44544 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 Doc. 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–AA00 

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 Doc. 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 (PM10) 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 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Proposed Rules 44545 

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 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl, Daly, Director, 

Air Program, U.S. Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129. Such 

deliveries are only accepted Monday 

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

excluding Federal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–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 PM10 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 PM10 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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1An exceedance is defined as a daily value that 

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

m3, after rounding to the nearest 10 mg/m3 (i.e., 

values ending in five or greater are to be rounded 

up). Thus, a recorded value of 154 mg/m3 would not 

be an exceedance since it would be rounded to 150 

mg/m3; whereas, a recorded value of 155 mg/m3

would be an exceedance since it would be rounded 

to 160 mg/m3. See 40 CFR part 50, appendix K, 

section 1.0. 

2For PM10, a ‘‘complete’’ set of data includes a 

minimum of 75 percent of the scheduled PM10

samples per quarter. See 40 CFR part 50, appendix 

K, section 2.3(a). 

3EPA 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. 

4Because the annual PM10 standard was revoked 

effective December 18, 2006, this document 

discusses only attainment of the 24-hour PM10

standard. See 71 FR 61144 (October 17, 2006). 

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. PM10 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 PM10, 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 (mg/m3); and, an annual PM10

standard of 50 mg/m3. 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 PM10 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.1 See 40 CFR 50.6 and 40 

CFR part 50, appendix K. 

B. Designation and Classification of 

Ogden City PM10 Nonattainment Area 

The Ogden City nonattainment area 

was designated nonattainment for PM10

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 PM10

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. 

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 PM10 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 


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Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Proposed Rules 44547 

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. 

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 PM10 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 PM10 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 PM10 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 PM10 MONITORING DATA FOR OGDEN CITY NONATTAINMENT AREA A

Monitoring site 

Highest 24-hour PM10 concentration (μg/m3) Expected 

exceedances 

per year 

2009 2010 2011 

2009–2011 

Ogden No. 2 .................................................................................................... 181 216 79 1.0 

PM10 NAAQS = 150 μg/m3

aSource: AQS AMP350 report dated June 8, 2012. 

Table 2 expands on Table 1’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

PM10 MONITOR DATA (49–057– 

0002), 2009–2011 EXPECTED

EXCEEDANCES PER YEAR

Year Monitor 

49–057–0002 

2009 .......................... 1.0 (Wildfire Exceptional Event Flag). 

2010 .......................... 2.0 (High Wind Exceptional Event 

Flag). 

2011 .......................... 0.0. 

2009–2011 Three 

Year Average.

1.0. 

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 PM10 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 PM10

nonattainment areas. The requirements 

for moderate PM10 nonattainment areas 

include: (1) An attainment 

demonstration; (2) provisions for 


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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 PM10 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 PM10

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 

NRDC v. 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 PM10, 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 

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 PM10. 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 PM10, 

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 PM10. 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 PM10 standards, then 

further progress for the purpose of ensuring 

attainment is not necessary. 

EPA noted in its prior PM10

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 

PM10 nonattainment areas. In EPA’s 

Phase 2 Final Rule and ozone (Seitz) 

and PM2.5 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 

PM10, e.g., for the San Joaquin Valley 

and Coso Junction areas in California, 

make clear that the same reasoning 

applies to the PM10 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 PM10 areas of part 

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

stated purpose of RFP is to ensure 


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Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Proposed Rules 44549 

6Thus, 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. 

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 

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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44550 Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Proposed Rules 

7The 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)). 

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 

PM10 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 PM10 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 PM10 standard and provide 

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 PM10

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 PM10 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 


srobinson on DSK4SPTVN1PROD with PROPOSALS