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Additional Background Information on EPA’s Clean Da ta Policy 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 Gui dance for the 2006 24-Hour Final 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 Rule continues to provide effective and appropriate guidance on the EPA’ s interpretation of the general statutory requirement s 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 provisio ns applicable to 2006 PM 2.5 implementation, the guidance emphasized that “EPA o utlined its interpretation of many of these provisions in the 2007 PM 2.5 Implementation Rule. In addition to regulatory pro visions, the EPA provided substantial general guidance for attainmen t plans for PM 2.5 in the preamble to the final the [ sic ] 2007 PM 2.5 Implementation Rule.” Id ., page 2. In keeping with the principles set fort h 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 w ith 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). 1 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.

1 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 identi cal and is applicable to both the 1997 and 2006 PM 2.5 standards.2

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 inte rpretation 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 Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, “Reasonable Fur ther Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Ar eas 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 PM 2.5 NAAQS. See Memorandum from Steve Page, Director, EPA Office o f Air Quality Planning and Standards, “Clean Data Pol icy for the Fine Particle National Ambient Air Quality Standards” (December 14, 2004). Since 1995, EPA has applied its interpretation unde r 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 Rap ids, Michigan, 1-hour ozone); 65 FR 37879 (June 19, 2000) (Cincinnati-Hamilton, Ohio-Ke ntucky, 1-hour ozone); 66 FR 53094 (October 19, 2001) (Pittsburgh-Beaver Valley, Penns ylvania, 1-hour ozone); 68 FR 25418 (May 12, 2003) (St. Louis, Missouri-Illinois, 1-hour ozo ne); 69 FR 21717 (April 22, 2004) (San Francisco Bay Area, California, 1-hour ozone), 75 F R 6570 (February 10, 2010) (Baton Rouge, Louisiana, 1-hour ozone), 75 FR 27944 (May 19, 2010 ) (Coso Junction, California, PM 10 ).3

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 Nat ional Ambient Air Quality Standard — Phase 2, 70 FR 71612 (November 29, 2005). The Court of Appe als 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 hav e 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 Op inion)). EPA sets forth below a brief explanation of the sta tutory interpretations in the Clean Data Policy. EPA also incorporates the discussions of i ts interpretation set forth in prior rulemakings, including the 1997 PM 2.5 implementation rulemaking. See 72 FR 20586, at 20603-20605 (April 25, 2007). See also 75 FR 31288 (June 3, 2010) (Providence, Rhode Isla nd, 1997 8-hour ozone), 75 FR 62470 (October 12, 2010) (Knoxville, Tennesse e, 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 F R 11080 (March 1, 2011) (MilwaukeeRacine and Sheboygan Areas, Wisconsin, 1997 8-hour ozone), 76 FR 31273 (May 31, 2011) (Pittsburgh-Beaver Valley, Pennsylvania, 1997 8-hou r ozone), 76 FR 33647 (June 9, 2011) (St. Louis, Missouri-Illinois, 1997 8-hour ozone), 76 FR 7145 (November 15, 2011) (CharlotteGastonia-Rock Hill, North Carolina-South Carolina, 1997 8-hour ozone), 77 FR 31496 (May 29,4

2012) (Boston-Lawrence-Worchester, Massachusetts, 1 997 8-hour ozone). See also , 75 FR 56 (January 4, 2010) (Greensboro-Winston-Salem-High Po int, North Carolina, 1997 PM 2.5 ), 75 FR 230 (January 5, 2010) (Hickory-Morganton-Lenoir, No rth 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, Tenness ee-Georgia-Alabama,

1997 PM 2.5 ), 76 FR 31858 (June 2, 2011) (Macon, Georgia, 1997 PM 2.5 ), 76 FR 36873 (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-Ashla nd, West Virginia-KentuckyOhio, 1997 PM 2.5 ), 76 FR 60373 (September 29, 2011) (Cincinnati, Oh io-Kentucky-Indiana,

1997 PM 2.5 ), 77 FR 18922 (March 29, 2012) (Harrisburg-Lebanon -Carlisle-York, Allentown, Johnstown and Lancaster, Pennsylvania, 1997 PM 2.5 ). The Clean Data Policy represents EPA’s interpretati on that certain requirements of subpart 1 of part D of the Act are by their terms n ot applicable to areas that are currently attaining the NAAQS. 2 As explained below, the specific requirements tha t 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 availab le control measures; reasonable further progress (RFP); and implementation of contingency m easures for failure to meet deadlines for

RFP and attainment. CAA section 172(c)(1), the requirement for an attai nment demonstration, provides in relevant part that SIPs “shall provide for attainme nt of the [NAAQS].” EPA has interpreted this requirement as not applying to areas that have alre ady attained the standard. If an area has attained the standard, there is no need to submit a plan demonstrating how the area will reach

2 This discussion refers to subpart 1 because subpa rt 1 contains the requirements relating to attainme nt of the 2006 PM 2.5 NAAQS.5

attainment. In the General Preamble (57 FR 13564) , EPA stated that no other measures to provide for attainment would be needed by areas see king redesignation to attainment since

“attainment will have been reached.” See also Memorandum from John Calcagni, “Procedures for Processing Requests to Redesignate Areas to Att ainment,” (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 reasonabl y available control measures as expeditiously as practicable” (RACM). Since RACM is an element o f 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 appli es 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. 3 Thus, where an area is already attaining the standard, no addit ional RACM measures are required. EPA’s interpretation that the statute requires only imple mentation 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 Un ited 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 2 5418 (May 12, 2003). CAA section 172(c)(2) provides that state implement ation plan (SIP) provisions in nonattainment areas must require “reasonable furthe r progress.” The term “reasonable further progress” is defined in section 171(1) as “such ann ual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the

3 This interpretation was adopted in the General Prea mble, 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).6

Administrator for the purpose of ensuring attainmen t of the applicable NAAQS by the applicable date.” Thus, by definition, the “reasonable furthe r 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 b een fulfilled, and since the area has already attained, showing that the State will make RFP towards attainment “[has] no meaning at that point.” General Preamble, 57 FR 13498, 13564 (April 16, 1992). CAA section 172(c)(9) provides that SIPs in nonatta inment areas “shall provide for the implementation of specific measures to be undertake n if the area fails to make reasonable further progress, or to attain the [NAAQS] by the attainmen t 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 [E PA].” This contingency measure requirement is inextricably tied to the reasonable further prog ress 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 m easures to come into attainment or to make further progress to attainment. As EPA stated in t he 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. 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 attainme nt demonstration and related planning submissions is suspended only for so long as the ar ea continues to attain the standard. If EPA subsequently determines, after notice-and-comment r ulemaking, that the area has violated the7

NAAQS, the requirements for the State to submit a S IP to meet the previously suspended requirements would be reinstated. It is likewise i mportant to note that the area remains designated nonattainment pending a further redesign ation action.