[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10817-10825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4376]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-0995; FRL-9271-3]
Approval and Promulgation of Implementation Plans; State of
Nevada; PM-10; Determinations Regarding Attainment for the Truckee
Meadows Nonattainment Area and Applicability of Certain Clean Air Act
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to make two separate and independent
determinations regarding attainment for the Truckee Meadows PM-10
nonattainment area in Washoe County, Nevada (Truckee Meadows area).
First, EPA is proposing to determine that, based on complete and
quality-assured air monitoring data for 1999-2001, the Truckee Meadows
area did not attain the 24-hour National Ambient Air Quality Standard
(``NAAQS'') for
[[Page 10818]]
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (``PM-10'') by the applicable attainment date of
December 31, 2001. Second, EPA is proposing to determine that the
Truckee Meadows area is currently attaining the PM-10 NAAQS, based upon
complete, quality-assured PM-10 air quality monitoring data during the
years 2007-2009. Preliminary data through June 2010 contained in EPA's
Air Quality System (``AQS'') show that no exceedances of the 24-hour
NAAQS have been recorded in the Truckee Meadows area. Because the
Truckee Meadows area is currently attaining the PM-10 NAAQS, EPA is
proposing to determine that the obligation to make submissions to meet
certain Clean Air Act (``CAA'' or ``the Act'') requirements related to
attainment are not applicable for as long as the area continues to
attain the PM-10 NAAQS.
DATES: Written comments must be received on or before March 30, 2011.
ADDRESSES: Submit your comments, identified by docket number EPA-R09-
OAR-2010-0995, by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. E-mail: Karina O'Connor at [email protected].
3. Fax: Karina O'Connor, Planning Office (AIR-2), at fax number
(415) 947-3579.
4. Mail or deliver: Karina O'Connor, Air Planning Office, (AIR-2),
U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, California
94105-3901. Hand or courier deliveries are accepted only between the
hours of 8 a.m. and 4 p.m. weekdays except for legal holidays. Special
arrangements should be made for deliveries of boxed information.
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 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 e-
mail. 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 e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: EPA has established a docket for this action under EPA-R09-
OAR-2010-0995. Generally, documents in the docket for this action are
available electronically at http://www.regulations.gov or in hard copy
at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While
all documents in the docket are listed at http://www.regulations.gov,
some information may be publicly available only at the hard copy
location (e.g., copyrighted material, large maps, multi-volume reports)
and some may not be available in either location (e.g., confidential
business information (CBI)). To inspect the hard copy materials, please
schedule an appointment during normal business hours with the contact
listed in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Karina O'Connor, Planning Office (AIR-
2), U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, California
94105-3901, telephone (775) 434-8176; fax (415) 947-3579; e-mail
address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA. This supplementary information is
organized as follows:
Table of Contents
I. Background
A. The NAAQS for PM-10
B. Designation, Classification and Air Quality Planning for PM-
10 for Truckee Meadows
C. Attainment Determinations
II. Proposed Determination of Failure to Attain the Standard by the
Applicable Attainment Date
III. Proposed Determination of Attainment Based on Current Air
Monitoring Data
A. Proposed Determination of Attainment
B. Clean Data Policy: Applicability of Clean Air Act Planning
Requirements
IV. EPA's Proposed Actions
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 particulate matter
(``PM'') NAAQS to replace Total Suspended Particulate (``TSP'') with
PM-10 as the PM indicator. The 24-hour primary PM-10 standard was set
at 150 micrograms per cubic meter ([micro]g/m\3\) with no more than one
expected exceedance per year. The annual primary PM-10 standard was set
at 50 [micro]g/m\3\ as an annual arithmetic mean. The secondary PM-10
standards were identical to the primary standards.\1\
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\1\ EPA sets two types of NAAQS: ``primary'' NAAQS requisite to
protect public health with an adequate margin of safety, and
``secondary'' NAAQS requisite to protect public welfare, e.g.,
protection against visibility impairment and damage to animals,
crops, vegetation, and buildings. See CAA 109(b).
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On October 17, 2006, EPA revised the primary PM-10 standards by
revoking the annual standard of 50 [micro]g/m\3\ but retained the 24-
hour standard of 150 [micro]g/m\3\. EPA also revoked the annual
secondary PM-10 standard. The revised PM-10 NAAQS became effective on
December 18, 2006. See 71 FR 61144 and 40 CFR 50.6. Thus, for PM-10,
the level of both the primary and secondary 24-hour NAAQS \2\ is 150
[micro]g/m\3\. 40 CFR 50.6(a).
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\2\ We generally refer in this action to the primary and
secondary 24-hour PM-10 NAAQS together in the singular (i.e., as
``standard'').
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B. Designation, Classification and Air Quality Planning for PM-10 in
Truckee Meadows
The Truckee Meadows PM-10 nonattainment area \3\ lies in the far
southern part of Washoe County, which is located in the northwestern
portion of Nevada and is bordered by the State of California to the
west and the State of Oregon to the north. Within the State of Nevada,
the counties of Humboldt, Pershing, Storey, Churchill, Lyon, and the
city of Carson City border Washoe County to the east and south. Located
at an average elevation of 4,500 feet above sea level, Truckee Meadows
encompasses a land area of
[[Page 10819]]
approximately 200 square miles and is surrounded by mountain ranges,
which can lead to persistent wintertime temperature inversions where a
layer of cold air is trapped in the valley. Warmer air above the
inversion acts as a lid, containing and concentrating air pollutants at
ground level.
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\3\ The Truckee Meadows PM-10 nonattainment area, also known as
the ``Reno planning area,'' is geographically identified in 40 CFR
81.329 as ``hydrographic area 87.''
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Much of Washoe County's urban population lives in the Truckee
Meadows PM-10 nonattainment area. Anthropogenic activities, such as
automobile use and residential wood combustion, are also concentrated
here. In the last quarter of the twentieth century, Truckee Meadows
experienced rapid growth in population, increasing from approximately
150,000 in 1980 to approximately 330,000 in 2009, an increase of 120
percent over that 29-year period. The two major cities in the area are
Reno and Sparks.
EPA initially designated the Truckee Meadows area as nonattainment
for the TSP NAAQS in 1978. See 43 FR 8962, 9012 (March 3, 1978).
Following EPA's 1987 revisions to the PM NAAQS to replace TSP with PM-
10 as the PM indicator, Truckee Meadows was designated and classified
by operation of law under the CAA Amendments of 1990 as a moderate
nonattainment area for the PM-10 NAAQS. See 56 FR 11101 (March 15,
1991); 56 FR 56694 (November 6, 1991). Effective February 7, 2001, EPA
determined that the area had failed to attain both the annual and the
24-hour PM-10 NAAQS \4\ by the CAA mandated attainment date for
moderate nonattainment areas of December 31, 1994, and reclassified the
area under CAA 188(b)(2) by operation of law as a serious nonattainment
area for the PM-10 NAAQS. See 66 FR 1268 (January 8, 2001).
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\4\ Because the annual PM-10 NAAQS was revoked effective
December 18, 2006 (71 FR 61144, October 17, 2006), we do not address
the annual standard in this action.
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Air quality planning and monitoring in Truckee Meadows is the
responsibility of the Washoe County District Board of Health
(``District''), which administers air quality programs in Washoe County
through the District Health Department's Air Quality Management
Division (``WCAQMD'').
C. Attainment Determinations
A determination of whether an area's air quality meets the PM-10
NAAQS is generally based upon the most recent three years of complete,
quality-assured data gathered at established National Air Monitoring
Stations (``NAMS'') or 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. All data are reviewed to determine the area's
air quality status in accordance with 40 CFR part 50, appendix K.
The 24-hour PM-10 standard is attained when the expected number of
days per calendar year with a 24-hour concentration in excess of the
standard (referred to herein as ``exceedance'' \5\), as determined in
accordance with 40 CFR part 50, appendix K, is equal to or less than
one.\6\ See 40 CFR 50.6 and 40 CFR part 50, appendix K. Three
consecutive years of complete 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. Id.
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\5\ An exceedance is defined as a daily value that is above the
level of the 24-hour standard (150 [micro]g/m\3\) after rounding to
the nearest 10 [micro]g/m\3\ (i.e., values ending in 5 or greater
are to be rounded up). Thus, a recorded value of 154 [micro]g/m\3\
would not be an exceedance since it would be rounded to 150
[micro]g/m\3\ whereas a recorded value of 155 [micro]g/m\3\ would be
an exceedance since it would be rounded to 160 [micro]g/m\3\. See 40
CFR part 50, appendix K, section 1.0.
\6\ The comparison with the allowable expected exceedance rate
of one per year is made in terms of a number rounded to the nearest
tenth (fractional values equal to or greater than 0.05 are to be
rounded up; e.g., an exceedance rate of 1.05 would be rounded to
1.1, which is the lowest rate for nonattainment). See 40 CFR part
50, appendix K, section 2.1(b).
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II. Proposed Determination of Failure To Attain the Standard by the
Applicable Attainment Date
Sections 179(c)(1) and 188(b)(2) of the Act require for any PM-10
nonattainment area that EPA determine, within 6 months following the
applicable attainment date, whether the area attained the standard by
that date. Under section 188(c)(2) of the Act, the latest applicable
attainment date for a serious PM-10 nonattainment area that was
initially designated as nonattainment by operation of law under the CAA
Amendments of 1990, such as the Truckee Meadows area, was December 31,
2001.
To determine whether the Truckee Meadows area attained the PM-10
standard by the applicable attainment date, we reviewed AQS monitoring
data from the 1999-2001 period. The AQS database contains three
consecutive years of complete, quality-assured and certified PM-10 data
for the 1999-2001 period from the four monitors then operating in
Truckee Meadows.\7\ We have reviewed the monitoring data for this
period and found that the Truckee Meadows area experienced two
exceedances of the PM-10 standard in 1999 which resulted in an average
expected exceedance rate of more than one during the 1999-2001 period,
thereby violating the PM-10 standard during that period.\8\
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\7\ The four SLAMS operating in Truckee Meadows during the 1999-
2001 period were the ``Reno3,'' ``South Reno,'' ``Galletti,'' and
``Sparks'' monitoring sites. As noted in the discussion in section
III, below, two additional monitoring sites in Truckee Meadows,
``Toll'' and ``Plumb-Kit,'' became operational as SLAMS in 2002 and
2006, respectively. See 2009 Monitoring Network Plan at 21, 36, and
U.S. EPA Monitor Description Report, Monitor ID: 32-031-0025-81102-
1, dated Nov. 1, 2010.
\8\ Because the PM-10 sampling schedule in the Truckee Meadows
area was once every six days during the 1999-2001 period, each of
the exceedances measured in 1999 resulted in at least six expected
exceedances for that calendar year. See U.S. EPA AQS Database and 40
CFR part 50, appendix K, section 3.0. Thus, the expected number of
days per year with levels exceeding the standard for the 1999-2001
period (averaged over that three-year period) was more than one,
which is a violation of the PM-10 NAAQS. See 40 CFR 50.6.
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Table 1 provides the highest measured PM-10 concentrations and the
number of expected exceedances in Truckee Meadows during the 1999-2001
period.
[[Page 10820]]
Table 1--Monitored PM-10 Concentrations and Expected Exceedances
[1999-2001]
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Maximum 24-hour Expected exceedances Expected
([mu]g/m\3\) (calendar year) exceedances
Monitoring site name and AQS number ------------------------------------------------ (3-year
1999 2000 2001 1999 2000 2001 average)
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Reno3 (32-031-0016)................................ 197 109 92 6 0 0 2.0
South Reno (32-031-0020)........................... 90 84 112 0 0 0 0
Galletti (32-031-0022)............................. 215 100 113 6.4 0 0 2.1
Sparks (32-031-1005)............................... 114 68 78 0 0 0 0
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Source: U.S. EPA AQS database.
Thus, based on complete, quality-assured and certified monitoring
data from the 1999-2001 period, we propose to determine under sections
179(c)(1) and 188(b)(2) of the Act that the Truckee Meadows serious PM-
10 nonattainment area failed to attain the PM-10 standard by the
applicable attainment date of December 31, 2001.
III. Proposed Determination of Attainment Based on Current Air
Monitoring Data
The WCAQMD currently operates six SLAMS in the Truckee Meadows PM-
10 nonattainment area. See Washoe County Air Quality Management
Division, ``2009 Ambient Air Monitoring Network Plan, Submitted to EPA
Region IX July 1, 2010'' (``2009 Monitoring Network Plan''). The six
PM-10 monitors in Truckee Meadows are located as follows. In the City
of Reno, the ``Reno3'' and ``Galetti'' monitoring sites are located at
the corners of paved parking lots, in downtown Reno and just south of
Interstate 80, respectively; the ``Plumb-Kit'' site is in a graveled
area close to residences, about half a mile west of Interstate 580 and
the Reno-Tahoe International Airport; and the ``Toll'' site is located
along State Route 341, at the corner of the Washoe County School
District parking lot. In South Reno, the ``South Reno'' monitoring site
is located in an unpaved, vegetated area at the northeast corner of the
Nevada Energy campus. Finally, in the City of Sparks, the ``Sparks''
monitoring site is located along a paved parking lot about half a mile
north of Interstate 80. See generally 2009 Monitoring Network Plan. All
of these PM-10 monitor sites are operated on a one-in-six day schedule,
except that at the Reno3 site the sampling frequency was recently
increased to one-in-three days. Id. at 6.
PM-10 data from these six monitors are quality-assured and reported
by the WCAQMD to the EPA AQS database. Id. at 3. EPA has approved the
WCAQMD's monitoring network as satisfying the network design and data
adequacy requirements of 40 CFR part 58. See letter dated September 29,
2009, from Joseph Lapka, Acting Manager, Air Quality Analysis Office,
EPA Region 9, to Andrew Goodrich, Director, Washoe County District
Health Department, Washoe County AQMD. The WCAQMD annually certifies
that the data it submits to AQS are complete and quality-assured. See,
e.g., letter dated April 23, 2010, from Craig Petersen, Senior Air
Quality Specialist, WCAQMD, to David Lutz, Data Certification Contact,
EPA, ``Re: CY2009 Ambient Air Monitoring Data Certification.''
A. Proposed Determination of Attainment
The AQS database contains three consecutive years of complete,
quality-assured and certified PM-10 data for the 2007-2009 period, the
most recent three-year period of such data for Truckee Meadows. We have
reviewed the monitoring data for this period and found that no
exceedances of the PM-10 NAAQS were recorded in the Truckee Meadows
area during this time. The expected exceedance rate for this period was
less than one, which means that the area attained the 24-hour PM-10
standard during this time.
Table 2 provides the highest measured PM-10 concentrations and the
number of expected exceedances in Truckee Meadows during the 2007-2009
period.
Table 2--Monitored PM-10 Concentrations and Expected Exceedances
[2007-2009]
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Maximum 24-hour Expected exceedances Expected
([mu]g/m\3\) (calendar year) exceedances
Monitoring site name and AQS number ------------------------------------------------ (3-year
2007 2008 2009 2007 2008 2009 average)
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Reno3 (32-031-0016)................................ 69 92 78 0 0 0 0
South Reno (32-031-0020)........................... 75 111 59 0 0 0 0
Galletti (32-031-0022)............................. 130 87 91 0 0 0 0
Toll (32-031-0025)................................. 43 64 46 0 0 0 0
Plumb-Kit (32-031-0030)............................ 108 86 93 0 0 0 0
Sparks (32-031-1005)............................... 76 101 67 0 0 0 0
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Source: U.S. EPA AQS database.
Thus, based on complete, quality-assured and certified monitoring
data from the 2007-2009 period, we propose to find that the Truckee
Meadows PM-10 nonattainment area is currently attaining the PM-10
NAAQS. Preliminary data available to date for calendar year 2010 also
indicate that no monitor in the area has measured an exceedance of the
PM-10 standard during 2010. See Table 3.
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Table 3--Monitored PM-10 Concentrations
[Preliminary data through June 2010]
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Maximum
24-hour
Monitoring site name and AQS number ([mu]g/
m\3\)
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Reno3 (32-031-0016).......................................... 142
South Reno (32-031-0020)..................................... 52
Galletti (32-031-0022)....................................... 87
Toll (32-031-0025)........................................... 33
Plumb-Kit (32-031-0030)...................................... 77
Sparks (32-031-1005)......................................... 48
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Source: U.S. EPA AQS database. These data have not yet been certified as
meeting EPA's quality-assurance or data completeness requirements.
Moreover, historical data show consistent attainment in the Truckee
Meadows area for each three-year period since 2000-2002. According to
these data, Truckee Meadows experienced only one measured exceedance
(not constituting a violation) of the PM-10 standard during the ten
years since 2000, in 2005. No violations have occurred during this time
period. EPA's review of quality-assured AQS data since 2000 thus
confirms that the area attained the 24-hour PM-10 NAAQS in 2002 and has
continued in attainment since then.\9\ See Table 4, below and Tables 2
and 3, above.
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\9\ Although the regular PM-10 sampling schedule at the Galletti
monitor is once every six days, the single exceedance measured in
2005 did not constitute a violation because the WCAQMD subsequently
initiated every-day sampling at that monitor consistent with section
3.1 of 40 CFR part 50, Appendix K. See U.S. EPA AQS Database; see
also ``Redesignation Request and Maintenance Plan for the Truckee
Meadows 24-Hour PM10 Non-Attainment Area,'' May 28, 2009, at 4, 5.
Thus, the 2005 exceedance resulted in an average expected number of
exceedances of 0.3 for each three-year period that includes 2005.
For all other three-year periods between 2000 and 2006, the expected
number of exceedances was 0.
Table 4--Monitored PM-10 Concentrations
[2000-2006]
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Maximum 24-hour ([mu]g/m\3\)
Monitoring site name and AQS number -------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006
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Reno3 (32-031-0016)..................................... 109 92 85 69 83 79 91
South Reno (32-031-0020)................................ 84 112 45 61 54 71 52
Galletti (32-031-0022).................................. 100 113 97 108 126 172 118
Toll (32-031-0025)...................................... * * 57 37 64 75 47
Plumb-Kit (32-031-0030)................................. * * * * * * 91
Sparks (32-031-1005).................................... 68 78 76 85 90 73 76
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Source: U.S. EPA AQS database.
* Data not available in AQS because SLAMS not yet established.
Thus, the area's monitoring history over the past ten years shows
that the Truckee Meadows area has consistently met the 24-hour PM-10
NAAQS, and the most recent three years of complete, quality-assured
data show that the area continues to attain the PM-10 standard.
B. Clean Data Policy: Applicability of Clean Air Act Planning
Requirements
The air quality planning requirements for serious PM-10
nonattainment areas, such as Truckee Meadows, are set out in part D,
subparts 1 and 4 of title I of the Act. EPA has issued guidance in a
General Preamble \10\ describing how we will review State
implementation plans (SIPs) and SIP revisions submitted under title I
of the Act, including those containing serious PM-10 nonattainment area
SIP provisions.
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\10\ ``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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The subpart 1 requirements include, among other things, provisions
for reasonably available control measures (``RACM''), reasonable
further progress (``RFP''), emissions inventories, a permit program for
construction and operation of new or modified major stationary sources
in the nonattainment area (``NSR''), contingency measures, conformity,
and additional SIP revisions providing for attainment where EPA
determines that the area has failed to attain the standard by the
applicable attainment date.
Subpart 4 requirements in CAA section 189 apply specifically to PM-
10 nonattainment areas. The requirements for serious PM-10
nonattainment areas include: (1) An NSR program defining ``major
source'' or ``major stationary source'' to include any source that
emits or has the potential to emit at least 70 tons per year of PM-10;
(2) an attainment demonstration; (3) provisions for RACM; (4)
provisions for Best Available Control Measures (``BACM''); (5)
quantitative milestones demonstrating RFP toward attainment by the
applicable attainment date; (6) in the case of a serious nonattainment
area that fails to attain by the applicable attainment date, plan
revisions providing for attainment and for annual reductions in PM-10
or PM-10 precursor emissions within the area of not less than five
percent of the amount of such emissions as reported in the most recent
inventory (``189(d) plans''); and (7) provisions to ensure that the
control requirements applicable to major stationary sources of PM-10
also apply to major stationary sources of PM-10 precursors except where
the Administrator has determined that such sources do not contribute
significantly to PM-10 levels which exceed the NAAQS in the area.
For nonattainment areas where EPA determines that monitored data
show that the NAAQS have already been achieved, EPA's interpretation,
upheld by the Courts, is that the obligation to submit certain
requirements of part D, subparts 1, 2 and 4 of the Act are suspended
for so long as the area continues to attain. These include requirements
for attainment demonstrations, RFP, RACM, and contingency measures,
because these provisions have the purpose of helping achieve attainment
of the NAAQS. Certain other obligations for PM-10 nonattainment areas,
however, are not suspended, such as the NSR and BACM requirements.
This interpretation of the CAA is known as the Clean Data Policy.
It is the subject of several EPA memoranda and regulations, and
numerous rulemakings
[[Page 10822]]
that have been published in the Federal Register over more than fifteen
years. EPA finalized the statutory interpretation set forth in the
policy in its final 8-hour ozone implementation 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 DC Circuit upheld this Clean Data regulation as a valid
interpretation of the CAA. NRDC v. EPA, 571 F. 3d 1245 (DC Cir. 2009).
EPA also finalized its interpretation in an implementation rule for the
NAAQS for particulate matter of 2.5 microns or less (PM2.5).
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); 72
FR 20585, 20665 (April 25, 2007) (PM2.5 Implementation
Rule). Otherwise, EPA applies the policy in individual rulemakings
related to specific nonattainment areas. See, e.g., 75 FR 27944 (May
19, 2010) (determination of attainment of the PM-10 standard in Coso
Junction, California); 75 FR 6571 (February 10, 2010) (determination of
attainment of the 1-hour ozone standard in Baton Rouge, Louisiana).
In its many applications of the Clean Data Policy interpretation to
PM-10, EPA has explained 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 PM2.5
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.
See, e.g., 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); 72 FR 14422 (March 28, 2007) (Miami, Arizona
area); and 75 FR 27944 (May 19, 2010) (Coso Junction, California area).
EPA's interpretation that the obligation to submit an attainment
demonstration, RACM, RFP contingency measures, and other measures
related to attainment under part D of title I of the CAA, pertains
whether the standard is PM-10, ozone or PM-2.5.
In our 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 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.
EPA noted in its prior PM-10 rulemakings that the reasons for
relieving an area that has attained the relevant standard of certain
obligations under part D, subparts 1 and 2, apply equally to part D,
subpart 4, which contains specific attainment demonstration and RFP
provisions for PM-10 nonattainment areas. In EPA's Phase 2 8-Hour Ozone
Final Rule and ozone and PM-2.5 Clean Data memoranda, EPA established
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's prior determinations of attainment for PM-10,
e.g., for the San Joaquin Valley and Coso Junction areas in California,
make clear that the same reasoning applies to the PM-10 provision of
part D, subpart 4. See 71 FR 40952 and 71 FR 63642 (proposed and final
determination of attainment for San Joaquin Valley); 75 FR 13710 and 75
FR 27944 (proposed and final determination of attainment for Coso
Junction).
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.
[[Page 10823]]
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.\11\ 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). In our prior applications of the Clean Data Policy to PM-10,
we have extended that interpretation to the specific provisions of part
D, subpart 4. See, e.g., 71 FR 40952 and 71 FR 63642 (proposed and
final determination of attainment for San Joaquin Valley); 75 FR 13710
and 75 FR 27944 (proposed and final determination of attainment for
Coso Junction).
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\11\ 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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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.
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
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.\12\ EPA is interpreting section
189(a)(1)(C) consistent with its interpretation of section
172(c)(1).\13\
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\12\ 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 DC Circuit (Sierra Club
v. EPA, 294 F.3d 155, 162-163 (DC Cir. 2002)).
\13\ EPA does not, however, interpret the BACM requirement in
section 189(b)(1)(B) of the CAA as being suspended upon a
determination of attainment. We note that we have approved several
PM-10 control measures into the Truckee Meadows portion of the
Nevada SIP as satisfying BACM control requirements. See 71 FR 14386
(March 22, 2006), 72 FR 25969 (May 8, 2007), and 72 FR 33397 (June
18, 2007).
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Finally, in the case of a serious PM-10 nonattainment area that
does not attain the PM-10 standard by the applicable attainment date,
sections 189(d) and section 179(d) require the State to submit
additional SIP revisions providing for attainment of the standard.
Section 189(d), which applies to any serious PM-10 nonattainment area
that fails to attain by the applicable attainment date, requires the
State to submit ``plan revisions which provide for attainment of the
PM-10 air quality standard and, from the date of such submission until
attainment, for an annual reduction in PM-10 or PM-10 precursor
emissions within the area of not less than 5 percent'' of inventoried
PM-10 and PM-10 precursor emissions. Section 179(d), which applies to
any nonattainment area for which EPA has made a determination under
section 179(c) of failure to attain by the applicable attainment date,
requires the State to submit plan revisions meeting
[[Page 10824]]
the requirements of CAA sections 110 and 172 and ``such additional
measures as the Administrator may reasonably prescribe'' including
measures that can be feasibly implemented in the area.
As discussed above in section II of this document, the Truckee
Meadows is a serious nonattainment area that did not attain the PM-10
standard by the applicable attainment date of December 31, 2001. See
CAA 188(c)(2).\14\ However, as discussed in section III.A of this
document, the area did attain the PM-10 standard beginning in 2002, and
has continued in attainment during the decade that followed. As
explained at length in the memoranda and rulemakings cited above, the
obligations to submit SIPs for RFP, attainment demonstrations, and
certain related SIP submissions are suspended once EPA determines an
area has attained the standard, since their purpose, to achieve
attainment, will already have been fulfilled. Section 189(d) requires
submittal of plan revisions ``which provide for attainment of the PM-10
air quality standard'' and annual emission reductions of at least five
percent ``until attainment.'' Similarly, section 179(d) requires
submittal of plan revisions meeting the requirements of section 110 and
section 172, which requires generally that submitted plan provisions
``provide for attainment of the national primary ambient air quality
standards.'' Because these requirements apply to nonattainment areas
that have failed to attain a standard by the applicable attainment date
and are directed at achieving attainment, we believe that the
obligations to submit plans under these requirements are suspended when
EPA determines that the area has attained the standard, for as long as
the area continues to attain. Thus, based on our proposed determination
that the Truckee Meadows area is now attaining the PM-10 NAAQS in
section III.A above, we propose to suspend the requirement for
additional SIP submittals under sections 189(d) and 179(d).
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\14\ Truckee Meadows experienced two exceedances of the PM-10
NAAQS in 1999 which resulted in an expected number of days per year
with levels above 150 [micro]g/m\3\ for the 1999-2001 period
(averaged over that three-year period) of more than one, thereby
violating the PM-10 standard during that period. See U.S. EPA AQS
Database; 40 CFR 50.6.
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We emphasize that the suspension of the obligation to submit SIP
revisions concerning these RFP, attainment demonstration, RACM, and
other related requirements exists only for as long as the Truckee
Meadows 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 above, based on our proposed determination that the
Truckee Meadows area is currently attaining the PM-10 NAAQS (see
section III.A above), we propose to find that the obligations to submit
planning provisions to meet the requirements for an attainment
demonstration, reasonable further progress plans, reasonably available
control measures, contingency measures, and additional SIP revisions
under sections 189(d) and 179(d) no longer apply for so long as the
area continues to monitor attainment of the PM-10 NAAQS.\15\ If in the
future, EPA determines after notice-and-comment rulemaking that the
area again violates the PM-10 NAAQS, the basis for the attainment
demonstration, RFP, RACM, contingency measure, and additional section
189(d) and 179(d) plan 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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\15\ We note that our application of the Clean Data Policy to
Truckee Meadows 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); 72 FR 14422 (March 28, 2007)
(Miami, Arizona area); and 75 FR 27944 (May 19, 2010) (Coso
Junction, California).
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IV. EPA's Proposed Actions
Pursuant to CAA sections 188(b)(2) and 179(c)(1) and based on
complete, quality-assured data for the 1999-2001 period meeting the
requirements of 40 CFR part 50, appendix K, we propose to determine
that the Truckee Meadows nonattainment area failed to attain the 24-
hour PM-10 NAAQS by the applicable attainment date of December 31,
2001. Failure by a ``serious'' nonattainment area such as Truckee
Meadows to attain the PM-10 NAAQS by the applicable attainment date
triggers a requirement for the State to submit additional plan
revisions providing for attainment under CAA sections 189(d) and
179(d).
Separately and independently of the determination proposed above,
we also propose to determine, based on the most recent three years of
complete, quality-assured data meeting the requirements of 40 CFR part
50, appendix K, that the Truckee Meadows area is currently attaining
the 24-hour PM-10 NAAQS. In conjunction with and based upon our
proposed determination that Truckee Meadows is currently attaining the
standard, EPA proposes to determine that the obligation to submit the
following CAA requirements is not applicable for so long as the area
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 section 189(a)(1)(C), the RFP
provisions of section 189(c), the requirement for 189(d) plans, the
attainment demonstration, RACM, RFP and contingency measure provisions
of part D, subpart 1 contained in section 172 of the Act, and the
requirement for additional plan revisions in section 179(d) of the Act.
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 175A 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 serious nonattainment for this
area until such time as EPA determines that Nevada meets the CAA
requirements for redesignation of the Truckee Meadows area to
attainment.
V. Statutory and Executive Order Reviews
This action proposes to make two separate determinations regarding
attainment based on air quality, and would, if finalized, result in the
suspension of certain Federal requirements, and/or would not impose
additional requirements beyond those imposed by State law or by the
Clean
[[Page 10825]]
Air Act. For that reason, this proposed action:
Is 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);
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 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 disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have Tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP obligations discussed herein do not apply to Indian
Tribes and thus will not impose substantial direct costs on Tribal
governments or preempt Tribal law.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 17, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-4376 Filed 2-25-11; 8:45 am]
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