[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Rules and Regulations]
[Pages 10391-10395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03329]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2014-0032; FRL-9906-80-OAR]
Finding of Failure To Submit State Implementation Plans Required
for the 2008 Lead National Ambient Air Quality Standards (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action finding that the Commonwealth of Pennsylvania has not submitted
state implementation plans (SIPs) for three nonattainment areas in
Berks and Beaver Counties to meet the requirements of the Clean Air Act
(CAA) for attaining the 2008 Lead National Ambient Air Quality
Standards (NAAQS). Pennsylvania has not yet submitted SIPs for three
nonattainment areas--the Lyons and North Reading nonattainment areas in
Berks County and the Lower Beaver Valley nonattainment area in Beaver
County--that demonstrate how each nonattainment area would attain the
2008 Lead NAAQS as expeditiously as practicable. These plans were due
by June 30, 2012. If Pennsylvania has not submitted and the EPA has not
approved the required attainment plans for its nonattainment areas by
no later than 2 years after the effective date of this finding, the EPA
must promulgate a federal implementation plan (FIP) for the affected
nonattainment area. In addition, the CAA provides for the imposition of
sanctions if the state does not submit the required attainment SIP
within specific timeframes.
DATES: Effective Date: This action is effective on February 25, 2014.
Under the Administrative Procedure Act (APA), 5 U.S.C. 553(d)(3), an
agency rulemaking may take effect before 30 days after the date of
publication in the Federal Register if the agency has good cause to
specify an earlier effective date. This action concerns SIP submissions
that were due by June 30, 2012. In addition, this action simply starts
a ``clock'' that will not result in sanctions for 18 months, and which
Pennsylvania may avoid by submitting complete SIPs to the EPA. The EPA
finds these reasons provide good cause for an immediate effective date.
FOR FURTHER INFORMATION CONTACT: General questions concerning this rule
should be addressed to Ms. Mia South, Office of Air Quality Planning
and Standards, Air Quality Policy Division, U.S. Environmental
Protection Agency, Mail Code: C504-2, 109 T.W. Alexander Drive,
Research Triangle Park, NC 27711; telephone (919) 541-5550. For
questions related to Pennsylvania, please contact the EPA's Region 3,
Cristina Fernandez, Associate Director, Office of Air Program Planning
(3AP30), Air Protection Division, U.S. Environmental Protection Agency,
Region 3, 1650 Arch Street, Philadelphia, PA 19103-2023; telephone
(215) 814-2178.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Notice-and-Comment Under the APA
Section 553 of the APA, 5 U.S.C. 553(b)(B), provides that, when an
agency for good cause finds that notice and public procedure are
impracticable, unnecessary or contrary to the public interest, the
agency may issue a rule without providing notice and an opportunity for
public comment. The EPA has determined that there is good cause for
making this rule final without prior proposal and opportunity for
comment because no significant EPA judgment is involved in making a
finding of failure to submit SIPs, or elements of SIPs, required by the
CAA, where states have made no submissions to meet the requirement.
Thus, notice and public procedure are unnecessary. The EPA finds that
this constitutes good cause under 5 U.S.C. 553(b)(B). As the EPA has
explained in prior rulemakings, see e.g., 58 FR 51270, 51272, n.7
(October 1, 1993), under section 110(k)(1), the CAA provides the EPA
with a 60-day period after receiving a submittal from a state in which
to determine whether a submittal is complete. If no plan is submitted,
the CAA requires the EPA to make a determination to that effect within
6 months of the deadline for submittal. Since Congress provided the EPA
only 60 days to determine whether a state that has made some submittal
failed to submit a complete SIP, and it is generally impossible to
assess a submittal for completeness and then provide notice-and-comment
before making a final determination within 60 days, the EPA believes
that Congress clearly intended that the EPA should not go through
notice-and-comment rulemaking prior to making findings of failure to
submit a complete SIP when the state has made some submittal. In this
case, the EPA is making findings that the state has made no submittal,
and therefore no complete submittal, more than 6 months after the
deadline for submittal, but the EPA similarly
[[Page 10392]]
believes that Congress did not intend that the EPA go through notice-
and-comment rulemaking in this case.
B. How can I get copies of this document and other related information?
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2014-0032. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the EPA Docket Center, EPA/DC, William Jefferson Clinton
Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744 and the telephone number for the Office
of Air and Radiation Docket and Information Center is (202) 566-1742.
C. How is this preamble organized?
Table of Contents
I. General Information
A. Notice-and-Comment Under the APA
B. How can I get copies of this document and other related
information?
C. How is the preamble organized?
II. Background and Overview
A. Statutory Requirements
B. The EPA's Clean Data Policy
III. Findings of Failure To Submit for Pennsylvania for Attainment
SIPs for the 2008 Lead NAAQS
IV. This Action
V. Statutory and Executive Order (EO) Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority and Low Income Populations
K. Congressional Review Act
L. Judicial Review
II. Background and Overview
Subpart 5, part D of title I of the CAA requires states with areas
that are designated nonattainment for the 2008 Lead NAAQS to develop a
SIP providing how the state will attain the air standards. Section 172
of the CAA specifies the required elements of a SIP for an area
designated nonattainment for the 2008 Lead NAAQS. These requirements
include, but are not limited to, an attainment demonstration,
reasonably available control measures (RACM) and reasonably available
control technology (RACT), annual emissions reductions as necessary to
ensure reasonable further progress (RFP) and contingency measures. Most
states with lead nonattainment areas designated in 2010 have submitted
SIPs addressing these requirements as required under the CAA. However,
one state, Pennsylvania, has not yet submitted SIPs for three
nonattainment areas--the Lyons and North Reading nonattainment areas in
Berks County and the Lower Beaver Valley nonattainment area in Beaver
County. These SIPs were due on June 30, 2012. By this action, the EPA
is making a finding that Pennsylvania has failed to submit the required
complete SIPs for these three nonattainment areas.
A. Statutory Requirements
On October 15, 2008, the EPA promulgated revised NAAQS for lead.\1\
The agency revised the level of the primary lead standard from 1.5
micrograms per cubic meter ([mu]g/m\3\) to 0.15 [mu]g/m\3\, and also
revised the averaging time and form of the lead standards. The
calculation method for the averaging time is a ``rolling'' 3-month
period with a maximum (not-to-be-exceeded) form, evaluated over a 3-
year period. The EPA also revised the secondary NAAQS to make it
identical to the revised primary standard. In conjunction with
strengthening the lead standards, the EPA improved the existing lead
monitoring network by requiring monitors to be placed in areas with
sources, such as certain industrial facilities, and at other sites.
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\1\ See 73 FR 66964, November 12, 2008, National Ambient Air
Quality Standards for Lead, Final Rule.
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On November 16, 2010, the EPA identified or ``designated'' 16
areas, consisting of 17 partial counties, as ``nonattainment areas''
not meeting the 2008 NAAQS for lead. In this first round, the EPA
designated areas nonattainment based on 2007-2009 air quality
monitoring data. These designation actions were effective on December
31, 2010. On November 8, 2011, the EPA completed a second round of
designations, based on monitoring data from 2008-2010, including
monitors newly established under the 2008 Lead NAAQS Rule. In this
second round, the EPA designated five areas, including five partial
counties, as nonattainment and designated the remaining areas in the
country as attainment/unclassifiable or unclassifiable for the 2008
Lead NAAQS. These designation actions were effective on December 31,
2011. For the full listing of areas designated nonattainment for the
2008 Lead NAAQS (15 states, 21 nonattainment areas and 22 partial
counties) see http://www.epa.gov/leaddesignations/2008standards/documents/2011-11-08/LeadNAAreaList.pdf.
The three areas in Pennsylvania were designated nonattainment in
the first round, effective December 31, 2010. In accordance with the
CAA, attainment SIPs for these areas were required to be submitted no
later than June 30, 2012. As explained in further detail in the 2008
Lead NAAQS Rule, the key required elements of the attainment SIP
include the attainment demonstration, RACM/RACT, RFP and contingency
measures. The attainment demonstration provides details on how a
nonattainment area will reduce pollution and provides a plan for the
area to meet the lead NAAQS. Under subpart 5 part D of title I of the
CAA, an attainment demonstration for these areas is required to show
how the nonattainment area will attain the 2008 Lead NAAQS as
expeditiously as practicable, but no later than 5 years after the
effective date of designation, or December 31, 2015, for the areas
designated in the first round for which Pennsylvania failed to submit
an attainment SIP. The attainment demonstration takes into account
projected emission reductions from existing federal and state measures,
plus any additional RACM/RACT that are adopted by the state to attain
``as expeditiously as practicable.'' Air quality modeling of these
projected emissions reductions in future years is an important element
of the attainment demonstration.
Each nonattainment SIP must include RACM/RACT as necessary for the
area to attain the 2008 Lead NAAQS. The CAA requires the state to
demonstrate that it has adopted all RACM, considering economic and
technical feasibility and other factors, that are needed to show that
the area will attain the lead standards as expeditiously as
practicable. The 2008 Lead NAAQS Rule sets forth more specific guidance
for making RACM and RACT determinations.
Each plan must also ensure that the area is making RFP in terms of
emission reductions and air quality improvements toward attainment. The
[[Page 10393]]
2008 Lead NAAQS Rule provides that the RFP element of a SIP include a
detailed schedule for the implementation of RACM (including RACT) that
accurately indicates the corresponding annual emission reductions to be
achieved.
SIPs must also include contingency measures, which are emission
reduction measures to be undertaken if the area fails to satisfy the
RFP requirement or fails to attain the 2008 Lead NAAQS by the
attainment date. These measures are to take effect without significant
further action by the state or the EPA. As discussed in the 2008 Lead
NAAQS Rule, the EPA generally expects that contingency measures will be
implemented as expeditiously as practicable, and will be fully
implemented within 60 days of the EPA notifying the state that
contingency measures are necessary.
B. The EPA's Clean Data Policy
The Clean Data Policy represents the EPA's interpretation that
certain requirements of subpart 1 of part D of title I of the Act are
by their terms not applicable to areas that are attaining the NAAQS.\2\
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 RACM, RFP and
implementation of contingency measures for failure to meet deadlines
for RFP and attainment. The EPA has previously applied the Clean Data
Policy to the 2008 Lead NAAQS. See e.g., 77 FR 35653 (June 14, 2012)
(proposed determination of attainment of the 2008 lead standards for
Bristol, TN); 77 FR 52232 (August 29, 2012) (final rule). For more
information about the history, rationale and application of the Clean
Data Policy, see 77 FR 35653-35654.
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\2\ This discussion refers to subpart 1 because subparts 1 and 5
contain the requirements relating to attainment of the lead NAAQS.
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We note that several lead nonattainment areas currently have air
quality that attains the 2008 Lead NAAQS, but have not yet completed
the process for redesignating the area to attainment. Where the EPA has
published in the Federal Register a clean data determination for an
area, a state's obligation to submit RACM/RACT, contingency measures,
RFP and attainment demonstrations for that area are suspended as of the
effective date of the clean air determination. This suspension will
remain in effect unless the EPA subsequently determines, after notice-
and-comment rulemaking, that the area has again violated the 2008 Lead
NAAQS, in which case the requirements are again due or the area is
redesignated to attainment, in which case the requirements are
permanently no longer applicable. Thus, states with areas that have
received final clean data determinations and have not submitted SIPs
for these areas are not subject to the final action in this rule.
III. Findings of Failure To Submit for Pennsylvania for Attainment SIPs
for the 2008 Lead NAAQS
Section 179(a)(1) of the CAA establishes specific consequences if
the EPA finds that a state has failed to submit a SIP or, with regard
to a submitted SIP, if the EPA determines it is incomplete or if the
EPA disapproves it. Additionally, any of these findings also triggers
an obligation for the EPA to promulgate a FIP if the state has not
submitted, and the EPA has not approved, the required SIP within 2
years of the finding.
The EPA is finding that Pennsylvania has failed to make the
required nonattainment SIP submissions for the Lyons and North Reading
nonattainment areas in Berks County and the Lower Beaver Valley
nonattainment area in Beaver County. If the EPA has not affirmatively
determined that Pennsylvania has made the required complete
nonattainment SIP submissions within 18 months of the effective date of
this action then, pursuant to CAA section 179(a) and (b) and 40 CFR
52.31, the offset sanction identified in CAA section 179(b)(2) will
apply in any area subject to the findings for which a complete
submission has not been made. If the EPA has not affirmatively
determined that Pennsylvania has made a complete submission for each
area subject to the findings within 6 months after the emission offset
sanction is imposed, then the highway funding sanction will also apply
in any area subject to the finding for which a complete submission has
not been made, in accordance with CAA section 179(b)(1) and 40 CFR
52.31. The 18-month clock will stop and the sanctions will not take
effect, within 18 months after the date of this finding, if the EPA
finds that Pennsylvania has made a complete nonattainment SIP
submission for each area for which the finding is being made or if the
EPA makes a determination the area is attaining the standard consistent
with the EPA's Clean Data Policy. In addition, the EPA is not required
to promulgate a FIP if Pennsylvania makes the required SIP submittal,
and the EPA takes final action to approve the submittal, or if EPA
makes a final determination the area is attaining the standard
consistent with the Clean Data Policy, within 2 years of the EPA's
finding. Contemporaneous with the signing of this rule, the EPA Region
3 Regional Administrator is sending a letter to the governor of
Pennsylvania informing the governor that the EPA is determining that
Pennsylvania has failed to make the required SIP submissions for the
specified areas. This letter and any accompanying enclosures have been
included in the docket for this action.
IV. This Action
In this action, the EPA is making a finding of failure to submit
for Pennsylvania with regard to areas designated nonattainment for lead
in 2010. Pennsylvania has not yet submitted attainment SIPs for three
nonattainment areas--the Lyons and North Reading nonattainment areas in
Berks County and the Lower Beaver Valley nonattainment area in Beaver
County.
In accordance with CAA section 179, this finding starts the 18-
month emission offset sanctions clock, the 24-month highway funding
sanctions clock and a 24-month clock for the promulgation by the EPA of
a FIP. This action will be effective on February 25, 2014.
V. Statutory and Executive Order (EO) Reviews
A. Executive Order 12866: Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under EO 12866 and 13563 (76 FR
3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This final action does not establish any new information collection
requirement apart from that already required by law. This action makes
a finding that Pennsylvania failed to submit attainment SIPs for the
2008 Lead NAAQS as required by the CAA. Burden means the total time,
effort or financial resources expended by persons to generate,
maintain, retain, disclose or provide information to or for a federal
agency. This includes the time needed to review instructions; develop,
acquire,
[[Page 10394]]
install and utilize technology and systems for the purposes of
collecting, validating and verifying information, processing and
maintaining information and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information. An agency may not conduct or sponsor and a person is not
required to respond to a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
The OMB control numbers for the EPA's regulations in the CFR are listed
in 40 CFR Part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the APA or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions. For the purpose of assessing the impacts of
this final action on small entities, small entity is defined as: (1) A
small business that is a small industry entity as defined in the U.S.
Small Business Administration (SBA) size standards (See 13 CFR 121);
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this final action on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
action will not impose any requirements on small entities. This action
makes a finding that Pennsylvania failed to submit attainment SIPs for
the 2008 Lead NAAQS as required by the CAA.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This action contains no federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local and tribal governments and the private sector.
The action imposes no enforceable duty on any state, local or tribal
governments or the private sector, because the requirement to submit an
attainment SIP is established in the Clean Air Act. Therefore, this
action is not subject to the requirements of section 202 and 205 of the
UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action makes a
finding that Pennsylvania failed to submit attainment SIPs for the 2008
Lead NAAQS as required by the CAA.
E. Executive Order 13132: Federalism
EO 13132, titled ``Federalism'' (64 FR 43255, August 10, 1999),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the EO to
include regulations that have ``substantial direct effects on the
states or the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government.'' This final action does not have
federalism implications. It will not have substantial direct effects on
the states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
The CAA establishes the scheme whereby states take the lead in
developing plans to meet the NAAQS. This action will not modify the
relationship of the states and the EPA for purposes of developing
programs to implement the NAAQS. Thus, Executive Order 13132 does not
apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
EO 13175, titled ``Consultation and Coordination with Indian Tribal
Governments'' (65 FR 67249, November 9, 2000), requires the EPA to
develop an accountable process to ensure ``meaningful and timely input
by Tribal officials in the development of regulatory policies that have
Tribal implications.'' This final action does not have tribal
implications, as specified in EO 13175. This action responds to the
requirement in the CAA for states to submit nonattainment SIPs for the
2008 Lead NAAQS.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is subject to Executive Order 13045 because it is making
findings that Pennsylvania failed to submit nonattainment SIPs for the
2008 Lead NAAQS as required by the CAA. The enforceable measures in the
attainment SIPs will ensure that the areas will attain the NAAQS for
lead, which was established to protect public health, including the
health of children, with an adequate margin of safety.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution or use of energy.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA of 1995 Public Law 104-113, section
12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus
standards (VCS) in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impracticable. VCS are
technical standards (e.g., materials specifications, test methods,
sampling procedures and business practices) that are developed or
adopted by VCS bodies. The NTTAA directs the EPA to provide Congress,
through OMB, explanations when the agency decides not to use available
and applicable VCS. This action does not involve technical standards.
Therefore, the EPA did not consider the use of any VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
[[Page 10395]]
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States. The EPA has determined that this
final action will not have disproportionately high and adverse human
health or environmental effects on minority or low-income populations
because it does not directly affect the level of protection provided to
human health or the environment. This rule is making a finding that
Pennsylvania failed to submit nonattainment SIPs for the 2008 Lead
NAAQS as required by the CAA. The enforceable measures in the
attainment SIPs will ensure that the areas will attain the NAAQS for
lead, which was established to protect public health, including the
health of minority and low income populations, with an adequate margin
of safety.
K. Congressional Review Act
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. The 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 action 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). This action will be effective February 25, 2014.
L. Judicial Review
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 Third Circuit within 60 days from the date this action is published
in the Federal Register. Filing a petition for reconsideration by the
Administrator of this final action 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 must be filed, and shall
not postpone the effectiveness of this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Approval and promulgation of
implementation plans, Administrative practice and procedures, Air
pollution control, Incorporation by reference, Intergovernmental
relations, and Reporting and recordkeeping requirements.
Dated: February 7, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2014-03329 Filed 2-24-14; 8:45 am]
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