[Federal Register Volume 80, Number 71 (Tuesday, April 14, 2015)]
[Proposed Rules]
[Pages 19935-19941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08405]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2014-0254; FRL-9926-00-Region 8]


Determinations of Attainment of the 1997 Annual Fine Particulate 
Matter Standards for the Libby, Montana Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to make 
two separate and independent determinations regarding the Libby, 
Montana nonattainment area for the 1997 annual fine particulate matter 
(PM<INF>2.5</INF>) National Ambient Air Quality Standard (NAAQS). 
First, EPA is proposing to determine that the Libby nonattainment area 
attained the 1997 annual PM<INF>2.5</INF> NAAQS by the applicable 
attainment date, April 2010. This proposed determination is based on 
quality-assured and certified ambient air quality data for the 2007-
2009 monitoring period. Second, EPA is proposing that the Libby 
nonattainment area has continued to attain the 1997 annual 
PM<INF>2.5</INF> NAAQS, based on quality-assured and certified ambient 
air quality data for the 2012-2014 monitoring period. Based on the 
second determination, EPA also proposes to suspend certain 
nonattainment area planning obligations. These determinations do not 
constitute a redesignation to attainment. The Libby nonattainment area 
will remain designated nonattainment for the 1997 annual 
PM<INF>2.5</INF> NAAQS until such time as EPA determines that the Libby 
nonattainment 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 May 14, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2014-0254, by one of the following methods:
    <bullet> http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#563925223f31373724327835242f2522373a1633263778313920"><span class="__cf_email__" data-cfemail="6f001c1b06080e0e1d0b410c1d161c1b0e032f0a1f0e41080019">[email protected]</span></a>.
    <bullet> Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
    <bullet> Mail: Carl Daly, Director, Air Program, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
    <bullet> Hand Delivery: Carl Daly, Director, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2014-0254. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or email. The http://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 http://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

[[Page 19936]]

able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses. For additional instructions on submitting comments, go to 
Section I. General Information of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at 
all possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Crystal Ostigaard, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129, (303) 312-6602, 
<a href="/cdn-cgi/l/email-protection#0e617d7a67696f6f7c6a206d7c777d7a6f624e6b7e6f20696178"><span class="__cf_email__" data-cfemail="0f607c7b66686e6e7d6b216c7d767c7b6e634f6a7f6e21686079">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. General Information

    1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

A. The PM2.5 NAAQS

    On July 18, 1997 (62 FR 38652), EPA established a health-based 
PM<INF>2.5</INF> NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM<INF>2.5</INF> 
concentrations (``the 1997 annual PM<INF>2.5</INF> NAAQS'' or ``the 
1997 annual standard''). At that time, EPA also established a 24-hour 
standard of 65 [mu]g/m\3\ (the ``1997 24-hour standard''). See 40 CFR 
50.7. On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual 
PM<INF>2.5</INF> NAAQS at 15 [mu]g/m\3\ based on a 3-year average of 
annual mean PM<INF>2.5</INF> concentrations, and promulgated a 24-hour 
standard of 35 [mu]g/m\3\ based on a 3-year average of the 98th 
percentile of 24-hour concentrations (the ``2006 24-hour standard'').
    On January 15, 2013 (78 FR 3086), EPA lowered the primary annual 
PM<INF>2.5</INF> NAAQS from 15.0 to 12.0 [mu]g/m\3\. EPA retained the 
2006 24-hour PM<INF>2.5</INF> NAAQS, and the 1997 secondary annual 
PM<INF>2.5</INF> NAAQS. EPA also retained the existing standards for 
coarse particulate pollution (PM<INF>10</INF>). This rulemaking action 
proposes determinations solely for the 1997 annual PM<INF>2.5</INF> 
standard. It does not address the 1997 or 2006 24-hour PM<INF>2.5</INF> 
standards or the 2012 PM<INF>2.5</INF> annual NAAQS.

B. The Libby Nonattainment Area

    On January 5, 2005 (70 FR 944), EPA promulgated our air quality 
designations for the 1997 PM<INF>2.5</INF> NAAQS based upon air quality 
monitoring data for calendar years 2001-2003. These designations became 
effective on April 5, 2005. The Libby nonattainment area is comprised 
of the City of Libby within Lincoln County. See 40 CFR 81.327.
    In response, the State of Montana submitted State Implementation 
Plan (SIP) revisions on June 26, 2006 and March 26, 2008 intended to 
meet planning requirements for the Libby nonattainment area. In 
particular, based on section 172(a)(2)(A) of the CAA and the April 5, 
2005 effective date of designation as nonattainment, the attainment 
plan identified April 2010 as the applicable attainment date.\1\ The 
state's attainment plan accordingly showed attainment by that date.
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    \1\ Under CAA section 172(a)(2)(A), the attainment date for a 
nonattainment area is ``the date by which attainment can be achieved 
as expeditiously as practicable, but no later than five years from 
the date such area was designated nonattainment,'' except that EPA 
may extend the attainment date as appropriate ``for a period no 
greater than 10 years from the date of designation as nonattainment, 
considering the severity of nonattainment and the availability and 
feasibility of pollution control measures.''
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    On September 14, 2010 (75 FR 55713), EPA proposed to approve 
Montana's attainment plan. EPA proposed this action in accordance with 
the ``Final Clean Air Fine Particle Implementation Rule,'' 72 FR 20586 
(Apr. 25, 2007), which EPA issued to assist states in their development 
of SIPs to meet the Act's attainment planning requirements for the 1997 
PM<INF>2.5</INF> NAAQS. We received no adverse comments on our 
proposal, which we finalized on March 17, 2011 (76 FR 14584).

III. Summary of Proposed Action

    EPA is proposing two separate and independent determinations 
regarding the Libby nonattainment area. First, pursuant to section 
188(b)(2) of the CAA, EPA is proposing to make a determination that the 
Libby nonattainment area attained the 1997 annual PM<INF>2.5</INF> 
NAAQS by the area's attainment date, April 2010. This proposed 
determination is based upon quality-assured and certified ambient air 
monitoring data for the 2007-2009 monitoring period that shows the area 
has monitored attainment of the 1997 PM<INF>2.5</INF> annual NAAQS for 
that period.
    EPA is also proposing to make a determination that the Libby 
nonattainment area continues to attain the 1997 annual PM<INF>2.5</INF> 
NAAQS. This proposed ``clean data'' determination is based upon 
quality-assured and certified ambient air monitoring data that shows 
the area has monitored attainment of the 1997 PM<INF>2.5</INF> NAAQS 
for the 2012-2014 monitoring period. If EPA finalizes this 
determination, any remaining requirements for the Libby

[[Page 19937]]

nonattainment area under subpart 4, part D, title I of the CAA 
regarding an attainment demonstration, reasonably available control 
measures (RACM), reasonable further progress (RFP), and contingency 
measures related to attainment of the 1997 annual PM<INF>2.5</INF> 
NAAQS shall be suspended for so long as the area continues to attain 
the NAAQS.\2\
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    \2\ Even if these requirements are suspended, EPA is not 
precluded from acting upon these elements at any time if submitted 
by the State to EPA for review and approval.
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IV. EPA's Analysis of the Relevant Air Quality Data

    The Montana Department of Environmental Quality (MDEQ) submitted 
quality-assured air quality monitoring data into the EPA Air Quality 
System (AQS) database for 2007-2009 and subsequently certified that 
data. EPA's evaluation of this data shows that the Libby nonattainment 
area had attained the 1997 annual PM<INF>2.5</INF> NAAQS by April 2010. 
Additionally, the data set from the three most recent years, 2012-2014 
(which is also quality-assured and certified), shows that the Libby 
nonattainment area continues to attain the 1997 annual PM<INF>2.5</INF> 
NAAQS. The data is summarized in Tables 1 and 2 below. Additional 
information on the air quality data found in AQS for the Libby 
nonattainment area can be found in the docket for this action.
    The criteria for determining if an area is attaining the 1997 
annual PM<INF>2.5</INF> NAAQS are set out in 40 CFR 50.13 and 40 CFR 
part 50, Appendix N. The 1997 annual PM<INF>2.5</INF> primary and 
secondary standards are met when the annual design value is less than 
or equal to 15.0 [mu]g/m\3\. 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.
    This proposed determination of attainment for the Libby 
nonattainment area is based on EPA's evaluation of quality-controlled, 
quality-assured, and certified annual PM<INF>2.5</INF> air quality data 
for the 2007-2009 and 2012-2014 monitoring periods. There is one 
PM<INF>2.5</INF> monitor in the Libby nonattainment area (AQS Site ID 
30-053-0018). This monitor had complete data for all quarters in the 
years 2007 through 2014, except for one calendar quarter in 2011.\3\ 
The monitoring data and calculated design values for the Libby 
nonattainment area are summarized in Table 1 for the 2007-2009 
monitoring period and in Table 2 for the 2012-2014 monitoring period.
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    \3\ The Libby nonattainment area monitor had less than complete 
data capture in 2011, due to quality assurance issues.

                                Table 1--2007-2009 Libby Nonattainment Area Annual PM2.5 Monitoring Data and Completeness
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                                                           Annual mean                2007-2009              Complete quarters
           Location                Site ID    ------------------------------------   Design Value  ------------------------------------  Complete data?
                                                  2007        2008        2009     ([micro]g/m\3\)     2007        2008        2009
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City of Libby................    30-053-0018        13.0        12.9        10.7             12.2           4           4           4   Yes.
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                                Table 2--2012-2014 Libby Nonattainment Area Annual PM2.5 Monitoring Data and Completeness
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                                                           Annual mean                2007-2009              Complete quarters
           Location                Site ID    ------------------------------------   Design Value  ------------------------------------  Complete data?
                                                  2012        2013        2014     ([micro]g/m\3\)     2012        2013        2014
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City of Libby................    30-053-0018        11.3        10.9         9.3             10.5           4           4           4   Yes.
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    Consistent with the requirements contained in 40 CFR part 50, EPA 
has reviewed the PM<INF>2.5</INF> ambient air monitoring data for the 
monitoring periods 2007-2009 and 2012-2014 for the Libby nonattainment 
area, as recorded in the AQS database. On the basis of that review, EPA 
proposes to determine that the Libby nonattainment area (1) attained 
the 1997 annual PM<INF>2.5</INF> NAAQS by the attainment date, based on 
data for the 2007-2009 monitoring period, and (2) continued to attain 
during the 2012-2014 monitoring period.

V. Effect of Proposed Determinations of Attainment for 1997 
PM<INF>2.5</INF> NAAQS Under Subpart 4 of Part D of Title I of the CAA 
(Subpart 4)

    This section and section VI of EPA's proposal addresses the effects 
of a final clean data determination and a final determination of 
attainment by the attainment date for the Libby nonattainment area. For 
the 1997 annual PM<INF>2.5</INF> standard, EPA's ``Final Clean Air Fine 
Particle Implementation Rule,'' 72 FR 20586 (Apr. 25, 2007), embodied 
EPA's ``Clean Data Policy'' interpretation under subpart 1 of Part D of 
Title I of the CAA (subpart 1). As promulgated by the rule, the 
provisions of 40 CFR 51.004 set forth the effects of a determination of 
attainment for the 1997 PM<INF>2.5</INF> standard.
    On January 4, 2013, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir. 2013), the D.C. Circuit remanded to EPA the 
``Final Clean Air Fine Particle Implementation Rule'' and the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM<INF>2.5</INF>)'' final rule, 73 FR 
28321 (May 16, 2008) (collectively, ``1997 PM<INF>2.5</INF> 
Implementation Rule'' or ``Implementation Rule''). The Court found that 
EPA erred in implementing the 1997 PM<INF>2.5</INF> NAAQS pursuant 
solely to the general implementation provisions of subpart 1, part D, 
title I of the CAA, rather than the particulate-matter-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 finalized the ``Identification of 
Nonattainment Classification and Deadlines for Submission of State 
Implementation Plan (SIP) Provisions for the 1997 Fine Particulate 
(PM<INF>2.5</INF>) National Ambient Air Quality Standard (NAAQS) and 
2006 PM<INF>2.5</INF> NAAQS'' on June 2, 2014 (79 FR 31566), 
(``PM<INF>2.5</INF> Classification and Deadline Rule''). This 
rulemaking classified the Libby nonattainment area as ``Moderate'' for 
the 1997 annual PM<INF>2.5</INF> NAAQS. Under

[[Page 19938]]

section 188 of the CAA, all areas designated nonattainment 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 or redesignates the area to attainment. 
Accordingly, 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)); provisions for RACM (section 
189(a)(1)(C)); and quantitative milestones demonstrating RFP toward 
attainment by the applicable attainment date (section 189(c)).
    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 attainment-related planning 
requirements of subpart 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 attainment-related 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, 
PM<INF>10</INF>, PM<INF>2.5</INF>, 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.\4\ 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, No. 04-73032 (9th Cir. 
June 28, 2005) (memorandum opinion); Latino Issues Forum, v. EPA, Nos. 
06-75831 and 08-71238 (9th Cir. Mar. 2, 2009) (memorandum opinion).
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    \4\ ``EPA's Final Rule to implement the 8-Hour Ozone National 
Ambient Air Quality Standard-Phase 2 (Phase 2 Final Rule)'' (70 FR 
71612, 71645-46; November 29, 2005).
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    As noted above, EPA incorporated its Clean Data Policy 
interpretation in both its 8-Hour Ozone Implementation Rule and in its 
PM<INF>2.5</INF> Implementation Rule. While the D.C. Circuit, in its 
January 4, 2013 decision, remanded the 1997 PM<INF>2.5</INF> 
Implementation Rule, the Court did not address the merits of that 
portion of the rule, 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 PM<INF>2.5</INF> standard for the Libby nonattainment area. EPA 
has previously articulated its Clean Data interpretation under subpart 
4 in implementing the PM<INF>10</INF> standard. See, e.g., 75 FR 27944 
(May 19, 2010) (determination of attainment of the PM<INF>10</INF> 
standard in Coso Junction, California); 71 FR 6352 (Feb. 8, 2006) (Ajo, 
Arizona Area); 71 FR 13021 (Mar. 14, 2006) (Yuma, Arizona Area); 71 FR 
40023 (July 14, 2006) (Weirton, West Virginia Area); 71 FR 44920 (Aug. 
8, 2006) (Rillito, Arizona Area); 71 FR 63642 (Oct. 30, 2006) (San 
Joaquin Valley, California Area); 72 FR 14422 (Mar. 28, 2007) (Miami, 
Arizona Area); 75 FR 27944 (May 19, 2010) (Coso Junction, California 
Area). Thus, EPA has repeatedly 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 PM<INF>10</INF> 
standard, EPA set forth at length its rationale for applying the Clean 
Data Policy to PM<INF>10</INF> 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, Nos. 
06-75831 and 08-71238 (9th Cir. Mar. 2, 2009) (memorandum opinion). In 
rejecting the petitioner's challenge to the Clean Data Policy under 
subpart 4 for PM<INF>10</INF>, the Ninth Circuit stated, ``As the EPA 
explained, if an area is in compliance with PM<INF>10</INF> 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 PM<INF>10</INF> 
nonattainment areas, and under the Court's January 4, 2013 decision in 
NRDC v. EPA, these same statutory requirements also apply for 
PM<INF>2.5</INF> 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 Clean Air Act 
Amendments of 1990,'' 57 FR 13498 (Apr. 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 PM<INF>10</INF> requirements.'' Id. at 13538. 
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 (section 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.'' General Preamble, 57 FR 13564. See also 71 FR 
40952 (July 19, 2006) and 71 FR 63642 (October 30, 2006) (proposed and 
final determination of attainment for San Joaquin Valley); 75 FR 13710 
(March 23, 2010) and 75 FR 27944 (May 19, 2010) (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

[[Page 19939]]

``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 PM<INF>10</INF> areas of 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 RFP ``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 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. If an area has in fact attained the standard, 
the stated purpose of the RFP requirement will have already been 
fulfilled.\5\
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    \5\ Thus, 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. The 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.
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    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). 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 
page 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) \6\ 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.
---------------------------------------------------------------------------

    \6\ And section 182(c)(9) for ozone.
---------------------------------------------------------------------------

    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 RFP 
and attainment demonstration requirements. Contingency measures are 
implemented if RFP 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 
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 
RFP

[[Page 19940]]

or to attainment. General Preamble, 57 FR 13498. Thus, where an area is 
already attaining the standard, no additional RACM measures are 
required.\7\ EPA is interpreting section 189(a)(1)(C) consistent with 
its interpretation of section 172(c)(1).
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    \7\ EPA'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 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).
---------------------------------------------------------------------------

    The suspension of the obligations to submit SIP revisions 
concerning these RFP, attainment demonstration, RACM, contingency 
measure 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 Libby nonattainment area is currently attaining the 1997 annual 
PM<INF>2.5</INF> NAAQS, EPA proposes to find that any remaining 
obligations under subpart 4 to submit planning provisions to meet the 
requirements for an attainment demonstration, RFP plans, RACM, and 
contingency measures are suspended for so long as the area continues to 
monitor attainment of the 1997 annual PM<INF>2.5</INF> NAAQS. If in the 
future, EPA determines after notice-and-comment rulemaking that the 
area again violates the 1997 annual PM<INF>2.5</INF> NAAQS, the basis 
for suspending the attainment demonstration, RFP, RACM, and contingency 
measure obligations would no longer exist.

VI. Determination of Attainment by the Attainment Date

    As discussed in the Background section, on March 17, 2011 EPA 
approved April 2010 as the applicable attainment date for the Libby 
nonattainment area.\8\ Consistent with the D.C. Circuit's 2013 decision 
and its remand of the Implementation Rule, on June 2, 2014 (79 FR 
31566), EPA published a final rule classifying all areas currently 
designated nonattainment for the 1997 and/or 2006 PM<INF>2.5</INF> 
standards as Moderate under subpart 4. EPA also established a deadline 
of December 31, 2014 for states to submit attainment-related and 
nonattainment new source review SIP elements required for these areas 
under subpart 4. This rulemaking did not affect any action that EPA had 
previously taken under section 110(k) of the Act on a SIP for a 
PM<INF>2.5</INF> nonattainment area. Accordingly, EPA's March 17, 2011 
approval of the April 2010 attainment date for the Libby nonattainment 
area remains in effect. Based on monitoring data from 2007-2009, EPA is 
proposing to determine that the Libby nonattainment area attained the 
1997 annual PM<INF>2.5</INF> NAAQS by that attainment date. If we 
finalize this proposal, this will discharge EPA's obligation under CAA 
section 188(b)(2) to determine whether the area attained the standard 
by the applicable attainment date.
---------------------------------------------------------------------------

    \8\ EPA's approval did not specifically identify the fifth of 
April as the attainment date. Regardless of the specific day in 
April, the monitoring data from the 2007-2009 period shows 
attainment by April 2010.
---------------------------------------------------------------------------

VII. Proposed Action

    Pursuant to section 188(b)(2) of the CAA, EPA is proposing to 
determine that the Libby nonattainment area has attained the 1997 
annual PM<INF>2.5</INF> NAAQS by the area's attainment date, April 
2010. Separately and independently, EPA is proposing to determine, 
based on the most recent three years of quality-assured and certified 
data meeting the requirements of 40 CFR part 50, Appendix N, that the 
Libby nonattainment area is currently attaining the 1997 annual 
PM<INF>2.5</INF> NAAQS. In conjunction with and based upon our proposed 
determination that the Libby nonattainment area has attained and is 
currently attaining the standard, EPA proposes to determine that any 
remaining obligations under subpart 4, part D, title I of the CAA to 
submit the following attainment-related planning requirements are not 
applicable for so long as the area continues to attain the 
PM<INF>2.5</INF> standard: An attainment demonstration pursuant to 
section 189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), and 
the RFP provisions of section 189(c). 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 quality certified ambient air monitoring data that 
show the area has monitored attainment of the 1997 annual 
PM<INF>2.5</INF> NAAQS for the 2007-2009 and 2012-2014 monitoring 
periods.

VIII. Statutory and Executive Orders Review

    This rulemaking action proposes to make determinations of 
attainment based on air quality data, 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:
    <bullet> 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);
    <bullet> do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> are not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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).

[[Page 19941]]

    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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: March 25, 2015.
Shaun L. McGrath,
Regional Administrator.
[FR Doc. 2015-08405 Filed 4-13-15; 8:45 am]
 BILLING CODE 6560-50-P


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