The EPA Regional Administrator, Jared Blumenfeld signed the following 

proposed rule on October 15, 2012 and EPA is submitting it for publication in 

the Federal Register (FR). While we have taken steps to ensure the accuracy 

of this Internet version of the proposed rule, it is not the official version 

of the proposal for purposes of public comment. Please refer to the official 

version in a forthcoming FR publication appearing on the Government Printing 

Office’s FDsys website, http://fdsys.gpo.gov/fdsys/search/home.action and on 

Regulation.gov in Docket Number EPA-R09-OAR-2012-0752, 

http://www.regulations.gov

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0752; FRL– ]

Determination of Attainment for the Nogales Nonattainment Area 

for the 2006 Fine Particle Standard; Arizona; Determination 

Regarding Applicability of Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to determine that the Nogales 

nonattainment area in Arizona has attained the 2006 24-hour fine 

particle (PM2.5) National Ambient Air Quality Standard (NAAQS). 

This proposed determination is based upon complete, qualityassured, and certified ambient air monitoring data showing that 

the area has monitored attainment of the 2006 24-hour PM2.5 NAAQS 

based on the 2009–2011 monitoring period. EPA is further 

proposing that, if EPA finalizes this determination of 

attainment, the requirements for the area to submit an 

attainment demonstration, together with reasonably available 

control measures (RACM), a reasonable further progress (RFP) 

plan, and contingency measures for failure to meet RFP and 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

2

attainment deadlines shall be suspended for so long as the area 

continues to attain the 2006 24-hour PM2.5 NAAQS.

DATES: Written comments must be received on or before [FEDERAL 

REGISTER OFFICE: Insert date 30 days after date of publication 

in the Federal Register].

ADDRESSES: Submit your comments, identified by Docket ID No. 

EPA-R09-OAR-2012-0752 by one of the following methods:

1. Federal eRulemaking Portal, at www.regulations.gov, please 

follow the on-line instructions;

2. E-mail to ungvarsky.john@epa.gov; or

3. Mail or delivery to John Ungvarsky, Air Planning Office, 

AIR-2, U.S. Environmental Protection Agency, Region IX, 75 

Hawthorne Street, San Francisco, California 94105-3901.

Instructions: All comments will be included in the public docket 

without change and may be made available online at 

www.regulations.gov, including any personal information 

provided, unless the comment includes Confidential Business 

Information (CBI) or other information whose disclosure is 

restricted by statute. Information you consider to be CBI or 

otherwise protected should be clearly identified as such and 

should not be submitted through www.regulations.gov or e-mail. 

www.regulations.gov is an “anonymous access” system, and EPA 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

3

will not know your identity or contact information unless you 

provide it in the body of your comment. If you send an e-mail 

directly to EPA, your e-mail address will be automatically 

captured and included as part of the public comment. If you 

submit an electronic comment, EPA recommends that you include 

your name and other contact information in the body of your 

comment and with any disk or CD-ROM you submit. If EPA cannot 

read your comment due to technical difficulties and cannot 

contact you for clarification, EPA may not be able to consider 

your comment. Electronic files should avoid the use of special 

characters, any form of encryption, and be free of any defects 

or viruses. 

Docket: The index to the docket for this action is available 

electronically at www.regulations.gov and in hard copy at EPA 

Region IX, 75 Hawthorne Street, San Francisco, California. 

While all documents in the docket are listed in the index, some 

information may be publicly available only at the hard copy 

location (e.g., copyrighted material), and some may not be 

publicly available at either location (e.g., CBI). To inspect 

the hard copy materials, please schedule an appointment during 

normal business hours with the contact listed in the FOR FURTHER 

INFORMATION CONTACT section.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

4

FOR FURTHER INFORMATION CONTACT: John Ungvarsky, (415) 972-3963, 

or by email at ungvarsky.john@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, wherever 

“we”, “us” or “our” are used, we mean EPA. We are providing the 

following outline to aid in locating information in this 

proposal.

Table of Contents

I. What determination is EPA making?

II. What is the background for this action?

A. PM2.5 NAAQS

B. Designation of PM2.5 Nonattainment Areas

C. How Does EPA Make Attainment Determinations? 

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

A. Monitoring Network and Data Considerations

B. Evaluation of Current Attainment

IV. How does EPA's Clean Data Policy apply to this action?

A. Application of EPA's Clean Data Policy to the 2006 PM2.5

NAAQS

B. History and Basis of EPA’s Clean Data Policy

V. EPA’s Proposed Action and Request for Public Comment

VI. Statutory and Executive Order Reviews

I. What determination is EPA making?
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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EPA is proposing to determine that the Nogales 

nonattainment area has clean data for the 2006 24-hour NAAQS for 

fine particles (generally referring to particles less than or 

equal to 2.5 micrometers in diameter, PM2.5). This determination

is based upon complete, quality-assured, and certified ambient 

air monitoring data showing the area has monitored attainment of 

the 2006 PM2.5 NAAQS based on 2009–2011 monitoring data.

Preliminary data in EPA’s Air Quality System (AQS) for 2012

indicate that the area continues to attain the 2006 PM2.5 NAAQS. 

Based on this determination, we are also proposing to suspend 

the obligations on the State of Arizona to submit certain state 

implementation plan (SIP) revisions related to attainment of 

this standard for the area for as long as the area continues to 

attain the standard.

II. What is the background for this action?

A. PM2.5 NAAQS 

Under section 109 of the Clean Air Act (CAA or "Act"), EPA 

has established national ambient air quality standards (NAAQS or 

"standards") for certain pervasive air pollutants (referred to 

as "criteria pollutants") and conducts periodic reviews of the 

NAAQS to determine whether they should be revised or whether new 

NAAQS should be established. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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On July 18, 1997, EPA revised the NAAQS for particulate 

matter to add new standards for PM2.5, using PM2.5 as the 

indicator for the pollutant. EPA established primary and 

secondary1 annual and 24-hour standards for PM2.5 (62 FR 38652). 

The annual standard was set at 15.0 micrograms per cubic meter

(μg/m3), based on a 3-year average of annual mean PM2.5

concentrations, and the 24-hour standard was set at 65 μg/m3, 

based on the 3-year average of the 98th percentile of 24-hour

PM2.5 concentrations at each population-oriented monitor within 

an area.

On October 17, 2006 (71 FR 61144), EPA revised the level of 

the 24-hour PM2.5 NAAQS to 35 μg/m3, based on a 3-year average of 

the 98th percentile of 24-hour concentrations. EPA also retained 

the 1997 annual PM2.5 standard at 15.0 μg/m3 based on a 3-year

average of annual mean PM2.5 concentrations, but with tighter

constraints on the spatial averaging criteria. 

B. Designation of PM2.5 Nonattainment Areas

Effective December 14, 2009, EPA established the initial 

air quality designations for most areas in the United States for

 

1 For a given air pollutant, "primary" national ambient air quality standards 

are those determined by EPA as requisite to protect the public health, and 

"secondary" standards are those determined by EPA as requisite to protect the 

public welfare from any known or anticipated adverse effects associated with 

the presence of such air pollutant in the ambient air. See CAA section 

109(b).
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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the 2006 24-hour PM2.5 NAAQS. See 74 FR 58688; (November 13, 

2009). Among the various areas designated in 2009, EPA 

designated the Nogales2 area in Arizona as nonattainment for the 

2006 24-hour PM2.5 NAAQS.3 The boundaries for the nonattainment 

area are described in 40 CFR 81.303.

Within three years of the effective date of designations, 

states with areas designated as nonattainment for the 2006 PM2.5

NAAQS are required to submit SIP revisions that, among other 

elements, provide for implementation of reasonably available 

control measures (RACM), reasonable further progress (RFP), 

attainment of the standard as expeditiously as practicable but 

no later than five years from the nonattainment designation (in 

this instance, no later than December 14, 2014), as well as 

contingency measures. See CAA section 172(a)(2), 172(c)(1), 

172(c)(2), and 172(c)(9). Prior to the due date for submittal of 

these SIP revisions, the State of Arizona requested that EPA 

make a determination that the Nogales4 nonattainment area has

attained the 2006 PM2.5 NAAQS. Today's proposal responds to the 

 

2 Covering 76.1 square miles, the Nogales PM2.5 nonattainment area is located 

within Santa Cruz County, Arizona, with the southernmost boundary of the 

nonattainment area and Santa Cruz County being the U.S./Mexico border.

3 With respect to the annual PM2.5 NAAQS, this area is designated as 

"unclassifiable/attainment."

4 On July 6, 2012, in an email to Lisa Hanf, Manager, Planning Office, Air 

Division, U.S. EPA Region IX, Diane Arnst, Planning Section Manager, Air 

Quality Division, Arizona Department of Environmental Quality, requested that 

EPA determine whether the Nogales PM2.5 nonattainment area qualified for a 

determination of attainment for the 2006 24-hour PM2.5 NAAQS.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

8

State’s request.

C. How Does EPA Make Attainment Determinations? 

A determination of whether an area’s air quality currently 

meets the PM2.5 NAAQS is generally based upon the most recent 

three years of complete, quality-assured data gathered at 

established State and Local Air Monitoring Stations (SLAMS) in a

nonattainment area and entered into the AQS database. Data from 

air monitors operated by state/local agencies in compliance with 

EPA monitoring requirements must be submitted to AQS. Monitoring 

agencies annually certify that these data are accurate to the 

best of their knowledge. Accordingly, EPA relies primarily on 

data in AQS when determining the attainment status of areas. See 

40 CFR 50.13; 40 CFR part 50, appendix L; 40 CFR part 53; 40 CFR 

part 58, and 40 CFR part 58, appendices A, C, D, and E. All data 

are reviewed to determine the area's air quality status in 

accordance with 40 CFR part 50, appendix N.

Under EPA regulations in 40 CFR part 50, section 50.13 and 

in accordance with appendix N, the 2006 24-hour PM2.5 standard is

met when the design value is less than or equal to 35 μg/m3

(based on the rounding convention in 40 CFR part 50, appendix N) 

at each monitoring site within the area.5 The PM2.5 24-hour 

 

5 The 24-hour PM2.5 standard design value is the 3-year average of annual 98th 

percentile 24-hour average values recorded at each monitoring site [see 40 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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average is considered valid when 75 percent of the hourly 

averages for the 24-hour period are available. Data completeness 

requirements for a given year are met when at least 75 percent

of the scheduled sampling days for each quarter have valid data.

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

A. Monitoring Network and Data Considerations

The Arizona Department of Environmental Quality (ADEQ) is 

the governmental agency with the authority and responsibility 

under state law for collecting ambient air quality data within 

the Nogales nonattainment area. Annually, ADEQ submits

monitoring network plans to EPA. These plans discuss the status 

of the air monitoring network, as required under 40 CFR part 58. 

EPA reviews these annual network plans for compliance with the 

applicable reporting requirements in 40 CFR 58.10. With respect 

to PM2.5, we have found that ADEQ’s annual network plans meet the 

applicable requirements under 40 CFR part 58.6 Furthermore, we 

 

CFR part 50, appendix N, section 1.0(c)], and the 24-hour PM2.5 NAAQS is met 

when the 24-hour standard design value at each monitoring site is less than 

or equal to 35 μg/m3. 

6 Letter from Joe Lapka, Acting Manager, Air Quality Analysis Office, U.S. 

EPA Region IX, to Nancy Wrona, Director, Air Quality Division, ADEQ (November 

12, 2009) (approving ADEQ’s “Final Report of the State of Arizona Air 

Monitoring Network Plan for the Year 2009”); Letter from Matthew Lakin, 

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

Director, Air Quality Division, ADEQ (December 10, 2010) (approving ADEQ’s 

“Final Report of the State of Arizona Air Monitoring Network Plan for the 

Year 2010”); Letter from Matthew Lakin, Manager, Air Quality Analysis Office, 

U.S. EPA Region IX, to Eric Massey, Director, Air Quality Division, ADEQ

(December 1, 2011) (approving ADEQ’s “State of Arizona Air Monitoring Network 
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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concluded in our Technical System Audit Report concerning ADEQ’s 

ambient air quality monitoring program that ADEQ’s ambient air 

monitoring network currently meets or exceeds the requirements 

for the minimum number of monitoring sites designated as SLAMS 

for PM2.5 in the Nogales nonattainment area.

7 Also, ADEQ annually 

certifies that the data it submits to AQS are quality-assured.8 

There was one PM2.5 SLAMS operating during the 2009-2011 

period in the Nogales PM2.5 nonattainment area. This site has 

been monitoring PM2.5 concentrations since 1999 with a one-insix-day sampling frequency. EPA defines specific monitoring site 

types and spatial scales of representativeness to characterize 

the nature and location of required monitors. The monitor’s

spatial scale is neighborhood scale,

9 and its monitoring 

objective (site type) is population exposure.

10

For the purposes of this proposed action, we have reviewed 

 

Plan: For the Year 2011”).

7

Technical System Audit Report transmitted via correspondence dated 

September 23, 2010, from Deborah Jordan, Director, Air Division, EPA Region 

IX, to Eric Massey, Air Division, ADEQ. 

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

ADEQ to Deborah Jordan, Director, Air Division, EPA Region IX, dated 

September 21, 2012 certifying the ambient air quality data collected for year 

2011.

9 In this context, "neighborhood" spatial scale defines concentrations within 

some extended area of the city that has relatively uniform land use with 

dimensions in the 0.5 to 4.0 kilometers range. See 40 CFR part 58, appendix 

D, section 1.2.

10 State of Arizona Air Monitoring Network Plan for the Year 2012, Final 

Report, August 1, 2012. ADEQ also operates a co-located PM2.5 monitor at the 

Nogales monitoring site. The co-located monitor also collects samples on a 

one-day-in-six schedule. 
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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the data for the most recent three-year period (2009-2011) for 

completeness, and we determined that the data collected by ADEQ 

meets the completeness criterion for all 12 quarters at the 

Nogales PM2.5 monitor. While we consider the PM2.5 data set for 

2009-2011 to be complete for the purposes of determining whether 

the area has attained the standard, we have also determined 

that, under our monitoring regulations, ADEQ should be sampling 

PM2.5 on a one-in-three day schedule rather than at the current 

one-in-six day schedule because the co-located PM2.5 monitor at 

the Nogales site is not a continuously operating monitor, and 

under those circumstances, a sampling frequency of at least one 

day in every three is required under 40 CFR 58.12(d)(1). ADEQ 

has agreed to increase the monitoring frequency at the Nogales 

monitoring site to meet the requirements of 40 CFR 58.12(d)(1), 

beginning January 2013.11 The increased number of samples would

provide sufficient information to evaluate the area's continued 

attainment of the 2006 PM2.5 NAAQS if we finalize this proposed 

determination of attainment for the Nogales nonattainment area.

B. Evaluation of Current Attainment

EPA’s evaluation of whether the Nogales PM2.5 nonattainment 

area has attained the 2006 24-hour PM2.5 NAAQS is based on our 

 

11 See ADEQ’s September 11, 2012 letter to Matthew Lakin, Manager, Air 

Quality Analysis Office, EPA Region IX, from Eric Massey, Director, Air 

Quality Division, ADEQ. 
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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review of the monitoring data and takes into account the 

adequacy of the PM2.5 monitoring network in the nonattainment 

area and the reliability of the data collected by the network as 

discussed in the previous section of this document.

Table 1 shows the PM2.5 design values for the Nogales 

nonattainment area monitor based on ambient air quality 

monitoring data for the most recent complete three-year period 

(2009-2011). The data show that the design value for the 2009-

2011 period was equal to or less than 35 μg/m3 at the monitor. 

Therefore, we are proposing to determine, based on the complete, 

quality-assured data for 2009-2011, that the Nogales area has

attained the 2006 24-hour PM2.5 standard. Preliminary data 

available in AQS for 2012 indicate that the area continues to 

attain the standard.

Table 1. 2009-2011 24-Hour PM2.5 Monitoring Site and Design 

Value for the Nogales Nonattainment Area.

Monitoring 

Site

AQS Site 

Identification 

Number

98th Percentile (μg/m3) 2009-2011 

Design 

Values

(μg/m3 2009 2010 2011 )

Nogales Post

Office 04-023-0004 29.7 31.6 27.2 30

Source: Design Value Report, August 14, 2012 (in the docket to 

this proposed action).

IV. How does EPA's Clean Data Policy apply to this action?

A. Application of EPA’s Clean Data Policy to the 2006 PM2.5
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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NAAQS 

In April 2007, EPA issued its PM2.5 Implementation Rule for 

the 1997 PM2.5 standard. 72 FR 26586; (April 25, 2007). In 

March, 2012, EPA published implementation guidance for the 2006 

PM2.5 standard. See Memorandum from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, “Implementation 

Guidance for the 2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS)" (March 2, 2012). In that 

guidance, EPA stated its view “that the overall framework and 

policy approach of the 2007 PM2.5 Implementation Rule continues 

to provide effective and appropriate guidance on the EPA’s 

interpretation of the general statutory requirements that states 

should address in their SIPs. In general, the EPA believes that 

the interpretations of the statute in the framework of the 2007 

PM2.5 Implementation Rule are relevant to the statutory 

requirements for the 2006 24-hour PM2.5 NAAQS ...." Id., page 1. 

With respect to the statutory provisions applicable to 2006 PM2.5

implementation, the guidance emphasized that “EPA outlined its 

interpretation of many of these provisions in the 2007 PM2.5

Implementation Rule. In addition to regulatory provisions, the 

EPA provided substantial general guidance for attainment plans 

for PM2.5 in the preamble to the final the [sic] 2007 PM2.5
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ensure the accuracy of this version, but it is not the official version.

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Implementation Rule.” Id., page 2. In keeping with the 

principles set forth in the guidance, and with respect to the 

effect of a determination of attainment for the 2006 PM2.5

standard, EPA is applying the same interpretation with respect 

to the implications of clean data determinations that it set 

forth in the preamble to the 1997 PM2.5 standard and in the 

regulation that embodies this interpretation. 40 CFR 

51.1004(c).12 EPA has long applied this interpretation in 

regulations and individual rulemakings for the 1-hour ozone and 

1997 8-hour ozone standards, the PM-10 standard, and the lead 

standard. 

B. History and Basis of EPA’s Clean Data Policy 

Following enactment of the CAA Amendments of 1990, EPA 

promulgated its interpretation of the requirements for 

implementing the NAAQS in the General Preamble for the 

Implementation of Title I of the CAA Amendments of 1990 (General 

Preamble) 57 FR 13498, 13564 (April 16, 1992). In 1995, based on 

the interpretation of CAA sections 171 and 172, and section 182 

in the General Preamble, EPA set forth what has become known as 

its “Clean Data Policy” for the 1-hour ozone NAAQS. See

 

12 While EPA recognizes that 40 CFR 51.1004(c) does not itself expressly apply 

to the 2006 PM2.5 standard, the statutory interpretation that it embodies is 

identical and is applicable to both the 1997 and 2006 PM2.5 standards.

 
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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Memorandum from John S. Seitz, Director, Office of Air Quality 

Planning and Standards, “Reasonable Further Progress, Attainment 

Demonstration, and Related Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National Ambient Air Quality Standard” 

(May 10, 1995). In 2004, EPA indicated its intention to extend 

the Clean Data Policy to the PM2.5 NAAQS. See Memorandum from 

Steve Page, Director, EPA Office of Air Quality Planning and 

Standards, “Clean Data Policy for the Fine Particle National 

Ambient Air Quality Standards” (December 14, 2004). 

Since 1995, EPA has applied its interpretation under the 

Clean Data Policy in many rulemakings, suspending certain 

attainment-related planning requirements for individual areas, 

based on a determination of attainment. See 60 FR 36723 (July 

18, 1995) (Salt Lake and Davis Counties, Utah, 1-hour ozone); 61 

FR 20458 (May 7, 1996) (Cleveland-Akron-Lorain, Ohio, 1-hour 

ozone); 61 FR 31832 (June 21, 1996) (Grand Rapids, Michigan, 1-

hour ozone); 65 FR 37879 (June 19, 2000) (Cincinnati-Hamilton, 

Ohio-Kentucky, 1-hour ozone); 66 FR 53094 (October 19, 2001) 

(Pittsburgh-Beaver Valley, Pennsylvania, 1-hour ozone); 68 FR 

25418 (May 12, 2003) (St. Louis, Missouri-Illinois, 1-hour 

ozone); 69 FR 21717 (April 22, 2004) (San Francisco Bay Area, 

California, 1-hour ozone); 75 FR 6570 (February 10, 2010) (Baton 
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Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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Rouge, Louisiana, 1-hour ozone); 75 FR 27944 (May 19, 2010) 

(Coso Junction, California, PM10).

EPA also incorporated its interpretation under the Clean 

Data Policy in several implementation rules. See Clean Air Fine 

Particle Implementation Rule, 72 FR 20586 (April 25, 2007);

Final Rule To Implement the 8-Hour Ozone National Ambient Air 

Quality Standard — Phase 2, 70 FR 71612 (November 29, 2005). The 

Court of Appeals for the District of Columbia Circuit (D.C. 

Circuit) upheld EPA’s rule embodying the Clean Data Policy for 

the 1997 8-hour ozone standard. NRDC v. EPA, 571 F.3d 1245 (D.C. 

Cir. 2009). Other courts have reviewed and considered individual 

rulemakings applying EPA’s Clean Data Policy, and have 

consistently upheld them in every case. Sierra Club v. EPA, 99 

F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 

(7th Cir. 2004); Our Children's Earth Foundation v. EPA, No. 04-

73032 (9th Cir. June 28, 2005 (Memorandum Opinion)), Latino 

Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir. March 

2, 2009 (Memorandum Opinion)). 

EPA sets forth below a brief explanation of the statutory 

interpretations in the Clean Data Policy. EPA also incorporates 

the discussions of its interpretation set forth in prior 

rulemakings, including the 1997 PM2.5 implementation rulemaking. 
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See 72 FR 20586, at 20603-20605 (April 25, 2007). See also 75 FR 

31288 (June 3, 2010) (Providence, Rhode Island, 1997 8-hour 

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

1997 8-hour ozone); 75 FR 53219 (August 31, 2010) (Greater 

Connecticut Area, 1997 8-hour ozone); 75 FR 54778 (September 9, 

2010) (Baton Rouge, Louisiana, 1997 8-hour ozone); 75 FR 64949 

(October 21, 2010) (Providence, Rhode Island, 1997 8-hour 

ozone); 76 FR 11080 (March 1, 2011) (Milwaukee-Racine and 

Sheboygan Areas, Wisconsin, 1997 8-hour ozone); 76 FR 31273 (May 

31, 2011) (Pittsburgh-Beaver Valley, Pennsylvania, 1997 8-hour 

ozone); 76 FR 33647 (June 9, 2011) (St. Louis, MissouriIllinois, 1997 8-hour ozone); 76 FR 7145 (November 15, 2011) 

(Charlotte-Gastonia-Rock Hill, North Carolina-South Carolina, 

1997 8-hour ozone); 77 FR 31496 (May 29, 2012) (Boston-LawrenceWorchester, Massachusetts, 1997 8-hour ozone). See also, 75 FR 

56 (January 4, 2010) (Greensboro-Winston-Salem-High Point, North 

Carolina, 1997 PM2.5); 75 FR 230 (January 5, 2010) (HickoryMorganton-Lenoir, North Carolina, 1997 PM2.5); 76 FR 12860 (March 

9, 2011) (Louisville, Kentucky-Indiana, 1997 PM2.5); 76 FR 1850 

(April 5, 2011) (Rome, Georgia, 1997 PM2.5); 76 FR 31239 (May 31, 

2011) (Chattanooga, Tennessee-Georgia-Alabama, 1997 PM2.5); 76 FR 

31858 (June 2, 2011) (Macon, Georgia, 1997 PM2.5); 76 FR 36873 
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(June 23, 2011) (Atlanta, Georgia, 1997 PM2.5); 76 FR 38023 (June 

29, 2011) (Birmingham, Alabama, 1997 PM2.5); 76 FR 5542 

(September 7, 2011) (Huntington-Ashland, West Virginia-KentuckyOhio, 1997 PM2.5); 76 FR 60373 (September 29, 2011) (Cincinnati, 

Ohio-Kentucky-Indiana, 1997 PM2.5); 77 FR 18922 (March 29, 2012) 

(Harrisburg-Lebanon-Carlisle-York, Allentown, Johnstown and 

Lancaster, Pennsylvania, 1997 PM2.5). 

The Clean Data Policy represents EPA’s interpretation that 

certain requirements of subpart 1 of part D of the Act are by 

their terms not applicable to areas that are currently attaining 

the NAAQS.13 As explained below, the specific requirements that 

are inapplicable to an area attaining the standard are the 

requirements to submit a SIP that provides for: attainment of 

the NAAQS; implementation of all reasonably available control 

measures; reasonable further progress (RFP); and implementation 

of contingency measures for failure to meet deadlines for RFP 

and attainment.

CAA section 172(c)(1), the requirement for an attainment 

demonstration, provides in relevant part that SIPs “shall 

provide for attainment of the [NAAQS].” EPA has interpreted this 

requirement as not applying to areas that have already attained 

 

13 This discussion refers to subpart 1 because subpart 1 contains the 

requirements relating to attainment of the 2006 PM2.5 NAAQS.
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the standard. If an area has attained the standard, there is no 

need to submit a plan demonstrating how the area will reach 

attainment. In the General Preamble (57 FR 13564), EPA stated 

that no other measures to provide for attainment would be needed 

by areas seeking redesignation to attainment since “attainment 

will have been reached.” See also Memorandum from John Calcagni, 

“Procedures for Processing Requests to Redesignate Areas to 

Attainment,” (September 4, 1992), at page 6.

A component of the attainment plan specified under section 

172(c)(1) is the requirement to provide for “the implementation 

of all reasonably available control measures as expeditiously as 

practicable” (RACM). Since RACM is an element of the attainment 

demonstration, see General Preamble (57 FR 13560), for the same 

reason the attainment demonstration no longer applies by its own 

terms, RACM also no longer applies to areas that EPA has 

determined have clean air. Furthermore, EPA has consistently 

interpreted this provision to require only implementation of 

such potential RACM measures that could advance attainment.14 

Thus, where an area is already attaining the standard, no 

additional RACM measures are required. EPA’s interpretation that 

 

14 This interpretation was adopted in the General Preamble, see 57 FR 13498, 

and has been upheld as applied to the Clean Data Policy, as well as to 

nonattainment SIP submissions. See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 

2009); Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002).
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

20

the statute requires only implementation of the RACM measures 

that would advance attainment was upheld by the United States 

Court of Appeals for the Fifth Circuit (Sierra Club v. EPA, 314 

F.3d 735, 743–745, 5th Cir. 2002) and by the United States Court 

of Appeals for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d 

155, 162–163, D.C. Cir. 2002). See also the final rulemakings 

for Pittsburgh-Beaver Valley, Pennsylvania, 66 FR 53096 (October 

19, 2001) and St. Louis, Missouri-Illinois, 68 FR 25418 (May 12, 

2003).

CAA section 172(c)(2) provides that SIP provisions in 

nonattainment areas must require “reasonable further progress.” 

The term “reasonable further progress” is defined in section 

171(1) as “such annual incremental reductions in emissions of 

the relevant air pollutant as are required by this part or may 

reasonably be required by the Administrator for the purpose of 

ensuring attainment of the applicable NAAQS by the applicable

date.” Thus, by definition, the “reasonable further progress” 

provision under subpart 1 requires only such reductions in 

emissions as are necessary to attain the NAAQS. If an area has 

attained the NAAQS, the purpose of the RFP requirement has been 

fulfilled, and since the area has already attained, showing that 

the State will make RFP towards attainment “[has] no meaning at 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

21

that point.” General Preamble, 57 FR 13498, 13564 (April 16, 

1992).

CAA section 172(c)(9) provides that SIPs in nonattainment 

areas “shall provide for the implementation of specific measures 

to be undertaken if the area fails to make reasonable further 

progress, or to attain the [NAAQS] by the attainment date 

applicable under this part. Such measures shall be included in 

the plan revision as contingency measures to take effect in any 

such case without further action by the State or [EPA].” This 

contingency measure requirement is inextricably tied to the 

reasonable further progress and attainment demonstration 

requirements. Contingency measures are implemented if reasonable 

further progress targets are not achieved, or if attainment is 

not realized by the attainment date. Where an area has already 

achieved attainment, it has no need to rely on contingency 

measures to come into attainment or to make further progress to 

attainment. As EPA stated in the General Preamble: “The section 

172(c)(9) requirements for contingency measures are directed at 

ensuring RFP and attainment by the applicable date.” See 57 FR 

13564. Thus these requirements no longer apply when an area has 

attained the standard.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

22

It is important to note that should an area attain the 2006 

PM2.5 standard based on three years of data, its obligation to 

submit an attainment demonstration and related planning 

submissions is suspended only for so long as the area continues 

to attain the standard. If EPA subsequently determines, after 

notice-and-comment rulemaking, that the area has violated the 

NAAQS, the requirements for the State to submit a SIP to meet 

the previously suspended requirements would be reinstated. It is 

likewise important to note that the area remains designated 

nonattainment pending a further redesignation action. 

V. EPA’s Proposed Action and Request for Public Comment

EPA is proposing to determine that the Nogales 

nonattainment area in Arizona has attained the 2006 24-hour PM2.5

standard based on the most recent three years of complete, 

quality-assured, and certified data for 2009-2011. Preliminary 

data available in AQS for 2012 show that the area continues to 

attain the standard.

EPA further proposes that, if its proposed determination of 

attainment is made final, the requirements for the Nogales

nonattainment area to submit an attainment demonstration and 

associated RACM, a RFP plan, contingency measures, and any other 

planning SIPs related to attainment of the 2006 PM2.5 NAAQS would 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

23

be suspended for so long as the area continues to attain the 

2006 PM2.5 NAAQS. EPA's proposal is consistent and in keeping 

with its long-held interpretation of CAA requirements, as well 

as with EPA's regulations for similar determinations for ozone 

(see 40 CFR 51.918) and the 1997 fine particulate matter 

standards (see 40 CFR 51.1004(c)). As described below, any such 

determination would not be equivalent to the redesignation of 

the area to attainment for the 2006 PM2.5 NAAQS. 

Any final action resulting from this proposal would not 

constitute a redesignation to attainment under CAA section 

107(d)(3) because we have not yet approved a maintenance plan 

for the nonattainment area as meeting the requirements of 

section 175A of the CAA or determined that the area has met the 

other CAA requirements for redesignation. The classification and 

designation status in 40 CFR part 81 would remain nonattainment 

for the area until such time as EPA determines that Arizona has 

met the CAA requirements for redesignating the Nogales PM2.5

nonattainment area to attainment.

If the Nogales nonattainment area continues to monitor 

attainment of the 2006 PM2.5 NAAQS, EPA proposes that the 

requirements for the area to submit an attainment demonstration 

and associated RACM, a RFP plan, contingency measures, and any 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

24

other planning requirements related to attainment of the 2006 

PM2.5 NAAQS will remain suspended. If this proposed rulemaking is 

finalized and EPA subsequently determines, after notice-andcomment rulemaking in the Federal Register, that the area has

violated the 2006 PM2.5 NAAQS, the basis for the suspension of 

these attainment planning requirements for the area would no 

longer exist, and the area would thereafter have to address such 

requirements. 

EPA is soliciting public comments on the issues discussed 

in this document or on other relevant matters. We will accept 

comments from the public on this proposal for the next 30 days. 

We will consider these comments before taking final action.

VI. Statutory and Executive Order Reviews

This action proposes to make a determination of attainment 

based on air quality and to suspend certain federal 

requirements, and thus, would not impose additional requirements 

beyond those imposed by state law. For that reason, this

proposed action:

 Is not a "significant regulatory action” subject to review 

by the Office of Management and Budget under Executive 

Order 12866 (58 FR 51735, October 4, 1993); 

 Does not impose an information collection burden under the 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

25

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 

et seq.);

 Is certified as not having a significant economic impact on 

a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.); 

 Does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

 Does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999);

 Is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 

(62 FR 19885, April 23, 1997);

 Is not a significant regulatory action subject to Executive 

Order 13211 (66 FR 28355, May 22, 2001); 

 Is not subject to requirements of Section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the CAA; and 

 Does not provide EPA with the discretionary authority to 

address disproportionate human health or environmental

effects with practical, appropriate, and legally 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on October 15, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

26

permissible methods under Executive Order 12898 (59 FR 

7629, February 16, 1994).

In addition, this proposed action does not have Tribal 

implications as specified by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP obligations discussed herein 

do not apply to Indian Tribes and thus this proposed action will 

not impose substantial direct costs on Tribal governments or 

preempt Tribal law.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,

Particulate matter, Nitrogen oxides, Sulfur oxides, Reporting 

and recordkeeping requirements.

_ _________________ _____________________

Dated: Jared Blumenfeld

Regional Administrator,

Region IX.