Federal Register / Vol. 78, No. 178 / Friday, September 13, 2013 / Proposed Rules 56633 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2013–0618; FRL–9900–93– 

Region 2] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

York; Determination of Clean Data for 

the 1987 PM10 Standard for the New 

York County Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

determine that the New York County 

nonattainment area in New York is 

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 2010 

through 2012. The State of New York 

submitted a letter dated January 14, 

2013, requesting EPA to make a clean 

data determination for the 

nonattainment area of New York 

County. 

Based on our proposed determination 

that the New York County 

nonattainment area is attaining the PM10

NAAQS, EPA is also proposing to 

determine that New York’s obligation to 

make submissions to meet certain Clean 

Air Act requirements related to 

attainment of the NAAQS is not 

applicable for as long as the New York 

County nonattainment area continues to 

attain the NAAQS. 

DATES: Comments must be received on 

or before October 15, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID number EPA– 

R02–OAR–2013–0618, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: ruvo.richard@epa.gov. 

• Fax: 212–637–3901. 

• Mail: Richard Ruvo, Chief, Air 

Planning Section, Environmental 

Protection Agency, Region 2 Office, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866. 

• Hand Delivery: Richard Ruvo, 

Chief, Air Planning Section, 

Environmental Protection Agency, 

Region 2 Office, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R02–OAR–2013– 

0618. 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. 

Docket: All documents in the docket 

are listed in the http://

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 http://

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. EPA requests, if 

at all possible, that 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 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning today’s 

proposed action, please contact Henry 

Feingersh, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, telephone number 

(212) 637–3382, fax number (212) 637– 

3901, email feingersh.henry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What action is EPA proposing? 

II. What is the effect of this action? 

III. What is the Background for this action? 

A. PM10 NAAQS in New York County 

B. Designation and Classification of New 

York County PM10 Nonattainment Area 

C. How does EPA make attainment 

determinations? 

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

quality data? 

V. EPA’s Clean Data Policy and the 

Applicability of the Clean Air Act 

Planning Requirements to the New York 

County Nonattainment Area 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. What action is EPA proposing? 

EPA is proposing to determine that 

the New York County nonattainment 

area for particulate matter with an 

aerodynamic diameter equal to or less 

than 10 micrometers (PM10) is attaining 

the PM10 National Ambient Air Quality 

Standards (NAAQS). This proposed 

determination is based upon qualityassured, quality-controlled, and 

certified ambient air monitoring data 

that show that the area has monitored 

attainment of the PM10 NAAQS. The 

New York County PM10 nonattainment 

area consists solely of the County of 

New York, also known as the borough 

of Manhattan. EPA is soliciting public 

comments on this document and these 

comments will be considered before 

taking final action. 

II. What is the effect of this action? 

This proposed determination, if 

finalized, would: (1) Suspend the 

requirements for New York to submit an 

attainment demonstration, reasonably 

available control measures, reasonable 

further progress plan, and contingency 

measures related to attainment of the 

PM10 NAAQS in the New York PM10

nonattainment area; and (2) continue 

until such time, if any, that EPA 

subsequently determines that the area 

has violated the PM10 NAAQS. If this 

rulemaking is finalized and EPA 

subsequently determines, after noticeand-comment rulemaking in the Federal 

Register (FR), that the area has violated 

the PM10 NAAQS, the basis for the 

suspension of the specific requirements 

would no longer exist, and the area 


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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. 

would thereafter have to address the 

pertinent requirements. 

The determination that EPA proposes 

with this FR action, that the air quality 

data shows attainment of the PM10

NAAQS, is not equivalent to the 

redesignation of the area to attainment. 

EPA does not act on redesignations for 

revoked standards. 

This proposed action is limited to a 

determination that the New York PM10

nonattainment area has attained the 

PM10 NAAQS. If this proposed 

determination is made final and the 

New York PM10 nonattainment area 

continues to monitor attainment of the 

PM10 NAAQS, the requirements for New 

York to submit attainment 

demonstrations, reasonably available 

control measures, reasonable further 

progress plans, and contingency 

measures related to attainment of the 

PM10 NAAQS would remain suspended, 

even though EPA designated this area as 

a nonattainment area for purposes of the 

PM10 NAAQS. 

III. What is the background for this 

action? 

A. PM10 NAAQS in New York County 

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 PM10: 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. 

New York’s ambient air monitoring 

network has undergone a number of 

changes over the years. The monitor, 

which originally exceeded the NAAQS 

in 1992, was shut down in 2010 because 

it showed attainment of the NAAQS 

since 1992. In addition, the monitor has 

had very low readings, well below the 

attainment level, since 2008. More 

recent PM10 data at other monitoring 

sites located in New York County shows 

that New York County has met both the 

current and revoked standards. New 

York has now had clean PM10 data since 

1992. 

New York made a partial PM10 State 

Implementation Plan (SIP) submission 

for New York County on July 20, 1995. 

On September 29, 1996, New York 

submitted the final attainment 

demonstration portion of the SIP. In a 

letter to EPA dated January 14, 2013, 

New York asserted that it was 

withdrawing its PM10 SIP. This 

proposed clean data notice will alleviate 

the need for New York to submit all 

PM10 SIP requirements for the New York 

County area, with the exception of the 

emission inventory. The emission 

inventory, a required SIP element, was 

included in New York’s October 27, 

2009 attainment SIP for particulate 

matter with an aerodynamic diameter 

equal to or less than 2.5 micrometers 

(PM2.5). EPA will address the submittal 

of New York’s emission inventories for 

particulate matter in a separate action. 

B. Designation and Classification of 

New York County PM10 Nonattainment 

Area 

The New York County 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 81.333 (New York 

County). The New York County 

nonattainment designation became 

effective on September 26, 1995. This 

designation was based on violations of 

the annual PM10 standard only; there are 

no documented exceedances of the 24- 

hour PM10 standard in the State of New 

York. Violations of the annual PM10

standard were due to emissions from 

localized construction in the area at that 

time. However, New York has been 

attaining the annual PM10 standard 

since 1992. 

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. In addition, the Annual 

Standard was attained when the annual 

arithmetic mean, averaged over 3 years, 

was less than or equal to 50 mg/m3. 

To demonstrate attainment of the 

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 


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percent criterion discussed in footnote 2 

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 the criteria in 

40 CFR part 50 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. 

IV. What is EPA’s analysis of the 

relevant air quality data? 

EPA has reviewed the ambient air 

monitoring data for PM10, consistent 

with the requirements contained in 40 

CFR part 50 and recorded in the EPA 

Air Quality System database for the 

New York PM10 nonattainment area, and 

has concluded that this area has been 

attaining both the current 24-Hr PM10

NAAQS and the revoked annual PM10

NAAQS since 1992. This designation 

was based on violations of the annual 

PM10 standard only; there are no 

documented exceedances of the 24-hour 

PM10 standard in the State of New York. 

EPA is presenting the last 10 years of 

data from New York’s January 14, 2013 

letter and is updating it to the present 

in the following tables to show how the 

area has been attaining both the 24-hour 

and revoked annual PM10 standard. 

Tables 1 and 2 show the maximum 

24-Hour PM10 concentrations and 

maximum annual average PM10

concentrations respectively for 

monitoring sites located in the New 

York County PM10 nonattainment area 

for the years 2002 through 2012. The PS 

19 monitoring site is located at 185 1st 

Avenue. The Division Street monitoring 

site is located at 40 Division Street. The 

PS 59 monitoring site is located at 228 

E. 57th Street. The Canal Street 

monitoring site is located at 350 Canal 

Street. 

TABLE 1—MAXIMUM 24-HOUR PM10 CONCENTRATIONS IN NEW YORK COUNTY IN MICROGRAMS PER CUBIC METER

(μg/m3) 

[The standard for the 24-hour PM10 NAAQS is 150 μg/m3] 

Year 

Monitor name 

PS 19 a Division St. b PS 59 c Canal St. d

2002 ................................................................................................................. ........................ ........................ ........................ 89 

2003 ................................................................................................................. ........................ ........................ ........................ 81 

2004 ................................................................................................................. ........................ ........................ ........................ 61 

2005 ................................................................................................................. ........................ ........................ ........................ 63 

2006 ................................................................................................................. ........................ ........................ 67 60 

2007 ................................................................................................................. ........................ 56 57 ........................

2008 ................................................................................................................. ........................ 60 53 ........................

2009 ................................................................................................................. 61 62 ........................ ........................

2010 ................................................................................................................. 55 56 ........................ ........................

2011 ................................................................................................................. 57 57 ........................ ........................

2012 ................................................................................................................. 49 51 ........................ ........................

a Collected data 03/2009–Present. 

b Collected data 03/2007–Present. 

c Collected data 04/1986–12/1998 and 10/2005–06/2008. 

d Collected data 12/2001–03/2007. 

TABLE 2—MAXIMUM ANNUAL PM10 CONCENTRATIONS IN NEW YORK COUNTY IN MICROGRAMS PER CUBIC METER (μg/m3) 

[The standard for the annual PM10 NAAQS was 50 μg/m3] 

Year 

Monitor name 

PS 19 a Division St. b PS 59 c Canal St. d

2002 ................................................................................................................. ........................ ........................ ........................ 25.6 

2003 ................................................................................................................. ........................ ........................ ........................ 26.5 

2004 ................................................................................................................. ........................ ........................ ........................ 24.2 

2005 ................................................................................................................. ........................ ........................ ........................ 26.2 

2006 ................................................................................................................. ........................ ........................ 23.2 23.0 

2007 ................................................................................................................. ........................ 25.3 25.5 ........................

2008 ................................................................................................................. ........................ 24.0 25.9 ........................

2009 ................................................................................................................. 19.8 21.1 ........................ ........................

2010 ................................................................................................................. 20.2 21.0 ........................ ........................

2011 ................................................................................................................. 20.0 21.6 ........................ ........................

2012 ................................................................................................................. 19.4 19.7 ........................ ........................

a Collected data 03/2009–Present. 

b Collected data 03/2007–Present. 

c Collected data 04/1986–12/1998 and 10/2005–06/2008. 

d Collected data 12/2001–03/2007. 


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4This section parallels the discussion in 77 FR 

44544 (July 30, 2012), a clean data determination 

for the Ogden Utah nonattainment area. That rule 

was finalized in 78 FR 885 (Jan. 7, 2013). 

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. 

EPA’s review of these data indicates 

that the New York County PM10

nonattainment area has met and 

continues to meet both the current 24- 

Hr PM10 NAAQS and the revoked 

annual PM10 NAAQS. Data from 2010 

through 2012 shows that PM10 levels in 

New York County are less than 37% of 

the 24-hr PM10 NAAQS and less than 

42% of the revoked annual PM10

NAAQS. 

V. EPA’s Clean Data Policy and the 

Applicability of the Clean Air Act 

Planning Requirements to the New 

York County Nonattainment Area 4

The air quality planning requirements 

for moderate PM10 nonattainment areas, 

such as the New York County 

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 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 

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. New 

York’s NSR requirements continue and 

are not suspended in PM10

nonattainment areas. Certain other 

obligations for PM10 nonattainment 

areas, however, are not suspended, such 

as the NSR requirements. 

This interpretation of the Clean Air 

Act 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 D.C. 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 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 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’’. EPA has found that such 

legal bases are equally pertinent to the 

interpretation of provisions of subparts 

1 and 4 applicable to PM10. See, e.g., 77 

FR 44544 (7/30/12) and 78 FR 885 (1/ 

7/13) (Ogden Utah area); 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 Clean Air Act 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 


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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. 

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 

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 


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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)). 

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 

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 New York County 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 New York 

County 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 New York County 

nonattainment area is currently 

attaining the PM10 NAAQS and as set 

forth above, we propose to find that 

New York’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 New York County nonattainment 

area continues to monitor attainment of 

the PM10 NAAQS. As noted earlier, on 

January 14, 2013, New York withdrew 

its previously submitted July 20, 1995 

and September 29, 1996 p.m.10 SIP, 

therefore EPA no longer has a PM10 SIP 

for New York County before us for 

review. In the future, after notice-andcomment 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 New York 

that we have determined that the New 

York County nonattainment area is no 

longer attaining the PM10 standard and 

provide notice to the public in the 

Federal Register. 

VI. 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 New York County nonattainment 

area is currently attaining both the 24- 

hour PM10 NAAQS and the revoked 

annual PM10 NAAQS. 

In conjunction with and based upon 

our proposed determination that the 

New York County nonattainment area is 

currently attaining the standard, EPA 

proposes to determine that New York’s 

obligation to submit the following Clean 

Air Act requirements is not applicable 

for so long as the New York County 

nonattainment area continues to attain 

the PM10 standard: an attainment 

demonstration under Clean Air Act 

section 189(a)(1)(B); RACM provisions 

under Clean Air Act section 

189(a)(1)(C); RFP provisions under 

Clean Air Act section 189(c); and, the 

attainment demonstration, RACM, RFP 

and contingency measure provisions 

under Clean Air Act section 172 of the 

Act. 

The classification and designation 

status in 40 CFR part 81 would remain 

moderate nonattainment for the New 

York County nonattainment area. 

VII. Statutory and Executive Order 

Reviews 

This action proposes to make a 

determination based on air quality data, 

and would, if finalized, result in the 

suspension of certain Federal 

requirements. 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); 


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Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications, as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Reporting 

and recordkeeping requirements. 

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

Dated: September 3, 2013. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2013–22356 Filed 9–12–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2013–0596; FRL–9900–97– 

Region 9] 

Revisions to the California State 

Implementation Plan, South Coast Air 

Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the South Coast Air Quality 

Management District (SCAQMD) portion 

of the California State Implementation 

Plan (SIP). This revision concerns 

particulate matter (PM) and carbon 

monoxide (CO) emissions from Cement 

Kilns. We are approving a local rule that 

regulates this emission source under the 

Clean Air Act as amended in 1990 (CAA 

or the Act). We are taking comments on 

this proposal and plan to follow with a 

final action. 

DATES: Any comments must arrive by 

October 15, 2013. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2013–0596, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air–4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California. While all documents in the 

docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), and some may not 

be publicly available in either location 

(e.g., CBI). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Christine Vineyard, EPA Region IX, 

(415) 947–4125, vineyard.christine@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What is the purpose of the submitted 

rule revision? 

II. EPA’s Evaluation and Action 

A. How is EPA evaluating the rule? 

B. Does the rule meet the evaluation 

criteria? 

C. EPA Recommendations To Further 

Improve the Rule 

D. Public Comment and Proposed Action 

III. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rule did the State submit? 

Table 1 lists the rule addressed by this 

proposal with the date that it was 

adopted by the local air agency and 

submitted by the California Air 

Resources Board. 

TABLE 1—SUBMITTED RULE

Local agency Rule No. Rule title Adopted Submitted 

SCAQMD ................................ 1112.1 Emissions of Particulate Matter and Carbon Monoxide from 

Cement Kilns.

12/04/09 07/20/10 

On August 25, 2010, EPA determined 

that the submittal for SCAQMD Rule 

1112.1 met the completeness criteria in 

40 CFR Part 51 Appendix V, which 

must be met before formal EPA review. 

B. Are there other versions of this rule? 

We approved an earlier version of 

Rule 1112.1 into the SIP on September 

2, 1998 (63 FR 46659). 


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