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
- 201 2

- 0 752 , http://www.regulations.gov Billing Code: 6560

- 50

- P ENVIRONMENT AL PROTECTION AGENCY

40 CFR Part 52 [ EPA - R09 - OAR - 201 2 - 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 ha s attained t he 2006 24

- hour fine partic le (PM 2.5 ) National Ambient Air Quality Standard ( NAAQS ) . Th is proposed determination i s based upon complete, quality

assured, and certified ambient air monitoring data showing that the area ha s monitored attainment of the 2006 24

- hour PM 2.5 NAAQS based on the 2009

– 2011 monitoring period. EPA is further proposing that, if EPA finalizes th is determination of attainment, the requirements for the area to submit an attainment demonstration, together with reasonably avail able control measures (RACM) , a reasonable further progress (RFP) plan, and contingency measures for failure to meet RFP andThis 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 continue s to attain the 2 006 24

- hour PM 2.5 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
- 201 2

- 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 , Ai r 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 EPAThis 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 o f 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 difficul ties 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 ar e 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 app ointment 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 th is action?
A. PM 2.5 NAAQS
B. Designation of PM 2.5 Nonattainment Areas
C. How Does EPA Make Attainment Determinations?
I II . 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 PM 2.5 NAAQS
B. History and Basis of EPA’s Clean Data Policy V. EPA’s Proposed Action and Request for Publ ic Comment
V I . S tatutory 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.

5 EPA is proposing to determine that the Nogales nonattainment area ha s clean data for the 2006 24

- hour N AAQS for fine particles (generally referring to particles less than or equal to 2.5 micrometers in diameter, PM 2.5 ) . Th is determination i s based upon complete, quality

- assured, and certified ambient air monitoring data showing the a rea ha s monitored attainment of the 2006 PM 2.5 NAAQS based on 200 9

– 2011 monitoring data. Preliminary data in EPA’s Air Quality System ( AQS ) for 201 2 indicate that th e a rea continue s to attain the 2006 PM 2.5 NAAQS. Based on th is determination, we are also proposing to suspend the obligation s on the S tate 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 continue s to attain the standard. II. What is the background for th is action?
A. PM

2.5 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.

6 On July 18, 1997, EPA revised the NAAQS for particulate matter to add new standards for PM 2.5 , using PM 2.5 as the indicator for the pollutant. EPA established primary and secondary 1 annual and 24

- hour standards for PM 2.5 ( 62 FR 38652). The annual standard was set at 15 .0 micrograms per cubic meter ( μg/m 3 ) , based on a 3

- year average of annual mean PM 2.5 concentrations , and the 24

- hour standard was set at 65 μg/m 3 , based on the 3

- year average of the 98th percentile of 24

- hour
PM 2.5 concentrations at each population

- oriented monitor within

an area . On October 17, 2006 (71 FR 61144), EPA revised the level of the 24

- hour PM 2.5 NAAQS to 35 μg/m 3 , based on a 3

- year average of the 98th percentile of 24

- hour concentrations. EPA also retained the 1997 annual PM 2.5 standard at 15 .0 μg/m 3 based on a 3

- year average of annual mean PM 2.5 concentrations, but with tighter constraints on the spatial averaging criteria.
B. Designation of PM 2.5 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, "p rimary " 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 ass ociated with the presence of such air pollutant in the ambient air. See CAA section 109(b).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.

7 the 2006 24

- hour PM 2.5 NAAQS. See 74 FR 58688; (November 13, 2009). Among the various areas d esignated in 2009, EPA designated the Nogales 2 area in Arizona as nonattainment for the 2006 24

- hour PM 2.5 NAAQS. 3 The boundaries for the nonattainment

a rea are described in 40 CFR 81.303. Within three years of the effective date of designations,

s tates with areas designated as nonattainment for the 2006 PM 2.5 NAAQS are required to submit SIP revisions that, among other elements, provide for implementation of reasonably available control measures (RAC M ), 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 Nogales 4 nonattainment area ha s attained the 2006 PM 2.5 NAAQS . Today's proposal responds to the

2 Covering 76.1 square miles, the Nogales PM 2.5 nonattainment area is located within Santa Cruz County, Arizona, with the southernmost boundary of the nonattainmen t area and Santa Cruz County being the U.S./Mexico border. 3 With respect to the annual PM 2.5 NAAQS, this area i s 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 PM 2.5 nonattainment area qualified for a determination of attainment for the 2006 24

- hour PM 2.5 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 PM 2.5 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. M onitoring agencies annually certify th at 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 PM 2.5 standard is met when the design value is less than or equal to 35 μg/m 3 (based on the rounding convention in 40 CFR part 50, appendix N) at each monitoring site within the area. 5 The PM 2.5 24

- hour

5 The 24

- hour PM 2.5 standard design value is the 3

- year average of annual 98th percentile 24

- hour average values recorded at each monitoring site [see 40This 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.

9 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 (A DEQ ) 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 plan s 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 PM 2.5 , we have found that ADEQ’s annual network plans mee t the applicable requirements under 40 CFR part 58. 6 Furthermore, we

CFR part 50, appendix N, section 1.0(c)], and the 24

- hour PM 2.5 NAAQS is met when the 2 4

- hour standard design value at each monitoring site is less than or equal to 35 μg/m 3

. 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 Divisio n, A DEQ (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, A DEQ (December 1, 2011) (approving ADEQ’s “State of Arizona Air Monitoring NetworkThis 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.

10 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 PM 2.5 in the Nogales nonattainment area
. 7 Al so, ADEQ annually certifies that the data it submits to AQS are quality

- assured. 8
There w as one PM 2.5 SLAMS operating during the 200 9

- 2011 period in the Nogales PM 2.5 nonattainment area. Th is site has been monitor ing PM 2.5 concentrations since 1999 with a one - in

six

- 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 da ta 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 f or the Year 2012, Final Report, August 1, 2012
. ADEQ also operates a co

- located PM 2.5 monitor at the Nogales monitoring site. The co

- located monitor also collects samples on a one - day

- in

- six schedule.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.

11 the data for the most recent three

- year period (2009

- 2011) for completeness, and we determined that the data collected by ADEQ meets the c ompleteness criterion for all 12 quarters at the Nogales PM 2.5 monitor
. While we consider the PM 2.5 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 mo nitoring regulations, ADEQ should be sampling
PM 2.5 on a one - in

- three day schedule rather than at the current

one - in

- six day schedule because the co

- located PM 2.5 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 Janua ry 2013. 11 The increased number of samples w ould provide sufficient information to evaluate the area's continued attainment of the 2006 PM 2.5 NAAQS if we finalize this proposed determination of attainment for the Nogales nonattainment area
. B. Evaluation o f Current Attainment EPA’s evaluation of whether the Nogales PM 2.5 nonattainment area has attained the 2006 24

- hour PM 2.5 NAAQS is based on our

11 S ee ADEQ’s Se ptember 11 , 2012 letter to Matthew Lakin , Manager, Air Quality Analysis Office, EPA Region IX, from Eric Massey, Director, Air Quality Division, ADEQ .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.

12 review of the monitoring data and takes into account the adequacy of the PM 2.5 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 PM 2.5 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/m 3 at the monitor. Therefore, we are proposing to determin e , based on the complete, quality

- assured data for 2009

- 2011, that the Nogales area ha s attained the 2006 24

- hour PM 2.5 standard. Preliminary data available in AQS for 2012 indicate that the area continue s to attain the standard.
Table 1 . 2009 - 2011 24 - Hour PM 2.5 Monitoring Site and Design Value for the Nogales Nonattainment Area
. Monitoring Site AQS Site

Identification Number 98 th P ercentile (μg/m 3 ) 2009 - 2011 Design Values (μg/m 3 ) 200 9 2010 2011 Nogales Post Office 04

- 023

- 0004 29.7 31.6 27.2 30 S ource: 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 PM 2.5This 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.

13 NAAQS In April 2007, EPA issued its PM 2.5 Implementation Rule for the 1997 PM 2.5 standard. 72 FR 26586; (April 25, 2007). In March, 2012, EPA published implementation guidance for the 2006
PM 2.5 standard. See Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards , “Implementation Guidance for the 2006 24

- Hour Fin e Particle (PM 2.5 ) 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 PM 2.5 Implementation Ru le 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
PM 2.5 Implementation Rule are relevant to the statutory requirements for the 2006 24

- hour PM 2.5 NAAQS ...." Id ., page 1. With respect to the statutory provisions applicable to 2006 PM 2.5 implementation, the guidance emphasized that “EPA outline d its interpretation of many of these provisions in the 2007 PM 2.5 Implementation Rule. In addition to regulatory provisions, the EPA provided substantial general guidance for attainment plans for PM 2.5 in the preamble to the final the [ sic ] 2007 PM 2.5This 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.

14 Imp lementation 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 PM 2.5 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 PM 2.5 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 th e 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 imple menting the NAAQS in the G eneral P reamble 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 PM 2.5 standard, the statutory interpretation that it embodies is identical and is applicable to both the 1997 and 2006 PM 2.5 standards.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.

15 Memorandum from John S. Seitz, Dir ector, 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 indica ted its intention to extend the Clean Data Policy to the PM 2.5 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, 19 95) (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

- Kentu cky, 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 ozo ne) ; 75 FR 6570 (February 10, 2010) (BatonThis 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.

16 Rouge, Louisiana, 1

- hour ozone) ; 75 FR 27944 (May 19, 2010) (Coso Junction, California, PM 10 ). EPA also incorporated its interpretation under the Clean Data Policy in several implementation rules. See Clean Air Fi ne 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. Circui t) 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 u pheld 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, N os. 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

ru lemakings, including the 1997 PM 2.5 implementation rulemaking.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.

17 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 110 80 (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, Missouri

Illinois, 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

- Lawrence
Worchester, Massachusetts, 1997 8

- hour ozone). See also , 75 FR 56 (January 4, 2010) (Greensboro

- Wi nston
- Salem

- High Point, North Carolina, 1997 PM 2.5 ) ; 75 FR 230 (January 5, 2010) (Hickory

Morganton
- Lenoir, North Carolina, 1997 PM 2.5 ) ; 76 FR 12860 (March 9, 2011) (Louisville, Kentucky

- Indiana, 1997 PM 2.5 ) ; 76 FR 1850 (April 5, 2011) (Rome, Georgia, 1997 PM 2.5 ) ; 76 FR 31239 (May 31, 2011) (Chattanooga, Tennessee

- Georgia

- Alabama, 1997 PM 2.5 ) ; 76 FR 31858 (June 2, 2011) (Macon, Georgia, 1997 PM 2.5 ) ; 76 FR 36873This 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.

18 (June 23, 2011) (Atlanta, Georgia, 1997 PM 2.5 ) ; 76 FR 38023 (June 29, 2011) (Birmingham, Alabama, 1997 PM 2.5 ) ; 76 FR 5542 (September 7, 2011) (Huntington

- Ashland, West Virginia

- Kentucky

Ohio, 1997 PM 2.5 ) ; 76 FR 60373 (September 29, 2011) (Cincinnati, Ohio

- Kentucky

- Indiana, 1997 PM 2.5 ) ; 77 FR 18922 (March 29, 2012) (Harrisburg

- Lebanon

- Carlisle

- York, Al lentown, Johnstown and Lancaster, Pennsylvania, 1997 PM 2.5 ). 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 NAA QS. 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; reason able 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 att ainment 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 PM 2. 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.

19 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. EP A , 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 Clu b 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 530 96 (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 s ection 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 fulfill ed, and since the area has already attained, showing that the State will make RFP towards attainment “[has] no meaning atThis 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 “s hall 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 revisio n 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 mea sures 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 l onger 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
PM 2.5 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 requir ements 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 Commen t EPA is proposing to determine that the Nogales nonattainment area in Arizona ha s attained the 2006 24

- hour PM 2.5 standard based on the most recent three years of complete, quality

- assured, and certified data for 2009

- 2011. Preliminary data available in AQS for 201 2 show that the area continue s to attai n 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 PM 2.5 NAAQS wouldThis 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 continue s to attain the 2006 PM 2.5 NAAQS. EPA's proposal is consistent and in keeping with its long

- h e ld interpretation of CAA requirements, as wel l 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 PM 2.5 NAAQS. Any final a ction resulting from this proposal would not constitute a redesignation to attainment under CAA section 107(d)(3) because we have not yet approved a m aintenance plan for the nonattainment area as meeting the requirements of section 175A of the CAA or determined that the area ha s met the other CAA requirements for redesignation. The classification and designation status in 40 CFR part 81 would remain nonattainment for th e area until such tim e as EPA determines that Arizona has
met the CAA requirements for redesignat ing the Nogales PM 2.5 nonattainment area to attainment. If the Nogales nonattainment area continue s to monitor attainment of the 2006 PM 2.5 NAAQS, EPA proposes that the requirements for the area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and anyThis 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
PM 2.5 NAAQS will remain suspended. If this proposed rulemaking is finalized and EPA subsequently determines, after notice

- and

comment rulemaking in the Federal Register , that t he area has violated the 2006 PM 2.5 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 p roposal for the next 30 days. We will consider t hese comments before taking final action.
VI. Statutory and Executive Order Reviews
Th is 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 Manageme nt and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

 D o es not impose an information collection burden under theThis 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 impa ct on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq .);

 D o es 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);

 D o es 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) be cause application of those requirements would be inconsistent with the C AA ; and

 D o es not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legallyThis 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 me thods under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, th is proposed action do es not have T ribal 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 T ribal governments or preempt T ribal 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.