Revision to the Washington State Implementation Plan; Approval of Motor Vehicle Emission Budgets and Determination of Attainment for the 2006 24-Hour Fine Particulate Standard; Tacoma-Pierce County Nonattainment Area |
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Topics: Carter
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Dennis J. McLerran
Environmental Protection Agency
July 18, 2013
[Federal Register Volume 78, Number 138 (Thursday, July 18, 2013)]
[Proposed Rules]
[Pages 42905-42910]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17267]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2012-0760; FRL-9835-2]
Revision to the Washington State Implementation Plan; Approval of
Motor Vehicle Emission Budgets and Determination of Attainment for the
2006 24-Hour Fine Particulate Standard; Tacoma-Pierce County
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve a request submitted by the
Washington Department of Ecology (Ecology) dated November 28, 2012, to
establish motor vehicle emission budgets for the Tacoma-Pierce County
Fine Particulate Matter (PM2.5) nonattainment area to meet
transportation conformity requirements. Under the Clean Air Act (CAA),
new transportation plans, programs, and projects, such as the
construction of new highways, must ``conform'' to (i.e., be consistent
with) the State Implementation Plan (SIP). The CAA requires federal
actions in nonattainment and maintenance areas to ``conform to'' the
goals of SIP. This means that such actions will not cause or contribute
to violations of the National Ambient Air Quality Standards (NAAQS),
worsen the severity of an existing violation, or delay timely
attainment of any NAAQS or any interim milestone.
Under the Transportation Conformity Rule, the EPA can approve motor
vehicle emission budgets based on the most recent year of clean data if
the EPA approves the request in the rulemaking that determines that the
area has attained the NAAQS for which the area is designated
nonattainment. In September 2012, the EPA finalized an attainment
finding for the Tacoma-Pierce County PM2.5 nonattainment
area (hereafter referred to as ``Tacoma-Pierce County Area'' or ``the
area''). This finding, also called a clean data determination, was
based upon quality-assured, quality-controlled, and certified ambient
air monitoring data showing that the area had monitored attainment of
the 2006 PM2.5 NAAQS based on the 2009-2011 data available
in the EPA's Air Quality System database. This action proposes to
update the previous finding of attainment with more recent 2010-2012
data and proposes to approve motor vehicle emission budgets under the
Transportation Conformity Rule.
DATES: Written comments must be received on or before August 19, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2012-0760, by any of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: R10-Public_Comments@epa.gov.
Mail: Jeff Hunt, EPA Region 10, Office of Air, Waste and
Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101. Attention: Jeff Hunt, Office of Air,
Waste and Toxics, AWT-107. Such deliveries are only accepted during
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2012-0760. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute. Do not submit information that you consider
to be CBI or otherwise protected through www.regulations.gov or email.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index,
[[Page 42906]]
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, is not placed on the Internet
and will be publicly available only in hard copy. Publicly available
docket materials are available either electronically in
www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue,
Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt at telephone number: (206)
553-0256, email address: hunt.jeff@epa.gov, or the above EPA, Region 10
address.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
The following outline is provided to aid in locating information in
this preamble.
I. Background
II. Description of Attainment Year (Clean Data) MVEBs
III. Analysis of the Relevant Air Quality Data
IV. Effect of Determination of Attainment for 2006 PM2.5
Under Subpart 4
V. Application of the Clean Data Policy to Attainment-Related
Provisions of Subpart 4
VI. Proposed Action
VII. Statutory and Executive Order Reviews
I. Background
The 2006 PM2.5 NAAQS set forth at 40 CFR 50.13 became
effective on December 18, 2006 and promulgated a 24-hour standard of 35
micrograms per cubic meter ([mu]g/m\3\) based on a 3-year average of
the 98th percentile of 24-hour concentration (71 FR 61144, October 17,
2006). Effective December 14, 2009, the EPA designated Tacoma-Pierce
County (partial county designation) as a nonattainment area for the
2006 24-hour PM2.5 standard (74 FR 58688, November 13,
2009). Under 40 CFR 51.1002, states were required to submit within
three years of the effective date of a nonattainment designation a
revision to the SIP that meets nonattainment planning requirements.
Prior to Washington's SIP revision submittal, the EPA issued a proposed
finding of attainment on July 5, 2012, also called a clean data
determination, based upon certified ambient air monitoring data showing
that the Tacoma-Pierce County Area had met the 2006 PM2.5
NAAQS for the most recent 2009-2011 monitoring period (77 FR 39657).
The EPA received no comments on the proposal and issued a final finding
of attainment on September 4, 2012 (77 FR 53772). In accordance with 40
CFR 51.1004(c), in effect at that time, the September 4, 2012 finding
of attainment suspended the requirements for Washington to submit an
attainment demonstration, associated reasonably available control
measures, a reasonable further progress plan, contingency measures, and
most other planning SIP revisions related to attainment of the standard
for so long as the nonattainment area continues to meet the 2006
PM2.5 NAAQS. However, a finding of attainment does not
suspend the CAA section 176(c) obligation to meet transportation
conformity requirements.
As described in 40 CFR 93.109(c)(5) of the Transportation
Conformity Rule, a state may request that motor vehicle emissions
budgets (MVEBs) calculated for the most recent year of attainment be
used to satisfy the budget test as set forth in 40 CFR 93.118. Under
this option, the EPA approves the MVEBs request in a rulemaking that
determines the area has attained the NAAQS for which the area is
designated nonattainment. In this action, the EPA is reaffirming the
previous finding of attainment with updated 2010-2012 data and is
proposing to approve MVEBs under 40 CFR 93.109(c)(5)(iii) for the
Tacoma-Pierce County Area.
II. Description of Attainment Year (Clean Data) MVEBs
The Transportation Conformity Rule allows the state air quality
agency to request that motor vehicle emissions in the most recent year
of clean data be used as budgets. The EPA must approve that request in
the rulemaking that determines that the area has attained the relevant
NAAQS (40 CFR 93.109(c)(5)(iii)). On November 28, 2012, Ecology
requested that the EPA establish MVEBs for PM2.5 and
nitrogen oxide (NOX) calculated for 2011, the first year of
attainment for the Tacoma-Pierce County Area. These budgets were
calculated using the Motor Vehicle Emissions Simulator emissions model
(MOVES). See ``Policy Guidance on the Use of MOVES2010 and Subsequent
Minor Model Revisions for State Implementation Plan Development,
Transportation Conformity, and Other Purposes'' (EPA, April 2012).
Under the Transportation Conformity Rule, 40 CFR 93.102(b)(1) and
(2)(iv) and (v), only MVEBs for PM2.5 and NOX for
the 2011 attainment year are applicable for meeting conformity
requirements in the Tacoma-Pierce County Area. The Transportation
Conformity Rule requires that MVEBs must address direct
PM2.5 emissions. NOX emissions must also be
included unless the EPA and state have made a finding that
transportation-related emissions of NOX are not a
significant contributor to the area's PM2.5 problem. There
was no such finding in this case. Therefore, Ecology requested that
MVEBs be established for on-road emissions of direct PM2.5
and NOX.
Under the Transportation Conformity Rule, PM2.5
precursors volatile organic compounds (VOCs), sulfur dioxide
(SO2) and ammonia (NH3) must be addressed before
a SIP is submitted if either the EPA or the state air agency makes a
finding that on-road emissions of any of these precursors is a
significant contributor to the area's PM2.5 problem. Neither
the EPA nor Ecology has made such a finding with regard to any of these
precursors. Therefore, consistent with the Transportation Conformity
Rule, the State did not request that MVEBs be established for VOCs,
SO2 or NH3.
The EPA promulgated conformity regulations to implement the 1997
PM2.5 NAAQS in July 2004 and May 2005 (69 FR 40004, July 1,
2004 and 70 FR 24280, May 6, 2005). Subsequently, the EPA promulgated
conformity regulations to implement the 2006 PM2.5 NAAQS in
March 2010 (75 FR 14260, March 24, 2010). Those actions were not part
of the final rules remanded to the EPA by the Court of Appeals for the
District of Columbia in Natural Resources Defense Council v. EPA, 706
F.3d 428 (D.C. Cir. 2013) (NRDC v. EPA). The Court remanded to the EPA
the ``Final Clean Air Fine Particle Implementation Rule'' (72 FR 20586;
April 25, 2007) and the ``Implementation of the New Source Review (NSR)
Program for Particulate Matter Less than 2.5 Micrometers
(PM2.5)'' final rule (73 FR 28321, May 16, 2008)
(collectively, ``1997 PM2.5 Implementation Rule'' or
``Implementation Rule'') because it concluded that the EPA must
implement the PM2.5 NAAQS pursuant to the PM-specific
provisions of subpart 4 of part D of title I of the CAA, rather than
solely under the general provisions of subpart 1. This decision does
not affect the EPA's proposed approval of the Tacoma-Pierce County
MVEBs. The EPA's conformity rules implementing the PM2.5
NAAQS were separate actions from the overall PM2.5
implementation rule addressed by the Court and were not considered or
disturbed by the decision. Therefore, the conformity regulations were
not at issue in NRDC v. EPA.\1\
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\1\ The 2004 rulemaking addressed most of the transportation
conformity requirements that apply in PM2.5 nonattainment
and maintenance areas. The 2005 conformity rule included provisions
addressing treatment of PM2.5 precursors in MVEBs. See 40
CFR 93.102(b)(2). The 2010 rulemaking addressed requirements for the
2006 PM2.5 NAAQS. While none of these provisions were
challenged in the NRDC v. EPA case, the EPA also notes that the
court declined to address challenges to the EPA's presumptions
regarding PM2.5 precursors in the PM2.5
implementation rule. NRDC v. EPA, 706 F.3d 437.
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The Transportation Conformity Rule's adequacy criteria at 40 CFR
93.118(e)(4)(i)-(v) are not directly applicable because they apply to
budgets that are part of a SIP submittal and the budgets that are under
review in this action were submitted under the Transportation
Conformity Rule provision that allows a state to request that budgets
be established through the EPA's clean data determination process.
However, these criteria establish a general framework for the review of
any MVEBs before those budgets are made effective for use in
transportation conformity determinations. For this reason, the EPA has
reviewed the direct PM2.5 and NOX MVEBs submitted
by the State by applying the general requirements of the criteria.
Briefly, our review has determined:
The request to establish these budgets was made by the
appropriate State official (letter addressed to Dennis M. McLerran,
Regional Administrator, EPA Region 10, from Ted Sturdevant, Director,
Washington State Department of Ecology, November 28, 2012, included in
the docket for this action).
The request for establishment of MVEBs underwent full
interagency consultation including consultation with representatives
from the following agencies: EPA, Federal Highway Administration,
Federal Transit Administration, Washington State Department of
Transportation, Puget Sound Clean Air Agency, and Puget Sound Regional
Council. All meetings of the interagency air quality consultation
partners were open to the public, and the EPA raised no concerns with
the MVEBs or calculation methodology as part of the consultation
process.
As shown below in Table 1, the budgets are clearly
identified and precisely quantified.
The budgets are consistent with attainment of the 2006 24-
hour PM2.5 NAAQS as they have been established for 2011,
which was the most recent year of clean data available at the time the
submittal was made in November 2012, and the area was attaining the for
the 2009-2011 period.
The budgets are based on results from the EPA's approved
motor vehicle emission factor model, MOVES2010b. The modeling analyses
are based on the most recent planning information for the area and
include consideration of all relevant national regulations as well as
all previously established local transportation control measures.
Table 1--2011 Motor Vehicle Emission Budgets for the Tacoma-Pierce
County 2006 Fine Particulate Matter Nonattainment Area
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Emissions
Pollutant (pounds per
winter day)
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PM2.5................................................... 3,002
NOX..................................................... 71,598
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III. Analysis of the Relevant Air Quality Data
The EPA has reviewed the ambient air monitoring data for
PM2.5, consistent with the requirements contained in 40 CFR
part 50 for the Tacoma-Pierce County Area. All data considered have
been recorded in the Air Quality System (AQS) database, certified as
meeting quality assurance requirements, and determined to have met data
completeness requirements. On the basis of this review, the EPA has
concluded that the area continued to attain the 2006 24-hour
PM2.5 NAAQS during the 2010-2012 monitoring period. The EPA
regulations at 40 CFR 50.7 provide that ``The 24-hour primary and
secondary PM2.5 standards are met when the 98th percentile
24-hour concentration, as determined in accordance with appendix N of
this part, is less than or equal to 35 [mu]g/m3.'' This calculation,
made in accordance with 40 CFR part 50, appendix N for determining
compliance with the 2006 24-hour PM2.5 NAAQS, is commonly
called a design value. Because the 2010-2012 design value at the
Federal Reference Method monitor (Tacoma South L Street) is 28 [mu]g/
m\3\, the EPA is proposing to determine that the area continues to have
monitored attainment for this NAAQS. Additional information about
design values for the Tacoma-Pierce County Area can be found at http://www.epa.gov/airtrends/values.html.
IV. Effect of Determination of Attainment for 2006 PM2.5
Under Subpart 4
This section of the EPA's proposal addresses the effects of a final
determination of attainment for the Tacoma-Pierce County Area. For the
1997 PM2.5 standard, 40 CFR 51.004 of the EPA's
Implementation Rule sets forth the EPA's ``Clean Data Policy''
interpretation under subpart 1 and the effects of a determination of
attainment with that standard (72 FR 20585, 20665, April 25, 2007).
While the regulatory provisions of Sec. 51.1004(c) do not explicitly
apply to the 2006 PM2.5 standard, the underlying statutory
interpretation is the same for both standards. See 77 FR 76427,
December 28, 2012 (proposed determination of attainment for the 2006
PM2.5 standard for Milwaukee, Wisconsin).
As noted above, the D.C. Circuit Court of Appeals recently remanded
to the EPA the 1997 PM2.5 Implementation Rule. The Court
directed the EPA to re-promulgate the 1997 PM2.5
Implementation Rule consistent with the Court's opinion. NRDC v. EPA,
706 F.3d 428. The Court found that the EPA erred in limiting
implementation of the 1997 PM2.5 NAAQS to the general
implementation provisions of subpart 1 of part D of title I of the CAA,
rather than the particulate-matter-specific provisions of subpart 4 of
part D of title I. In light of the remand of the Implementation Rule,
in the immediate action, the EPA addresses the effect of a final
determination of attainment for the Tacoma-Pierce County Area, assuming
the area is classified as a moderate nonattainment area under subpart
4.\2\ As set forth in more detail below, under the EPA's Clean Data
Policy, 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)
so long as the area continues to attain the standard. The suspended
requirements include submission of an attainment demonstration (CAA
section 189(a)(1)(B)), meeting quantitative milestones demonstrating
reasonable further progress (RFP) toward attainment by the applicable
attainment date (CAA section 189(c)), provisions for reasonably
available control measures (RACM) (CAA section 189(a)(1)(C)), and
contingency measures (CAA section 172(c)(9). These requirements are
suspended because
[[Page 42908]]
their purpose is to help reach attainment, a goal which the Tacoma-
Pierce County Area has already achieved.
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\2\ For the purposes of evaluating the effects of this proposed
determination of attainment under subpart 4, we are considering the
Tacoma-Pierce County Area to be a ``moderate'' PM2.5
nonattainment area. Under section 188 of the CAA, all areas
designated nonattainment areas under subpart 4 would initially be
classified by operation of law as ``moderate'' nonattainment areas,
and would remain moderate nonattainment areas unless and until the
EPA reclassifies the area as a ``serious'' nonattainment area or the
area fails to attain the standard by the attainment date and would
be reclassified to ``serious'' by operation of law. Accordingly, the
EPA believes that it is appropriate to limit the evaluation of the
potential impact of subpart 4 requirements to those that would be
applicable to moderate nonattainment areas. In addition, in
reviewing Ecology's submittal the EPA also evaluates the applicable
requirements of subpart 1.
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Background on Clean Data Policy
Over the past two decades, the EPA has consistently applied its
``Clean Data Policy'' 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 policy to a spectrum of NAAQS,
including the ozone, PM10, PM2.5, CO and lead
standards. The D.C. Circuit Court of Appeals has upheld the Clean Data
Policy as embodied in the EPA's 8-hour ozone Implementation Rule, 40
CFR 51.918.\3\ See NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009). Other
federal Courts of Appeals that have considered and reviewed the EPA's
Clean Data Policy interpretation have upheld it and the rulemakings
applying the EPA's interpretation. Sierra Club v. EPA, 99 F.3d 1551
(10th Cir. 1996); Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004);
Our Children's Earth Foundation v. EPA, N. 04-73032 (9th Cir. June 28,
2005) (memorandum opinion), Latino Issues Forum, v. EPA, Nos. 06-75831
and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 2009.
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\3\ ``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, the EPA incorporated its Clean Data Policy
interpretation in both its 1997 8-hour Ozone Implementation Rule and in
its PM2.5 Implementation Rule in 40 CFR 51.1004(c) (72 FR
20585, 20665; April 25, 2007). While the D.C. Circuit Court of Appeal,
in its January 4, 2013 opinion, remanded to the EPA the 1997
PM2.5 Implementation Rule, the Court's opinion did not
address the merits of that regulation, nor cast doubt on EPA's existing
interpretation of the statutory provisions.
However, in light of the Court's opinion, we set forth here the
EPA's Clean Data Policy interpretation under subpart 4, for the purpose
of identifying the effects of a determination of attainment for the
2006 PM2.5 standard for the Tacoma-Pierce County Area. The
EPA has previously articulated its Clean Data Policy interpretation
under subpart 4 in implementing the PM10 standard. 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; 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); 75
FR 27944, May 19, 2010 (Coso Junction, California area). In these
determinations the EPA has established that, under subpart 4, an
attainment determination suspends the obligations to submit an
attainment demonstration, RACM, RFP contingency measures, and other
measures related to attainment.
V. Application of the Clean Data Policy to Attainment-Related
Provisions of Subpart 4
In the EPA's proposed and final rulemakings determining that the
San Joaquin Valley nonattainment area attained the PM10
standard, the EPA set forth at length its rationale for applying our
interpretation of the Clean Data Policy to PM10 under
subpart 4. The Ninth Circuit upheld the EPA's final rulemaking, and
specifically the EPA's application of the Clean Data Policy, in the
context of subpart 4. Latino Issues Forum v. EPA, supra. Nos. 06-75831
and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 2009. In
rejecting the petitioner's challenge to the Clean Data Policy under
subpart 4 for PM10, the Ninth Circuit stated, ``As the EPA
explained, if an area is in compliance with PM10 standards,
then further progress for the purpose of ensuring attainment is not
necessary.''
The general requirements of subpart 1 apply in conjunction with the
more specific requirements of subpart 4 to the extent they are not
superseded or subsumed by the subpart 4 requirements. Subpart 1
contains general air quality planning requirements for areas designated
as nonattainment. See CAA section 172(c). Subpart 4 itself contains
specific planning and scheduling requirements for PM10
nonattainment areas, and under the Court's January 4, 2013 opinion in
NRDC v. EPA, these same statutory requirements also apply to
PM2.5 nonattainment areas. The EPA has longstanding general
guidance interpreting the 1990 amendments to the CAA, for use by states
in meeting the statutory requirements for SIPs for nonattainment areas.
See, ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clear Air Act Amendments of 1990,''
(57 FR 13498, April 16, 1992) (the ``General Preamble''). In the
General Preamble, the EPA discussed the relationship of subpart 1 and
subpart 4 SIP requirements, and pointed out that subpart 1 requirements
were to an extent ``subsumed by, or integrally related to, the more
specific PM10 requirements.'' 57 FR 13538, April 16, 1992.
These subpart 1 requirements include, among other things, provisions
for attainment demonstrations, RACM, RFP, emissions inventories, and
contingency measures.
The EPA has long interpreted the provisions of part D, subpart 1 of
the Act (sections 171 and 172) as not requiring the submission of RFP
for an area already attaining the NAAQS. For an area that is attaining,
showing that the state will make RFP towards attainment ``will,
therefore, have no meaning at that point.'' (57 FR at 13564). See 71 FR
40952 and 71 FR 63642 (proposed and final determination of attainment
for San Joaquin Valley); 75 FR 13710 and 75 FR 27944 (proposed and
final determination of attainment for Coso Junction). CAA 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, CAA section 171(1) states that, for purposes
of part D, RFP ``means such annual incremental reductions in emissions
of the relevant air pollutant as are required by this part or may
reasonably be required by the Administrator for the purpose of ensuring
attainment of the applicable NAAQS by the applicable date.'' Thus,
whether dealing with the general RFP requirement of CAA section
172(c)(2), the ozone-specific RFP requirements of CAA sections 182(b)
and (c), or the specific RFP requirements for PM10 areas of
part D, subpart 4, CAA section 189(c)(1), the stated purpose of RFP is
to ensure attainment by the applicable attainment date.
The General Preamble, states that with respect to CAA 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
[[Page 42909]]
requirement will have already been fulfilled.\4\
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\4\ 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. 7501(1). As discussed in the
text of this rulemaking, the 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 CAA section 189(c)(2) with respect
to milestones no longer apply so long as an area has attained the
standard. CAA 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 the EPA took with respect to the general RFP requirement
of CAA 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 CAA section 182(b) and (c). In the May 10, 1995 Seitz
memorandum, titled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Meeting the Ozone National
Ambient Air Quality Standard,'' the EPA also noted that CAA section
182(g), the milestone requirement of subpart 2, which is analogous to
provisions in CAA 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 CAA
section 172(c) and section 189(a)(1)(B), an analogous rationale leads
to the same result. CAA 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, the 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 CAA section 172(c) requirements provided by the EPA in the General
Preamble, the December 14, 2004 Page memorandum titled ``Clean Data
Policy for the Fine Particulate National Ambient Air Quality
Standards'', and the CAA section 182(b) and (c) requirements set forth
in the Seitz memorandum. As the 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 CAA sections 172(c)(9). We have interpreted the contingency measure
requirements of CAA sections 172(c)(9) \5\ as no longer applying when
an area has attained the standard because those ``contingency measures
are directed at ensuring RFP and attainment by the applicable date.''
57 FR 13564; Seitz memorandum, pp. 5-6.
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\5\ And section 182(c)(9) for ozone.
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CAA 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, it has no need to rely on contingency measures to come into
attainment or to make further progress to attainment. As the 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.'' 57 FR 13564. Thus these requirements no longer apply
when an area has attained the standard.
Both CAA 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)
states that the EPA interprets CAA 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.
The EPA has consistently interpreted this provision to require only
implementation of potential RACM measures that could contribute to
reasonable further progress or to attainment. 57 FR 13498. Thus, where
an area is already attaining the standard, no additional RACM measures
are required.\6\ The EPA is interpreting CAA section 189(a)(1)(C)
consistent with its interpretation of CAA section 172(c)(1).
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\6\ The 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 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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The suspension of the obligations to submit SIP revisions
concerning these RFP, attainment demonstration, RACM, contingency
measures and other related requirements exists only for as long as the
area continues to monitor attainment of the standard. If the EPA
determines, after notice-and-comment rulemaking, that the area has a
monitored violation of the NAAQS, the basis for the requirements being
suspended would no longer exist. Only if and when the 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.
As set forth above, based on our proposed determination that the
Tacoma-Pierce County Area has attained the 2006 24-hour
PM2.5 NAAQS, we propose to find that the obligations to
submit planning provisions to meet the requirements for an attainment
demonstration, RFP, RACM, and
[[Page 42910]]
contingency measures continue to be suspended for so long as the area
continues to monitor attainment of the 2006 24-hour PM2.5
NAAQS. If, in the future, the EPA determines after notice-and-comment
rulemaking that the area again violates the 2006 24-hour
PM2.5 NAAQS, the basis for suspending the attainment
demonstration, RFP, RACM, and contingency measure obligations would no
longer exist.
VI. Proposed Action
The EPA proposes to determine, based on the most recent three years
of complete, quality-assured data meeting the requirements of 40 CFR
part 50, appendix N, that the Tacoma-Pierce County Area is currently
attaining the 2006 24-hour PM2.5 NAAQS. In conjunction with
and based upon our proposed determination that Tacoma-Pierce County
Area is attaining the standard, the EPA proposes to determine that the
obligation to submit the following attainment-related planning
requirements are not applicable for so long as the area continues to
attain the PM2.5 standard: The part D, subpart 4 obligations
to provide an attainment demonstration pursuant to CAA section
189(a)(1)(B), the RACM provisions of CAA section 189(a)(1)(C), the RFP
provisions of CAA section 189(c), and related attainment demonstration,
RACM, RFP and contingency measure provisions requirements of subpart 1,
CAA section 172. This proposed action, if finalized, would not
constitute a redesignation to attainment under CAA section 107(d)(3).
In conjunction with this proposed finding of attainment, the EPA is
proposing to approve MVEBs calculated for the 2011 attainment year, the
year that the Tacoma-Pierce County first attained the 2006 24-hour
PM2.5 NAAQS. The EPA is proposing approval of MVEBs pursuant
to 40 CFR 93.109(c)(5)(iii), as described in the Transportation
Conformity Rule and the preamble of the Transportation Conformity
Restructuring Amendments (77 FR 14982, March 14, 2012).
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does 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 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 (Public Law 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 CAA; 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 it will not impose substantial direct costs on tribal
governments or preempt tribal law. The SIP is not approved to apply in
Indian country located in the State, except for non-trust land within
the exterior boundaries of the Puyallup Indian Reservation, also known
as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and
local agencies in Washington authority over activities on non-trust
lands within the 1873 Survey Area and the EPA is therefore approving
this SIP on such lands. Consistent with EPA policy, the EPA provided a
consultation opportunity to the Puyallup Tribe in a letter dated
December 11, 2012. The EPA did not receive a request for consultation.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 8, 2013.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2013-17267 Filed 7-17-13; 8:45 am]
BILLING CODE 6560-50-P