set only implementation of potential RACM
definition of RFP in section 171(1), and
incorporated in section 189(c)(1), to be a
forth in the 1995 Seitz memorandum. measures that could contribute to RFP
requirement that no longer applies once the As EPA stated in the General Preamble,
standard has been attained. no other measures to provide for 6 And section 182(c)(9) for ozone.
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In addition, the SIP is not approved available for viewing and copying in opportunity to comment simultaneously
to apply on any Indian reservation land Room CY–B402, 445 12th Street SW., on the revisions to the proposed critical
or in any other area where EPA or an Washington, DC or may be accessed habitat designation described in this
Indian tribe has demonstrated that a online via the Commission’s Electronic document, the associated draft
tribe has jurisdiction. In those areas of Comment Filing System at http:// economic analysis and draft
Indian country, the rule does not have apps.fcc.gov/ecfs/. The Commission will environmental assessment, and the
tribal implications and will not impose not send a copy of this Notice pursuant amended required determinations
substantial direct costs on tribal to the Congressional Review Act, 5 section. Comments previously
governments or preempt tribal law as U.S.C. 801(a)(1)(A) because this notice submitted need not be resubmitted, as
specified by Executive Order 13175 (65 does not have an impact on any rules of they will be fully considered in
FR 67249, November 9, 2000). particular applicability. preparation of the final rule.
Subject: Modernization of the Schools DATES: We will consider comments
List of Subjects in 40 CFR Part 52
and Libraries ‘‘E-Rate’’ Program, received or postmarked on or before
Environmental protection, Air published at 80 FR 5961, February 4, May 14, 2015. Comments submitted
pollution control, Incorporation by 2015, in WC Docket Nos. 13–184 and electronically using the Federal
reference, Intergovernmental relations, 10–90, and published pursuant to 47 eRulemaking Portal (see ADDRESSES
Particulate matter, Reporting and CFR 1.429(e). See also § 1.4(b)(1) of the section, below) must be received by
recordkeeping requirements. Commission’s rules. 11:59 p.m. Eastern Time on the closing
Authority: 42 U.S.C. 7401 et seq. Number of Petitions Filed: 4. date. Any comments that we receive
Dated: March 25, 2015. Federal Communications Commission. after the closing date may not be
Shaun L. McGrath,
considered in the final decision on this
Marlene H. Dortch,
action.
Regional Administrator. Secretary.
ADDRESSES:
[FR Doc. 2015–08405 Filed 4–13–15; 8:45 am] [FR Doc. 2015–08510 Filed 4–13–15; 8:45 am]
Document availability: You may
BILLING CODE 6560–50–P BILLING CODE 6712–01–P
obtain copies of the proposed rule, the
draft economic analysis, and the draft
environmental assessment on the
FEDERAL COMMUNICATIONS DEPARTMENT OF THE INTERIOR Internet at http://www.regulations.gov at
COMMISSION Docket No. FWS–R2–ES–2013–0002 or
Fish and Wildlife Service by mail from the New Mexico Ecological
47 CFR Part 54
Services Field Office (see FOR FURTHER
[WC Docket Nos. 13–184 and 10–90; Report 50 CFR Part 17 INFORMATION CONTACT).
No. 3017] [Docket No. FWS–R2–ES–2013–0002; Written comments: You may submit
4500030113] written comments by one of the
Petitions for Reconsideration of Action following methods:
in Rulemaking Proceeding RIN 1018–AZ23 (1) Electronically: Go to the Federal
AGENCY: Federal Communications eRulemaking Portal: http://
Endangered and Threatened Wildlife
Commission. www.regulations.gov. Submit comments
and Plants; Designation of Critical
on the critical habitat proposal, draft
ACTION: Petition for reconsideration. Habitat for the Zuni Bluehead Sucker
economic analysis, and draft
SUMMARY: Petitions for Reconsideration AGENCY: Fish and Wildlife Service, environmental assessment by searching
(Petitions) have been filed in the Interior. for Docket No. FWS–R2–ES–2013–0002,
Commission’s Rulemaking proceeding ACTION: Proposed rule; reopening of which is the docket for this rulemaking.
by Charles F. Hobbs, on behalf of comment period. (2) By hard copy: Submit comments
AdTec, Inc.; Jennifer Hightower, et al., on the critical habitat proposal, draft
on behalf of Cox Communications, Inc.; SUMMARY: We, the U.S. Fish and economic analysis, and draft
Kathleen O’Brien Ham, et al., on behalf Wildlife Service (Service), announce the environmental assessment by U.S. mail
of T-Mobile USA, Inc.; and Derrick B. reopening of the public comment period or hand-delivery to: Public Comments
Owens, et al., on behalf of WTA— on the January 25, 2013, proposed Processing, Attn: FWS–R2–ES–2013–
Advocates for Rural Broadband, et al. designation of critical habitat for the 0002; Division of Policy, Performance,
Zuni bluehead sucker (Catostomus and Management Programs; U.S. Fish
DATES: Oppositions to the Petitions
discobolus yarrowi) under the and Wildlife Service; 5275 Leesburg
must be filed on or before April 29,
Endangered Species Act of 1973, as Pike MS: BPHC, Falls Church, VA
2015. Replies to an opposition must be
amended (Act). We also announce the 22041–3803.
filed on or before May 11, 2015. We request that you send comments
availability of the draft economic
ADDRESSES: Federal Communications only by the methods described above.
analysis, draft environmental
Commission, 445 12th Street SW., assessment, and amended required We will post all comments on http://
Washington, DC 20554. determinations of the proposed www.regulations.gov. This generally
FOR FURTHER INFORMATION CONTACT: designation. In addition, we are means that we will post any personal
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Bryan P. Boyle, Telecommunications proposing revisions to the proposed information you provide us (see the
Access Policy Division, Wireline critical habitat boundaries that would Public Comments section, below, for
Competition Bureau, (202) 418–7924, decrease our total proposed critical more information).
email: Bryan.Boyle@fcc.gov, TTY (202) habitat designation for the Zuni FOR FURTHER INFORMATION CONTACT:
418–0484. bluehead sucker from approximately Wally ‘‘J’’ Murphy, Field Supervisor,
SUPPLEMENTARY INFORMATION: This is a 475.3 kilometers (291.3 miles) to U.S. Fish and Wildlife Service, New
summary of Commission’s document, approximately 228.4 kilometers (141.9 Mexico Ecological Services Field Office,
Report No. 3017, released April 8, 2015. miles). We are reopening the comment 2105 Osuna NE., Albuquerque, NM
The full text of Report No. 3017 is period to allow all interested parties an 87113; by telephone 505–346–2525; or
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Document Created: 2015-12-18 11:10:31
Document Modified: 2015-12-18 11:10:31
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before May 14, 2015. | |
| Contact | Crystal Ostigaard, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6602, [email protected] | |
| FR Citation | 80 FR 19935 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Particulate Matter and Reporting and Recordkeeping Requirements |
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