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1Even if these requirements are suspended, EPA 

is not precluded from acting upon these elements 

at any time if submitted to EPA for review and 

approval. On June 17, 2011, the Commonwealth of 

Pennsylvania submitted a SIP revision for the 

Liberty-Clairton Area to EPA for review and 

approval. On November 7, 2011 (76 FR 68699), EPA 

proposed approval, with one condition, of 

Pennsylvania’s SIP revision for the Liberty-Clairton 

Area. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0769; FRL–9835–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Determinations of 

Attainment of the 1997 Annual Fine 

Particulate Standards for the LibertyClairton Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to make two 

separate and independent 

determinations regarding the LibertyClairton, Pennsylvania 1997 annual fine 

particulate (PM2.5) nonattainment area 

(the Liberty-Clairton Area). First, EPA is 

proposing to determine that the LibertyClairton Area attained the 1997 PM2.5

annual national ambient air quality 

standards (NAAQS) by the applicable 

attainment date, December 31, 2011. 

This proposed determination is based 

on quality assured and certified ambient 

air quality date for the 2009–2011 

monitoring period. Second, EPA is 

proposing that the Liberty-Clairton Area 

has continued to attain the 1997 annual 

PM2.5 NAAQS, based on quality-assured 

and certified ambient air quality data for 

the 2010–2012 monitoring period. If 

EPA finalizes this latter ‘‘clean data 

determination,’’ the requirement for the 

Liberty-Clairton Area to submit an 

attainment demonstration, reasonably 

available control measures (RACM), 

reasonable further progress (RFP), and 

contingency measures related to 

attainment of the 1997 annual PM2.5

NAAQS would be suspended for so long 

as the area continues to attain the 1997 

annual PM2.5 NAAQS. These 

determinations do not constitute a 

redesignation to attainment. The 

Liberty-Clairton Area will remain 

designated nonattainment for the 1997 

annual PM2.5 NAAQS until such time as 

EPA determines that the LibertyClairton Area meets the Clean Air Act 

(CAA) requirements for redesignation to 

attainment, including an approved 

maintenance plan. These proposed 

actions are being taken under the CAA. 

DATES: Written comments must be 

received on or before August 22, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0769 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2012–0769, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2012– 

0769. 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. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

FOR FURTHER INFORMATION CONTACT: 

Maria A. Pino, (215) 814–2181, or by 

email at pino.maria@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Proposed Actions 

EPA is proposing two separate and 

independent determinations regarding 

the Liberty-Clairton Area. First, 

pursuant to section 188(b)(2) of the 

CAA, EPA is proposing to make a 

determination that the Liberty-Clairton 

Area attained the 1997 annual PM2.5

NAAQS by the applicable attainment 

date, December 31, 2011. This proposed 

determination is based upon qualityassured and certified ambient air 

monitoring data for the 2009–2011 

monitoring period that shows the area 

has monitored attainment of the 1997 

PM2.5 annual NAAQS as of its 

attainment date. 

EPA is also proposing to make a 

determination that the Liberty-Clairton 

Area continues to attain the 1997 annual 

PM2.5 NAAQS. This proposed ‘‘clean 

data’’ determination is based upon 

quality assured and certified ambient air 

monitoring data that show the area has 

monitored attainment of the 1997 PM2.5

NAAQS for the 2010–2012 monitoring 

period. If EPA finalizes this 

determination, the requirement for the 

Liberty-Clairton Area to submit an 

attainment demonstration, RACM, RFP, 

and contingency measures related to 

attainment of the 1997 annual PM2.5

NAAQS shall be suspended for so long 

as the area continues to attain that 

NAAQS.1

II. Background 

A. The PM2.5 NAAQS 

On July 18, 1997 (62 FR 38652), EPA 

established a health-based PM2.5

NAAQS at 15.0 micrograms per cubic 

meter (mg/m3) based on a 3-year average 

of annual mean PM2.5 concentrations 

(‘‘the 1997 annual PM2.5 NAAQS’’ or 

‘‘the 1997 annual standard’’). At that 

time, EPA also established a 24-hour 

standard of 65 mg/m3 (the ‘‘1997 24-hour 

standard’’). See 40 CFR 50.7. On 

October 17, 2006 (71 FR 61144), EPA 

retained the 1997 annual PM2.5 NAAQS 

at 15 mg/m3 based on a 3-year average 


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of annual mean PM2.5 concentrations, 

and promulgated a 24-hour standard of 

35 mg/m3 based on a 3-year average of 

the 98th percentile of 24-hour 

concentrations (the ‘‘2006 24-hour 

standard’’). In response to legal 

challenges of the 2006 annual standard, 

the U.S. Court of Appeals for the District 

of Columbia Circuit (D.C. Circuit or the 

Court) remanded this standard to EPA 

for further consideration. See, American 

Farm Bureau Federation and National 

Pork Producers Council, et al. v. EPA, 

559 F.3d 512 (D.C. Circuit 2009). 

However, given that the 1997 and 2006 

annual PM2.5 standards are essentially 

identical, attainment of the 1997 annual 

standard would also indicate attainment 

of the remanded 2006 annual standard. 

On December 14, 2012 (78 FR 3086), 

EPA lowered the primary annual PM2.5

NAAQS from 15 to 12.0 mg/m3. EPA 

retained the 2006 24-hour PM2.5

NAAQS, and the 1997 secondary annual 

PM2.5 NAAQS. EPA also retained the 

existing standards for coarse particle 

pollution (PM10). This rulemaking 

action proposes determinations solely 

for the 1997 annual PM2.5 standard. It 

does not address the 1997 or 2006 24- 

hour PM2.5 standards or the 2012 PM2.5

annual NAAQS. 

B. The Liberty-Clairton Area 

On January 5, 2005 (70 FR 944), EPA 

published its air quality designations for 

the 1997 PM2.5 NAAQS based upon air 

quality monitoring data for calendar 

years 2001–2003. These designations 

became effective on April 5, 2005. The 

Liberty-Clairton Area is comprised of 

the boroughs of Lincoln, Glassport, 

Liberty, and Port Vue and the City of 

Clairton, all in Allegheny County, 

Pennsylvania. See 40 CFR 81.339. The 

Liberty-Clairton Area is surrounded by, 

but separate and distinct from the 

Pittsburgh-Beaver Valley PM2.5

nonattainment area. 

On November 13, 2009 (74 FR 58688), 

EPA published the area designations for 

the 2006 24-hour standard. That action, 

effective on December 14, 2009, 

designated the same Liberty-Clairton 

Area as nonattainment for the 2006 24- 

hour standard and clarified that the 

Liberty-Clairton Area is designated as 

unclassifiable/attainment for the 1997 

24-hour PM2.5 standard. 

III. EPA’s Analysis of the Relevant Air 

Quality Data 

The Commonwealth of Pennsylvania 

submitted quality assured air quality 

monitoring data into the EPA Air 

Quality System (AQS) database for the 

2009–2011 and 2010–2012 monitoring 

periods. Pennsylvania then certified that 

data. EPA’s evaluation of this data 

shows that the Liberty-Clairton Area has 

attained the 1997 annual PM2.5 NAAQS 

by its 2011 attainment date, and that it 

continues to attain the 1997 annual 

PM2.5 NAAQS. Additional information 

on air quality data for the LibertyClairton Area can be found in the 

technical support document (TSD) 

prepared for this action. 

The criteria for determining if an area 

is attaining the 1997 annual PM2.5

NAAQS are set out in 40 CFR 50.13 and 

appendix N. The 1997 annual PM2.5

NAAQS is met when the annual design 

value is less than or equal to 15.0 mg/ 

m3. Three years of valid annual means 

are required to produce a valid annual 

standard design value. A year meets 

data completeness requirements when 

at least 75 percent of the scheduled 

sampling days for each quarter have 

valid data. The use of less than 

complete data is subject to the approval 

of EPA, which may consider factors 

such as monitoring site closures/moves, 

monitoring diligence, and nearby 

concentrations in determining whether 

to use such data. 

There are two PM2.5 monitors in the 

Liberty-Clairton Area—one in Liberty 

Borough and one in the City of Clairton. 

Both monitors had complete data for all 

quarters in the years 2009 through 2012, 

except for one calendar quarter in 2011 

when the Clairton monitor had less than 

complete data capture due to unreliable 

data results via laboratory analysis. 

For this monitor, EPA performed a 

statistical analysis of the data, in which 

a linear regression relationship is 

established between the site with 

incomplete data and a nearby site which 

has more complete data in the period in 

which the incomplete site is missing 

data. The linear regression relationship 

is based on time periods in which both 

monitors were operating. The linear 

regression equation developed from the 

relationship between the monitors is 

used to fill in missing data for the 

incomplete monitor, so that the normal 

data completeness requirement of 75 

percent of data in each quarter of the 

three years is met. After the missing 

data for the site is filled in, the results 

are verified through an additional 

statistical test. The results of EPA’s 

statistical analysis indicated that while 

the Liberty monitor had less than 

complete data, the data is sufficient to 

demonstrate that the NAAQS has been 

met. Details of this analysis are set out 

in the TSD prepared for this action. 

This proposed determination of 

attainment for the Liberty-Clairton Area 

is based on EPA’s evaluation of qualitycontrolled, quality assured, certified 

annual PM2.5 air quality data for the 

2009–2011 and 2010–2012 monitoring 

periods. The monitoring data and 

calculated design values for LibertyClairton Area are summarized in Table 

1 for the 2009–2011 monitoring period, 

and in Table 2 for the 2010–2012 

monitoring period. 

TABLE 1—2009–2011 LIBERTY-CLAIRTON AREA ANNUAL PM2.5 MONITORING DATA & COMPLETENESS

Location Site ID Annual mean 2009–2011 

Design value 

(μg/m3) 

Complete quarters Complete 

data? 

.................. 2009 2010 2011 2009 2010 2011 

Liberty Borough ............................................................ 420030064 15.0 16.0 14.0 15.0 4 4 4 Yes. 

City of Clairton ............................................................. 420033007 11.3 12.5 10.7 * 11.5 ** 11.7 4 4 3 No. 

* The annual design value for the Clairton site reflects incomplete quarterly data during 2011. 

** EPA’s statistical procedure was applied to address the missing data and calculate a ‘‘complete’’ design value. 


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2For the purposes of evaluating the effects of this 

proposed determination of attainment under 

subpart 4, EPA is considering the Liberty-Clairton 

Area to be a ‘‘moderate’’ PM2.5 nonattainment area. 

Under section 188 of the CAA, all areas designated 

nonattainment areas under subpart 4 would 

initially be classified by operation of law as 

‘‘moderate’’ nonattainment areas, and would remain 

moderate nonattainment areas unless and until EPA 

reclassifies the area as a ‘‘serious’’ nonattainment 

area. Accordingly, EPA believes that it is 

appropriate to limit the evaluation of the potential 

impact of subpart 4 requirements to those that 

would be applicable to moderate nonattainment 

areas. Sections 189(a) and (c) of subpart 4 apply to 

moderate nonattainment areas and include an 

attainment demonstration (section 189(a)(1)(B)); (3) 

provisions for RACM (section 189(a)(1)(C)); and 

quantitative milestones demonstrating RFP toward 

attainment by the applicable attainment date 

(section 189(c)). In addition, EPA also evaluates the 

applicable requirements of subpart 1. 

3 ‘‘EPA’s Final Rule to implement the 8-Hour 

Ozone National Ambient Air Quality StandardPhase 2 (Phase 2 Final Rule)’’ (70 FR 71612, 71645– 

46, November 29, 2005). 

TABLE 2—2010–2012 LIBERTY-CLAIRTON AREA ANNUAL PM2.5 MONITORING DATA & COMPLETENESS

Location Site ID Annual mean 2010–2012 

Design value 

(μg/m3) 

Complete quarters Complete 

data? 

2010 2011 2012 2010 2011 2012 

Liberty Borough ............................................................ 420030064 16.0 14.0 14.3 14.8 4 4 4 Yes. 

City of Clairton ............................................................. 420033007 12.5 10.7 9.4 * 10.9 ** 11.0 4 3 4 No. 

* The annual design value for the Clairton site reflects incomplete quarterly data during 2011. 

** EPA’s statistical procedure was applied to address the missing data and calculate a ‘‘complete’’ design value. 

Consistent with the requirements 

contained in 40 CFR part 50, EPA has 

reviewed the PM2.5 ambient air 

monitoring data for the monitoring 

periods 2009–2011 and 2010–2012 for 

the Liberty-Clairton Area, as recorded in 

the AQS database. On the basis of that 

review, EPA proposes to determine that 

the Liberty-Clairton Area (1) attained 

the 1997 annual PM2.5 NAAQS by its 

attainment date, based on data for the 

2009–2011 monitoring period, and (2) 

continued to attain during the 2010– 

2012 monitoring period. 

IV. Effect of Proposed Determinations of 

Attainment for 1997 PM2.5 NAAQS 

Under Subpart 4 of Part D of Title I of 

the CAA (Subpart 4) 

This section and section V of EPA’s 

proposal address the effects of a final 

clean data determination and a final 

determination of attainment by the 

attainment date for the Liberty-Clairton 

Area. For the 1997 annual PM2.5

standard, 40 CFR 51.004 of EPA’s 

Implementation Rule for the 1997 

annual PM2.5 standard embodies EPA’s 

‘‘Clean Data Policy’’ interpretation 

under subpart 1 of Part D of Title I of 

the CAA (subpart 1). The provisions of 

40 CFR 51.004 set forth the effects of a 

determination of attainment for the 1997 

PM2.5 standard. (72 FR 20585, 20665, 

April 25, 2007). 

On January 4, 2013, in Natural 

Resources Defense Council v. EPA, the 

DC Circuit remanded to EPA the ‘‘Final 

Clean Air Fine Particle Implementation 

Rule’’ (72 FR 20586, April 25, 2007) and 

the ‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

(PM2.5)’’ final rule (73 FR 28321, May 

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’ or 

‘‘Implementation Rule’’). 706 F.3d 428 

(D.C. Cir. 2013). The Court found that 

EPA erred in implementing the 1997 

PM2.5 NAAQS pursuant solely to the 

general implementation provisions of 

subpart 1, rather than the particulatematter-specific provisions of subpart 4. 

The Court remanded EPA’s 

Implementation Rule for further 

proceedings consistent with the Court’s 

decision. In light of the Court’s decision 

and its remand of the Implementation 

Rule, EPA in this proposed rulemaking 

action addresses the effect of a final 

determination of attainment for the 

Liberty-Clairton Area, as if that area 

were considered a moderate 

nonattainment area under subpart 4.2 As 

set forth in more detail below, under 

EPA’s Clean Data Policy interpretation, 

a determination that the area has 

attained the standard suspends the 

state’s obligation to submit attainmentrelated planning requirements of 4 (and 

the applicable provisions of subpart 1) 

for so long as the area continues to 

attain the standard. These include 

requirements to submit an attainment 

demonstration, RFP, RACM, and 

contingency measures, because the 

purpose of these provisions is to help 

reach attainment, a goal which has 

already been achieved. 

A. Background on Clean Data Policy 

Over the past two decades, EPA has 

consistently applied its ‘‘Clean Data 

Policy’’ interpretation to attainmentrelated provisions of subparts 1, 2 and 

4. The Clean Data Policy is the subject 

of several EPA memoranda and 

regulations. In addition, numerous 

individual rulemakings published in the 

Federal Register have applied the 

interpretation to a spectrum of NAAQS, 

including the 1-hour and 1997 ozone, 

PM10, PM2.5, carbon monoxide (CO) and 

lead (Pb) standards. The D.C. Circuit has 

upheld the Clean Data Policy 

interpretation as embodied in EPA’s 

1997 8-Hour Ozone Implementation 

Rule, 40 CFR 51.918.3 NRDC v. EPA, 571 

F. 3d 1245 (D.C. Cir. 2009). Other U.S. 

Circuit Courts of Appeals that have 

considered and reviewed EPA’s Clean 

Data Policy interpretation have upheld 

it and the rulemakings applying EPA’s 

interpretation. 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, N. 04–73032 (9th Cir. June 28, 

2005) (memorandum opinion), Latino 

Issues Forum, v. EPA, Nos. 06–75831 

and 08–71238 (9th Cir.), Memorandum 

Opinion, March 2, 2009. 

As noted above, EPA incorporated its 

Clean Data Policy interpretation in both 

its 8-Hour Ozone Implementation Rule 

and in its PM2.5 Implementation Rule in 

40 CFR 51.1004(c). (72 FR 20585, 20665, 

April 25, 2007). While the D.C. Circuit, 

in its January 4, 2013 decision, 

remanded the 1997 PM2.5

Implementation Rule, the Court did not 

address the merits of that regulation, nor 

cast doubt on EPA’s existing 

interpretation of the statutory 

provisions. 

However, in light of the Court’s 

decision, EPA’s Clean Data Policy 

interpretation under subpart 4 is set 

forth here, for the purpose of identifying 

the effects of a determination of 

attainment for the 1997 annual PM2.5

standard for the Liberty-Clairton Area. 

EPA has previously articulated its Clean 

Data interpretation under subpart 4 in 

implementing the PM10 standard. See, 

e.g., (75 FR 27944, May 19, 2010) 

(determination of attainment of the 

PM10 standard in Coso Junction, 

California); (75 FR 6571, February 10, 

2010), (71 FR 6352, February 8, 2006) 


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4Thus, EPA believes 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 CAA. 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. 

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. 

(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). Thus 

EPA has established that, under subpart 

4, an attainment determination 

suspends the obligations to submit an 

attainment demonstration, RACM, RFP 

contingency measures, and other 

measures related to attainment. 

B. Application of the Clean Data Policy 

to Attainment-Related Provisions of 

Subpart 4 

In EPA’s proposed and final 

rulemaking actions 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 under 

subpart 4. The Ninth Circuit upheld 

EPA’s final rulemaking, and specifically 

EPA’s Clean Data Policy, in the context 

of subpart 4. Latino Issues Forum v. 

EPA, supra. Nos. 06–75831 and 08– 

71238 (9th Cir.), Memorandum Opinion, 

March 2, 2009. In rejecting the 

petitioner’s challenge to the Clean Data 

Policy under subpart 4 for PM10, the 

Ninth Circuit stated, ‘‘As the EPA 

explained, if an area is in compliance 

with PM10 standards, then further 

progress for the purpose of ensuring 

attainment is not necessary.’’ 

The general requirements of subpart 1 

apply in conjunction with the more 

specific requirements of subpart 4, to 

the extent they are not superseded or 

subsumed by the subpart 4 

requirements. Subpart 1 contains 

general air quality planning 

requirements for areas designated as 

nonattainment. See section 172(c). 

Subpart 4, itself, contains specific 

planning and scheduling requirements 

for PM10 nonattainment areas, and 

under the Court’s January 4, 2013 

decision in NRDC v. EPA, these same 

statutory requirements also apply for 

PM2.5 nonattainment areas. EPA has 

longstanding general guidance that 

interprets the 1990 amendments to the 

CAA, making recommendations to states 

for meeting the statutory requirements 

for SIPs for nonattainment areas. See, 

‘‘State Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clear Air Act Amendments 

of 1990,’’ (57 FR 13498, April 16, 1992) 

(the ‘‘General Preamble’’). In the General 

Preamble, EPA discussed the 

relationship of subpart 1 and subpart 4 

SIP requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM10

requirements.’’ (57 FR 13538, April 16, 

1992). These subpart 1 requirements 

include, among other things, provisions 

for attainment demonstrations, RACM, 

RFP, emissions inventories, and 

contingency measures. 

EPA has long interpreted the 

provisions of subpart 1 (sections 171 

and 172) as not requiring the 

submission of RFP for an area already 

attaining the ozone NAAQS. For an area 

that is attaining, showing that the state 

will make RFP towards attainment 

‘‘will, therefore, have no meaning at that 

point.’’ 57 FR 13564. See 71 FR 40952 

and 71 FR 63642 (proposed and final 

determination of attainment for San 

Joaquin Valley); 75 FR 13710 and 75 FR 

27944 (proposed and final 

determination of attainment for Coso 

Junction). 

Section 189(c)(1) of subpart 4 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 [section 171(1)] of this title, toward 

attainment by the applicable date. 

With respect to RFP, section 171(1) 

states that, for purposes of part D, 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. 

Although section 189(c) 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, EPA 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)).’’ (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.4

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. This is consistent with the position 

that EPA took with respect to the 

general RFP requirement of section 

172(c)(2) in the April 16, 1992 General 

Preamble and also in the May 10, 1995 

EPA memorandum from John S. Seitz, 

‘‘Reasonable Further Progress, 

Attainment Demonstrations, and 

Related Requirements for the Ozone 

Nonattainment Areas Meeting the 

Ozone National Ambient Air Quality 

Standard,’’ (the ‘‘1995 Seitz 

memorandum’’) with respect to the 

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


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44074 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Proposed Rules 

5And section 182(c)(9) for ozone. 

6EPA’s interpretation that the statute requires 

implementation only 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 

DC Circuit (Sierra Club v. EPA, 294 F.3d 155, 162– 

163 (DC Cir. 2002)). 

In the 1995 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 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, 1995 Seitz memorandum at 5. 

With respect to the attainment 

demonstration requirements of section 

172(c) and section 189(a)(1)(B), an 

analogous rationale leads to the same 

result. Section 189(a)(1)(B) requires that 

the plan provide for ‘‘a demonstration 

(including air quality modeling) that the 

[SIP] will provide for attainment by the 

applicable attainment date . . .’’ As 

with the RFP requirements, if an area is 

already monitoring attainment of the 

standard, EPA believes there is no need 

for an area to make a further submission 

containing additional measures to 

achieve attainment. This is also 

consistent with the interpretation of the 

section 172(c) requirements provided by 

EPA in the General Preamble, and the 

section 182(b) and (c) requirements set 

forth in the 1995 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.’’ 57 FR 13564. 

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). EPA has interpreted 

the contingency measure requirements 

of sections 172(c)(9) 5 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.’’ 

57 FR 13564; 1995 Seitz memorandum, 

pp. 5–6. 

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]. 

The 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 

by the attainment date, 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. 

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, (57 FR at 13560, 

April 16, 1992), states that EPA 

interprets section 172(c)(1) so that 

RACM requirements are a ‘‘component’’ 

of an area’s attainment demonstration. 

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. General Preamble, 57 FR 

13498. Thus, where an area is already 

attaining the standard, no additional 

RACM measures are required.6 EPA is 

interpreting section 189(a)(1)(C) 

consistent with its interpretation of 

section 172(c)(1). 

The suspension of the obligations to 

submit SIP revisions concerning these 

RFP, attainment demonstration, RACM, 

contingency measures and other related 

requirements exists only for as long as 

the area continues to monitor 

attainment of the standard. If EPA 

determines, after notice-and-comment 

rulemaking, that the area has monitored 

a violation of the NAAQS, the basis for 

the requirements being suspended 

would no longer exist. In that case, the 

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 if and when EPA 

redesignates the area to attainment 

would the area be relieved of these 

submission obligations. Attainment 

determinations under the Clean Data 

Policy do not shield an area from 

obligations unrelated to attainment in 

the area, such as provisions to address 

pollution transport. 

As set forth previously, based on our 

proposed determination that the 

Liberty-Clairton Area is currently 

attaining the 1997 annual PM2.5

NAAQS, EPA proposes to find that the 

obligations to submit planning 

provisions to meet the requirements for 

an attainment demonstration, 

reasonable further progress plans, 

reasonably available control measures, 

and contingency measures are 

suspended for so long as the area 

continues to monitor attainment of the 

1997 annual PM2.5 NAAQS. If in the 

future, EPA determines after notice-andcomment rulemaking that the area again 

violates the 1997 annual PM2.5 NAAQS, 

the basis for suspending the attainment 

demonstration, RFP, RACM, and 

contingency measure obligations would 

no longer exist. 

V. Determination of Attainment by the 

Attainment Date 

As stated previously, in light of the 

Court’s decision and its remand of the 

Implementation Rule, EPA in this 

proposed rulemaking action addresses 

the effect of a final determination of 

attainment for the Liberty-Clairton Area, 

as if that area were considered a 

moderate nonattainment area under 

subpart 4. Pursuant to CAA section 

188(c)(1), the 1997 annual PM2.5

NAAQS attainment date for moderate 

areas is as expeditiously as practicable, 

but not later than the end of the sixth 

calendar year after the area’s 

designation as nonattainment. For the 

purposes of evaluating attainment by 

attainment date, the attainment date for 

the Liberty-Clairton Area is December 

31, 2011. Under CAA section 188(b)(2), 

EPA is required to make a determination 

that a nonattainment area has attained 

by its attainment date, and publish that 

determination in the Federal Register. If 

EPA determines that any moderate area 

is not in attainment after its applicable 


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Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Proposed Rules 44075 

attainment date, that area is reclassified 

to serious by operation of law. 

EPA is proposing to make a 

determination that the Liberty-Clairton 

Area attained the 1997 annual PM2.5

NAAQS by the applicable attainment 

date of December 31, 2011. Therefore, 

EPA has met the requirement of CAA 

section 188(b)(2) to determine, based on 

the area’s air quality as of the attainment 

date, whether the area attained the 

standard by that date. The effect of a 

final determination of attainment by the 

area’s attainment date would be to 

discharge EPA’s obligation under CAA 

section 188(b)(2). 

VI. Proposed Actions 

Pursuant to sections 188(b)(2) of the 

CAA, EPA is proposing to determine 

that the Liberty-Clairton Area has 

attained the 1997 annual PM2.5 NAAQS 

by its attainment date, December 31, 

2011. Separately and independently, 

EPA is proposing to determine, based on 

the most recent three years of qualityassured and certified data meeting the 

requirements of 40 CFR part 50, 

appendix N, that the Liberty-Clairton 

Area is currently attaining the 1997 

annual PM2.5 NAAQS. In conjunction 

with and based upon our proposed 

determination that the Liberty-Clairton 

Area has attained and is currently 

attaining the standard, EPA proposes to 

determine that the obligation to submit 

the following attainment-related 

planning requirements is not applicable 

for so long as the area continues to 

attain the PM2.5 standard: The part D, 

subpart 4 obligations to provide an 

attainment demonstration pursuant to 

section 189(a)(1)(B), the RACM 

provisions of section 189(a)(1)(C), the 

RFP provisions of section 189(c), and 

related attainment demonstration, 

RACM, RFP, and contingency measure 

provisions requirements of subpart 1, 

section 172. This proposed rulemaking 

action, if finalized, would not constitute 

a redesignation to attainment under 

CAA section 107(d)(3). 

These proposed determinations are 

based upon quality-assured, and 

certified ambient air monitoring data 

that show the area has monitored 

attainment of the 1997 annual PM2.5

NAAQS for the 2009–2011 and 2010– 

2012 monitoring periods. EPA is 

soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

VII. Statutory and Executive Order 

Reviews 

This rulemaking action proposes to 

make determinations of attainment 

based on air quality, and would, if 

finalized, result in the suspension of 

certain federal requirements, and would 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, these proposed 

determinations of attainment: 

• Are 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); 

• do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• are 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.); 

• do 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); 

• do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• are not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• are not a significant regulatory 

action subject to Executive Order 13211 

(66 FR 28355, May 22, 2001); 

• are 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 

• do 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 proposed rule, 

proposing to determine that the LibertyClairton Area has attained the 1997 

annual PM2.5 NAAQS, 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, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

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

Dated: July 8, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2013–17688 Filed 7–22–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2013–0178; FRL_9834–3] 

Notice of Data Availability Concerning 

Renewable Fuels Produced From 

Barley Under the RFS Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Data Availability 

(NODA). 

SUMMARY: This Notice provides an 

opportunity to comment on EPA’s draft 

analysis of the lifecycle greenhouse gas 

(GHG) emissions of ethanol that is 

produced using barley as a feedstock. 

EPA’s draft analysis indicates that 

ethanol produced from barley has an 

estimated lifecycle GHG emissions 

reduction of 47% as compared to 

baseline conventional fuel when the 

barley ethanol is produced at a dry mill 

facility that uses natural gas for all 

process energy, uses electricity from the 

grid, and dries up to 100% of distillers 

grains. Such barley ethanol would 

therefore meet the minimum 20% GHG 

emissions reduction threshold for 

conventional biofuels under the Clean 

Air Act Renewable Fuel Standard (RFS) 

program. In addition, EPA analyzed two 

potential options for producing barley 

ethanol that would meet the 50% GHG 

emissions reduction threshold for 

advanced biofuels. Ethanol produced 

from dry-milling barley meet the 

advanced biofuels GHG reduction 

threshold if it is produced at a facility 

that uses no more than 30,700 Btu of 

natural gas for process energy, no more 

than 4,200 Btu of biomass from barley 

hulls or biogas from landfills, waste 

treatment plants, barley hull digesters, 

or waste digesters for process energy, 

and no more than 0.84 kWh of 

electricity from the grid for all 

electricity used at the renewable fuel 

production facility, calculated on a per 

gallon basis. Ethanol produced from 

dry-milling barley can also meet the 

advanced biofuel GHG reduction 

threshold if the production facility uses 

no more than 36,800 Btu of natural gas 

for process energy and also uses natural 

gas for on-site production of all 

electricity used at the facility other than 

up to 0.19 kWh of electricity from the 

grid, calculated on a per gallon basis. 


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