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Citation: 77 Fed. Reg. 44544 2012

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 77, No. 146/Monday, July 30, 2012/Proposed Rules

conducted in accordance with the plan. A waste management planmeeting the requirements of 33 CFR 151.57 satisfies this requirement, so long as itprovides allthe information required by this paragraph (b)(5). Ifthe plan is maintained electronically, at least one paper copy ofthe plan mustbe onboard for use during inspections. The plan
must describe the specific measures the vessel employs to ensure the minimization ofbulk dry cargo residue discharges, and, at a minimum, must list

ordescribe-

(i) Equipment onboard the vessel that is designed to minimize bulk dry cargo spillage during loading and unloading;

(ii)Equipment onboard the vessel that is available to recover spilled cargo from the decks and transfertunnels and
return it to the holds or to unloading conveyances;

(iii)Operational procedures employed by the vessel's crew during the loading

orunloading ofbulk dry cargoes to minimize cargo spillage onto the decks and into the transfer tunnels and to achieve and maintain the broom clean deckcondition required by paragraph (b)(4) ofthis section;

(iv)Operational procedures employed by the vessel's crew during or after loading or unloading operations to return spilled bulk dry cargo residue to the vessel's holds or to shore via an unloading conveyance; (v)How the vessel's owner or operator

ensures that the vessel's crew is familiar with any operational procedures describedby the plan;

(vi)The position title ofthe person onboard who is in charge of ensuring compliance with procedures described in the plan; (vii)Any arrangements between the vessel and specific ports or terminals for the unloading and disposal ofthe vessel's bulk dry cargo residues ashore; and

(viii)The procedures used and the vessel's operating conditions tobe maintained during any unavoidable discharge ofbulk dry cargo residue into the Great Lakes. (6) In determining whether a commercial vessel or person is in compliance with this paragraph (b), Coast Guard personnel may consider- (i) The extent to which the procedures described in the vessel's DCR management plan reflect current industry standard practices forvessels ofcomparable characteristics, cargoes, and operations;

(ii)The crew's demonstrated ability to perform tasks for which the DCR management plan holds them responsible; (iii)Whether equipment described in the DCR management plan is maintained in proper operating condition; and (iv)The extent to which the crew adheres to the vessel's DCRmanagement plan during actual dry cargo loading and unloading operations and DCR discharge operations.

J.G. Lantz,
Director ofCommercialRegulationsand Standards,UnitedStatesCoastGuard.

[FR Doe. 2012-18399 Filed 7-27-12; 8:45 am]
BILLING CODE 9110-04-P

DEPARTMENT OF HOMELAND

SECURITY

Coast Guard

33 CFR Part 165 [Docket No. USCG-2012-0427]
RIN 1625-AAOO
Safety Zone; Gilmerton Bridge Center Span Float-In, Elizabeth River; Norfolk, Portsmouth, and Chesapeake, VA

AGENCY: Coast Guard, DHS.

ACTION: Proposed rule; withdrawal.

SUMMARY: The Coast Guard is withdrawing its proposed rule concerning the Gilmerton Bridge Center Span Float-in andbridge construction of span placement. The original proposal had a start date ofJuly 31, 2012, and
must be rescheduled to start on September 5, 2012, due to unforeseen circumstances with span lift construction. DATES: The proposed ruleis withdrawn

on July 6, 2012. ADDRESSES: The docket for this withdrawn rulemaking is available for inspection or copying atthe Docket Management Facility (M-30), U.S. Department ofTransportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5p.m., Monday throughFriday, except Federal holidays. You may also find this docket on the Internet by going
to http://www.regulations.gov, inserting USCG-2012-0427 in the "Keyword" box, and then clicking "Search."

FOR FURTHER INFORMATION CONTACT: If you have questions about this notice, call or email Hector Cintron,Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757-668-5581, email Hector.L.Cintron@uscg.mil. Ifyou have questions on viewing material in the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Background

On July 25, 2012, we published a notice ofproposed rulemaking entitled "Safety Zone; Gilmerton Bridge Center Span Float-in, Elizabeth River; Norfolk, Portsmouth, and Chesapeake, Virginia" in the 

### FederalRegister (77 FR 43557). The rulemaking concerned establishing

a safety zone on the navigable waters of the Elizabeth River in Norfolk, Portsmouth, and Chesapeake, VA, in order toprovide for the safety oflife on navigable waters during the Gilmerton Bridge Center Span Float-in andbridge construction ofspan placement.

Withdrawal

The proposed rule is being withdrawn due to unforeseen circumstances in the construction timeline ofthe Center Span, which has caused a 5week delay in the project.

Authority: We issue this notice of withdrawal under the authority of5 U.S.C. 552(a), 44 U.S.C. 1505(a)(3), and 33 CFR 1.05-1.

Dated: July 17, 2012. John K. Little, Captain,U.S. CoastGuard,Captainofthe Port HamptonRoads.
[FRDoe. 2012-18559 Filed 7-27-12; 8:45 am]

BILLING CODE 9110-04-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R08-OAR-2012-0446; FRL-9703-9]
Approval and Promulgation of Air Quality Implementation Plans; Utah; Determination of Clean Data forthe 1987 PM10Standard forthe Ogden Area

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: EPA is proposing to determine that the Ogden City nonattainment area in Utah is currently attaining the National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter ofless than or equal to a nominal ten micrometers (PMo)based

on certified, quality-assured ambient air monitoring data for the years 2009 through 2011. The State ofUtah submitted aletter dated March 30, 2000, requesting EPA to make a clean data 

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determination for the nonattainment

area ofOgden City.Based on our proposed determination that the Ogden City nonattainment area is currently attaining the PM1 0 NAAQS, EPA is also proposing to determine thatUtah's obligation to make submissions to meet certain Clean Air Act (CAA) requirements related to attainment of the NAAQS is not applicable for aslong

as the Ogden City nonattainment area continues to attain the NAAQS. This action is being takenunder the CAA. DATES: Comments mustbe received on

orbefore August 29, 2012. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08- OAR-2012-0446, by one ofthe following methods:

* http://www.regulations.gov. Follow the on-line instructions for submitting
comments.

* Email: freeman. crystal@epa.gov. * Fax:(303) 312-6064 (please alert the individual listed in the FOR FURTHER
INFORMATION CONTACT ifyou are faxing comments).

* Mail:Carl Daly, Director, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8PAR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.

* HandDelivery: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 ofboxed information.

Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2012- 0446. EPA's policy is that all comments received will be included in the public docket without change and maybe made available online at www.regulations.gov,including any personal information provided, unless the comment includes information claimed tobe 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

oremail. The www.regulations.govWeb site is an "anonymous access" system, which means EPA will not know your identity or contact information unless you provide itin the body ofyour comment. Ifyou send an email
comment directly to EPA, without going through www.regulations.gov your email address will be automatically captured and included as part ofthe comment that isplaced in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your
name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. IfEPA
cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe 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 information about EPA's public docket visit the EPA Docket Center homepage at http:// www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to Section I. General Information ofthe SUPPLEMENTARY INFORMATION section of this document.

Docket:All documents in the docket

are listed in the 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 www.regulations.govor inhard copy at the Air Program, U.S. Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that ifat all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy ofthe docket. You may viewthe hard copy ofthe docketMonday through Friday, 8:00 a.m. to 4:00p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Crystal Freeman, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6602,freeman.crystal@epa.gov.
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information II. Background

A. PM10 NAAQS B. Designation and Classification ofOgden

City PMl0 Nonattainment Area C. How doesEPA make attainment

determinations? III. EPA's Analysis

A. What is the Ogden City nonattainment

area monitoring network? B. Do the Ogden City nonattainment area

monitors meet minimum federal ambient air quality monitoring requirements? C. What does the airquality data show for

the Ogden City nonattainment area? IV. EPA's Clean Data Policy and the Applicability ofthe Clean Air Act Planning Requirements to the Ogden City Nonattainment Area V. EPA's Proposed Action VI. Statutory and Executive Order Reviews
Definitions

For the purpose ofthis document, we
are giving meaning to certain words or initials as follows: (i) The words or initialsAct or CAA

mean orrefer to the Clean AirAct, unless the context indicates otherwise. (ii)The initialsAQS mean orrefer to EPA's Air Quality System database. (iii)The words EPA,we, usor our
mean orrefer to the United States Environmental Protection Agency. (iv)The initials NAAQS mean or refer
to National Ambient Air Quality Standard.

(v)The initials NSR mean orrefer to

new source review. (vi)The initials PM 2.5 mean or refer to particulate matter with an aerodynamic diameter equal to or less than 2.5 micrometers (fineparticulate matter). (vii)The initials PMomean orrefer to particulate matter with an aerodynamic diameter equal to orless than 10 micrometers (coarse particulate matter). (viii)The initials RACM mean or refer
to reasonably available control

measures. (ix)The initials RFPmean or refer to reasonable further progress. (x)The initials SIPmean or refer to State Implementation Plan.

(xi)The initials SLAMS mean or refer
to state and local air monitoring stations.

(xii)The words State or Utahmean the State ofUtah, unless the context indicates otherwise. (xiii)The initials UDEQmean or refer
to Utah Department ofEnvironmental Quality.

I. General Information

A. WhatshouldIconsiderasIprepare my commentsforEPA?
1. SubmittingCBI.Do not submit this information to EPA through www.regulations.govor email. Clearly mark the part or all ofthe information that you claim tobe CBI. ForCBI information in a disk orCD-ROM that you mail to EPA, markthe outside ofthe disk orCD-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 ofthe comment that includes information claimed as CBI, a copy ofthe comment that does not contain the information claimed as CBI
must be submitted for inclusion in the 

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public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips forPreparingYour Comments. When submitting comments, remember
to:

a. Identify the rulemaking by docket number and other identifying information (subjectheading, Federal Register date and page number).

b. Follow directions-The agency may askyou to respond to specific questions

or organize comments by referencing a Code ofFederal 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/

ordata that you used.

e. Ifyou estimate potential costs or burdens, explain howyou arrived at your estimate in sufficient detail to allow for itto be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain yourviews as clearly as possible, avoiding the use ofprofanity

orpersonal threats.

h. Make sure to submit your comments by the comment period deadline identified.

II. Background

A. PM 1oNAAQS

EPA sets the NAAQS for certain ambient air pollutants at levels required
to protect public health andwelfare. Particulate matter with an aerodynamic diameter less than or equal to anominal
ten micrometers, or PM1 o,is one ofthese ambient air pollutants for which EPA has established health-based standards. On July 1, 1987, EPA promulgated two primary standards for PM:10 a 24-hour standard of 150 micrograms per cubic meter (gg/m3); and, an annual PM10 standard of 50 gg/m 3

. EPA also promulgated secondary PM10 standards that were identical to the primary standards. See 52 FR 24634 (July 1, 1987).

Effective December 18, 2006, EPA revoked the annual PM10 standard but retained the 24-hour PM10 standard. See 71 FR 61144 (October 17, 2006). An area attains the 24-hour PM 1 ostandard when the expected number ofdays per calendar year with a 24-hour concentration in excess ofthe standard (referred to herein as an "exceedance"),

as determined in accordance with 40 CFR part 50, appendix K, is equal to or less than one.' See 40 CFR 50.6 and 40 CFR part 50, appendix K.

B. DesignationandClassification of OgdenCityPMoNonattainment Area
The Ogden City nonattainment area

was designated nonattainment for PMo and classified as moderate under section 107(d)(3) ofthe CAA, on July 28, 1995. See 60 FR 38726 (July 28, 1995) and40 CFR Part 81.345 (Ogden Area Weber County (part) City of Ogden). The Ogden City designation became effective on September 26, 1995.

C.How doesEPAmake attainment determinations?

Generally, EPA determines whether

an area's air quality ismeeting the PMo NAAQS based on complete,2 qualityassured, and certified data gathered at established state and local air monitoring stations (SLAMS) in the nonattainment area, and entered into the EPA Air Quality System (AQS) database. Data from air monitors operated by State, local, or Tribal agencies in compliance with EPA monitoring requirements mustbe submitted to AQS. These monitoring agencies certify annually that these data

are accurate to the best oftheir knowledge. Accordingly, EPA relies primarily on data in AQS when determining the attainment status of an

area. See 40 CFR 50.6; 40 CFRpart 50, appendix Jand K; 40 CFR part 53; and, 40 CFR part 58, appendices A, C, D, and E. EPA will also consider air quality data from other air monitoring stations in the nonattainment area provided those stations meet the Federal monitoring requirements for SLAMS, including the quality assurance and quality control criteria in 40 CFR part 58, appendix A. See 40 CFR 58.14 (2006) and 58.20 (2007); 3 71 FR 61236, 61242 (October 17, 2006). All valid data

are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix K.

1An exceedance is defined as a daily value that is above the level ofthe 24-hour standard, 150pg/
M 3

,after rounding to the nearest 10 pg/m 3 (i.e., values ending infive or greater areto be rounded up). Thus, a recorded value of 154 pg/m 3would not be an exceedance since itwould berounded to 150 pg/m 3;whereas, a recorded value of 155 pg/m 3

would be an exceedance sinceit would be rounded to 160 gg/m 3

. See 40CFR part 50, appendix K, section 1.0.

2ForPM 10,a"complete" set ofdata includes a minimum of75percent ofthe scheduled PMo samples per quarter. See 40CFR part 50, appendix K,section 2.3(a).

3EPApromulgated amendments tothe ambient air monitoringregulations in 40CFR parts 53 and 58 on October 17, 2006. (See 71 FR 61236.) The requirements for Special Purpose Monitors were revised and moved from 40 CFR 58.14 to 40 CFR
58.20. Attainment ofthe 24-hour PM10 standard is determined by calculating the expected number ofexceedances of the standard in a year. The 24-hour PM10 standard is attained when the expected number ofexceedances averaged over a three-year period is less than or equal to one at each monitoring site within the nonattainment area. Generally, three consecutive years of complete air quality data are required to show attainment ofthe 24-hour PM10 standard. See 40 CFR part 50 and appendix K.4

To demonstrate attainment ofthe 24- hour PMo standard at a monitoring site, the monitor must provide sufficient data
to perform the required calculations in 40 CFR part 50, appendix K. The amount of data required varies with the sampling frequency, data capture rate, and the number ofyears ofrecord. In all
cases, three years ofrepresentative monitoring data that meet the 75 percent criterion discussed earlier should be utilized, ifavailable. More than three years maybe considered, if all additional representative years of data meeting the 75 percent criterion are utilized. Data not meeting these criteria may also suffice to show attainment; however, such exceptions mustbe approved by the appropriate Regional Administrator in accordance with EPA guidance. See 40 CFR part 50, appendix K, section 2.3.

III. EPA's Analysis

A. What isthe Ogden City nonattainment areamonitoring network?

The Utah Department of Environmental Quality (UDEQ) has operated PM10 monitors in Ogden City since 1987. The first monitor in Ogden City was operated by the Ogden Health Department at 2570 Grant Avenue until February 15, 2000. The monitor was replaced by the Ogden Number 2 monitoring site at 228 32nd Street, which began operation on July 2, 2001. Both sites were selected to read maximum concentration values near the
center ofthe Ogden Cityurbanized area.
B. Does the Ogden Citynonattainment

areamonitormeetminimumfederal ambientairqualitymonitoring requirements?

Annually, UDEQ submits monitoring network plan reports to EPA on compliance with the applicable reporting requirements in 40 CFR 58.10. These reports discuss the status ofthe

4Because the annual PMl0 standard was revoked effective December 18, 2006, this document discusses only attainment ofthe 24-hour PM 0 standard. See 71 FR 61144 (October 17, 2006). 

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air monitoring network, as required under 40 CFR part 58. With respect to PM10,UDEQ's annual network plans
meet the applicable requirements under 40 CFR part 58. The Ogden Number 2 monitor samples on a daily schedule, which meets the requirements of40 CFR 58.12(e) for monitoring frequency. Also, UDEQ annually certifies that the data it submits to AQS are quality-assured.

C. Whatdoes theairqualitydatashow forthe Ogden Citynonattainment area?

Since 1995, when Ogden City was designated as a nonattainment area, the data from AQS indicate that six exceedances ofthe PMo standard have been measured in the Ogden City nonattainment area at the Ogden Number 2monitor. From the six total exceedances, one was observed in 2002, two were in 2003, one was in 2009, and
two were in 2010. All these exceedances have been flagged by UDEQas exceptional events involving either July 4th fireworks, high winds, or wildfires. These exceedances resulted in expected numbers ofexceedances of 1.0 for the period 2001 through 2003, 2002 through 2004, 2008 through 2010, and 2009 through 2011, showing that the Ogden City nonattainment area has attained the PM10 NAAQS in allyears containing complete monitoring data from 1995 to present. The available data shows attainment ofthe PM1ostandard continuously since 2002, even ifEPA takes no action to exclude data flagged

as exceptional events.

Between 1995 and 2011, an interruption ofmonitoring occurred between February 16, 2000 until July 2, 2001. This prevented EPA from determining that Ogden had attained the NAAQS via a clean data determination until 3years of complete monitoring data had been collected after 2001. Beginning in 2002, complete data showing attainment ofthe PM10 standard has been collected in AQS for the Ogden City PM1ononattainment

area.

For the purposes ofthis proposed action, we have reviewed the data for the mostrecent three-year period (2009 through 2011). Table 1 summarizes the PM10 concentration data collected at the Ogden Number 2monitor over the past three years. As shown in Table 1, three exceedances, but noviolations, were recorded within the Ogden City nonattainment area over the 2009 through 2011 period.

TABLE 1-SUMMARY OF 

### 2009-2011 PM 1 o MONITORING DATA FOR OGDEN CITY NONATTAINMENT AREAA

Highest 24-hour PM 1oconcentration (gg/m3) Expected exceedances Monitoring site per year 2009 2010 2011 2009-2011

Ogden No. 2

........................................................................................... ........ 181 216 79 1.0

PM10 NAAQS = 150 gg/m3

aSource: AQS AMP350 report dated June 8, 2012.

Table 2expands on Table l's expected exceedance peryear for Ogden City's PM10 monitor for years 2009 through 2011. For the years 2009 and 2010, there were three exceedances that

were flagged as exceptional events. However, even though there were exceedances within these two years, the Ogden City monitor did not violate the PM10 NAAQS.

TABLE 2-SUMMARY OF OGDEN CITY'S

PM1o MONITOR DATA (49-057- 0002), 2009-2011 EXPECTED EXCEEDANCES PER YEAR

Monitor 49-057-0002

2009

.......................... 1.0 (Wildfire Exceptional Event Flag). 2010

.......................... 2.0 (High Wind Exceptional Event Flag). 2

01

1

.......................... 0.0

. 2009-2011 Three 1.0.

Year Average.

During the 2009 through 2011 time period, the data collected by UDEQ
meets the completeness criterion for all quarters at the Ogden Number 2 monitor. As noted above, to be considered "complete," valid measurements must be made for 75 percent ofall the scheduled sampling dates in each quarter ofthe year, and generally, three years ofrepresentative monitoring data that meets the 75 percent criterion should be utilized, where available.

Based on our review ofthe certified, quality-assured data for 2009 through 2011, we find that the expected number of exceedances peryear forthe Ogden City nonattainment area for the most recent three-year period (i.e., 2009to 2011) was 1.0 day peryear. With an annual expected exceedance rate for the 24-hour PM10 NAAQS of 1.0, these data show attainment ofthe PMo standard. The EPA proposes to determine that the Ogden City nonattainment area is attaining the PM10 NAAQS. Priorto taking final action onthis proposal, we will review any preliminary data for 2012 submitted by UDEQ to AQS for the Ogden City nonattainment area to

ensure that such preliminary data show continued attainment ofthe standard.

IV. EPA's Clean DataPolicy andthe Applicability ofthe Clean AirAct Planning Requirements to the Ogden City NonattainmentArea

The air quality planning requirements for moderate PM10 nonattainment areas, such as the Ogden City nonattainment area, are set out in part D, subparts 1 and 4, oftitleI ofthe Act. EPA has issued guidance in a General Preamble describing how we willreview state implementation plans (SIPs) and SIP revisions submitted under title I ofthe Act, including those containing moderate PM10 nonattainment area SIP provisions.5

The subpart 1 requirements include, among other things, provisions for reasonably available control measures or "RACM", reasonable further progress or "RFP", emissions inventories, a permit program for construction and operation ofnew or modified major stationary

sources in the nonattainment area or "NSR", contingency measures, conformity, and additional SIP revisions providing for attainment where EPA determines that the area has failed to attain the standard by the applicable attainment date.

Subpart 4 requirements in CAA section 189 apply specifically to PM1o nonattainment areas. The requirements for moderate PM10 nonattainment areas include: (1)An attainment demonstration; (2)provisions for

5 "General Preamble for the Implementation of Title I of the Clean Air Act Amendments of1990,"
(57FR 13498 (April 16, 1992), and supplemented at 57 FR 18070 (April 28, 1992)); hereafter referred

to as the General Preamble. 

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RACM; (3)quantitative milestones demonstrating RFP toward attainment by the applicable attainment date; and, (4) provisions ensuring that the control requirements applicable to an area's major stationary sources ofPM10 also apply to major stationary sources of PM10 precursors, except where the Administrator has determined that such

sources do not contribute significantly
to PM1olevels exceeding the NAAQS.

For nonattainment areas where EPA determines thatmonitored data show that the NAAQS have already been achieved, EPA's interpretation, upheld by the Courts, isthat the obligation to submit certain requirements ofpart D, subparts 1, 2, and 4 ofthe Act are suspended for so long as the area continues to attain. These include requirements for attainment demonstrations, RFP, RACM, and contingency measures, because these provisions have the purpose ofhelping achieve attainment of the NAAQS. Certain other obligations for PM 1 o nonattainment areas, however, are not suspended, such as the NSR requirements.

This interpretation ofthe CAA is known as the Clean Data Policy.It isthe subject ofseveral EPA memoranda and regulations, and numerous rulemakings that havebeen published inthe Federal Register over more than fifteen years. EPA finalized the statutory interpretation set forth in the CleanData Policy as part ofits "Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard-Phase 2" (Phase 2Final Rule); see 40 CFR 51.918 and discussion inthe preamble
to the rule at 70 FR 71612, 71645-71646 (November 29, 2005). The DC Circuit Court upheld this Clean Data regulation

as a valid interpretation ofthe CAA; see NRDCv. EPA, 571 F. 3d 1245 (D.C. Cir. 2009). EPA also finalized its interpretation in an implementation rule for the NAAQS for particulate matter of 2.5 microns or less (PM2. 5); see 40 CFR 51.1004(c). Thus, EPA has codified the Clean Data Policy when it established final rules governing implementation of

new orrevised NAAQS. See 70 FR 71612, 71644-46 (November 29, 2005); 72 FR 20586, 20665 (April 25, 2007) (PM2. 5 Implementation Rule). Otherwise, EPA applies the Clean Data Policy in individual rulemakings related
to specific nonattainment areas. See,
e.g., 75 FR 27944 (May 19, 2010), the determination of attainment ofthe PM10 standard in Coso Junction, California, and 75 FR 6571 (February 10, 2010), the determination of attainment ofthe 1- hour ozone standard in Baton Rouge, Louisiana. In its many applications ofthe Clean Data Policy interpretation to PMo,EPA has explained that the legal bases set forth in detail in our Phase 2Final Rule;

our May 10, 1995 memorandum from John S. Seitz, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard;" our PM2. 5 Implementation Rule; and our December 14, 2004 memorandum from Stephen D. Page entitled "Clean Data Policy for the Fine Particle National Ambient Air Quality Standards," are equally pertinent to the interpretation of provisions of subparts 1 and 4 applicable to PM1o.See, e.g., 71 FR 6352 (February 8, 2006) (Ajo, Arizona area); 71 FR 13021 (March 14, 2006) (Yuma, Arizona area); 71 FR 40023 (July 14, 2006) (Weirton, West Virginia area); 71 FR 44920 (August 8, 2006) (Rillito, Arizona area); 71 FR 63642 (October 30, 2006) (SanJoaquin Valley, California area); 72 FR 14422 (March 28, 2007) (Miami,Arizona area); 75 FR 27944 (May 19, 2010) (CosoJunction, California area); and 76 FR 21807 (April 19, 2011) (Truckee Meadows, Nevada area). EPA's interpretation that the obligation to submit an attainment demonstration, RACM, RFP, contingency measures, and other

measures related to attainment under part D oftitle Iofthe CAA is suspended while the area is attaining the NAAQS, applies whether the standard is PM 10, ozone, or PM2.5.

In EPA's proposed and final rulemakings 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 PM1o.The Ninth Circuit Court subsequently upheld this rulemaking, and specifically EPA's Clean Data Policy, in the context ofthe PM10 standard. SeeLatinoIssues Forumv. EPA,Nos. 06-75831 and 08- 71238 (9th Cir.), Memorandum Opinion, March 2, 2009. In rejecting petitioner's challenge to the Clean Data Policy for PM10,the Court stated:

As the EPArationally explained, ifan area is in compliance withPM1ostandards, then further progress forthe purpose ofensuring attainment isnot necessary.

EPA noted in its prior PM1o rulemakings that the reasons for relieving an area that has attained the relevant standard ofcertain obligations under part D, subparts 1 and 2, apply equally to part D, subpart 4, which contains specific attainment demonstration and RFP provisions for PM10nonattainment areas. In EPA's Phase 2Final Rule and ozone (Seitz) and PM2.5Clean Data (Page) memoranda, EPA established that it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions ifan area subject to those requirements is already attaining the NAAQS (i.e., attainment ofthe NAAQS is demonstrated with three consecutive years of complete, quality-assured, and certified air quality monitoring data). Every U.S. Circuit Court ofAppeals that has considered the Clean Data Policy has upheld EPA rulemakings applying its interpretation, forboth ozone and PM10. See SierraClubv. EPA, 99 F.3d 1551 (10th Cir. 1996); SierraClubv. EPA, 375 F.3d 537 (7th Cir. 2004); Our Children's EarthFoundationv. EPA,No. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion), LatinoIssues Forum,supra.

It has been EPA's longstanding interpretation that the general provisions ofpart D, subpart 1 ofthe Act (sections 171 and 172) do not require the submission of SIP revisions concerning RFP for areas already attaining the ozone NAAQS. In the General Preamble, we stated:

[R]equirements for RFP will not apply in evaluating arequest forredesignation to attainment since, at a minimum, the air quality data forthe area must show that the

area has already attained. Showing that the State will makeRFP towards attainment will, therefore, haveno meaningat that point.
See 57 FR 13564 (April 16, 1992). EPA's prior determinations of attainment for PM10, e.g., for the SanJoaquin Valley and Coso Junction areas inCalifornia, make clear that the same reasoning applies to the PM1oprovisions ofpart D, subpart 4. See 71 FR 40952 and 71 FR 63642 (proposed and final determination of attainment for San Joaquin Valley) and 75 FR 13710 and 75 FR 27944 (proposed and final determination of attainment for Coso Junction).

With respect to RFP, section 171(1)
states that, for purposes ofpart D oftitle I, RFP "means such annual incremental reductions in emissions ofthe relevant air pollutant as are required by this part

ormay reasonably be required by the Administrator for the purpose of ensuring attainment ofthe 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 PM1oareas ofpart D, subpart 4, section 189(c)(1), the statedpurpose of RFP is to ensure 

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attainment by the applicable attainment date. Section 189(c)(1) states that:

Plan revisions demonstrating attainment submitted to the Administrator for approval under this subpart shall contain quantitative milestones which are to be achieved every 3
years until the area is redesignated attainment and which demonstrate reasonable further progress, as defined in section 7501(1) ofthis title, toward attainment by the applicable date.

Although this section states that revisions shall contain milestones which are tobe 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 isno next milestone. Section 189(c)(3) assumes that the requirement
to submit and achieve milestones does
not continue after attainment ofthe NAAQS.

In the General Preamble, we noted with respect to section 189(c) that the purpose ofthe milestone requirement "is 'to provide for emission reductions adequate to achieve the standards bythe applicable attainment date' (H.R. Rep. No. 490, 101st Cong., 2d Sess. 267 (1990))." See 57 FR 13539 (April 16, 1992). Ifan area has in fact attained the standard, the stated purpose ofthe RFP requirement will have already been fulfilled. 6 EPA tookthis position with respect to the general RFP requirement of section 172(c)(2) in the General Preamble and also in the Seitz memorandum withrespect to the

6Thus, we believe that it is a distinction without

a difference that section 189(c)(1) speaks ofthe RFP requirement as oneto 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), whichrefer to the RFPrequirements as applying until the "attainment date," since section 189(c)(1) defines RFP by reference to section 171(1) ofthe Act. Reference to section 171(1) clarifies that,

as with the general RFP requirements in section 172(c)(2) and the ozone-specific requirements of section 182(b)(1) and 182(c)(2), the PM-specific requirements mayonly be required "for the purpose ofensuring attainment ofthe applicable national ambient air quality standard by the applicable date." 42 U.S.C. section 7501(1). As discussed in the text ofthis rulemaking, EPA interprets the RFP requirements, in light ofthe definition ofRFP in section 171(1), and incorporated in section 189(c)(1), tobe a requirement that no longer applies

once the standard has been attained. requirements of sections 182(b) and (c). In our prior applications ofthe Clean Data Policy to PM10,we have extended that interpretation to the specific provisions ofpart D, subpart 4. See, e.g., 71 FR 40952 and 71 FR 63642, the proposed and final determination of attainment for San Joaquin Valley, and 75 FR 13710 and 75 FR 27944, the proposed and final determination of attainment for Coso Junction.

In the General Preamble, we stated, in the context ofa discussion ofthe requirements applicable to the evaluation ofrequests to redesignate nonattainment areas to attainment, that the "requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the

area must show that the area has already attained. Showing thatthe State will make RFP towards attainment will, therefore, have no meaning at that point." See 57 FR 13564 (April 16, 1992). See also our September 4, 1992 memorandum fromJohn Calcagni, entitled "Procedures for Processing Requests to Redesignate Areas to Attainment" (Calcagni memorandum),
at page 6.

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 laterthan 90 days after the date on which a milestone applicable to the area occurs, each State in which all or part ofsuch

area islocated shall submit to the Administrator a demonstration * * * that the milestone hasbeen met.

Where the area has attained the standard and there are no further milestones, there is no further requirement to make a submission showing that such milestones have been
met. As noted above, this is consistent with the position that EPA tookwith respect to the general RFP requirement of section 172(c)(2) in the General Preamble and also in the Seitz memorandum with respect to the requirements of section 182(b) and (c). In the Seitz memorandum, EPA also noted that section 182(g), the milestone requirement ofsubpart 2,which is analogous to provisions in section 189(c), is suspended upon a determination that an area has attained. The Seitz memorandum, also citing additional provisions related to attainment demonstration and RFP requirements, stated:

Inasmuch as each ofthese 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 orRFP plan, it need not submit the related SIP submission either.
See Seitz memorandum at page 5.

With respect to the attainment demonstration requirements ofsection 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, ifan area is already monitoring attainment ofthe 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 ofthe section 172(c) requirements provided by EPA in the General Preamble, the Page memorandum, and the section 182(b) and (c) requirements set forth in the 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."
See 57 FR at 13564 (April 16, 1992).

Other SIP submission requirements

are linked with these attainment demonstration and RFP requirements, and similar reasoning applies to them. These requirements include the contingency measure requirements of sections 172(c)(9) and 182(c)(9). We have interpreted the contingency

measure requirements of sections 172(c)(9) and 182(c)(9) as no longer applying when an area has attained the standard because those "contingency

measures are directed at ensuring RFP and attainment by the applicable date." See 57 FR 13564 (April 16, 1992) and Seitz memorandum, pages 5-6.

Both sections 172(c)(1) and 189(a)(1)(C) require "provisions to

assure thatreasonably available control measures" (i.e., RACM) are implemented in a nonattainment area. The General Preamble states that EPA interprets section 172(c)(1) so that RACM requirements are a "component" of an area's attainment demonstration. See 57 FR 13560 (April 16, 1992). 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 ofpotential RACM

measures that could contribute to reasonable further progress or to attainment. See the General Preamble at 57 FR 13498 (April 16, 1992). Thus, where an area is already attaining the 

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standard, no additional RACM measures
are required. 7EPA is interpreting section 189(a)(1)(C) consistent with its interpretation ofsection 172(c)(1).

We emphasize that the suspension of the obligation to submit SIP revisions concerning these RFP, attainment demonstration, RACM, and other related requirements exists only for as long as the Ogden City nonattainment area continues to monitor attainment ofthe PM10 standard. IfEPA determines, after notice-and-comment rulemaking, that the area has monitored a violation ofthe PM1oNAAQS, the basis for suspending the requirements would no longer exist. As a result, the Ogden City nonattainment area would again be subject to a requirement to submitthe pertinent SIP revision or revisions and would need to address those requirements. Thus, a final determination that the area need not submit one ofthe pertinent SIP submittals amounts to no more than a suspension ofthe requirements for so long as the area continues to attain the standard. Only after EPA redesignates the area to attainment would the area be relieved ofthese attainment-related submission obligations. Attainment determinations under the Clean Data Policy do not suspend an area's obligations unrelated to attainment in the area, such as provisions to address pollution transport.

Based on our proposed determination that the Ogden City nonattainment area is currently attaining the PM1oNAAQS (see section III.C above) and as set forth above, we propose to find that Utah's obligations to submit planning provisions to meet the requirements for

an attainment demonstration, reasonable further progress plans, reasonably available control measures, and contingency measures, no longer apply for so long as the Ogden City nonattainment area continues to monitor attainment ofthe PM10 NAAQS. In the future, after notice-and-comment rulemaking, ifEPA determines that the

area again violates the PM10NAAQS, then the basis for suspending the attainment demonstration, RFP, RACM, and contingency measure requirements would no longer exist. In that event, we would notify Utah that we have determined that the Ogden City nonattainment area is no longer attaining the PM1ostandard and provide

7 The EPA's interpretation that the statute only requires implementation of RACM measures that
would advance attainment was upheld by the United States Court ofAppeals forthe Fifth Circuit (SierraClub v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002)), and by the United States Court ofAppeals
for the D.C. Circuit (SierraClubv. EPA, 294F.3d 155,162-163 (D.C. Cir.2002)). notice to the public in the Federal Register.

V. EPA'sProposed Action

Based on the mostrecent three-year period ofcertified, quality-assured data meeting the requirements of40 CFR part 50, appendix K, and for the reasons discussed above, we propose to find that the Ogden City nonattainment area is currently attaining the 24-hour PM10 NAAQS.

In conjunction with andbased upon
our proposed determination that the Ogden City nonattainment area is currently attaining the standard, EPA proposes to determine that Utah's obligation to submit the following CAA requirements is not applicable for so long as the Ogden City nonattainment

area continues to attain the PM 10 standard: An attainment demonstration under CAA section 189(a)(1)(B); RACM provisions under CAA section 189(a)(1)(C); RFP provisions under CAA section 189(c); and, the attainment demonstration, RACM, RFP and contingency measure provisions under CAA section 172 of the Act.

Any final action resulting fromthis proposal would not constitute a redesignation to attainment under CAA section 107(d)(3) because we have neither received nor approved a maintenance plan for the Ogden City nonattainment area as meeting the requirements of section 175A ofthe CAA, nor have we determined that the

area has met the other CAA requirements for redesignation. The classification and designation status in 40 CFR part 81 would remain moderate nonattainment for the Ogden City nonattainment area until such time as EPA determines that Utah has met the CAA requirements for redesignating the Ogden City nonattainment area to attainment.

VI. Statutory andExecutive Order Reviews

With this action, we propose to make

a determination regarding attainment of the PM1oNAAQS based on air quality data and, iffinalized, this proposed action would result in suspension of certain Federal requirements, and would not impose additional requirements beyond those imposed by State law orby the CAA. For that
reason, this proposed action:

* Is not a "significant regulatory action" subject toreview by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* Does not impose an information collection burden under the provisions ofthe 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 orsignificantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (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 onhealth 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 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; 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 will
not impose substantial direct costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFRPart52

Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting andrecordkeeping requirements.

Authority: 42 U.S.C. 7401 etseq. Dated: July 10, 2012. Howard Cantor,
ActingRegional Administrator, Region8. [FRDoc. 2012-18389 Filed 7-27-12; 8:45 am]

BILLING CODE 6560-50-P 

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