```

[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Proposed Rules]
[Pages 44070-44075]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17688]

[[Page 44070]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0769; FRL-9835-9]

Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Determinations of Attainment of the 1997 Annual Fine 
Particulate Standards for the Liberty-Clairton Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make two separate and independent 
determinations regarding the Liberty-Clairton, Pennsylvania 1997 annual 
fine particulate (PM2.5) nonattainment area (the Liberty-
Clairton Area). First, EPA is proposing to determine that the Liberty-
Clairton Area attained the 1997 PM2.5 annual national 
ambient air quality standards (NAAQS) by the applicable attainment 
date, December 31, 2011. This proposed determination is based on 
quality assured and certified ambient air quality date for the 2009-
2011 monitoring period. Second, EPA is proposing that the Liberty-
Clairton Area has continued to attain the 1997 annual PM2.5 
NAAQS, based on quality-assured and certified ambient air quality data 
for the 2010-2012 monitoring period. If EPA finalizes this latter 
``clean data determination,'' the requirement for the Liberty-Clairton 
Area to submit 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 would be suspended for so long as the area 
continues to attain the 1997 annual PM2.5 NAAQS. These 
determinations do not constitute a redesignation to attainment. The 
Liberty-Clairton Area will remain designated nonattainment for the 1997 
annual PM2.5 NAAQS until such time as EPA determines that 
the Liberty-Clairton 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 August 22, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0769 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2012-0769, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0769. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 814-2181, or by 
email at pino.maria@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Summary of Proposed Actions

    EPA is proposing two separate and independent determinations 
regarding the Liberty-Clairton Area. First, pursuant to section 
188(b)(2) of the CAA, EPA is proposing to make a determination that the 
Liberty-Clairton Area attained the 1997 annual PM2.5 NAAQS 
by the applicable attainment date, December 31, 2011. This proposed 
determination is based upon quality-assured and certified ambient air 
monitoring data for the 2009-2011 monitoring period that shows the area 
has monitored attainment of the 1997 PM2.5 annual NAAQS as 
of its attainment date.
    EPA is also proposing to make a determination that the Liberty-
Clairton 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 show the area 
has monitored attainment of the 1997 PM2.5 NAAQS for the 
2010-2012 monitoring period. If EPA finalizes this determination, the 
requirement for the Liberty-Clairton Area to submit an attainment 
demonstration, RACM, 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 that NAAQS.\1\
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    \1\ Even if these requirements are suspended, EPA is not 
precluded from acting upon these elements at any time if submitted 
to EPA for review and approval. On June 17, 2011, the Commonwealth 
of Pennsylvania submitted a SIP revision for the Liberty-Clairton 
Area to EPA for review and approval. On November 7, 2011 (76 FR 
68699), EPA proposed approval, with one condition, of Pennsylvania's 
SIP revision for the Liberty-Clairton Area.
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II. Background

A. The PM2.5 NAAQS

    On July 18, 1997 (62 FR 38652), EPA established a health-based 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([micro]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 [micro]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 [micro]g/m\3\ based on a 3-year 
average

[[Page 44071]]

of annual mean PM2.5 concentrations, and promulgated a 24-
hour standard of 35 [micro]g/m\3\ based on a 3-year average of the 98th 
percentile of 24-hour concentrations (the ``2006 24-hour standard''). 
In response to legal challenges of the 2006 annual standard, the U.S. 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit or 
the Court) remanded this standard to EPA for further consideration. 
See, American Farm Bureau Federation and National Pork Producers 
Council, et al. v. EPA, 559 F.3d 512 (D.C. Circuit 2009). However, 
given that the 1997 and 2006 annual PM2.5 standards are 
essentially identical, attainment of the 1997 annual standard would 
also indicate attainment of the remanded 2006 annual standard.
    On December 14, 2012 (78 FR 3086), EPA lowered the primary annual 
PM2.5 NAAQS from 15 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 particle 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 Liberty-Clairton Area

    On January 5, 2005 (70 FR 944), EPA published its 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 Liberty-Clairton Area is comprised of 
the boroughs of Lincoln, Glassport, Liberty, and Port Vue and the City 
of Clairton, all in Allegheny County, Pennsylvania. See 40 CFR 81.339. 
The Liberty-Clairton Area is surrounded by, but separate and distinct 
from the Pittsburgh-Beaver Valley PM2.5 nonattainment area.
    On November 13, 2009 (74 FR 58688), EPA published the area 
designations for the 2006 24-hour standard. That action, effective on 
December 14, 2009, designated the same Liberty-Clairton Area as 
nonattainment for the 2006 24-hour standard and clarified that the 
Liberty-Clairton Area is designated as unclassifiable/attainment for 
the 1997 24-hour PM2.5 standard.

III. EPA's Analysis of the Relevant Air Quality Data

    The Commonwealth of Pennsylvania submitted quality assured air 
quality monitoring data into the EPA Air Quality System (AQS) database 
for the 2009-2011 and 2010-2012 monitoring periods. Pennsylvania then 
certified that data. EPA's evaluation of this data shows that the 
Liberty-Clairton Area has attained the 1997 annual PM2.5 
NAAQS by its 2011 attainment date, and that it continues to attain the 
1997 annual PM2.5 NAAQS. Additional information on air 
quality data for the Liberty-Clairton Area can be found in the 
technical support document (TSD) prepared 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 appendix 
N. The 1997 annual PM2.5 NAAQS is met when the annual design 
value is less than or equal to 15.0 [micro]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.
    There are two PM2.5 monitors in the Liberty-Clairton 
Area--one in Liberty Borough and one in the City of Clairton. Both 
monitors had complete data for all quarters in the years 2009 through 
2012, except for one calendar quarter in 2011 when the Clairton monitor 
had less than complete data capture due to unreliable data results via 
laboratory analysis.
    For this monitor, EPA performed a statistical analysis of the data, 
in which a linear regression relationship is established between the 
site with incomplete data and a nearby site which has more complete 
data in the period in which the incomplete site is missing data. The 
linear regression relationship is based on time periods in which both 
monitors were operating. The linear regression equation developed from 
the relationship between the monitors is used to fill in missing data 
for the incomplete monitor, so that the normal data completeness 
requirement of 75 percent of data in each quarter of the three years is 
met. After the missing data for the site is filled in, the results are 
verified through an additional statistical test. The results of EPA's 
statistical analysis indicated that while the Liberty monitor had less 
than complete data, the data is sufficient to demonstrate that the 
NAAQS has been met. Details of this analysis are set out in the TSD 
prepared for this action.
    This proposed determination of attainment for the Liberty-Clairton 
Area is based on EPA's evaluation of quality-controlled, quality 
assured, certified annual PM2.5 air quality data for the 
2009-2011 and 2010-2012 monitoring periods. The monitoring data and 
calculated design values for Liberty-Clairton Area are summarized in 
Table 1 for the 2009-2011 monitoring period, and in Table 2 for the 
2010-2012 monitoring period.

                                  Table 1--2009-2011 Liberty-Clairton Area Annual PM2.5 Monitoring Data & Completeness
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--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Location                       Site ID       Annual mean
                                                  2009-2011 Design
                                                   value ([mu]g/
                                                       m\3\)
                                                     Complete quarters     Compl
                                                                            ete
                                                                           data?
                                                            ---------------------                  ---------------------
                                                 ..........   2009   2010   2011                     2009   2010   2011  ...............................
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Liberty Borough................................   420030064   15.0   16.0   14.0        15.0            4      4      4  Yes.
                                                                                 ------------------
City of Clairton...............................   420033007   11.3   12.5   10.7   * 11.5  ** 11.7      4      4      3  No.
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* The annual design value for the Clairton site reflects incomplete quarterly data during 2011.
** EPA's statistical procedure was applied to address the missing data and calculate a ``complete'' design value.

[[Page 44072]]

                                  Table 2--2010-2012 Liberty-Clairton Area Annual PM2.5 Monitoring Data & Completeness
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--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Location                       Site ID       Annual mean
                                                  2010-2012 Design
                                                   value ([mu]g/
                                                       m\3\)
                                                     Complete quarters     Compl
                                                                            ete
                                                                           data?
                                                            ---------------------                  ---------------------
                                                              2010   2011   2012                     2010   2011   2012  ...............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Liberty Borough................................   420030064   16.0   14.0   14.3        14.8            4      4      4  Yes.
                                                                                 ------------------
City of Clairton...............................   420033007   12.5   10.7    9.4   * 10.9  ** 11.0      4      3      4  No.
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* The annual design value for the Clairton site reflects incomplete quarterly data during 2011.
** EPA's statistical procedure was applied to address the missing data and calculate a ``complete'' design value.

    Consistent with the requirements contained in 40 CFR part 50, EPA 
has reviewed the PM2.5 ambient air monitoring data for the 
monitoring periods 2009-2011 and 2010-2012 for the Liberty-Clairton 
Area, as recorded in the AQS database. On the basis of that review, EPA 
proposes to determine that the Liberty-Clairton Area (1) attained the 
1997 annual PM2.5 NAAQS by its attainment date, based on 
data for the 2009-2011 monitoring period, and (2) continued to attain 
during the 2010-2012 monitoring period.

IV. 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 V of EPA's proposal address the effects of 
a final clean data determination and a final determination of 
attainment by the attainment date for the Liberty-Clairton Area. For 
the 1997 annual PM2.5 standard, 40 CFR 51.004 of EPA's 
Implementation Rule for the 1997 annual PM2.5 standard 
embodies EPA's ``Clean Data Policy'' interpretation under subpart 1 of 
Part D of Title I of the CAA (subpart 1). The provisions of 40 CFR 
51.004 set forth the effects of a determination of attainment for the 
1997 PM2.5 standard. (72 FR 20585, 20665, April 25, 2007).
    On January 4, 2013, in Natural Resources Defense Council v. EPA, 
the DC Circuit remanded to EPA the ``Final Clean Air Fine Particle 
Implementation Rule'' (72 FR 20586, April 25, 2007) and the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR 
28321, May 16, 2008) (collectively, ``1997 PM2.5 
Implementation Rule'' or ``Implementation Rule''). 706 F.3d 428 (D.C. 
Cir. 2013). The Court found that EPA erred in implementing the 1997 
PM2.5 NAAQS pursuant solely to the general implementation 
provisions of subpart 1, 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 
in this proposed rulemaking action addresses the effect of a final 
determination of attainment for the Liberty-Clairton Area, as if that 
area were considered a moderate nonattainment area under subpart 4.\2\ 
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 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.
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    \2\ For the purposes of evaluating the effects of this proposed 
determination of attainment under subpart 4, EPA is considering the 
Liberty-Clairton Area to be a ``moderate'' PM2.5 
nonattainment area. Under section 188 of the CAA, all areas 
designated nonattainment areas under subpart 4 would initially be 
classified by operation of law as ``moderate'' nonattainment areas, 
and would remain moderate nonattainment areas unless and until EPA 
reclassifies the area as a ``serious'' nonattainment area. 
Accordingly, EPA believes that it is appropriate to limit the 
evaluation of the potential impact of subpart 4 requirements to 
those that would be applicable to moderate nonattainment areas. 
Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment 
areas and include an attainment demonstration (section 
189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and 
quantitative milestones demonstrating RFP toward attainment by the 
applicable attainment date (section 189(c)). In addition, EPA also 
evaluates the applicable requirements of subpart 1.
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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.\3\ 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, N. 04-73032 (9th Cir. 
June 28, 2005) (memorandum opinion), Latino Issues Forum, v. EPA, Nos. 
06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 2009.
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    \3\ ``EPA's Final Rule to implement the 8-Hour Ozone National 
Ambient Air Quality Standard-Phase 2 (Phase 2 Final Rule)'' (70 FR 
71612, 71645-46, November 29, 2005).
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    As noted above, EPA incorporated its Clean Data Policy 
interpretation in both its 8-Hour Ozone Implementation Rule and in its 
PM2.5 Implementation Rule in 40 CFR 51.1004(c). (72 FR 
20585, 20665, April 25, 2007). While the D.C. Circuit, in its January 
4, 2013 decision, remanded the 1997 PM2.5 Implementation 
Rule, the Court did not address the merits of that regulation, nor cast 
doubt on EPA's existing interpretation of the statutory provisions.
    However, in light of the Court's 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 Liberty-Clairton 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); (75 FR 6571, February 10, 2010), (71 FR 
6352, February 8, 2006)

[[Page 44073]]

(Ajo, Arizona Area); (71 FR 13021, March 14, 2006) (Yuma, Arizona 
Area); (71 FR 40023, July 14, 2006) (Weirton, West Virginia Area); (71 
FR 44920, August 8, 2006) (Rillito, Arizona Area); (71 FR 63642, 
October 30, 2006) (San Joaquin Valley, California Area); (72 FR 14422, 
March 28, 2007) (Miami, Arizona Area); (75 FR 27944, May 19, 2010) 
(Coso Junction, California Area). Thus EPA has established that, under 
subpart 4, an attainment determination suspends the obligations to 
submit an attainment demonstration, RACM, RFP contingency measures, and 
other measures related to attainment.

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, supra. 
Nos. 06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 
2009. In rejecting the petitioner's challenge to the Clean Data Policy 
under subpart 4 for PM10, the Ninth Circuit stated, ``As the 
EPA explained, if an area is in compliance with PM10 
standards, then further progress for the purpose of ensuring attainment 
is not necessary.''
    The general requirements of subpart 1 apply in conjunction with the 
more specific requirements of subpart 4, to the extent they are not 
superseded or subsumed by the subpart 4 requirements. Subpart 1 
contains general air quality planning requirements for areas designated 
as nonattainment. See 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 Clear Air Act 
Amendments of 1990,'' (57 FR 13498, April 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.'' (57 FR 13538, 
April 16, 1992). These subpart 1 requirements include, among other 
things, provisions for attainment demonstrations, RACM, RFP, emissions 
inventories, and contingency measures.
    EPA has long interpreted the provisions of subpart 1 (sections 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.'' 57 FR 13564. See 71 FR 40952 and 71 FR 63642 
(proposed and final determination of attainment for San Joaquin 
Valley); 75 FR 13710 and 75 FR 27944 (proposed and final determination 
of attainment for Coso Junction).
    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 ``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 part D, subpart 
4, 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 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, 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, April 16, 1992). If an area has in fact attained the 
standard, the stated purpose of the RFP requirement will have already 
been fulfilled.\4\
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    \4\ 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. 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.
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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. 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).

[[Page 44074]]

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 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) \5\ as no longer applying when an 
area has attained the standard because those ``contingency measures are 
directed at ensuring RFP and attainment by the applicable date.'' 57 FR 
13564; 1995 Seitz memorandum, pp. 5-6.
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    \5\ And section 182(c)(9) for ozone.
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    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 
reasonable further progress and attainment demonstration requirements. 
Contingency measures are implemented if reasonable further progress 
targets are not achieved, or if attainment is not realized by the 
attainment date. Where an area has already achieved attainment 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 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 
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\ EPA's interpretation that the statute requires 
implementation only of RACM measures that would advance attainment 
was upheld by the United States Court of Appeals for the Fifth 
Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002), 
and by the United States Court of Appeals for the DC Circuit (Sierra 
Club v. EPA, 294 F.3d 155, 162-163 (DC Cir. 2002)).
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    The suspension of the obligations to submit SIP revisions 
concerning these RFP, attainment demonstration, RACM, contingency 
measures and other related requirements exists only for as long as the 
area continues to monitor attainment of the standard. If 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 Liberty-Clairton Area is currently attaining the 1997 annual 
PM2.5 NAAQS, EPA proposes to find that the obligations to 
submit planning provisions to meet the requirements for an attainment 
demonstration, reasonable further progress plans, reasonably available 
control measures, 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.

V. Determination of Attainment by the Attainment Date

    As stated previously, in light of the Court's decision and its 
remand of the Implementation Rule, EPA in this proposed rulemaking 
action addresses the effect of a final determination of attainment for 
the Liberty-Clairton Area, as if that area were considered a moderate 
nonattainment area under subpart 4. Pursuant to CAA section 188(c)(1), 
the 1997 annual PM2.5 NAAQS attainment date for moderate 
areas is as expeditiously as practicable, but not later than the end of 
the sixth calendar year after the area's designation as nonattainment. 
For the purposes of evaluating attainment by attainment date, the 
attainment date for the Liberty-Clairton Area is December 31, 2011. 
Under CAA section 188(b)(2), EPA is required to make a determination 
that a nonattainment area has attained by its attainment date, and 
publish that determination in the Federal Register. If EPA determines 
that any moderate area is not in attainment after its applicable

[[Page 44075]]

attainment date, that area is reclassified to serious by operation of 
law.
    EPA is proposing to make a determination that the Liberty-Clairton 
Area attained the 1997 annual PM2.5 NAAQS by the applicable 
attainment date of December 31, 2011. Therefore, EPA has met the 
requirement of CAA section 188(b)(2) to determine, based on the area's 
air quality as of the attainment date, whether the area attained the 
standard by that date. The effect of a final determination of 
attainment by the area's attainment date would be to discharge EPA's 
obligation under CAA section 188(b)(2).

VI. Proposed Actions

    Pursuant to sections 188(b)(2) of the CAA, EPA is proposing to 
determine that the Liberty-Clairton Area has attained the 1997 annual 
PM2.5 NAAQS by its attainment date, December 31, 2011. 
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 
Liberty-Clairton Area is currently attaining the 1997 annual 
PM2.5 NAAQS. In conjunction with and based upon our proposed 
determination that the Liberty-Clairton Area has attained and is 
currently attaining the standard, EPA proposes to determine that the 
obligation to submit the following attainment-related planning 
requirements is not applicable for so long as the area continues to 
attain the PM2.5 standard: The part D, subpart 4 obligations 
to provide an attainment demonstration pursuant to section 
189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), the RFP 
provisions of section 189(c), and related attainment demonstration, 
RACM, RFP, and contingency measure provisions requirements of subpart 
1, section 172. 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 
certified ambient air monitoring data that show the area has monitored 
attainment of the 1997 annual PM2.5 NAAQS for the 2009-2011 
and 2010-2012 monitoring periods. EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

VII. Statutory and Executive Order Reviews

    This rulemaking action proposes to make determinations 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, 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).
    In addition, this proposed rule, proposing to determine that the 
Liberty-Clairton Area has attained the 1997 annual PM2.5 
NAAQS, 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 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: July 8, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-17688 Filed 7-22-13; 8:45 am]
BILLING CODE 6560-50-P
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