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Federal Register/Vol. 77, No. 146/Monday, July 30, 2012/Proposed Rules

conducted in accordance with the plan.

A waste management plan meeting the

requirements of 33 CFR 151.57 satisfies

this requirement, so long as it provides

all the information required by this

paragraph (b)(5). If the plan is

maintained electronically, at least one

paper copy of the plan must be onboard

for use during inspections. The plan

must describe the specific measures the

vessel employs to ensure the

minimization of bulk dry cargo residue

discharges, and, at a minimum, must list

or describe-

(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 transfer tunnels and

return it to the holds or to unloading

conveyances;

(iii) Operational procedures employed

by the vessel's crew during the loading

or unloading of bulk dry cargoes to

minimize cargo spillage onto the decks

and into the transfer tunnels and to

achieve and maintain the broom clean

deck condition required by paragraph

(b)(4) of this 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

described by the plan;

(vi) The position title of the 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 of the

vessel's bulk dry cargo residues ashore;

and

(viii) The procedures used and the

vessel's operating conditions to be

maintained during any unavoidable

discharge of bulk 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 for vessels

of comparable 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 DCR management

plan during actual dry cargo loading

and unloading operations and DCR

discharge operations.

J.G. Lantz,

Director of Commercial Regulations and

Standards, United States Coast Guard.

[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 and bridge construction of

span placement. The original proposal

had a start date of July 31, 2012, and

must be rescheduled to start on

September 5, 2012, due to unforeseen

circumstances with span lift

construction.

DATES: The proposed rule is withdrawn

on July 6, 2012.

ADDRESSES: The docket for this

withdrawn rulemaking is available for

inspection or copying at the Docket

Management Facility (M-30), U.S.

Department of Transportation, West

Building Ground Floor, Room W12-140,

1200 New Jersey Avenue SE.,

Washington, DC 20590, between 9 a.m.

and 5 p.m., Monday through Friday,

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. If you 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 of proposed rulemaking entitled

"Safety Zone; Gilmerton Bridge Center

Span Float-in, Elizabeth River; Norfolk,

Portsmouth, and Chesapeake, Virginia"

in the Federal Register (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 to provide for the safety of life on

navigable waters during the Gilmerton

Bridge Center Span Float-in and bridge

construction of span placement.

Withdrawal

The proposed rule is being withdrawn

due to unforeseen circumstances in the

construction timeline of the Center

Span, which has caused a 5 week delay

in the project.

Authority: We issue this notice of

withdrawal under the authority of 5 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. Coast Guard, Captain of the

Port Hampton Roads.

[FR Doe. 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 for the

1987 PM10 Standard for the 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 of less 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 of Utah

submitted a letter dated March 30, 2000,

requesting EPA to make a clean data

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determination for the nonattainment

area of Ogden City. Based on our

proposed determination that the Ogden

City nonattainment area is currently

attaining the PM10 NAAQS, EPA is also

proposing to determine that Utah's

obligation to make submissions to meet

certain Clean Air Act (CAA)

requirements related to attainment of

the NAAQS is not applicable for as long

as the Ogden City nonattainment area

continues to attain the NAAQS. This

action is being taken under the CAA.

DATES: Comments must be received on

or before August 29, 2012.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-R08-

OAR-2012-0446, by one of the

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 if you 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.

* Hand Delivery: Carl, Daly, Director,

Air Program, U.S. Environmental

Protection Agency (EPA), Region 8,

Mailcode 8P-AR, 1595 Wynkoop Street,

Denver, Colorado 80202-1129. Such

deliveries are only accepted Monday

through Friday, 8:00 a.m. to 4:30 p.m.,

excluding Federal holidays. Special

arrangements should be made for

deliveries of boxed information.

Instructions: Direct your comments to

Docket ID No. EPA-R08-OAR-2012-

0446. 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. 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 of the

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.gov or in hard copy at

the Air Program, U.S. Environmental

Protection Agency (EPA), Region 8,

1595 Wynkoop Street, Denver, Colorado

80202-1129. EPA requests that if at all

possible, you contact the individual

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy

of the docket. You may view the hard

copy of the docket Monday through

Friday, 8:00 a.m. to 4:00 p.m., excluding

Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Crystal 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 of Ogden

City PMl0 Nonattainment Area

C. How does EPA 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 air quality data show for

the Ogden City nonattainment area?

IV. EPA's Clean Data Policy and the

Applicability of the 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 of this document, we

are giving meaning to certain words or

initials as follows:

(i) The words or initials Act or CAA

mean or refer to the Clean Air Act,

unless the context indicates otherwise.

(ii) The initials AQS mean or refer to

EPA's Air Quality System database.

(iii) The words EPA, we, us or our

mean or refer 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 or refer to

new source review.

(vi) The initials PM2 .5 mean or refer to

particulate matter with an aerodynamic

diameter equal to or less than 2.5

micrometers (fine particulate matter).

(vii) The initials PMo mean or refer

to particulate matter with an

aerodynamic diameter equal to or less

than 10 micrometers (coarse particulate

matter).

(viii) The initials RACM mean or refer

to reasonably available control

measures.

(ix) The initials RFP mean or refer to

reasonable further progress.

(x) The initials SIP mean 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 Utah mean

the State of Utah, unless the context

indicates otherwise.

(xiii) The initials UDEQ mean or refer

to Utah Department of Environmental

Quality.

I. General Information

A. What should I consider as I prepare

my comments for EPA?

1. Submitting CBI. Do not submit this

information to EPA through

www.regulations.gov or email. Clearly

mark the part or all of the information

that you claim to be CBI. For CBI

information in a disk or CD-ROM that

you mail to EPA, mark the outside of the

disk or CD-ROM as CBI and then

identify electronically within the disk or

CD-ROM the specific information that

is claimed as CBI. In addition to one

complete version of the comment that

includes information claimed as CBI, a

copy of the comment that does not

contain the information claimed as CBI

must be submitted for inclusion in the

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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 for Preparing Your Comments.

When submitting comments, remember

to:

a. Identify the rulemaking by docket

number and other identifying

information (subject heading, Federal

Register date and page number).

b. Follow directions-The agency may

ask you to respond to specific questions

or organize comments by referencing a

Code of Federal Regulations (CFR) part

or section number.

c. Explain why you agree or disagree;

suggest alternatives and substitute

language for your requested changes.

d. Describe any assumptions and

provide any technical information and/

or data that you used.

e. If you estimate potential costs or

burdens, explain how you arrived at

your estimate in sufficient detail to

allow for it to be reproduced.

f. Provide specific examples to

illustrate your concerns, and suggest

alternatives.

g. Explain your views as clearly as

possible, avoiding the use of profanity

or personal threats.

h. Make sure to submit your

comments by the comment period

deadline identified.

II. Background

A. PM1o NAAQS

EPA sets the NAAQS for certain

ambient air pollutants at levels required

to protect public health and welfare.

Particulate matter with an aerodynamic

diameter less than or equal to a nominal

ten micrometers, or PM1 o, is one of these

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 PM1 o standard when

the expected number of days per

calendar year with a 24-hour

concentration in excess of the 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. Designation and Classification of

Ogden City PMo Nonattainment Area

The Ogden City nonattainment area

was designated nonattainment for PMo

and classified as moderate under section

107(d)(3) of the CAA, on July 28, 1995.

See 60 FR 38726 (July 28, 1995) and 40

CFR Part 81.345 (Ogden Area Weber

County (part) City of Ogden). The Ogden

City designation became effective on

September 26, 1995.

C. How does EPA make attainment

determinations?

Generally, EPA determines whether

an area's air quality is meeting 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 must be

submitted to AQS. These monitoring

agencies certify annually 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 an

area. See 40 CFR 50.6; 40 CFR part 50,

appendix J and 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.

1 An exceedance is defined as a daily value that

is above the level of the 24-hour standard, 150 pg/

M 3, after rounding to the nearest 10 pg/m 3 (i.e.,

values ending in five or greater are to be rounded

up). Thus, a recorded value of 154 pg/m 3 would not

be an exceedance since it would be rounded to 150

pg/m 3

; whereas, a recorded value of 155 pg/m 3

would be an exceedance since it would be rounded

to 160 gg/m 3. See 40 CFR part 50, appendix K,

section 1.0. 2 For PM10, a "complete" set of data includes a

minimum of 75 percent of the scheduled PMo

samples per quarter. See 40 CFR part 50, appendix

K, section 2.3(a). 3 EPA promulgated amendments to the ambient

air monitoring regulations in 40 CFR 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 of the 24-hour PM10

standard is determined by calculating

the expected number of exceedances of

the standard in a year. The 24-hour

PM10 standard is attained when the

expected number of exceedances

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 of the 24-hour PM10

standard. See 40 CFR part 50 and

appendix K. 4

To demonstrate attainment of the 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 of years of record. In all

cases, three years of representative

monitoring data that meet the 75

percent criterion discussed earlier

should be utilized, if available. More

than three years may be 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 must be

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 is the Ogden City

nonattainment area monitoring

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 of the Ogden City urbanized area.

B. Does the Ogden City nonattainment

area monitor meet minimum federal

ambient air quality monitoring

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 of the

4 Because the annual PMl 0 standard was revoked

effective December 18, 2006, this document

discusses only attainment of the 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 of 40 CFR

58.12(e) for monitoring frequency. Also,

UDEQ annually certifies that the data it

submits to AQS are quality-assured.

C. What does the air quality data show

for the Ogden City nonattainment area?

Since 1995, when Ogden City was

designated as a nonattainment area, the

data from AQS indicate that six

exceedances of the PMo standard have

been measured in the Ogden City

nonattainment area at the Ogden

Number 2 monitor. 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 UDEQ as

exceptional events involving either July

4th fireworks, high winds, or wildfires.

These exceedances resulted in expected

numbers of exceedances 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 all years containing

complete monitoring data from 1995 to

present. The available data shows

attainment of the PM1 o standard

continuously since 2002, even if EPA

takes no action to exclude data flagged

as exceptional events.

Between 1995 and 2011, an

interruption of monitoring 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 3 years of complete monitoring

data had been collected after 2001.

Beginning in 2002, complete data

showing attainment of the PM10

standard has been collected in AQS for

the Ogden City PM1o nonattainment

area.

For the purposes of this proposed

action, we have reviewed the data for

the most recent three-year period (2009

through 2011). Table 1 summarizes the

PM10 concentration data collected at the

Ogden Number 2 monitor over the past

three years. As shown in Table 1, three

exceedances, but no violations, were

recorded within the Ogden City

nonattainment area over the 2009

through 2011 period.

TABLE 1-SUMMARY OF 2009-2011 PM1 o MONITORING DATA FOR OGDEN CITY NONATTAINMENT AREAA

Highest 24-hour PM 1o concentration (gg/m3) Expected

exceedances

Monitoring site per year

2009 2010 2011

2009-2011

O gden No. 2 ........................................................................................... ........ 181 216 79 1.0

PM10 NAAQS = 150 gg/m 3

a Source: AQS AMP350 report dated June 8, 2012.

Table 2 expands on Table l's

expected exceedance per year 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 (W ildfire Exceptional Event Flag).

2010 .......................... 2.0 (High W ind Exceptional Event

Flag).

2 0 1 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 of all the scheduled sampling

dates in each quarter of the year, and

generally, three years of representative

monitoring data that meets the 75

percent criterion should be utilized,

where available.

Based on our review of the certified,

quality-assured data for 2009 through

2011, we find that the expected number

of exceedances per year for the Ogden

City nonattainment area for the most

recent three-year period (i.e., 2009 to

2011) was 1.0 day per year. With an

annual expected exceedance rate for the

24-hour PM10 NAAQS of 1.0, these data

show attainment of the PMo standard.

The EPA proposes to determine that the

Ogden City nonattainment area is

attaining the PM10 NAAQS. Prior to

taking final action on this 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 of the standard.

IV. EPA's Clean Data Policy and the

Applicability of the Clean Air Act

Planning Requirements to the Ogden

City Nonattainment Area

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, of title I of the Act. EPA has

issued guidance in a General Preamble

describing how we will review state

implementation plans (SIPs) and SIP

revisions submitted under title I of the

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

of new 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 of 1990,"

(57 FR 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 of PM10 also

apply to major stationary sources of

PM10 precursors, except where the

Administrator has determined that such

sources do not contribute significantly

to PM1 o levels exceeding the NAAQS.

For nonattainment areas where EPA

determines that monitored data show

that the NAAQS have already been

achieved, EPA's interpretation, upheld

by the Courts, is that the obligation to

submit certain requirements of part D,

subparts 1, 2, and 4 of the 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 of helping

achieve attainment of the NAAQS.

Certain other obligations for PM1 o

nonattainment areas, however, are not

suspended, such as the NSR

requirements.

This interpretation of the CAA is

known as the Clean Data Policy. It is the

subject of several EPA memoranda and

regulations, and numerous rulemakings

that have been published in the Federal

Register over more than fifteen years.

EPA finalized the statutory

interpretation set forth in the Clean Data

Policy as part of its "Final Rule to

Implement the 8-hour Ozone National

Ambient Air Quality Standard-Phase

2" (Phase 2 Final Rule); see 40 CFR

51.918 and discussion in the 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 of the 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 or revised 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 of the PM10

standard in Coso Junction, California,

and 75 FR 6571 (February 10, 2010), the

determination of attainment of the 1-

hour ozone standard in Baton Rouge,

Louisiana.

In its many applications of the Clean

Data Policy interpretation to PMo, EPA

has explained that the legal bases set

forth in detail in our Phase 2 Final Rule;

our May 10, 1995 memorandum from

John S. Seitz, entitled "Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard;" our

PM 2.

5 Implementation Rule; and our

December 14, 2004 memorandum from

Stephen D. Page entitled "Clean Data

Policy for the Fine Particle National

Ambient Air Quality Standards," are

equally pertinent to the interpretation of

provisions of subparts 1 and 4

applicable to PM1 o. 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) (San Joaquin Valley, California

area); 72 FR 14422 (March 28, 2007)

(Miami, Arizona area); 75 FR 27944

(May 19, 2010) (Coso Junction,

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 of title I of the CAA is suspended

while the area is attaining the NAAQS,

applies whether the standard is PM 10 ,

ozone, or PM 2.

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

of the PM10 standard. See Latino Issues

Forum v. EPA, Nos. 06-75831 and 08-

71238 (9th Cir.), Memorandum Opinion,

March 2, 2009. In rejecting petitioner's

challenge to the Clean Data Policy for

PM10, the Court stated:

As the EPA rationally explained, if an area is in compliance with PM1o standards, then

further progress for the purpose of ensuring

attainment is not necessary.

EPA noted in its prior PM1 o

rulemakings that the reasons for

relieving an area that has attained the

relevant standard of certain obligations

under part D, subparts 1 and 2, apply

equally to part D, subpart 4, which

contains specific attainment

demonstration and RFP provisions for

PM1 0 nonattainment areas. In EPA's

Phase 2 Final Rule and ozone (Seitz)

and PM 2.5 Clean 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 if an area subject to those

requirements is already attaining the

NAAQS (i.e., attainment of the NAAQS

is demonstrated with three consecutive

years of complete, quality-assured, and

certified air quality monitoring data).

Every U.S. Circuit Court of Appeals that

has considered the Clean Data Policy

has upheld EPA rulemakings applying

its interpretation, for both ozone and

PM10 . See 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, supra.

It has been EPA's longstanding

interpretation that the general

provisions of part D, subpart 1 of the

Act (sections 171 and 172) do not

require the submission of SIP revisions

concerning RFP for areas already

attaining the ozone NAAQS. In the

General Preamble, we stated:

[R]equirements for RFP will not apply in

evaluating a request for redesignation to

attainment since, at a minimum, the air

quality data for the area must show that the

area has already attained. Showing that the

State will make RFP towards attainment will,

therefore, have no meaning at that point.

See 57 FR 13564 (April 16, 1992). EPA's

prior determinations of attainment for

PM1 0 , e.g., for the San Joaquin Valley

and Coso Junction areas in California,

make clear that the same reasoning

applies to the PM1o provisions of part 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 of part D of title

I, RFP "means such annual incremental

reductions in emissions of the relevant

air pollutant as are required by this part

or may reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

NAAQS by the applicable date." Thus,

whether dealing with the general RFP

requirement of section 172(c)(2), the

ozone-specific RFP requirements of

sections 182(b) and (c), or the specific

RFP requirements for PM1 o areas of part

D, subpart 4, section 189(c)(1), the

stated purpose 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) of this title, toward

attainment by the applicable date.

Although this section states that

revisions shall contain milestones

which are to be achieved until the area

is redesignated to attainment, such

milestones are designed to show

reasonable further progress "toward

attainment by the applicable attainment

date," as defined by section 171. Thus,

it is clear that once the area has attained

the standard, no further milestones are

necessary or meaningful. This

interpretation is supported by language

in section 189(c)(3), which mandates

that a State that fails to achieve a

milestone must submit a plan that

assures that the State will achieve the

next milestone or attain the NAAQS if

there is no next milestone. Section

189(c)(3) assumes that the requirement

to submit and achieve milestones does

not continue after attainment of the

NAAQS.

In the General Preamble, we noted

with respect to section 189(c) that the

purpose of the milestone requirement

"is 'to provide for emission reductions

adequate to achieve the standards by the

applicable attainment date' (H.R. Rep.

No. 490, 101st Cong., 2d Sess. 267

(1990))." See 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. 6 EPA took this position with

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

6 Thus, we believe that it is a distinction without

a difference that section 189(c)(1) speaks of the RFP

requirement as one to be achieved until an area is

"redesignated attainment," as opposed to section

172(c)(2), which is silent on the period to which the

requirement pertains, or the ozone nonattainment

area RFP requirements in sections 182(b)(1) or

182(c)(2), which refer to the RFP requirements as

applying until the "attainment date," since section

189(c)(1) defines RFP by reference to section 171(1)

of the Act. Reference to section 171(1) clarifies that,

as with the general RFP requirements in section

172(c)(2) and the ozone-specific requirements of

section 182(b)(1) and 182(c)(2), the PM-specific

requirements may only be required "for the purpose

of ensuring attainment of the applicable national

ambient air quality standard by the applicable

date." 42 U.S.C. section 7501(1). As discussed in

the text of this rulemaking, EPA interprets the RFP

requirements, in light of the definition of RFP in

section 171(1), and incorporated in section

189(c)(1), to be a requirement that no longer applies

once the standard has been attained.

requirements of sections 182(b) and (c).

In our prior applications of the Clean

Data Policy to PM10 , we have extended

that interpretation to the specific

provisions of part 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 of a discussion of the

requirements applicable to the

evaluation of requests to redesignate

nonattainment areas to attainment, that

the "requirements for RFP will not

apply in evaluating a request for

redesignation to attainment since, at a

minimum, the air quality data for the

area must show that the area has already

attained. Showing that the State will

make RFP towards attainment will,

therefore, have no meaning at that

point." See 57 FR 13564 (April 16,

1992). See also our September 4, 1992

memorandum from John 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 later than 90 days after the date on

which a milestone applicable to the area

occurs, each State in which all or part of such area is located shall submit to the

Administrator a demonstration * * * that

the milestone has been met.

Where the area has attained the

standard and there are no further

milestones, there is no further

requirement to make a submission

showing that such milestones have been

met. As noted above, this is consistent

with the position that EPA took with

respect to the general RFP requirement

of section 172(c)(2) in the 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 of subpart 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 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 Seitz memorandum at page 5.

With respect to the attainment

demonstration requirements of section

189(a)(1)(B), an analogous rationale

leads to the same result. Section

189(a)(1)(B) requires that the plan

provide for "a demonstration (including

air quality modeling) that the [SIP] will

provide for attainment by the applicable

attainment date * * *." As with the

RFP requirements, if an area is already

monitoring attainment of the standard,

EPA believes there is no need for an

area to make a further submission

containing additional measures to

achieve attainment. This is also

consistent with the interpretation of the

section 172(c) requirements provided by

EPA in the General Preamble, the Page

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 that reasonably 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 of potential 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. 7 EPA is interpreting

section 189(a)(1)(C) consistent with its

interpretation of section 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 of the

PM10 standard. If EPA determines, after

notice-and-comment rulemaking, that

the area has monitored a violation of the

PM1 o NAAQS, 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 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 after EPA redesignates

the area to attainment would the area be

relieved of these 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 PM1o NAAQS

(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 of the PM10 NAAQS.

In the future, after notice-and-comment

rulemaking, if EPA determines that the

area again violates the PM10 NAAQS,

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 PM1o standard 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 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)).

notice to the public in the Federal

Register.

V. EPA's Proposed Action

Based on the most recent three-year

period of certified, quality-assured data

meeting the requirements of 40 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 and based 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 from this

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 of the

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 and Executive Order

Reviews

With this action, we propose to make

a determination regarding attainment of

the PM1o NAAQS based on air quality

data and, if finalized, this proposed

action would result in suspension of

certain Federal requirements, and

would not impose additional

requirements beyond those imposed by

State law or by the CAA. 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 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 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Particulate matter, Reporting

and recordkeeping requirements.

Authority: 42 U.S.C. 7401 et seq.

Dated: July 10, 2012.

Howard Cantor,

Acting Regional Administrator, Region 8.

[FR Doc. 2012-18389 Filed 7-27-12; 8:45 am]

BILLING CODE 6560-50-P

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