Determination of Attainment for the Sacramento Nonattainment Area for the 2006 Fine Particle Standard; California; Determination Regarding Applicability of Clean Air Act Requirements

Federal Register, Volume 78 Issue 135 (Monday, July 15, 2013)

Federal Register Volume 78, Number 135 (Monday, July 15, 2013)

Rules and Regulations

Pages 42018-42021

From the Federal Register Online via the Government Printing Office www.gpo.gov

FR Doc No: 2013-16785

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

EPA-R09-OAR-2012-0799; FRL-9833-2

Determination of Attainment for the Sacramento Nonattainment Area for the 2006 Fine Particle Standard; California; Determination Regarding Applicability of Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to determine that the Sacramento nonattainment area in California has attained the 2006 24-hour fine particle (PM2.5) National Ambient Air Quality Standard (NAAQS or standard). This determination is based upon complete, quality-assured, and certified ambient air monitoring data showing that this area has monitored attainment of the 2006 24-hour PM2.5 NAAQS based on the 2010-2012 monitoring period. Based on the above determination, the requirements for this area to submit an attainment demonstration, together with reasonably available control measures, a reasonable further progress (RFP) plan, and contingency measures for failure to meet RFP and attainment deadlines are suspended for so long as the area continues to attain the 2006 24-hour PM2.5 NAAQS.

DATES: Effective Date: This rule is effective on August 14, 2013.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0799 for this action. Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at 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 publicly available in either location (e.g., Confidential Business Information). 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: John Ungvarsky, (415) 972-3963, or by email at ungvarsky.john@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'', ``us'' or ``our'' are used, we mean EPA.

Table of Contents

1. Summary of EPA's Proposed Action

2. Public Comments

3. EPA's Final Action

4. Statutory and Executive Order Reviews

1. Summary of EPA's Proposed Action

   On October 26, 2012 (77 FR 65346), EPA proposed to determine that the Sacramento nonattainment area in California has attained the 2006 24-hour NAAQS for fine particles (generally referring to particles less than or equal to 2.5 micrometers in diameter, PM2.5). The 2006 24-hour PM2.5 NAAQS is 35 micrograms per cubic meter (microg/m\3\), based on a 3-year average of the 98th percentile of 24-hour concentrations. The Sacramento PM2.5 nonattainment area includes Sacramento County, the western portions of El Dorado and Placer counties, and the eastern portions of Solano and Yolo counties. Other than the El Dorado County portion of the nonattainment area, the Sacramento PM2.5 nonattainment area lies within the Sacramento Valley Air Basin.

   In our proposed rule, we explained how EPA makes an attainment determination for the 2006 24-hour PM2.5 NAAQS by reference to complete, quality-assured data gathered at a State and Local Air Monitoring Station(s) (SLAMS) and entered into EPA's Air Quality System (AQS) database and by reference to 40 CFR 50.13 (``National primary and secondary ambient air quality standards for PM2.5'') and appendix N to 40 CFR part 50 (``Interpretation of the National Ambient Air Quality Standards for PM2.5''). EPA proposed the determination of attainment for the Sacramento nonattainment area based upon a review of the monitoring network and the ambient air quality data collected at the monitoring sites during the 2009-2011 period. The monitoring network in the area is operated by the California Air Resources Board (CARB) and three local air pollution control agencies in the area: Sacramento Metropolitan Air Quality Management District, Placer County Air Pollution Control District, and Yolo-Solano Air Quality Management District. Based on these reviews, EPA found that complete, quality-assured and certified data for the

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   Sacramento nonattainment area showed that the 24-hour design value for the 2009-2011 period was equal to or less than 35 micro/m\3\ at all five SLAMs monitor sites.

   Since publication of our October 26, 2012 proposal, CARB and the air districts within the Sacramento nonattainment area have entered data into AQS for the final two quarters of 2012 and the first quarter of 2013, and have certified the data for 2012.\1\ Thus, we now have complete, quality-assured for 2010-2012.

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   \1\ See letter from Sylvia Vanderspek, Chief, Air Quality Data Branch, Planning and Technical Support Division, CARB, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region IX, certifying calendar year 2012 ambient air quality data and quality assurance data, May 16, 2013.

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   Because we make determinations of attainment based on the most recent 3 years of complete, quality-assured and certified data, we have updated the proposed determination of attainment (which had been based on 2009-2011 data) to reflect the 2010-2012 period. Specifically, we have updated table 1 (shown below) from the proposed rule to reflect the data for 2012, including data from the newly established Auburn monitoring site. As shown in table 1, the design value (31 microg/

   m\3\) in the Sacramento nonattainment area for the 2010-2012 period is less than 35 microg/m\3\ and thus shows that the area has attained the 2006 24-hour PM2.5 standard. Therefore, we are taking final action today to determine that the Sacramento nonattainment area has attained the 2006 24-hour PM2.5 standard based on complete, quality-assured and certified data for 2010-2012. Preliminary data for 2013 (not shown in table 1 but included in the docket for this action) show that the area continues to attain the standard.

   Table 1--2009-2012 24-Hour PM2.5 Monitoring Sites and Design Values for the Sacramento Nonattainment Area c

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   98th percentile (mug/m\3\) Design values (mug/

   AQS Site -------------------------------------------- m\3\)

   Monitoring site identification -----------------------

   no. 2009 2010 2011 2012 2009-2011 2010-2012

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   Auburn\a\......................................................... 06-061-0003 n/a n/a n/a 15.7 n/a n/a

   Roseville......................................................... 06-061-0006 21.3 20.3 23.0 14.9 22 19

   Sacramento--Del Paso Manor........................................ 06-067-0006 38.7 27.0 39.8 27.1 \b\35 31

   Sacramento--1309 T Street......................................... 06-067-0010 27.2 27.3 45.1 20.5 33 31

   Sacramento Health Dept--Stockton Blvd............................. 06-067-4001 34.9 26.5 44.8 20.5 \a\35 31

   Woodland.......................................................... 06-113-1003 27.4 18.6 25.8 14.2 24 20

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   \a\ The Auburn site (AQS ID 06-061-0003) started operating in January, 2012 and, therefore, does not have a valid design value.

   \b\ The average of the 98th percentile values for 2009-2011 equals 35.2 and 35.4 at the Del Paso Manor and Stockton Blvd. sites, respectively, but

   consistent with applicable rounding conventions in 40 CFR part 50, Appendix N, section 4.3, 24-hour standard design values are rounded to the nearest

   1 mug/m\3\ (decimals 0.5 and greater are rounded up to the nearest whole number, and any decimal lower than 0.5 is rounded down to the nearest whole

   number).

   \c\ Source: Design Value Report, May 30, 2013 (in the docket to this final action).

   In our proposed rule, based on the proposed determination of attainment, we also proposed to apply EPA's Clean Data Policy to the 2006 24-hour PM2.5 NAAQS and thereby suspend the requirements for this area to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, and contingency measures for so long as the area continues to attain the 2006 24-hour PM2.5 NAAQS. See pages 65348-65350 of our October 26, 2012 proposed rule. In proposing to apply the Clean Data Policy to the 2006 24-hour PM2.5 NAAQS, we explained how we are applying the same statutory interpretation with respect to the implications of clean data determinations that the Agency has long applied in regulations for the 1997 8-hour ozone and PM2.5 NAAQS and in individual rulemakings for the 1-hour ozone, PM10 and lead NAAQS. See 77 FR 65346, at 65349 (October 26, 2012).

   EPA notes that on January 4, 2013, in Natural Resources Defense Council v. EPA, the DC Circuit remanded to 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''). 706 F.3d 428 (DC Cir. 2013). While the DC Circuit, in its January 4, 2013 decision, remanded the 1997 PM2.5 Implementation Rule to EPA to re-

   promulgate the Implementation Rule pursuant to subpart 4,\2\ the court did not address the merits of that regulation, nor cast doubt on EPA's interpretation of the statutory provisions under its Clean Data Policy.

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   \2\ EPA established the Implementation Rule pursuant to subpart 1 (``Nonattainment Areas in General'') of part D (``Plan Requirements for Nonattainment Areas'') of title I of the CAA. Subpart 4 (``Additional Provisions for Particulate Matter Nonattainment Areas'') includes more prescriptive SIP nonattainment area requirements than those set forth in subpart 1.

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   EPA has taken the Court's decision into consideration in evaluating the effects of a determination of attainment for the Sacramento nonattainment area under subpart 4, in addition to subpart 1.\3\ Pursuant to EPA's Clean Data Policy interpretation, a determination that the area has attained the standard suspends the State's obligation to submit attainment-related planning requirements of subpart 4 (as well as the applicable provisions of subpart 1) for so long as the area continues to attain the standard. These include requirements to submit an attainment demonstration, RFP, RACM, and contingency measures, because the purpose of these provisions is to help

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   reach attainment, a goal that has already been achieved. Thus, under both subpart 1 and subpart 4, a determination of attainment suspends a state's obligations to submit attainment-linked planning requirements for so long as the area continues in attainment.

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   \3\ For the purposes of evaluating the effects of this determination of attainment under subpart 4, we are considering Sacramento 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 EPA reclassifies the area as a ``serious'' nonattainment area. Accordingly, the evaluation of the potential impact of subpart 4 requirements is limited to those applicable to moderate nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment areas and include: An attainment demonstration (section 189(a)(1)(B)); provisions for RACM (section 189(a)(1)(C)); and quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)). In addition, EPA also evaluates the applicable requirements of subpart 1.

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   EPA has long applied its Clean Data interpretation under subpart 4 in implementing the PM10 standard.\4\ In EPA's proposed and final rulemakings determining that the San Joaquin Valley nonattainment area attained the PM10 standard, EPA set forth at length its rationale for applying the Clean Data Policy to subpart 4. The Ninth Circuit upheld EPA's final rulemaking, and specifically EPA's Clean Data Policy, in the context of subpart 4. Latino Issues Forum v. EPA, supra. Nos. 06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March 2, 2009. In rejecting 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.''

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   \4\ See, e.g., 75 FR 6571 (February 10, 2010) (Baton Rouge, Louisiana area); 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). Thus 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.

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   EPA is determining, based on the most recent three years of complete, quality-assured data meeting the requirements of 40 CFR part 50, appendix N, that the Sacramento nonattainment area is currently attaining the 2006 24-hour PM2.5 NAAQS. In conjunction with and based upon our determination that Sacramento nonattainment area has attained and is currently attaining the standard, EPA is also determining that the obligation to submit the following attainment-

   related planning requirements is 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 section 189(a)(1)(B); the RACM provisions of section 189(a)(1)(C); the RFP provisions of section 189(c); and the related attainment demonstration, RACM, RFP and contingency measure provisions requirements of subpart 1, section 172. This determination does not constitute a redesignation to attainment under CAA section 107(d)(3).

   Please see the October 26, 2012 proposed rule for more detailed information concerning the PM2.5 NAAQS, designations of PM2.5 nonattainment areas, the regulatory basis for determining attainment of the NAAQS, the Sacramento nonattainment area's PM2.5 monitoring network, and EPA's review and evaluation of the data.

2. Public Comments

   EPA's proposed rule provided a 30-day public comment period. We received no comments.

3. EPA's Final Action

   For the reasons provided in the proposed rule and summarized herein, EPA is taking final action to determine that the Sacramento nonattainment area in California has attained the 2006 24-hour PM2.5 NAAQS based on three years of complete, quality-

   assured, and certified data in AQS for 2010-2012. Preliminary data for 2013 show that this area continues to attain the NAAQS.

   EPA is also taking final action, based on the above determination of attainment, to suspend the requirements for the Sacramento nonattainment area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning SIPs related to attainment of the 2006 24-hour PM2.5 NAAQS for so long as the area continues to attain the 2006 24-hour PM2.5 NAAQS. EPA's final action is consistent and in keeping with its long-

   held interpretation of CAA requirements, as well as with EPA's regulations for similar determinations for ozone (see 40 CFR 51.918) for the 1997 8-hour ozone and in individual rulemakings for the 1-hour ozone, PM10 and lead NAAQS.

   Today's final action does not constitute a redesignation of the Sacramento nonattainment area to attainment for the 2006 24-hour PM2.5 NAAQS under CAA section 107(d)(3) because we have not yet approved a maintenance plan for the Sacramento nonattainment area as meeting the requirements of 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 remain nonattainment for this area until such time as EPA determines that California has met the CAA requirements for redesignating the Sacramento nonattainment area to attainment.

   If the Sacramento nonattainment area continues to monitor attainment of the 2006 24-hour PM2.5 NAAQS, the requirements for the area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning requirements related to attainment of the 2006 24-hour PM2.5 NAAQS will remain suspended. If after today's action EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, that the area has violated the 2006 24-hour PM2.5 NAAQS, the basis for the suspension of the attainment planning requirements for the area would no longer exist, and the area would thereafter have to address such requirements.

4. Statutory and Executive Order Reviews

   This final action makes a determination of attainment based on air quality and suspends certain federal requirements, and thus, this action would not impose additional requirements beyond those imposed by state law. For this reason, the final 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 CAA; and

   Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible

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   methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

   In addition, this final action 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 this action will not impose substantial direct costs on tribal governments or preempt tribal law.

   The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

   Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 13, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

   List of Subjects in 40 CFR Part 52

   Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Particulate Matter, Sulfur oxides, Reporting and recordkeeping requirements.

   Dated: June 28, 2013.

   Alexis Strauss,

   Acting Regional Administrator, Region IX.

   Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

   PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

   0

   1. The authority citation for part 52 continues to read as follows:

      Authority: 42 U.S.C. 7401 et seq.

      Subpart F--California

      0

   2. Section 52.247 is amended by adding paragraph (c) to read as follows:

      Sec. 52.247 Control Strategy and Regulations: Fine Particle Matter.

      * * * * *

      (c) Determination of Attainment: Effective August 14, 2013, EPA has determined that, based on 2010 to 2012 ambient air quality data, the Sacramento PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS. This determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment for as long as this area continues to attain the 2006 24-

      hour PM2.5 NAAQS. If EPA determines, after notice-and-

      comment rulemaking, that this area no longer meets the 2006 24-hour PM2.5 NAAQS, the corresponding determination of attainment for that area shall be withdrawn.

      FR Doc. 2013-16785 Filed 7-12-13; 8:45 am

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