65656 Federal Register / Vol. 77, No. 210 / Tuesday, October 30, 2012 / Proposed Rules 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed action does 

not have Tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

the SIP obligations discussed herein do 

not apply to Indian Tribes and thus this 

proposed action 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, Particulate matter, Nitrogen 

oxides, Sulfur oxides, Reporting and 

recordkeeping requirements. 

Dated: October 15, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–26629 Filed 10–29–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0752; FRL–9746–8] 

Determination of Attainment for the 

Nogales Nonattainment Area for the 

2006 Fine Particle Standard; Arizona; 

Determination Regarding Applicability 

of Clean Air Act Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

determine that the Nogales 

nonattainment area in Arizona has 

attained the 2006 24-hour fine particle 

(PM2.5) National Ambient Air Quality 

Standard (NAAQS). This proposed 

determination is based upon complete, 

quality-assured, and certified ambient 

air monitoring data showing that the 

area has monitored attainment of the 

2006 24-hour PM2.5 NAAQS based on 

the 2009–2011 monitoring period. EPA 

is further proposing that, if EPA 

finalizes this determination of 

attainment, the requirements for the 

area to submit an attainment 

demonstration, together with reasonably 

available control measures (RACM), a 

reasonable further progress (RFP) plan, 

and contingency measures for failure to 

meet RFP and attainment deadlines 

shall be suspended for so long as the 

area continues to attain the 2006 24- 

hour PM2.5 NAAQS. 

DATES: Written comments must be 

received on or before November 29, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2012–0752 by one of the following 

methods: 

1. Federal eRulemaking Portal, at 

www.regulations.gov, please follow the 

on-line instructions; 

2. Email to ungvarsky.john@epa.gov; 

or 

3. Mail or delivery to John Ungvarsky, 

Air Planning Office, AIR–2, U.S. 

Environmental Protection Agency, 

Region IX, 75 Hawthorne Street, San 

Francisco, California 94105–3901. 

Instructions: All comments 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 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information you 

consider to be CBI or otherwise 

protected should be clearly identified as 

such and should not be submitted 

through www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. 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: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available at 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: John 

Ungvarsky, (415) 972–3963, or by email 

at ungvarsky.john@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean 

EPA. We are providing the following 

outline to aid in locating information in 

this proposal. 

Table of Contents 

I. What determination is EPA making? 

II. What is the background for this action? 

A. PM2.5 NAAQS 

B. Designation of PM2.5 Nonattainment 

Areas 

C. How Does EPA Make Attainment 

Determinations? 

III. What is EPA’s analysis of the relevant air 

quality data? 

A. Monitoring Network and Data 

Considerations 

B. Evaluation of Current Attainment 

IV. How does EPA’s Clean Data Policy apply 

to this action? 

A. Application of EPA’s Clean Data Policy 

to the 2006 PM2.5 NAAQS 

B. History and Basis of EPA’s Clean Data 

Policy 

V. EPA’s Proposed Action and Request for 

Public Comment 

VI. Statutory and Executive Order Reviews 

I. What determination is EPA making? 

EPA is proposing to determine that 

the Nogales nonattainment area has 

clean data for the 2006 24-hour NAAQS 

for fine particles (generally referring to 

particles less than or equal to 2.5 

micrometers in diameter, PM2.5). This 

determination is based upon complete, 

quality-assured, and certified ambient 

air monitoring data showing the area 

has monitored attainment of the 2006 

PM2.5 NAAQS based on 2009–2011 

monitoring data. Preliminary data in 

EPA’s Air Quality System (AQS) for 

2012 indicate that the area continues to 

attain the 2006 PM2.5 NAAQS. Based on 

this determination, we are also 

proposing to suspend the obligations on 


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1For a given air pollutant, ‘‘primary’’ national 

ambient air quality standards are those determined 

by EPA as requisite to protect the public health, and 

‘‘secondary’’ standards are those determined by 

EPA as requisite to protect the public welfare from 

any known or anticipated adverse effects associated 

with the presence of such air pollutant in the 

ambient air. See CAA section 109(b). 

2Covering 76.1 square miles, the Nogales PM2.5

nonattainment area is located within Santa Cruz 

County, Arizona, with the southernmost boundary 

of the nonattainment area and Santa Cruz County 

being the U.S./Mexico border. 

3With respect to the annual PM2.5 NAAQS, this 

area is designated as ‘‘unclassifiable/attainment.’’ 

4On July 6, 2012, in an email to Lisa Hanf, 

Manager, Planning Office, Air Division, U.S. EPA 

Region IX, Diane Arnst, Planning Section Manager, 

Air Quality Division, Arizona Department of 

Environmental Quality, requested that EPA 

determine whether the Nogales PM2.5

nonattainment area qualified for a determination of 

attainment for the 2006 24-hour PM2.5 NAAQS. 

5The 24-hour PM2.5 standard design value is the 

3-year average of annual 98th percentile 24-hour 

average values recorded at each monitoring site [see 

40 CFR part 50, appendix N, section 1.0(c)], and the 

24-hour PM2.5 NAAQS is met when the 24-hour 

standard design value at each monitoring site is less 

than or equal to 35 mg/m3. 

6Letter from Joe Lapka, Acting Manager, Air 

Quality Analysis Office, U.S. EPA Region IX, to 

Nancy Wrona, Director, Air Quality Division, ADEQ 

(November 12, 2009) (approving ADEQ’s ‘‘Final 

Report of the State of Arizona Air Monitoring 

Network Plan for the Year 2009’’); Letter from 

Matthew Lakin, Manager, Air Quality Analysis 

Office, U.S. EPA Region IX, to Eric Massey, 

Director, Air Quality Division, ADEQ (December 10, 

2010) (approving ADEQ’s ‘‘Final Report of the State 

of Arizona Air Monitoring Network Plan for the 

Year 2010’’); Letter from Matthew Lakin, Manager, 

Air Quality Analysis Office, U.S. EPA Region IX, to 

Eric Massey, Director, Air Quality Division, ADEQ 

(December 1, 2011) (approving ADEQ’s ‘‘State of 

Arizona Air Monitoring Network Plan: For the Year 

2011’’). 

7Technical System Audit Report transmitted via 

correspondence dated September 23, 2010, from 

Deborah Jordan, Director, Air Division, EPA Region 

IX, to Eric Massey, Air Division, ADEQ. 

8See, e.g., the letter from Eric C. Massey, Director, 

Air Quality Division, ADEQ to Deborah Jordan, 

Continued 

the State of Arizona to submit certain 

state implementation plan (SIP) 

revisions related to attainment of this 

standard for the area for as long as the 

area continues to attain the standard. 

II. What is the background for this 

action? 

A. PM2.5 NAAQS 

Under section 109 of the Clean Air 

Act (CAA or ‘‘Act’’), EPA has 

established national ambient air quality 

standards (NAAQS or ‘‘standards’’) for 

certain pervasive air pollutants (referred 

to as ‘‘criteria pollutants’’) and conducts 

periodic reviews of the NAAQS to 

determine whether they should be 

revised or whether new NAAQS should 

be established. 

On July 18, 1997, EPA revised the 

NAAQS for particulate matter to add 

new standards for PM2.5, using PM2.5 as 

the indicator for the pollutant. EPA 

established primary and secondary1

annual and 24-hour standards for PM2.5

(62 FR 38652). The annual standard was 

set at 15.0 micrograms per cubic meter 

(mg/m3), based on a 3-year average of 

annual mean PM2.5 concentrations, and 

the 24-hour standard was set at 65 mg/ 

m3, based on the 3-year average of the 

98th percentile of 24-hour PM2.5

concentrations at each populationoriented monitor within an area. 

On October 17, 2006 (71 FR 61144), 

EPA revised the level of the 24-hour 

PM2.5 NAAQS to 35 mg/m3, based on a 

3-year average of the 98th percentile of 

24-hour concentrations. EPA also 

retained the 1997 annual PM2.5 standard 

at 15.0 mg/m3 based on a 3-year average 

of annual mean PM2.5 concentrations, 

but with tighter constraints on the 

spatial averaging criteria. 

B. Designation of PM2.5 Nonattainment 

Areas 

Effective December 14, 2009, EPA 

established the initial air quality 

designations for most areas in the 

United States for the 2006 24-hour PM2.5

NAAQS. See 74 FR 58688; (November 

13, 2009). Among the various areas 

designated in 2009, EPA designated the 

Nogales 2 area in Arizona as 

nonattainment for the 2006 24-hour 

PM2.5 NAAQS.3 The boundaries for the 

nonattainment area are described in 40 

CFR 81.303. 

Within three years of the effective 

date of designations, states with areas 

designated as nonattainment for the 

2006 PM2.5 NAAQS are required to 

submit SIP revisions that, among other 

elements, provide for implementation of 

reasonably available control measures 

(RACM), reasonable further progress 

(RFP), attainment of the standard as 

expeditiously as practicable but no later 

than five years from the nonattainment 

designation (in this instance, no later 

than December 14, 2014), as well as 

contingency measures. See CAA section 

172(a)(2), 172(c)(1), 172(c)(2), and 

172(c)(9). Prior to the due date for 

submittal of these SIP revisions, the 

State of Arizona requested that EPA 

make a determination that the Nogales 4

nonattainment area has attained the 

2006 PM2.5 NAAQS. Today’s proposal 

responds to the State’s request. 

C. How Does EPA Make Attainment 

Determinations? 

A determination of whether an area’s 

air quality currently meets the PM2.5

NAAQS is generally based upon the 

most recent three years of complete, 

quality-assured data gathered at 

established State and Local Air 

Monitoring Stations (SLAMS) in a 

nonattainment area and entered into the 

AQS database. Data from air monitors 

operated by state/local agencies in 

compliance with EPA monitoring 

requirements must be submitted to 

AQS. Monitoring agencies annually 

certify that these data are accurate to the 

best of their knowledge. Accordingly, 

EPA relies primarily on data in AQS 

when determining the attainment status 

of areas. See 40 CFR 50.13; 40 CFR part 

50, appendix L; 40 CFR part 53; 40 CFR 

part 58, and 40 CFR part 58, appendices 

A, C, D, and E. All data are reviewed to 

determine the area’s air quality status in 

accordance with 40 CFR part 50, 

appendix N. 

Under EPA regulations in 40 CFR part 

50, section 50.13 and in accordance 

with appendix N, the 2006 24-hour 

PM2.5 standard is met when the design 

value is less than or equal to 35 mg/m3

(based on the rounding convention in 40 

CFR part 50, appendix N) at each 

monitoring site within the area.5 The 

PM2.5 24-hour average is considered 

valid when 75 percent of the hourly 

averages for the 24-hour period are 

available. Data completeness 

requirements for a given year are met 

when at least 75 percent of the 

scheduled sampling days for each 

quarter have valid data. 

III. What is EPA’s analysis of the 

relevant air quality data? 

A. Monitoring Network and Data 

Considerations 

The Arizona Department of 

Environmental Quality (ADEQ) is the 

governmental agency with the authority 

and responsibility under state law for 

collecting ambient air quality data 

within the Nogales nonattainment area. 

Annually, ADEQ submits monitoring 

network plans to EPA. These plans 

discuss the status of the air monitoring 

network, as required under 40 CFR part 

58. EPA reviews these annual network 

plans for compliance with the 

applicable reporting requirements in 40 

CFR 58.10. With respect to PM2.5, we 

have found that ADEQ’s annual network 

plans meet the applicable requirements 

under 40 CFR part 58.6 Furthermore, we 

concluded in our Technical System 

Audit Report concerning ADEQ’s 

ambient air quality monitoring program 

that ADEQ’s ambient air monitoring 

network currently meets or exceeds the 

requirements for the minimum number 

of monitoring sites designated as 

SLAMS for PM2.5 in the Nogales 

nonattainment area.7 Also, ADEQ 

annually certifies that the data it 

submits to AQS are quality-assured.8


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Director, Air Division, EPA Region IX, dated 

September 21, 2012 certifying the ambient air 

quality data collected for year 2011. 9 In this context, ‘‘neighborhood’’ spatial scale 

defines concentrations within some extended area 

of the city that has relatively uniform land use with 

dimensions in the 0.5 to 4.0 kilometers range. See 

40 CFR part 58, appendix D, section 1.2. 

10State of Arizona Air Monitoring Network Plan 

for the Year 2012, Final Report, August 1, 2012. 

ADEQ also operates a co-located PM2.5 monitor at 

the Nogales monitoring site. The co-located monitor 

also collects samples on a one-day-in-six schedule. 

11See ADEQ’s September 11, 2012 letter to 

Matthew Lakin, Manager, Air Quality Analysis 

Office, EPA Region IX, from Eric Massey, Director, 

Air Quality Division, ADEQ. 

12While EPA recognizes that 40 CFR 51.1004(c) 

does not itself expressly apply to the 2006 PM2.5

standard, the statutory interpretation that it 

embodies is identical and is applicable to both the 

1997 and 2006 PM2.5 standards. 

There was one PM2.5 SLAMS 

operating during the 2009–2011 period 

in the Nogales PM2.5 nonattainment 

area. This site has been monitoring 

PM2.5 concentrations since 1999 with a 

one-in-six-day sampling frequency. EPA 

defines specific monitoring site types 

and spatial scales of representativeness 

to characterize the nature and location 

of required monitors. The monitor’s 

spatial scale is neighborhood scale,9 and 

its monitoring objective (site type) is 

population exposure.10

For the purposes of this proposed 

action, we have reviewed the data for 

the most recent three-year period (2009– 

2011) for completeness, and we 

determined that the data collected by 

ADEQ meets the completeness criterion 

for all 12 quarters at the Nogales PM2.5

monitor. While we consider the PM2.5

data set for 2009–2011 to be complete 

for the purposes of determining whether 

the area has attained the standard, we 

have also determined that, under our 

monitoring regulations, ADEQ should 

be sampling PM2.5 on a one-in-three day 

schedule rather than at the current onein-six day schedule because the colocated PM2.5 monitor at the Nogales site 

is not a continuously operating monitor, 

and under those circumstances, a 

sampling frequency of at least one day 

in every three is required under 40 CFR 

58.12(d)(1). ADEQ has agreed to 

increase the monitoring frequency at the 

Nogales monitoring site to meet the 

requirements of 40 CFR 58.12(d)(1), 

beginning January 2013.11 The 

increased number of samples would 

provide sufficient information to 

evaluate the area’s continued attainment 

of the 2006 PM2.5 NAAQS if we finalize 

this proposed determination of 

attainment for the Nogales 

nonattainment area. 

B. Evaluation of Current Attainment 

EPA’s evaluation of whether the 

Nogales PM2.5 nonattainment area has 

attained the 2006 24-hour PM2.5 NAAQS 

is based on our review of the monitoring 

data and takes into account the 

adequacy of the PM2.5 monitoring 

network in the nonattainment area and 

the reliability of the data collected by 

the network as discussed in the 

previous section of this document. 

Table 1 shows the PM2.5 design values 

for the Nogales nonattainment area 

monitor based on ambient air quality 

monitoring data for the most recent 

complete three-year period (2009–2011). 

The data show that the design value for 

the 2009–2011 period was equal to or 

less than 35 mg/m3 at the monitor. 

Therefore, we are proposing to 

determine, based on the complete, 

quality-assured data for 2009–2011, that 

the Nogales area has attained the 2006 

24-hour PM2.5 standard. Preliminary 

data available in AQS for 2012 indicate 

that the area continues to attain the 

standard. 

TABLE 1—2009–2011 24-HOUR PM2.5 MONITORING SITE AND DESIGN VALUE FOR THE NOGALES NONATTAINMENT AREA

Monitoring site 

AQS site 

identification 

No. 

98th Percentile (μg/m3) 2009–2011 

design values 

(μg/m3 2009 2010 2011 ) 

Nogales Post Office ....................................................... 04–023–0004 29.7 31.6 27.2 30 

Source: Design Value Report, August 14, 2012 (in the docket to this proposed action). 

IV. How does EPA’s Clean Data Policy 

apply to this action? 

A. Application of EPA’s Clean Data 

Policy to the 2006 PM2.5 NAAQS 

In April 2007, EPA issued its PM2.5

Implementation Rule for the 1997 PM2.5

standard. 72 FR 20586; (April 25, 2007). 

In March, 2012, EPA published 

implementation guidance for the 2006 

PM2.5 standard. See Memorandum from 

Stephen D. Page, Director, Office of Air 

Quality Planning and Standards, 

‘‘Implementation Guidance for the 2006 

24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS)’’ (March 2, 2012). In that 

guidance, EPA stated its view ‘‘that the 

overall framework and policy approach 

of the 2007 PM2.5 Implementation Rule 

continues to provide effective and 

appropriate guidance on the EPA’s 

interpretation of the general statutory 

requirements that states should address 

in their SIPs. In general, the EPA 

believes that the interpretations of the 

statute in the framework of the 2007 

PM2.5 Implementation Rule are relevant 

to the statutory requirements for the 

2006 24-hour PM2.5 NAAQS * * *.’’ Id., 

page 1. With respect to the statutory 

provisions applicable to 2006 PM2.5

implementation, the guidance 

emphasized that ‘‘EPA outlined its 

interpretation of many of these 

provisions in the 2007 PM2.5

Implementation Rule. In addition to 

regulatory provisions, the EPA provided 

substantial general guidance for 

attainment plans for PM2.5 in the 

preamble to the final the [sic] 2007 

PM2.5 Implementation Rule.’’ Id., page 2. 

In keeping with the principles set forth 

in the guidance, and with respect to the 

effect of a determination of attainment 

for the 2006 PM2.5 standard, EPA is 

applying the same interpretation with 

respect to the implications of clean data 

determinations that it set forth in the 

preamble to the 1997 PM2.5 standard 

and in the regulation that embodies this 

interpretation. 40 CFR 51.1004(c).12

EPA has long applied this interpretation 

in regulations and individual 

rulemakings for the 1-hour ozone and 

1997 8-hour ozone standards, the PM– 

10 standard, and the lead standard. 

B. History and Basis of EPA’s Clean 

Data Policy 

Following enactment of the CAA 

Amendments of 1990, EPA promulgated 

its interpretation of the requirements for 

implementing the NAAQS in the 

General Preamble for the 

Implementation of Title I of the CAA 

Amendments of 1990 (General 

Preamble) 57 FR 13498, 13564 (April 16, 

1992). In 1995, based on the 

interpretation of CAA sections 171 and 

172, and section 182 in the General 

Preamble, EPA set forth what has 

become known as its ‘‘Clean Data 

Policy’’ for the 1-hour ozone NAAQS. 

See Memorandum from John S. Seitz, 

Director, Office of Air Quality Planning 

and Standards, ‘‘Reasonable Further 


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13This discussion refers to subpart 1 because 

subpart 1 contains the requirements relating to 

attainment of the 2006 PM2.5 NAAQS. 

14This interpretation was adopted in the General 

Preamble, see 57 FR 13498, and has been upheld 

as applied to the Clean Data Policy, as well as to 

nonattainment SIP submissions. See NRDC v. EPA, 

571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 

294 F.3d 155 (D.C. Cir. 2002). 

Progress, Attainment Demonstration, 

and Related Requirements for Ozone 

Nonattainment Areas Meeting the 

Ozone National Ambient Air Quality 

Standard’’ (May 10, 1995). In 2004, EPA 

indicated its intention to extend the 

Clean Data Policy to the PM2.5 NAAQS. 

See Memorandum from Steve Page, 

Director, EPA Office of Air Quality 

Planning and Standards, ‘‘Clean Data 

Policy for the Fine Particle National 

Ambient Air Quality Standards’’ 

(December 14, 2004). 

Since 1995, EPA has applied its 

interpretation under the Clean Data 

Policy in many rulemakings, 

suspending certain attainment-related 

planning requirements for individual 

areas, based on a determination of 

attainment. See 60 FR 36723 (July 18, 

1995) (Salt Lake and Davis Counties, 

Utah, 1-hour ozone); 61 FR 20458 (May 

7, 1996) (Cleveland-Akron-Lorain, Ohio, 

1-hour ozone); 61 FR 31832 (June 21, 

1996) (Grand Rapids, Michigan, 1-hour 

ozone); 65 FR 37879 (June 19, 2000) 

(Cincinnati-Hamilton, Ohio-Kentucky, 

1-hour ozone); 66 FR 53094 (October 19, 

2001) (Pittsburgh-Beaver Valley, 

Pennsylvania, 1-hour ozone); 68 FR 

25418 (May 12, 2003) (St. Louis, 

Missouri-Illinois, 1-hour ozone); 69 FR 

21717 (April 22, 2004) (San Francisco 

Bay Area, California, 1-hour ozone); 75 

FR 6570 (February 10, 2010) (Baton 

Rouge, Louisiana, 1-hour ozone); 75 FR 

27944 (May 19, 2010) (Coso Junction, 

California, PM10). 

EPA also incorporated its 

interpretation under the Clean Data 

Policy in several implementation rules. 

See Clean Air Fine Particle 

Implementation Rule, 72 FR 20586 

(April 25, 2007); Final Rule To 

Implement the 8-Hour Ozone National 

Ambient Air Quality Standard—Phase 

2, 70 FR 71612 (November 29, 2005). 

The Court of Appeals for the District of 

Columbia Circuit (DC Circuit) upheld 

EPA’s rule embodying the Clean Data 

Policy for the 1997 8-hour ozone 

standard. NRDC v. EPA, 571 F.3d 1245 

(DC Cir. 2009). Other courts have 

reviewed and considered individual 

rulemakings applying EPA’s Clean Data 

Policy, and have consistently upheld 

them in every case. 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. March 2, 2009 

(Memorandum Opinion)). 

EPA sets forth below a brief 

explanation of the statutory 

interpretations in the Clean Data Policy. 

EPA also incorporates the discussions of 

its interpretation set forth in prior 

rulemakings, including the 1997 PM2.5

implementation rulemaking. See 72 FR 

20586, at 20603–20605 (April 25, 2007). 

See also 75 FR 31288 (June 3, 2010) 

(Providence, Rhode Island, 1997 8-hour 

ozone); 75 FR 62470 (October 12, 2010) 

(Knoxville, Tennessee, 1997 8-hour 

ozone); 75 FR 53219 (August 31, 2010) 

(Greater Connecticut Area, 1997 8-hour 

ozone); 75 FR 54778 (September 9, 

2010) (Baton Rouge, Louisiana, 1997 8- 

hour ozone); 75 FR 64949 (October 21, 

2010) (Providence, Rhode Island, 1997 

8-hour ozone); 76 FR 11080 (March 1, 

2011) (Milwaukee-Racine and 

Sheboygan Areas, Wisconsin, 1997 8- 

hour ozone); 76 FR 31237 (May 31, 

2011) (Pittsburgh-Beaver Valley, 

Pennsylvania, 1997 8-hour ozone); 76 

FR 33647 (June 9, 2011) (St. Louis, 

Missouri-Illinois, 1997 8-hour ozone); 

76 FR 70656 (November 15, 2011) 

(Charlotte-Gastonia-Rock Hill, North 

Carolina-South Carolina, 1997 8-hour 

ozone); 77 FR 31496 (May 29, 2012) 

(Boston-Lawrence-Worchester, 

Massachusetts, 1997 8-hour ozone). See 

also, 75 FR 56 (January 4, 2010) 

(Greensboro-Winston-Salem-High Point, 

North Carolina, 1997 PM2.5); 75 FR 230 

(January 5, 2010) (Hickory-MorgantonLenoir, North Carolina, 1997 PM2.5); 76 

FR 12860 (March 9, 2011) (Louisville, 

Kentucky-Indiana, 1997 PM2.5); 76 FR 

18650 (April 5, 2011) (Rome, Georgia, 

1997 PM2.5); 76 FR 31239 (May 31, 

2011) (Chattanooga, Tennessee-GeorgiaAlabama, 1997 PM2.5); 76 FR 31858 

(June 2, 2011) (Macon, Georgia, 1997 

PM2.5); 76 FR 36873 (June 23, 2011) 

(Atlanta, Georgia, 1997 PM2.5); 76 FR 

38023 (June 29, 2011) (Birmingham, 

Alabama, 1997 PM2.5); 76 FR 55542 

(September 7, 2011) (HuntingtonAshland, West Virginia-Kentucky-Ohio, 

1997 PM2.5); 76 FR 60373 (September 

29, 2011) (Cincinnati, Ohio-KentuckyIndiana, 1997 PM2.5); 77 FR 18922 

(March 29, 2012) (Harrisburg-LebanonCarlisle-York, Allentown, Johnstown 

and Lancaster, Pennsylvania, 1997 

PM2.5). 

The Clean Data Policy represents 

EPA’s interpretation that certain 

requirements of subpart 1 of part D of 

the Act are by their terms not applicable 

to areas that are currently attaining the 

NAAQS.13 As explained below, the 

specific requirements that are 

inapplicable to an area attaining the 

standard are the requirements to submit 

a SIP that provides for: attainment of the 

NAAQS; implementation of all 

reasonably available control measures; 

reasonable further progress (RFP); and 

implementation of contingency 

measures for failure to meet deadlines 

for RFP and attainment. 

CAA section 172(c)(1), the 

requirement for an attainment 

demonstration, provides in relevant part 

that SIPs ‘‘shall provide for attainment 

of the [NAAQS].’’ EPA has interpreted 

this requirement as not applying to 

areas that have already attained the 

standard. If an area has attained the 

standard, there is no need to submit a 

plan demonstrating how the area will 

reach attainment. In the General 

Preamble (57 FR 13564), EPA stated that 

no other measures to provide for 

attainment would be needed by areas 

seeking redesignation to attainment 

since ‘‘attainment will have been 

reached.’’ See also Memorandum from 

John Calcagni, ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ (September 4, 

1992), at page 6. 

A component of the attainment plan 

specified under section 172(c)(1) is the 

requirement to provide for ‘‘the 

implementation of all reasonably 

available control measures as 

expeditiously as practicable’’ (RACM). 

Since RACM is an element of the 

attainment demonstration, see General 

Preamble (57 FR 13560), for the same 

reason the attainment demonstration no 

longer applies by its own terms, RACM 

also no longer applies to areas that EPA 

has determined have clean air. 

Furthermore, EPA has consistently 

interpreted this provision to require 

only implementation of such potential 

RACM measures that could advance 

attainment.14 Thus, where an area is 

already attaining the standard, no 

additional RACM measures are 

required. EPA’s interpretation that the 

statute requires only implementation of 

the RACM measures that would advance 

attainment was upheld by the United 

States Court of Appeals for the Fifth 

Circuit (Sierra Club v. EPA, 314 F.3d 

735, 743–745, 5th Cir. 2002) and by the 

United States Court of Appeals for the 

D.C. Circuit (Sierra Club v. EPA, 294 

F.3d 155, 162–163, D.C. Cir. 2002). See 

also the final rulemakings for 

Pittsburgh-Beaver Valley, Pennsylvania, 

66 FR 53096 (October 19, 2001) and St. 

Louis, Missouri-Illinois, 68 FR 25418 

(May 12, 2003). 

CAA section 172(c)(2) provides that 

SIP provisions in nonattainment areas 

must require ‘‘reasonable further 


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progress.’’ The term ‘‘reasonable further 

progress’’ is defined in section 171(1) as 

‘‘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, 

by definition, the ‘‘reasonable further 

progress’’ provision under subpart 1 

requires only such reductions in 

emissions as are necessary to attain the 

NAAQS. If an area has attained the 

NAAQS, the purpose of the RFP 

requirement has been fulfilled, and 

since the area has already attained, 

showing that the State will make RFP 

towards attainment ‘‘[has] no meaning 

at that point.’’ General Preamble, 57 FR 

13498, 13564 (April 16, 1992). 

CAA section 172(c)(9) provides that 

SIPs in nonattainment areas ‘‘shall 

provide for the implementation of 

specific measures to be undertaken if 

the area fails to make reasonable further 

progress, or to attain the [NAAQS] by 

the attainment date applicable under 

this part. Such measures shall be 

included in the plan revision as 

contingency measures to take effect in 

any such case without further action by 

the State or [EPA].’’ This 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, 

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. 

It is important to note that should an 

area attain the 2006 PM2.5 standard 

based on three years of data, its 

obligation to submit an attainment 

demonstration and related planning 

submissions is suspended only for so 

long as the area continues to attain the 

standard. If EPA subsequently 

determines, after notice-and-comment 

rulemaking, that the area has violated 

the NAAQS, the requirements for the 

State to submit a SIP to meet the 

previously suspended requirements 

would be reinstated. It is likewise 

important to note that the area remains 

designated nonattainment pending a 

further redesignation action. 

V. EPA’s Proposed Action and Request 

for Public Comment 

EPA is proposing to determine that 

the Nogales nonattainment area in 

Arizona has attained the 2006 24-hour 

PM2.5 standard based on the most recent 

three years of complete, quality-assured, 

and certified data for 2009–2011. 

Preliminary data available in AQS for 

2012 show that the area continues to 

attain the standard. 

EPA further proposes that, if its 

proposed determination of attainment is 

made final, the requirements for the 

Nogales nonattainment area to submit 

an attainment demonstration and 

associated RACM, a RFP plan, 

contingency measures, and any other 

planning SIPs related to attainment of 

the 2006 PM2.5 NAAQS would be 

suspended for so long as the area 

continues to attain the 2006 PM2.5

NAAQS. EPA’s proposal is consistent 

and in keeping with its long-held 

interpretation of CAA requirements, as 

well as with EPA’s regulations for 

similar determinations for ozone (see 40 

CFR 51.918) and the 1997 fine 

particulate matter standards (see 40 CFR 

51.1004(c)). As described below, any 

such determination would not be 

equivalent to the redesignation of the 

area to attainment for the 2006 PM2.5

NAAQS. 

Any final action resulting from this 

proposal would not constitute a 

redesignation to attainment under CAA 

section 107(d)(3) because we have not 

yet approved a maintenance plan for the 

nonattainment area as meeting the 

requirements of section 175A of the 

CAA or determined that the area has 

met the other CAA requirements for 

redesignation. The classification and 

designation status in 40 CFR part 81 

would remain nonattainment for the 

area until such time as EPA determines 

that Arizona has met the CAA 

requirements for redesignating the 

Nogales PM2.5 nonattainment area to 

attainment. 

If the Nogales nonattainment area 

continues to monitor attainment of the 

2006 PM2.5 NAAQS, EPA proposes that 

the requirements for the area to submit 

an attainment demonstration and 

associated RACM, a RFP plan, 

contingency measures, and any other 

planning requirements related to 

attainment of the 2006 PM2.5 NAAQS 

will remain suspended. If this proposed 

rulemaking is finalized and EPA 

subsequently determines, after noticeand-comment rulemaking in the Federal 

Register, that the area has violated the 

2006 PM2.5 NAAQS, the basis for the 

suspension of these attainment planning 

requirements for the area would no 

longer exist, and the area would 

thereafter have to address such 

requirements. 

EPA is soliciting public comments on 

the issues discussed in this document or 

on other relevant matters. We will 

accept comments from the public on 

this proposal for the next 30 days. We 

will consider these comments before 

taking final action. 

VI. Statutory and Executive Order 

Reviews 

This action proposes to make a 

determination of attainment based on 

air quality and to suspend certain 

federal requirements, and thus, would 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed action does 

not have Tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

the SIP obligations discussed herein do 

not apply to Indian Tribes and thus this 


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Federal Register / Vol. 77, No. 210 / Tuesday, October 30, 2012 / Proposed Rules 65661 

proposed action 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, Particulate matter, Nitrogen 

oxides, Sulfur oxides, Reporting and 

recordkeeping requirements. 

Dated: October 15, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–26651 Filed 10–29–12; 8:45 am] 

BILLING CODE 6560–50–P 


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