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[Federal Register: March 23, 2010 (Volume 75, Number 55)]
[Proposed Rules]               
[Page 13710-13715]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr10-31]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2010-0172; FRL-9129-3]

 
Approval and Promulgation of Implementation Plans; Designation of 
Areas for Air Quality Planning Purposes; State of California; PM-10; 
Determination of Attainment for the Coso Junction Nonattainment Area; 
Determination Regarding Applicability of Certain Clean Air Act 
Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Coso Junction 
nonattainment area (CJNA) in California has attained the 24-hour 
National Ambient Air Quality Standard (NAAQS) for particulate matter 
with an aerodynamic diameter less than or equal to a nominal 10 
micrometers (PM-10). This proposed determination is based upon 
monitored air quality data for the PM-10 NAAQS during the years 2006-
2008. In addition, data for 2009 contained in EPA's Air Quality System 
(AQS) shows the CJNA continued to attain the PM-10 NAAQS through 2009, 
and preliminary data for 2010 available to date show no exceedances of 
the 24-hour NAAQS have been recorded at the CJNA monitoring site. EPA 
is also proposing to determine that, because the CJNA has attained the 
PM-10 NAAQS, the obligation to make submissions to meet certain Clean 
Air Act (CAA or the Act) requirements is not applicable for as long as 
the CJNA continues to attain the PM-10 NAAQS.

DATES: Written comments must be received on or before April 22, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0172, by one of the following methods:
    (1) Federal eRulemaking portal: http://www.regulations.gov. Follow 
the on-line instructions.
    (2) E-mail: mahdavi.sarvy@epa.gov.
    (3) Mail or deliver: Sarvy Mahdavi (AIR-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments 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 Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that

[[Page 13711]]

you consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through the http://www.regulations.gov 
or e-mail. http://www.regulations.gov is an anonymous access system, 
and EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send e-mail directly to 
EPA, your e-mail address will be automatically captured and included as 
part of the public comment. 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.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed 
directly below.

FOR FURTHER INFORMATION CONTACT: Sarvy Mahdavi, EPA Region IX, (415) 
972-3173, mahdavi.sarvy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' are used, we mean EPA.

Table of Contents

I. Background
    A. The NAAQS for PM-10
    B. Designation, Classification and Air Quality Planning for PM-
10 for the CJNA
    C. Attainment Determinations
II. Proposed Attainment Determination for the CJNA
III. Applicability of Clean Air Act Planning Requirements
IV. EPA's Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. The NAAQS for PM-10

    Particulate matter with an aerodynamic diameter of less than or 
equal to 10 micrometers (PM-10) is the subject of this proposed action. 
The NAAQS are limits for certain ambient air pollutants set by EPA to 
protect public health and welfare. PM-10 is among the ambient air 
pollutants for which EPA has established a health-based standard.
    On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for 
particulate matter with an indicator that includes only those particles 
with an aerodynamic diameter less than or equal to a nominal 10 
micrometers. The 24-hour primary PM-10 standard was set at 150 
micrograms per cubic meter ([mu]g/m\3\) with no more than one expected 
exceedance per year. The annual primary PM-10 standard was set at 50 
[mu]g/m\3\ as an annual arithmetic mean. The secondary PM-10 standards, 
promulgated to protect against adverse welfare effects, were identical 
to the primary standards.
    On October 17, 2006, EPA revised the primary PM-10 standards by 
revoking the annual standard of 50 [mu]g/m\3\, but retained the 24-hour 
standard of 150 [mu]g/m\3\. EPA also revised the secondary PM-10 
standards to be the same as the primary standards. The revised PM-10 
NAAQS became effective on December 18, 2006. See 71 FR 61144 and 40 CFR 
50.6.

B. Designation, Classification and Air Quality Planning for PM-10 for 
the CJNA

    In 1990, Congress amended the Clean Air Act to address, among other 
things, continued nonattainment of the PM-10 NAAQS. On the date of 
enactment of the 1990 Clean Air Act Amendments, PM-10 areas meeting the 
qualifications of section 107(d)(4)(B) of the amended Act were 
designated nonattainment by operation of law. See 56 FR 11101 (March 
15, 1991). At that time, the CJNA was within the boundaries of the 
Searles Valley planning area and EPA codified the boundaries of the 
Searles Valley planning area at 40 CFR 81.305; however, EPA 
subsequently changed the boundaries of the Searles Valley area by 
dividing it into three separate nonattainment areas: The CJNA, Indian 
Wells and Trona planning areas. 67 FR 50805 (August 6, 2002).
    Once an area is designated nonattainment for PM-10, section 188 of 
the CAA outlines the process for classifying the area and establishes 
the area's initial attainment deadline. In accordance with section 
188(a), at the time of designation, all PM-10 nonattainment areas, such 
as the Searles Valley, were initially classified as moderate 
nonattainment. When EPA changed the boundaries of the Searles Valley 
area, the Agency also classified the newly created CJNA, Indian Wells 
and Trona planning areas as moderate. In the same action, EPA 
determined that the Trona planning area had attained the PM-10 NAAQS by 
the statutory attainment deadline. 67 FR 50805. EPA redesignated the 
Indian Wells planning area to attainment for the PM-10 NAAQS on 
December 17, 2002. 67 FR 77196. This proposed action concerns only the 
moderate CJNA.

C. Attainment Determinations

    We generally determine whether an area's air quality meets the PM-
10 NAAQS for purposes of sections 179(c)(1) and 188(b)(2) based upon 
data gathered at established state and local air monitoring stations 
(SLAMS) in the nonattainment area and entered into the EPA Air Quality 
System (AQS) database. Data from air monitors operated by state/local 
agencies in compliance with EPA monitoring requirements must be 
submitted to the EPA AQS database. Heads of monitoring agencies 
annually certify that these data are accurate to the best of their 
knowledge. Accordingly, EPA relies primarily on data in its AQS 
database when determining the attainment status of areas. See 40 CFR 
50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, 
appendices A, C, D and E. We will also consider air quality data from 
other air monitoring stations in the nonattainment area regardless of 
whether they have been entered into the EPA AQS database if the 
stations meet the federal monitoring requirements for SLAMS. See 40 CFR 
58.20 and August 22, 1997 Memorandum ``Agency Policy on the Use of 
Special Purpose Monitoring Data,'' from John S. Seitz, Director, Office 
of Air Quality Planning and Standards, to the Regional Air Directors. 
All data are reviewed to determine the area's air quality status in 
accordance with our guidance at 40 CFR part 50, appendix K.
    Attainment of the 24-hour PM-10 standard is determined by 
calculating the expected number of days in a year with PM-10 
concentrations greater than 150 [mu]g/m\3\. The 24-hour standard is 
attained when the expected number of days per year with levels above 
150 [mu]g/m\3\ (averaged over a three-year period) is less than or 
equal to one. Three consecutive years of air quality data are necessary 
to show attainment of the 24-hour standard for PM-10. See 40 CFR part 
50, appendix K. A complete year of air quality data, as referred to in 
40 CFR part 50, appendix K, includes all four calendar quarters with 
each quarter containing data from at least 75 percent of the scheduled 
sampling days.

II. Proposed Attainment Determination for the CJNA

    The CJNA has one SLAMS site operated by the Great Basin Unified Air 
Pollution Control District (District or GBUAPCD). This monitoring site 
is located in the Rose Valley of Coso Junction at the southern end of 
Inyo County and currently has a continuous

[[Page 13712]]

PM-10 analyzer which records PM-10 concentrations on an hourly 
basis.\1\
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    \1\ The Federal Reference Method (FRM) for PM-10 monitoring 
sites is a manual sampler operated on a once every six day schedule. 
These samplers draw ambient air through a quartz fiber filter which 
is weighed before and after sampling in order to determine the mass 
of PM-10 that is collected after the 24-hour run period. The GBUAPCD 
was operating two FRMs at the CJNA monitoring site on a staggered 
once every six day schedule that enabled the District to collect a 
24-hour PM-10 sample every three days until June 30, 2006 when the 
FRMs were terminated. See EPA AQS Database, Monitor Description 
Report. Prior to terminating the FRMS, the GBUAPCD added a tapered 
element oscillating microbalance (TEOM) analyzer on May 11, 2006. 
Id. The TEOM analyzer, which records PM-10 levels continuously, is 
not a FRM but has been designated a Federal equivalent method (FEM) 
by EPA. All exceedances monitored from 2006 to date were recorded by 
this TEOM.
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    PM-10 data collected in the CJNA is reported by the GBUAPCD to the 
EPA AQS database. The database contains three consecutive years of 
complete, quality-assured and certified data for 2006-2008 for CJNA. 
Table 1 summarizes the exceedances of the 24-hour PM-10 NAAQS of 150 
[mu]g/m\3\ measured in the CJNA during the 2006-2008 period. This table 
also summarizes data for 2009 that are contained in the AQS database 
but not yet certified.

                               Table 1--CJNA 24-Hour PM-10 Exceedances, 2006-2009
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                                                                                  Number of         Number of
                                               Date of      Maximum  ([mu]g/      expected          expected
             Monitoring site                 exceedance           m\3\)          exceedances    exceedances 2007-
                                                                                  2006-2008           2009
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Coso Junction...........................           12/8/06               295                 1                 1
                                                    6/5/07               217
                                                   12/6/07               283
                                                 *12/22/09              *168
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Source: EPA AQS Database.
* The 2009 data have been submitted to the AQS database but are not yet certified.

As noted above, the 24-hour PM-10 standard is attained when the 
expected number of days per year with levels above 150 [micro]g/m\3\ 
(averaged over a three-year period) is less than or equal to one. As 
can be seen from Table 1, there were three exceedances of the 24-hour 
PM-10 NAAQS for both the 2006-2008 and 2007-2009 periods; therefore the 
expected number of days per year with levels above 150 [micro]g/m\3\ 
(averaged over that three-year period) for both of these periods is 
one.2 3 EPA is not aware of any exceedances to date during 
the year 2010. Thus, based on quality-assured and certified data for 
the period 2006-2008 and data in AQS for the period 2007-2009 that show 
the area continues to attain, we propose to find that the CJNA has 
attained the 24-hour PM-10 NAAQS. Before EPA finalizes its rulemaking 
on a determination of attainment for CJNA, the Agency will consider the 
most current data available at that time.
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    \2\ Based on data from the EPA AQS database.
    \3\ We note that the GBUAPCD has reported the 4th quarter data 
for 2009 before the deadline. Under 40 CFR 58.16(b), quarterly data 
are not required to be reported in the AQS database until 90 days 
after the quarter; thus the data for the 4th quarter of 2009 must be 
reported by no later than March 31, 2010. The AQS data for the year 
2009 must be certified by May 1, 2010. See 40 CFR 58.15.
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III. Applicability of Clean Air Act Planning Requirements

    The air quality planning requirements for moderate PM-10 
nonattainment areas, such as the CJNA, are set out in part D, subparts 
1 and 4 of title I of the Act. EPA has issued guidance in a General 
Preamble \4\ describing how we will review state implementation plans 
(SIPs) and SIP revisions submitted under title I of the Act, including 
those containing moderate PM-10 nonattainment area SIP provisions.
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    \4\ ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' 57 FR 13498 (April 16, 1992), as 
supplemented at 57 FR 18070 (April 28, 1992).
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    In nonattainment areas where monitored data demonstrate that the 
NAAQS have already been achieved, EPA has determined that certain 
requirements of part D, subparts 1 and 2 of the Act do not apply. 
Therefore, we do not require certain submissions for an area that has 
attained the NAAQS. These include reasonable further progress (RFP) 
requirements, attainment demonstrations, reasonably available control 
measures (RACM), and contingency measures, because these provisions 
have the purpose of helping achieve attainment of the NAAQS.
    This interpretation of the CAA is known as the Clean Data Policy 
and is the subject of two EPA memoranda. EPA also finalized the 
statutory interpretation set forth in the policy in its final rule, 40 
CFR 51.918, as part of its ``Final Rule to Implement the 8-hour Ozone 
National Ambient Air Quality Standard--Phase 2'' (Phase 2 Final Rule). 
See discussion in the preamble to the rule at 70 FR 71612, 71645-46 
(November 29, 2005). The D.C. Circuit upheld this Clean Data regulation 
as a valid interpretation of the Clean Air Act NRDC v. EPA, 571 F. 3d 
1245 (D.C. Cir. 2009). EPA also finalized its interpretation in a 
regulation that was part of its Implementation Rulemaking for the PM2.5 
NAAQS. 40 CFR 51.1004(c). Thus, EPA has codified the policy when it 
established final rules governing implementation of new or revised 
NAAQS for the pollutants. 70 FR 71612, 71644-46 (November 29, 2005) 
(ozone); 72 FR 20585, 20665 (April 25, 2007) (PM-2.5). Otherwise, it 
applies the policy in individual rulemakings related to specific 
nonattainment areas. See, e.g., 75 FR 6571 (February 10, 2010). EPA 
believes that the legal bases set forth in detail in our Phase 2 Final 
rule, our May 10, 1995 memorandum from John S. Seitz, entitled 
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard,'' our PM-2.5 implementation rule, and our 
December 14, 2004 memorandum from Stephen D. Page entitled ``Clean Data 
Policy for the Fine Particle National Ambient Air Quality Standards'', 
are equally pertinent to the interpretation of provisions of subparts 1 
and 4 applicable to PM-10. Our interpretation that an area that is 
attaining the standards is relieved of obligations to demonstrate RFP 
and to provide an attainment demonstration, RACM and contingency 
measures pursuant to part D of the CAA, pertains whether the standard 
is PM-10, ozone or PM-2.5.
    In our recent proposed and final rulemakings determining that the 
San Joaquin Valley nonattainment area attained the PM-10 standard, EPA 
set forth at length our rationale for applying the Clean Data Policy to 
PM-10. The

[[Page 13713]]

Ninth Circuit subsequently upheld this rulemaking, and specifically 
EPA's Clean Data Policy in the context of the PM-10 standard. Latino 
Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir.) Memorandum 
Opinion, March 2, 2009. In rejecting petitioner's challenge to the 
Clean Data Policy for PM-10, the Court stated:

    As the EPA rationally explained, if an area is in compliance 
with PM-10 standards, then further progress for the purpose of 
ensuring attainment is not necessary.

    The reasons for relieving an area that has attained the relevant 
standard of certain part D, subparts 1 and 2 obligations, applies 
equally to part D, subpart 4, which contains specific attainment 
demonstration and RFP provisions for PM-10 nonattainment areas. As we 
have explained in the Phase 2 Final Rule and our ozone and PM-2.5 clean 
data memoranda, EPA believes that it is reasonable to interpret 
provisions regarding RFP and attainment demonstrations, along with 
related requirements, so as not to require SIP submissions if an area 
subject to those requirements is already attaining the NAAQS (i.e. 
attainment of the NAAQS is demonstrated with three consecutive years of 
complete, quality-assured air quality monitoring data). Every U.S. 
Circuit Court of Appeals that has considered the Clean Data Policy has 
upheld EPA rulemakings applying its interpretation, for both ozone and 
PM-10. 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, supra.
    It has been EPA's longstanding interpretation that the general 
provisions of part D, subpart 1 of the Act (sections 171 and 172) do 
not require the submission of SIP revisions concerning RFP for areas 
already attaining the ozone NAAQS. In the General Preamble, we stated:

    [R]equirements for RFP will not apply in evaluating a request 
for redesignation to attainment since, at a minimum, the air quality 
data for the area must show that the area has already attained. 
Showing that the State will make RFP towards attainment will, 
therefore, have no meaning at that point.

57 FR at 13564. EPA believes the same reasoning applies to the PM-10 
provision of part D, subpart 4.
    With respect to RFP, section 171(1) states that, for purposes of 
part D of title I, 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 PM-10 areas of part D, 
subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure 
attainment by the applicable attainment date. Section 189(c)(1) 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 7501(1) of this title, 
toward attainment by the applicable date.

    Although this section 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, we 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.\5\ EPA took this position 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 memorandum with respect 
to the requirements of sections 182(b) and (c). We are extending that 
interpretation to the specific provisions of part D, subpart 4. In the 
General Preamble, we stated, in the context of a discussion of the 
requirements applicable to the evaluation of requests to redesignate 
nonattainment areas to attainment, that the ``requirements for RFP will 
not apply in evaluating a request for redesignation to attainment 
since, at a minimum, the air quality data for the area must show that 
the area has already attained. Showing that the State will make RFP 
towards attainment will, therefore, have no meaning at that point.'' 
(57 FR 13564). See also our September 4, 1992 memorandum from John 
Calcagni, entitled ``Procedures for Processing Requests to Redesignate 
Areas to Attainment'' (Calcagni memo), p. 6.
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    \5\ Thus, we believe 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 
Act. 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. section 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. As noted above, 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 Seitz memorandum with respect to 
the requirements of section 182(b) and (c). In the May 10, 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

[[Page 13714]]

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.

1995 Seitz memorandum at 5.
    With respect to the attainment demonstration requirements of 
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, 
the Page memo, and the section 182(b) and (c) requirements set forth in 
the Seitz memo. 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 at 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) and 182(c)(9). We have interpreted the 
contingency measure requirements of sections 172(c)(9) and 182(c)(9) 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 at 13564); Seitz memo, pp. 5-6.
    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 
at 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).
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    \6\ The EPA's interpretation that the statute only requires 
implementation 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 D.C. Circuit (Sierra Club 
v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
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    Here, as in both our Phase 2 Final Rule and ozone and PM-2.5 clean 
data memoranda, we emphasize that the suspension of a requirement to 
submit SIP revisions concerning these RFP, attainment demonstration, 
RACM, and other related requirements exists only for as long as a 
nonattainment area continues to monitor attainment of the standard. If 
such an area experiences a violation of the NAAQS, the basis for the 
requirements being suspended would no longer exist. Therefore, 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 determination that an area need not submit one of the SIP 
submittals amounts to no more than a suspension of the requirements for 
so long as the area continues to attain the standard. However, once EPA 
ultimately redesignates the area to attainment, the area will be 
entirely relieved of these requirements to the extent the maintenance 
plan for the area does not rely on them.
    Should EPA at some future time determine that an area that has 
attained the standard, but which has not yet been redesignated as 
attainment for a NAAQS, has violated the relevant standard, the area 
would again be required to submit the pertinent SIP requirements for 
the area. Attainment determinations under the policy do not shield an 
area from other required actions, such as provisions to address 
pollution transport.
    As set forth above, EPA finds that because the CJNA is attaining 
the PM-10 NAAQS, the requirements to submit an attainment 
demonstration, reasonable further progress, reasonably available 
control measures and contingency measures no longer apply for so long 
as the area continues to monitor attainment of the PM-10 NAAQS.\7\ If 
in the future EPA determines, after notice and comment rulemaking, that 
the CJNA violates the PM-10 NAAQS, the basis for the attainment 
demonstration, RFP, RACM and contingency measure requirements being 
suspended would no longer exist. In that event, we would notify the 
State that we have determined that the area is no longer attaining the 
PM-10 standard and provide notice to the public in the Federal 
Register.
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    \7\ We note that our application of the Clean Data Policy to the 
CJNA is consistent with actions we have taken for other PM-10 
nonattainment areas that we also determined were attaining the 
standard. See 71 FR 6352 (February 8, 2006) (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) and 72 FR 14422 (March 28, 2007) 
(Miami, Arizona area).
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IV. EPA's Proposed Action

    Based on the most recent three years of complete, quality-assured 
data meeting the requirements of 40 CFR part 50, appendix K, we propose 
to determine that the CJNA has attained the 24-hour PM-10 NAAQS. 
Preliminary data indicate that the area continues to attain the 
standard. This proposed action, if finalized, would not constitute a 
redesignation to attainment under CAA section 107(d)(3) because we 
would not yet have approved a maintenance plan as required under 
section 175(A) of the CAA or determined that the area has met the other 
CAA requirements for redesignation. The classification and designation 
status in 40 CFR part 81 would remain moderate nonattainment for this 
area until such time as California meets the CAA requirements for 
redesignation of the CJNA to attainment.
    EPA also finds that, because the CJNA is attaining the NAAQS, the 
obligation to submit the following CAA requirements is not applicable 
for so long as the CJNA continues to attain the PM-10 standard: The 
part D, subpart 4 obligations to provide an attainment demonstration 
pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), 
the RFP provisions established by section 189(c)(1), and the attainment 
demonstration, RACM, RFP and contingency measure provisions of part D, 
subpart 1 contained in section 172 of the Act.

V. Statutory and Executive Order Reviews

    This action proposes to make a determination 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, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under

[[Page 13715]]

Executive Order 12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to the 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 Clean Air Act; and
     Does 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 rule 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

40 CFR Parts 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter, Reporting and recordkeeping 
requirements.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: March 15, 2010.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2010-6338 Filed 3-22-10; 8:45 am]
BILLING CODE 6560-50-P
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