Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Proposed Rules 65521 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 25304. 

FOR FURTHER INFORMATION CONTACT: 

Asrah Khadr, (215) 814–2071, or by 

email at khadr.asrah@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, that is 

located in the ‘‘Rules and Regulations’’ 

section of this Federal Register 

publication. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

Dated: October 10, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2012–26389 Filed 10–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0782; FRL–9747–1] 

Determination of Attainment for the 

San Francisco Bay Area 

Nonattainment Area for the 2006 Fine 

Particle Standard; California; 

Determination Regarding Applicability 

of Clean Air Act Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

determine that the San Francisco Bay 

Area nonattainment area in California 

has attained the 2006 24-hour fine 

particle (PM2.5) National Ambient Air 

Quality Standard (NAAQS). This 

proposed 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 2009–2011 monitoring period. 

EPA is further proposing that, if EPA 

finalizes this determination of 

attainment, the requirements for this 

area to submit an attainment 

demonstration, together with reasonably 

available control measures (RACM), a 

reasonable further progress (RFP) plan, 

and contingency measures for failure to 

meet RFP and attainment deadlines 

shall be suspended for so long as the 

area continues to attain the 2006 24- 

hour PM2.5 NAAQS. 

DATES: Written comments must be 

received on or before November 28, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2012–0782 by one of the following 

methods: 

1. Federal eRulemaking Portal, at 

www.regulations.gov, please follow the 

on-line instructions; 

2. Email to ungvarsky.john@epa.gov; 

or 

3. Mail or delivery to John Ungvarsky, 

Air Planning Office, AIR–2, U.S. 

Environmental Protection Agency, 

Region IX, 75 Hawthorne Street, San 

Francisco, California 94105–3901. 

Instructions: All comments 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 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information you 

consider to be CBI or otherwise 

protected should be clearly identified as 

such and should not be submitted 

through www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. 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: The index to the docket for 

this action is 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 in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available at 

either location (e.g., 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: 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. We are providing the following 

outline to aid in locating information in 

this proposal. 

Table of Contents 

I. What determination is EPA making? 

II. What is the background for this action? 

A. PM2.5 NAAQS 

B. Designation of PM2.5 Nonattainment 

Areas 

C. How does EPA make attainment 

determinations? 

III. What is EPA’s analysis of the relevant air 

quality data? 

A. Monitoring Network and Data 

Considerations 

B. Evaluation of Current Attainment 

IV. How does EPA’s Clean Data Policy apply 

to this action? 

A. Application of EPA’s Clean Data Policy 

to the 2006 PM2.5 NAAQS 

B. History and Basis of EPA’s Clean Data 

Policy 

V. EPA’s Proposed Action and Request for 

Public Comment 

VI. Statutory and Executive Order Reviews 

I. What determination is EPA making? 

EPA is proposing to determine that 

the San Francisco Bay Area 

nonattainment area has clean data for 

the 2006 24-hour NAAQS for fine 

particles (generally referring to particles 

less than or equal to 2.5 micrometers in 

diameter, PM2.5). This determination is 

based upon complete, quality-assured, 

and certified ambient air monitoring 

data showing the area has monitored 

attainment of the 2006 PM2.5 NAAQS 

based on 2009–2011 monitoring data. 

Preliminary data in EPA’s Air Quality 

System (AQS) for 2012 indicate that the 

area continues to attain the 2006 PM2.5

NAAQS. Based on this determination, 

we are also proposing to suspend the 

obligations on the State of California to 

submit certain state implementation 

plan (SIP) revisions related to 

attainment of this standard for this area 

for as long as the area continues to 

attain the standard. 

II. What is the background for this 

action? 

A. PM2.5 NAAQS 

Under section 109 of the Clean Air 

Act (CAA or ‘‘Act’’), EPA has 

established national ambient air quality 

standards (NAAQS or ‘‘standards’’) for 

certain pervasive air pollutants (referred 


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65522 Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Proposed Rules 

1For a given air pollutant, ‘‘primary’’ national 

ambient air quality standards are those determined 

by EPA as requisite to protect the public health, and 

‘‘secondary’’ standards are those determined by 

EPA as requisite to protect the public welfare from 

any known or anticipated adverse effects associated 

with the presence of such air pollutant in the 

ambient air. See CAA section 109(b). 

2The San Francisco Bay Area PM2.5

nonattainment area includes southern Sonoma, 

Napa, Marin, Contra Costa, San Francisco, 

Alameda, San Mateo, Santa Clara and the western 

part of Solano counties. 

3With respect to the annual PM2.5 NAAQS, this 

area is designated as ‘‘unclassifiable/attainment.’’ 

4On December 8, 2011, James Goldstene, 

Executive Officer of the California Air Resources 

Board, submitted a request to Jared Blumenfeld, 

Regional Administrator, U.S. EPA Region IX, to find 

the San Francisco Bay Area PM2.5 nonattainment 

area had attained the 2006 24-hour PM2.5 NAAQS. 

5The PM2.5 24-hour standard design value is the 

3-year average of annual 98th percentile 24-hour 

average values recorded at each monitoring site [see 

40 CFR part 50, appendix N, section 1.0(c)], and the 

24-hour PM2.5 NAAQS is met when the 24-hour 

standard design value at each monitoring site is less 

than or equal to 35 mg/m3. 

6The BAAQMD is one of four monitoring 

agencies in California designated as a Primary 

Quality Assurance Organization. 

7Letter from Joe Lapka, Acting Manager, Air 

Quality Analysis Office, U.S. EPA Region IX, to 

Gary Kendall, Director of Technical Services, 

BAAQMD (December 17, 2009) (approving ‘‘2008 

Air Monitoring Network Report’’); Letter from 

Matthew Lakin, Manager, Air Quality Analysis 

Office, U.S. EPA Region IX, to Eric Stevenson, 

Director of Technical Services, BAAQMD 

(November 1, 2010) (approving the ‘‘2009 Air 

Monitoring Network Review for the Bay Area Air 

Quality Management District’’); Letter from 

Matthew Lakin, Manager, Air Quality Analysis 

Office, U.S. EPA Region IX, to Eric Stevenson, 

Director of Technical Services, BAAQMD (October 

31, 2011) (approving BAAQMD’s ‘‘2010 Air 

Monitoring Network Report’’). 

8Letter from Deborah Jordan, Director, Air 

Division, U.S. EPA Region IX, to Jack Broadbent, 

Air Pollution Control Officer, BAAQMD, 

transmitting ‘‘System Audit of the Ambient 

Monitoring Program: Bay Area Air Quality 

Management District, May 26–June 4, 2009,’’ with 

enclosure, January 18, 2011. 

9See, e.g., letter from Jack Broadbent, Executive 

Officer, BAAQMD, to Jared Blumenfeld, Regional 

Administrator, U.S. EPA Region IX, certifying 

calendar year 2011 ambient air quality data and 

quality assurance data, April 18, 2012. 

to as ‘‘criteria pollutants’’) and conducts 

periodic reviews of the NAAQS to 

determine whether they should be 

revised or whether new NAAQS should 

be established. 

On July 18, 1997, EPA revised the 

NAAQS for particulate matter to add 

new standards for PM2.5, using PM2.5 as 

the indicator for the pollutant. EPA 

established primary and secondary 1

annual and 24-hour standards for PM2.5

(62 FR 38652). The annual standard was 

set at 15.0 micrograms per cubic meter 

(mg/m3), based on a 3-year average of 

annual mean PM2.5 concentrations, and 

the 24-hour standard was set at 65 mg/ 

m3, based on the 3-year average of the 

98th percentile of 24-hour PM2.5

concentrations at each populationoriented monitor within an area. 

On October 17, 2006 (71 FR 61144), 

EPA revised the level of the 24-hour 

PM2.5 NAAQS to 35 mg/m3, based on a 

3-year average of the 98th percentile of 

24-hour concentrations. EPA also 

retained the 1997 annual PM2.5 standard 

at 15.0 mg/m3 based on a 3-year average 

of annual mean PM2.5 concentrations, 

but with tighter constraints on the 

spatial averaging criteria. 

B. Designation of PM2.5 Nonattainment 

Areas 

Effective December 14, 2009, EPA 

established the initial air quality 

designations for most areas in the 

United States for the 2006 24-hour PM2.5

NAAQS. See 74 FR 58688; (November 

13, 2009). Among the various areas 

designated in 2009, EPA designated the 

San Francisco Bay Area 2 in California 

as nonattainment for the 2006 24-hour 

PM2.5 NAAQS.3 The boundaries for this 

area are described in 40 CFR 81.305. 

Within three years of the effective 

date of designations, states with areas 

designated as nonattainment for the 

2006 PM2.5 NAAQS are required to 

submit SIP revisions that, among other 

elements, provide for implementation of 

reasonably available control measures 

(RACM), reasonable further progress 

(RFP), attainment of the standard as 

expeditiously as practicable but no later 

than five years from the nonattainment 

designation (in this instance, no later 

than December 14, 2014), as well as 

contingency measures. See CAA section 

172(a)(2), 172(c)(1), 172(c)(2), and 

172(c)(9). Prior to the due date for 

submittal of these SIP revisions, the 

State of California requested that EPA 

make a determination that the San 

Francisco Bay Area 4 nonattainment area 

has attained the 2006 PM2.5 NAAQS and 

determine that attainment-related SIP 

submittal requirements are not 

applicable for as long as the area 

continues to attain the standard. 

Today’s proposal responds to the State’s 

request. 

C. How does EPA make attainment 

determinations? 

A determination of whether an area’s 

air quality currently meets the PM2.5

NAAQS is generally based upon the 

most recent three years of complete, 

quality-assured data gathered at 

established State and Local Air 

Monitoring Stations (SLAMS) in a 

nonattainment area and entered into the 

AQS database. Data from air monitors 

operated by state/local agencies in 

compliance with EPA monitoring 

requirements must be submitted to 

AQS. Monitoring agencies annually 

certify that these data are accurate to the 

best of their knowledge. Accordingly, 

EPA relies primarily on data in AQS 

when determining the attainment status 

of areas. See 40 CFR 50.13; 40 CFR part 

50, appendix L; 40 CFR part 53; 40 CFR 

part 58, and 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 N. 

Under EPA regulations in 40 CFR part 

50, section 50.13 and in accordance 

with appendix N, the 2006 24-hour 

PM2.5 standard is met when the design 

value is less than or equal to 35 mg/m3

(based on the rounding convention in 40 

CFR part 50, appendix N) at each 

monitoring site within the area.5 The 

PM2.5 24-hour average is considered 

valid when 75 percent of the hourly 

averages for the 24-hour period are 

available. Data completeness 

requirements for a given year are met 

when at least 75 percent of the 

scheduled sampling days for each 

quarter have valid data. 

III. What is EPA’s analysis of the 

relevant air quality data? 

A. Monitoring Network and Data 

Considerations 

In the San Francisco Bay Area PM2.5

nonattainment area, the Bay Area Air 

Quality Management District 

(BAAQMD) is the agency responsible for 

monitoring ambient air quality.6

BAAQMD submits annual monitoring 

network plans to EPA. These plans 

describe the monitoring network 

operated by BAAQMD in the San 

Francisco Bay Area nonattainment area 

and discuss the status of the air 

monitoring network, as required under 

40 CFR 58.10. 

Since 2007, EPA regularly reviews 

these annual plans for compliance with 

the applicable reporting requirements in 

40 CFR part 58. With respect to PM2.5, 

EPA has found that the area’s network 

plans operated by BAAQMD meet the 

applicable requirements under 40 CFR 

part 58. See EPA letters to BAAQMD 

approving its annual network plans for 

years 2009, 2010, and 2011.7 EPA also 

concluded 8 from its Technical System 

Audit of the BAAQMD Primary Quality 

Assurance Organization (conducted 

during the summer of 2009), that the 

ambient air monitoring network 

operated by BAAQMD currently meets 

or exceeds the requirements for the 

minimum number of SLAMS for PM2.5

in the San Francisco Bay Area 

nonattainment area. BAAQMD annually 

certifies that the data it submits to AQS 

are complete and quality-assured.9


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10 In this context, ‘‘neighborhood’’ spatial scale 

defines concentrations within some extended area 

of the city that has relatively uniform land use with 

dimensions in the 0.5 to 4.0 kilometers range. See 

40 CFR part 58, appendix D, section 1.2. 

11 In this context, ‘‘middle’’ spatial scale defines 

the concentration typical of areas up to several city 

blocks in size with dimensions ranging from about 

100 meters to 0.5 kilometer. See 40 CFR part 58, 

appendix D, section 1.2. 

12See BAAQMD’s 2010 Air Monitoring Network 

Report (July 1, 2011); U.S. EPA Air Quality System, 

Monitor Description Report, October 15, 2012. 

13 In March, 2012, a community group based in 

Marin County, California, brought to EPA’s 

attention PM2.5 data collected in Marin County that 

was not available in AQS. EPA has reviewed 

information associated with this monitoring. The 

monitoring was collected with private, non-Federal 

Reference Method/Federal Equivalent Method 

(FRM/FEM) monitors over approximately three 

months in both winter 2010/2011 and winter 2011/ 

2012. EPA concludes that the monitoring does not 

meet 40 CFR part 50, appendix L or 40 CFR part 

58, and are therefore not appropriate for regulatory 

use. EPA acknowledges the concerns raised by the 

community group over wood smoke impacts in 

sheltered inland valleys during the winter months. 

Information on additional steps BAAQMD is taking 

to address wood smoke impacts is described in 

BAAQMD’s September 20, 2012 letter from Jean 

Roggenkamp, Deputy Air Pollution Control Officer, 

Bay Area Air Quality Management District, to Amy 

Zimpfer, U.S. EPA Region IX. 

14Under EPA monitoring regulations, the 

minimum number of PM2.5 monitoring sites in the 

San Francisco-Oakland-Fremont Metropolitan 

Statistical Area (MSA) is two, but the BAAQMD 

operates six such monitoring sites within the San 

Francisco-Oakland-Fremont MSA portion of the 

San Francisco Bay Area nonattainment area, 

including the San Rafael site. 

15Meets the requirements of 40 CFR part 58. 

There were 10 PM2.5 SLAMS located 

throughout the San Francisco Bay Area 

PM2.5 nonattainment area in calendar 

years 2009, 2010, and 2011. EPA defines 

specific monitoring site types and 

spatial scales of representativeness to 

characterize the nature and location of 

required monitors. Eight of the sites 

have a spatial scale of neighborhood 

scale,10 and the monitoring objective is 

population exposure. Two of the sites 

(i.e., Oakland (AQS ID 06–001–0009) 

and San Rafael (AQS ID 06–041–0001)) 

have a spatial scale of middle scale,11

and the monitoring objective is 

population exposure.12

Consistent with the requirements 

contained in 40 CFR part 50, we have 

reviewed the quality-assured, and 

certified PM2.5 ambient air monitoring 

data as recorded in AQS for the 

applicable monitoring period collected 

at the monitoring sites in the San 

Francisco Bay Area nonattainment area 

and have determined that the data are 

complete except for the PM2.5 data 

collected at the San Rafael monitoring 

site.13 With respect to the San Rafael 

site, PM2.5 monitoring began in the last 

quarter of 2009 and was complete for 

that one quarter. In 2010, valid samples 

were collected on only 72% of the 

scheduled sampling days at the San 

Rafael monitor during the third quarter 

of 2010 (July, August, and September) 

resulting in a data set for the third 

quarter that does not meet the 

completeness criterion of 75%. All other 

quarters of data collected at San Rafael 

in 2010, and all quarters in 2011 met 

data completeness requirements. Given 

that the BAAQMD operates more than 

the minimum number of PM2.5

monitoring sites in the San Francisco 

Bay Area,14 the overall completeness of 

data from all sites (other than the San 

Rafael site), and the limited nature of 

the incomplete data set from the San 

Rafael site during the low PM2.5

concentration season, we believe that 

the data set compiled from the PM2.5

monitoring network is sufficient for the 

purposes of determining whether the 

San Francisco Bay Area has attained the 

PM2.5 NAAQS. See 40 CFR part 50, 

appendix N, section 4.2(b). 

B. Evaluation of Current Attainment 

EPA’s evaluation of whether the San 

Francisco Bay Area PM2.5

nonattainment area has attained the 

2006 24-hour PM2.5 NAAQS is based on 

our review of the monitoring data and 

takes into account the adequacy 15 of the 

PM2.5 monitoring network in the 

nonattainment area and the reliability of 

the data collected by the network as 

discussed in the previous section of this 

document. 

Table 1 shows the PM2.5 design values 

for the San Francisco Bay Area 

nonattainment area monitors based on 

ambient air quality monitoring data for 

the most recent complete three-year 

period (2009–2011). The data show that 

the design value for the 2009–2011 

period was equal to or less than 35 mg/ 

m3 at the monitors. 

Therefore, we are proposing to 

determine, based on the complete, 

quality-assured data for 2009–2011, that 

the San Francisco Bay Area has attained 

the 2006 24-hour PM2.5 standard. 

Preliminary data available in AQS for 

2012 indicate that the area continues to 

attain the standard. 

TABLE 1—2009–2011 24-HOUR PM2.5 MONITORING SITES AND DESIGN VALUES FOR THE SAN FRANCISCO BAY AREA

NONATTAINMENT AREA

Monitoring site AQS Site 

identification No. 

98th Percentile (μg/m3) 2009–2011 

Design values 

(μg/m3 2009 2010 2011 ) 

Livermore ......................................................................... 06–001–0007 30.7 26.5 27.0 28 

Oakland ............................................................................ 06–001–0009 24.7 21.7 28.0 25 

Concord ............................................................................ 06–013–0002 29.2 26.8 24.4 27 

San Rafael ....................................................................... 06–041–0001 a 34.1 b 31.0 25.0 b 30 

San Francisco .................................................................. 06–075–0005 29.4 24.4 26.4 27 

Redwood City ................................................................... 06–081–1001 28.0 24.8 24.2 26 

Gilroy ................................................................................ 06–085–0002 25.1 19.6 22.1 22 

San Jose .......................................................................... 06–085–0005 29.8 29.2 30.5 30 

Vallejo .............................................................................. 06–095–0004 33.5 22.8 31.0 29 

Santa Rosa ...................................................................... 06–097–0003 23.2 22.2 25.9 24 

aPM2.5 monitoring at the San Rafael site began in the last quarter of 2009. b Does not meet data completeness requirements. 

Source: Design Value Report, August 10, 2012 (in the docket to this proposed action). 


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16While EPA recognizes that 40 CFR 51.1004(c) 

does not itself expressly apply to the 2006 PM2.5

standard, the statutory interpretation that it 

embodies is identical and is applicable to both the 

1997 and 2006 PM2.5 standards. 

IV. How does EPA’s Clean Data Policy 

apply to this action? 

A. Application of EPA’s Clean Data 

Policy to the 2006 PM2.5 NAAQS 

In April 2007, EPA issued its PM2.5

Implementation Rule for the 1997 PM2.5

standard. 72 FR 20586; (April 25, 2007). 

In March, 2012, EPA published 

implementation guidance for the 2006 

PM2.5 standard. See Memorandum from 

Stephen D. Page, Director, Office of Air 

Quality Planning and Standards, 

‘‘Implementation Guidance for the 2006 

24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards 

(NAAQS)’’ (March 2, 2012). In that 

guidance, EPA stated its view ‘‘that the 

overall framework and policy approach 

of the 2007 PM2.5 Implementation Rule 

continues to provide effective and 

appropriate guidance on the EPA’s 

interpretation of the general statutory 

requirements that states should address 

in their SIPs. In general, the EPA 

believes that the interpretations of the 

statute in the framework of the 2007 

PM2.5 Implementation Rule are relevant 

to the statutory requirements for the 

2006 24-hour PM2.5 NAAQS * * *.’’ Id., 

page 1. With respect to the statutory 

provisions applicable to 2006 PM2.5

implementation, the guidance 

emphasized that ‘‘EPA outlined its 

interpretation of many of these 

provisions in the 2007 PM2.5

Implementation Rule. In addition to 

regulatory provisions, the EPA provided 

substantial general guidance for 

attainment plans for PM2.5 in the 

preamble to the final the [sic] 2007 

PM2.5 Implementation Rule.’’ Id., page 2. 

In keeping with the principles set forth 

in the guidance, and with respect to the 

effect of a determination of attainment 

for the 2006 PM2.5 standard, EPA is 

applying the same interpretation with 

respect to the implications of clean data 

determinations that it set forth in the 

preamble to the 1997 PM2.5 standard 

and in the regulation that embodies this 

interpretation. 40 CFR 51.1004(c).16

EPA has long applied this interpretation 

in regulations and individual 

rulemakings for the 1-hour ozone and 

1997 8-hour ozone standards, the PM– 

10 standard, and the lead standard. 

B. History and Basis of EPA’s Clean 

Data Policy 

Following enactment of the CAA 

Amendments of 1990, EPA promulgated 

its interpretation of the requirements for 

implementing the NAAQS in the 

General Preamble for the 

Implementation of Title I of the CAA 

Amendments of 1990 (General 

Preamble) 57 FR 13498, 13564 (April 16, 

1992). In 1995, based on the 

interpretation of CAA sections 171 and 

172, and section 182 in the General 

Preamble, EPA set forth what has 

become known as its ‘‘Clean Data 

Policy’’ for the 1-hour ozone NAAQS. 

See Memorandum from John S. Seitz, 

Director, Office of Air Quality Planning 

and Standards, ‘‘Reasonable Further 

Progress, Attainment Demonstration, 

and Related Requirements for Ozone 

Nonattainment Areas Meeting the 

Ozone National Ambient Air Quality 

Standard’’ (May 10, 1995). In 2004, EPA 

indicated its intention to extend the 

Clean Data Policy to the PM2.5 NAAQS. 

See Memorandum from Steve Page, 

Director, EPA Office of Air Quality 

Planning and Standards, ‘‘Clean Data 

Policy for the Fine Particle National 

Ambient Air Quality Standards’’ 

(December 14, 2004). 

Since 1995, EPA has applied its 

interpretation under the Clean Data 

Policy in many rulemakings, 

suspending certain attainment-related 

planning requirements for individual 

areas, based on a determination of 

attainment. See 60 FR 36723 (July 18, 

1995) (Salt Lake and Davis Counties, 

Utah, 1-hour ozone); 61 FR 20458 (May 

7, 1996) (Cleveland-Akron-Lorain, Ohio, 

1-hour ozone); 61 FR 31832 (June 21, 

1996) (Grand Rapids, Michigan, 1-hour 

ozone); 65 FR 37879 (June 19, 2000) 

(Cincinnati-Hamilton, Ohio-Kentucky, 

1-hour ozone); 66 FR 53094 (October 19, 

2001) (Pittsburgh-Beaver Valley, 

Pennsylvania, 1-hour ozone); 68 FR 

25418 (May 12, 2003) (St. Louis, 

Missouri-Illinois, 1-hour ozone); 69 FR 

21717 (April 22, 2004) (San Francisco 

Bay Area, California, 1-hour ozone); 75 

FR 6570 (February 10, 2010) (Baton 

Rouge, Louisiana, 1-hour ozone); 75 FR 

27944 (May 19, 2010) (Coso Junction, 

California, PM10). 

EPA also incorporated its 

interpretation under the Clean Data 

Policy in several implementation rules. 

See Clean Air Fine Particle 

Implementation Rule, 72 FR 20586 

(April 25, 2007); Final Rule To 

Implement the 8-Hour Ozone National 

Ambient Air Quality Standard—Phase 

2, 70 FR 71612 (November 29, 2005). 

The Court of Appeals for the District of 

Columbia Circuit (D.C. Circuit) upheld 

EPA’s rule embodying the Clean Data 

Policy for the 1997 8-hour ozone 

standard. NRDC v. EPA, 571 F.3d 1245 

(D.C. Cir. 2009). Other courts have 

reviewed and considered individual 

rulemakings applying EPA’s Clean Data 

Policy, and have consistently upheld 

them in every case. Sierra Club v. EPA, 

99 F.3d 1551 (10th Cir. 1996); Sierra 

Club v. EPA, 375 F.3d 537 (7th Cir. 

2004); Our Children’s Earth Foundation 

v. EPA, No. 04–73032 (9th Cir. June 28, 

2005 (Memorandum Opinion)), Latino 

Issues Forum v. EPA, Nos. 06–75831 

and 08–71238 (9th Cir. March 2, 2009 

(Memorandum Opinion)). 

EPA sets forth below a brief 

explanation of the statutory 

interpretations in the Clean Data Policy. 

EPA also incorporates the discussions of 

its interpretation set forth in prior 

rulemakings, including the 1997 PM2.5

implementation rulemaking. See 72 FR 

20586, at 20603–20605 (April 25, 2007). 

See also 75 FR 31288 (June 3, 2010) 

(Providence, Rhode Island, 1997 8-hour 

ozone); 75 FR 62470 (October 12, 2010) 

(Knoxville, Tennessee, 1997 8-hour 

ozone); 75 FR 53219 (August 31, 2010) 

(Greater Connecticut Area, 1997 8-hour 

ozone); 75 FR 54778 (September 9, 

2010) (Baton Rouge, Louisiana, 1997 8- 

hour ozone); 75 FR 64949 (October 21, 

2010) (Providence, Rhode Island, 1997 

8-hour ozone); 76 FR 11080 (March 1, 

2011) (Milwaukee-Racine and 

Sheboygan Areas, Wisconsin, 1997 8- 

hour ozone); 76 FR 31237 (May 31, 

2011) (Pittsburgh-Beaver Valley, 

Pennsylvania, 1997 8-hour ozone); 76 

FR 33647 (June 9, 2011) (St. Louis, 

Missouri-Illinois, 1997 8-hour ozone); 

76 FR 70656 (November 15, 2011) 

(Charlotte-Gastonia-Rock Hill, North 

Carolina-South Carolina, 1997 8-hour 

ozone); 77 FR 31496 (May 29, 2012) 

(Boston-Lawrence-Worchester, 

Massachusetts, 1997 8-hour ozone). See 

also, 75 FR 56 (January 4, 2010) 

(Greensboro-Winston-Salem-High Point, 

North Carolina, 1997 PM2.5); 75 FR 230 

(January 5, 2010) (Hickory-MorgantonLenoir, North Carolina, 1997 PM2.5); 76 

FR 12860 (March 9, 2011) (Louisville, 

Kentucky-Indiana, 1997 PM2.5); 76 FR 

18650 (April 5, 2011) (Rome, Georgia, 

1997 PM2.5); 76 FR 31239 (May 31, 

2011) (Chattanooga, Tennessee-GeorgiaAlabama, 1997 PM2.5); 76 FR 31858 

(June 2, 2011) (Macon, Georgia, 1997 

PM2.5); 76 FR 36873 (June 23, 2011) 

(Atlanta, Georgia, 1997 PM2.5); 76 FR 

38023 (June 29, 2011) (Birmingham, 

Alabama, 1997 PM2.5); 76 FR 55542 

(September 7, 2011) (HuntingtonAshland, West Virginia-Kentucky-Ohio, 

1997 PM2.5); 76 FR 60373 (September 

29, 2011) (Cincinnati, Ohio-KentuckyIndiana, 1997 PM2.5); 77 FR 18922 

(March 29, 2012) (Harrisburg-LebanonCarlisle-York, Allentown, Johnstown 

and Lancaster, Pennsylvania, 1997 

PM2.5). 

The Clean Data Policy represents 

EPA’s interpretation that certain 

requirements of subpart 1 of part D of 


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Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Proposed Rules 65525 

17This discussion refers to subpart 1 because 

subpart 1 contains the requirements relating to 

attainment of the 2006 PM2.5 NAAQS. 

18This interpretation was adopted in the General 

Preamble, see 57 FR 13498, and has been upheld 

as applied to the Clean Data Policy, as well as to 

nonattainment SIP submissions. See NRDC v. EPA, 

571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 

294 F.3d 155 (D.C. Cir. 2002). 

the Act are by their terms not applicable 

to areas that are currently attaining the 

NAAQS.17 As explained below, the 

specific requirements that are 

inapplicable to an area attaining the 

standard are the requirements to submit 

a SIP that provides for: Attainment of 

the NAAQS; implementation of all 

reasonably available control measures; 

reasonable further progress (RFP); and 

implementation of contingency 

measures for failure to meet deadlines 

for RFP and attainment. 

CAA section 172(c)(1), the 

requirement for an attainment 

demonstration, provides in relevant part 

that SIPs ‘‘shall provide for attainment 

of the [NAAQS].’’ EPA has interpreted 

this requirement as not applying to 

areas that have already attained the 

standard. If an area has attained the 

standard, there is no need to submit a 

plan demonstrating how the area will 

reach attainment. In the General 

Preamble (57 FR 13564), EPA stated that 

no other measures to provide for 

attainment would be needed by areas 

seeking redesignation to attainment 

since ‘‘attainment will have been 

reached.’’ See also Memorandum from 

John Calcagni, ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ (September 4, 

1992), at page 6. 

A component of the attainment plan 

specified under section 172(c)(1) is the 

requirement to provide for ‘‘the 

implementation of all reasonably 

available control measures as 

expeditiously as practicable’’ (RACM). 

Since RACM is an element of the 

attainment demonstration, see General 

Preamble (57 FR 13560), for the same 

reason the attainment demonstration no 

longer applies by its own terms, RACM 

also no longer applies to areas that EPA 

has determined have clean air. 

Furthermore, EPA has consistently 

interpreted this provision to require 

only implementation of such potential 

RACM measures that could advance 

attainment.18 Thus, where an area is 

already attaining the standard, no 

additional RACM measures are 

required. EPA’s interpretation that the 

statute requires only implementation of 

the 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). See 

also the final rulemakings for 

Pittsburgh-Beaver Valley, Pennsylvania, 

66 FR 53096 (October 19, 2001) and St. 

Louis, Missouri-Illinois, 68 FR 25418 

(May 12, 2003). 

CAA section 172(c)(2) provides that 

SIP provisions in nonattainment areas 

must require ‘‘reasonable further 

progress.’’ The term ‘‘reasonable further 

progress’’ is defined in section 171(1) as 

‘‘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, 

by definition, the ‘‘reasonable further 

progress’’ provision under subpart 1 

requires only such reductions in 

emissions as are necessary to attain the 

NAAQS. If an area has attained the 

NAAQS, the purpose of the RFP 

requirement has been fulfilled, and 

since the area has already attained, 

showing that the State will make RFP 

towards attainment ‘‘[has] no meaning 

at that point.’’ General Preamble, 57 FR 

13498, 13564 (April 16, 1992). 

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].’’ This contingency 

measure requirement is inextricably tied 

to the reasonable further progress and 

attainment demonstration requirements. 

Contingency measures are implemented 

if reasonable further progress 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 

EPA stated in the General Preamble: 

‘‘The section 172(c)(9) requirements for 

contingency measures are directed at 

ensuring RFP and attainment by the 

applicable date.’’ See 57 FR 13564. Thus 

these requirements no longer apply 

when an area has attained the standard. 

It is important to note that should an 

area attain the 2006 PM2.5 standard 

based on three years of data, its 

obligation to submit an attainment 

demonstration and related planning 

submissions is suspended only for so 

long as the area continues to attain the 

standard. If EPA subsequently 

determines, after notice-and-comment 

rulemaking, that the area has violated 

the NAAQS, the requirements for the 

State to submit a SIP to meet the 

previously suspended requirements 

would be reinstated. It is likewise 

important to note that the area remains 

designated nonattainment pending a 

further redesignation action. 

V. EPA’s Proposed Action and Request 

for Public Comment 

EPA is proposing to determine that 

the San Francisco Bay Area 

nonattainment area in California has 

attained the 2006 24-hour PM2.5

standard based on the most recent three 

years of complete, quality-assured, and 

certified data for 2009–2011. 

Preliminary data available in AQS for 

2012 show that this area continues to 

attain the standard. 

EPA further proposes that, if its 

proposed determination of attainment is 

made final, the requirements for the San 

Francisco Bay Area 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 PM2.5 NAAQS would be 

suspended for so long as the area 

continues to attain the 2006 PM2.5

NAAQS. EPA’s proposal 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) and the 1997 fine 

particulate matter standards (see 40 CFR 

51.1004(c)). As described below, any 

such determination would not be 

equivalent to the redesignation of the 

area to attainment for the 2006 PM2.5

NAAQS. 

Any final action resulting from this 

proposal would not constitute a 

redesignation to attainment under CAA 

section 107(d)(3) because we have not 

yet approved a maintenance plan for the 

San Francisco Bay Area 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 would remain 

nonattainment for this area until such 

time as EPA determines that California 

has met the CAA requirements for 

redesignating the San Francisco Bay 

Area nonattainment area to attainment. 

If the San Francisco Bay Area 

nonattainment area continues to 

monitor attainment of the 2006 PM2.5

NAAQS, EPA proposes that the 

requirements for the area to submit an 


rmajette on DSK2TPTVN1PROD with 
65526 Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Proposed Rules 

attainment demonstration and 

associated RACM, a RFP plan, 

contingency measures, and any other 

planning requirements related to 

attainment of the 2006 PM2.5 NAAQS 

will remain suspended. If this proposed 

rulemaking is finalized and EPA 

subsequently determines, after noticeand-comment rulemaking in the Federal 

Register, that the area has violated the 

2006 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. 

EPA is soliciting public comments on 

the issues discussed in this document or 

on other relevant matters. We will 

accept comments from the public on 

this proposal for the next 30 days. We 

will consider these comments before 

taking final action. 

VI. Statutory and Executive Order 

Reviews 

This action proposes to make a 

determination of attainment based on 

air quality and to suspend certain 

federal requirements, and thus, would 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

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 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed 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 

proposed action will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Nitrogen 

oxides, Sulfur oxides, Reporting and 

recordkeeping requirements. 

Dated: October 15, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–26528 Filed 10–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[CG Docket Nos. 03–123 and 10–51; DA 12– 

1644] 

Telecommunications Relay Services 

and Speech-to-Speech Services for 

Individuals With Hearing and Speech 

Disabilities; Structure and Practices of 

the Video Relay Service Program 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission seeks comment on matters 

related to access technology and 

enhanced database operations for video 

relay service (VRS) raised in recent 

filings submitted by CSDVRS, LLC, a 

VRS provider. In order for the 

Commission to be in a position to set 

new rates as it moves forward with the 

next phase of VRS reform, it also seeks 

comment on a proposal by the Fund 

administrator, Rolka Loube Saltzer 

Associates (RLSA), to modify VRS 

compensation rates. 

DATES: Comments are due on or before 

November 14, 2012. Reply comments 

are due on or before November 29, 2012. 

ADDRESSES: You may submit comments, 

identified by CG Docket Nos. 03–123 

and 10–51, by any of the following 

methods: 

D Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the Commission’s Electronic 

Comment Filing System (ECFS), through 

the Commission’s Web site: http:// 

fjallfoss.fcc.gov/ecfs2/. Filers should 

follow the instructions provided on the 

Web site for submitting comments. For 

ECFS filers, in completing the 

transmittal screen, filers should include 

their full name, U.S. Postal service 

mailing address, and CG Docket Nos. 

03–123 and 10–51. Paper Filers: Parties 

who choose to file by paper must file an 

original and one copy of each filing. If 

more than one docket or rulemaking 

number appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. Filings 

can be sent by hand or messenger 

delivery, by commercial overnight 

courier, or by first-class or overnight 

U.S. Postal Service mail (although the 

Commission continues to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

D All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th Street SW., Room TW–A325, 

Washington, DC 20554. The filing hours 

are 8:00 a.m. to 7:00 p.m. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes and boxes must be disposed 

of before entering the building. 

D Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

D U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street SW., 

Washington DC 20554. 

D In addition, parties must serve one 

copy of each pleading with the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street SW., Room CY–B402, 

Washington, DC 20554, or via email to 

fcc@bcpiweb.com. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Hlibok, Consumer and 

Governmental Affairs Bureau, Disability 

Rights Office, at (202) 559–5158 (voice/ 

videophone), (202) 418–0431 (TTY), or 

email at Gregory.Hlibok@fcc.gov, or 


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