
[Federal Register Volume 78, Number 38 (Tuesday, February 26, 2013)]
[Rules and Regulations]
[Pages 12961-12965]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04293]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2012-0943, FRL-9784-6]


Findings of Failure To Submit a Complete State Implementation 
Plan for Section 110(a) Pertaining to the 2008 Lead National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finding that seven states have not made complete 
state implementation plan (SIP) submissions to address certain SIP 
elements, as required by the Clean Air Act (CAA). Specifically, the EPA 
is determining that these seven states have not submitted complete SIPs 
that provide the basic CAA program elements necessary to implement the 
2008 lead national ambient air quality standards (NAAQS). The EPA 
refers to these SIP submissions as ``infrastructure'' SIPs. Of the 
seven states, three are incomplete only due to prevention of 
significant deterioration (PSD)-related elements, for which a federal 
implementation plan (FIP) is in place. The remaining 43 states have 
made complete submissions. Each finding of failure to submit 
establishes a 24-month deadline for the EPA to promulgate FIPs to 
address the outstanding SIP elements unless prior to the EPA 
promulgating a FIP an affected state submits, and the EPA approves, a 
SIP that corrects the deficiency.

DATES: The effective date of this rule is March 28, 2013.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Ms. Mia South: telephone (919) 541-5550, 
email south.mia@epa.gov; or Mr. Larry Wallace: telephone (919) 541-
0906, email wallace.larry@epa.gov, Office of Air Quality Planning and 
Standards, Air Quality Policy Division, Mail Code C504-2, 109 TW 
Alexander Drive, Research Triangle Park, NC 27709.

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures 
Act, 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, or incomplete 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).
    For questions related to specific states mentioned in this notice, 
please contact the appropriate EPA Regional Office:

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       Regional offices                          States
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EPA Region I: Dave Conroy,     Massachusetts and Vermont.
 Air Program Branch Manager,
 Air Programs Branch, EPA New
 England, 1 Congress Street,
 Suite 1100, Boston, MA 02203-
 2211.
EPA Region II: Richard Ruvo,   New Jersey.
 Acting Chief, Air Programs
 Branch, EPA Region II, 290
 Broadway, 21st Floor, New
 York, NY 10007-1866.
EPA Region III: Cristina       Maryland and Pennsylvania.
 Fernandez, Air Program
 Manager, Air Quality
 Planning Branch, EPA Region
 III, 1650 Arch Street,
 Philadelphia, PA 19103-2187.
EPA Region V: John Mooney,     Illinois.
 Air Program Branch Manager,
 Air Programs Branch, EPA
 Region V, 77 West Jackson
 Street, Chicago, IL 60604.
EPA Region VI: Guy Donaldson,  Oklahoma.
 Chief, Air Planning Section,
 EPA Region VI, 1445 Ross
 Avenue, Dallas, TX 75202-
 2733.
EPA Region VIII: Monica        Colorado and South Dakota.
 Morales, Air Program Manger,
 Air Quality Planning Unit,
 EPA Region VIII Air Program,
 1595 Wynkoop St. (8P-AR),
 Denver, CO 80202-1129.
EPA Region IX: Doris Lo,       Hawaii.
 Acting Air Program Manager,
 Air Planning Office, EPA
 Region IX, 75 Hawthorne
 Street, San Francisco, CA
 94105.
EPA Region X: Debra Suzuki,    Oregon and Washington.
 Air Program Manager, Air
 Planning Unit, EPA Region X,
 Office of Air, Waste, and
 Toxics, Mail Code AWT-107,
 1200 Sixth Avenue, Seattle,
 WA 98101.
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Table of Contents

I. Background and Overview
II. Findings of Failure to Submit for States That Failed to Make an 
Infrastructure SIP Submittal in Whole or in Part for the 2008 Lead 
NAAQS
    A. Findings of Failure To Submit for States That Failed To Make 
a Submittal
    B. Findings of Failure To Submit Specific Elements of Section 
110(a)(2)
III. Statutory and Executive Order 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
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority and Low Income Populations
    K. Congressional Review Act
    L. Judicial Review

[[Page 12962]]

I. Background and Overview

    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 revised 
other aspects of the standard. The EPA also revised the secondary NAAQS 
to make it identical to the revised primary standard.
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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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    The CAA section 110(a) imposes an obligation upon states to make a 
SIP submission with respect to the 2008 lead NAAQS. CAA section 
110(a)(1) requires states to submit SIPs that provide for the 
implementation, maintenance and enforcement of a new or revised NAAQS 
within 3 years following the promulgation of the new or revised NAAQS. 
The EPA has not prescribed a shorter deadline; therefore, October 15, 
2011, was the statutory deadline. Section 110(a)(2) lists specific 
requirements that states must meet in these SIP submissions, as 
applicable. The EPA refers to this type of SIP submission as the 
``infrastructure'' SIP. The requirements for infrastructure SIPs 
include basic SIP elements such as requirements for monitoring, basic 
program requirements and legal authority that are designed to assure 
attainment and maintenance of the NAAQS. The contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time the 
state develops and submits the SIP for a new or revised NAAQS 
necessarily affect the content of the submission. The content of such a 
SIP submission may also vary depending upon what provisions the state's 
existing SIP already contains. In the case of the 2008 lead NAAQS, the 
EPA believes that many states have met many of the basic program 
elements required in section 110(a)(2) through earlier SIP submissions 
in connection with previous NAAQS.
    Two elements identified in section 110(a)(2) are not governed by 
the 3-year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area requirements are not 
due within 3 years after promulgation of a new or revised NAAQS, but 
rather are due at the time the nonattainment area plan requirements are 
due pursuant to section 191.\2\ These requirements are: (i) Submissions 
required by section 110(a)(2)(C) to the extent that subsection refers 
to a nonattainment area new source review permit program for major 
sources as required in part D of title I of the CAA; and (ii) 
submissions required by section 110(a)(2)(I) which pertains to the 
nonattainment planning requirements of part D of title I of the CAA. 
Therefore, this action does not cover these specific SIP elements in 
section 110(a)(2). This action does cover the requirement that 
infrastructure SIPs provide for a minor source permitting program.
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    \2\ Nonattainment area plans required by part D title I of the 
CAA for the 2008 lead NAAQS are due 18 months after the effective 
date of designation of an area as nonattainment. The nonattainment 
plans are due June 30, 2012, for the first round of designations and 
June 30, 2013, for the second round of designations.
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    The EPA is also not, in this notice, issuing any findings of 
failure to submit SIPs addressing section 110(a)(2)(D)(i)(I) of the 
CAA. The EPA has historically interpreted section 110(a)(1) of the CAA 
as establishing the required submittal date for SIPs addressing all of 
the ``interstate transport'' requirements in section 110(a)(2)(D) 
including the provisions in section 110(a)(2)(D)(i)(I) regarding 
significant contribution to nonattainment and interference with 
maintenance. The D.C. Circuit's recent opinion in EME Homer City 
Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012), however, concluded 
that a SIP cannot be deemed to lack a required submission or deemed 
deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation until 
after the EPA quantifies that obligation. At this time, the deadline 
for asking the Supreme Court to review this decision has not passed, 
and the United States has made no decision regarding whether to seek 
further appeal. Nonetheless, the EPA intends to act in accordance with 
the holdings in the EME Homer City opinion. Therefore, at this time the 
EPA is not making findings that states failed to submit SIPs to comply 
with section 110(a)(2)(D)(i)(I).
    On September 24, 2012, litigants sued the EPA for failure to 
perform certain mandatory duties under the CAA, including a failure to 
find that the following states had failed to submit infrastructure SIPs 
for the 2008 lead NAAQS: Colorado, Hawaii, Illinois, Maryland, 
Massachusetts, New Jersey, Oklahoma, Oregon, Pennsylvania, South 
Dakota, Vermont and Washington.\3\ As of February 14, 2013, the states 
of Colorado, Maryland, Oklahoma, Pennsylvania and South Dakota have 
made complete submittals for their respective infrastructure SIPs for 
the 2008 lead NAAQS. With respect to the remaining states, the EPA is 
making findings of failure to submit, in whole or in part.
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    \3\ Center for Biological Diversity, et al., v. EPA, (N.D. Cal. 
No. 12-cv-04968).
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    After excluding SIP elements required by CAA sections 110(a)(2)(C) 
to the extent that subsection refers to a nonattainment area new source 
review permit program for major sources as required in part D of title 
I of the CAA, 110(a)(2)(I) regarding plans for nonattainment areas, and 
110(a)(2)(D)(i)(I) regarding interstate transport affecting attainment 
and maintenance of the NAAQS, as explained above, the remaining 
elements that are relevant to this action are the requirements of CAA 
sections 110(a)(2)(A), (B), (C) (but not with respect to the permitting 
program required by CAA title I subpart D), (D)(i)(II), (D)(ii), (E)-
(H) and (J)-(M).
    For those states cited in this litigation that have not yet made an 
infrastructure SIP submittal and those states that have made a 
submittal that was not complete with respect to each relevant element 
of section 110(a)(2), as applicable, the EPA is making a finding of 
failure to submit. Four states have not made any submittal, and for 
these states the EPA is making a finding with respect to all of the 
relevant section 110(a)(2) SIP elements. Three states made a SIP 
submittal that was found complete with respect to all required elements 
except those elements that are related to PSD in sections 110(a)(2)(C), 
(D)(i)(II), (D)(ii), and (J).\4\ For these three states, the EPA is 
issuing findings of failure to submit only with respect to the PSD-
related elements. For both sets of states, these findings reflect 
submissions received or not received as of February 14, 2013.
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    \4\ The PSD-related requirements are the requirements for a PSD 
permitting program in sections 110 (a)(2)(C) and (J), the 
requirements in section 110(a)(2)(D)(a)(ii) not to interfere with 
measures to prevent significant deterioration in another state's SIP 
and the requirement for notifications to other states in section 110 
(a)(2)(D)(ii).
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    These findings establish a 24-month deadline for the promulgation 
by the EPA of a FIP, in accordance with section 110(c)(1) for those 
states for which the EPA is making a finding unless the EPA has 
approved a final SIP by that date. These findings of failure to submit 
do not impose sanctions, or set deadlines for imposing sanctions as 
described in section 179 of the CAA, because these findings do not 
pertain to the elements of a part D, title I plan for nonattainment 
areas as required under section 110(a)(2)(I), and because these states 
have not failed to make submissions in response to a SIP call pursuant 
to section 110(k)(5). Moreover, the EPA has already promulgated a FIP 
that

[[Page 12963]]

addresses PSD-related requirements for each of the states for which the 
EPA is making a finding of failure to submit only for PSD-related 
requirements. Therefore, this action will not trigger any additional 
PSD FIP obligations in these three states. Two of the four states that 
did not make any submittal also are currently subject to PSD FIPs. The 
EPA recognizes that these five states may choose to have the existing 
PSD FIP continue to govern the permitting of their sources, in which 
case the current permitting process in each state will continue without 
the need for further action by the state.
    To summarize, the EPA is finding that seven states, as identified 
in section II of this notice, have not made a complete infrastructure 
SIP submission to meet certain requirements of section 110(a)(2) that 
are relevant to this action, as applicable, for the 2008 lead NAAQS. 
The EPA is committed to working with these states to expedite 
submissions as necessary, and to working with all the states to review 
and act on their infrastructure SIP submissions in accordance with the 
requirements of the CAA.

II. Findings of Failure to Submit for States That Failed to Make an 
Infrastructure SIP Submittal in Whole or in Part for the 2008 Lead 
NAAQS

    The EPA is making findings that certain states identified below 
have failed to submit a complete infrastructure SIP that provides 
certain basic program elements of section 110(a)(2) necessary to 
implement the 2008 lead NAAQS, by February 14, 2013. The EPA is 
establishing a 24-month deadline by which time the EPA must promulgate 
a FIP for each affected state to address the identified section 
110(a)(2) requirements, unless the state submits and the EPA approves a 
SIP revision that corrects the deficiency before the EPA promulgates a 
FIP for the state, in accordance with section 110(c)(1). This action 
will be effective 30 days after publication, on March 28, 2013.

A. Findings of Failure To Submit for States That Failed To Make a 
Submittal

    As of February 14, 2013, New Jersey, Oregon, Vermont and Washington 
failed to make a submittal to address the requirements of section 
110(a)(2)(A), (B), (C) (but not with respect to the permitting program 
required by CAA title I subpart D), (D)(i)(II), (D)(ii), (E)-(H) and 
(J)-(M).
    The effective date of this action starts a 24-month FIP clock for 
the EPA to approve a SIP for the affected states that addresses those 
requirements of section 110(a)(2), or for the EPA to finalize a FIP. 
The EPA notes that it has already promulgated FIPs to address PSD-
related requirements for New Jersey and Washington and therefore this 
action will not trigger additional PSD FIP obligations for these 
states.

B. Findings of Failure To Submit Specific Elements of Section 110(a)(2)

    Hawaii, Illinois and Massachusetts made submittals as of February 
14, 2013, that address all of the section 110(a)(2) requirements, with 
the exception of the PSD-related requirements in sections 110(a)(2)(C), 
(D)(i)(II), (D)(ii), and (J). The EPA notes that it has already 
promulgated a FIP to address PSD-related requirements for each of these 
states and therefore this action will not trigger any additional FIP 
obligations for these states.

III. Statutory and Executive Order Reviews

A. Executive Orders 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 rule does not establish any new information collection 
requirement apart from what is already required by law. This rule 
relates to the requirement in the CAA for states to submit SIPs under 
section 110(a) to satisfy certain infrastructure and general authority-
related elements required under section 110(a)(2) of the CAA for the 
2008 lead NAAQS. Section 110(a)(1) of the CAA requires that states 
submit SIPs that implement, maintain and enforce a new or revised NAAQS 
which satisfy the requirements of section 110(a)(2) within 3 years of 
promulgation of such standard, or such shorter period as the EPA may 
provide.
    Burden means the total time, effort or financial resources expended 
by persons to generate, maintain, retain or disclose or provide 
information to or for a federal agency. This includes the time needed 
to review instructions; develop, acquire, 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 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 Administrative 
Procedures Act (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 rule 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 part 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 rule on small 
entities, I certify that this rule will not have a significant economic 
impact on a substantial number of small entities. This final rule will 
not impose any requirements on small entities. This action relates to 
the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 2008 lead 
NAAQS. Section 110(a)(1) of the CAA requires that states submit SIPs 
that implement, maintain and enforce a new or revised NAAQS which 
satisfies the requirements of section 110(a)(2) within 3 years of 
promulgation of such standard, or such shorter period as the EPA may 
provide.

[[Page 12964]]

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. 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 relates 
to the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 2008 lead 
NAAQS. Section 110(a)(1) of the CAA requires that states submit SIPs 
that implement, maintain and enforce a new or revised NAAQS which 
satisfies the requirements of section 110(a)(2) within 3 years of 
promulgation of such standard, or such shorter period as the EPA may 
provide.

E. Executive Order 13132: Federalism

    EO 13132, entitled ``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 rule 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 EO 13132. The CAA 
establishes the scheme whereby states take the lead in developing plans 
to meet the NAAQS. This rule will not modify the relationship of the 
states and the EPA for purposes of developing programs to implement the 
NAAQS. Thus, EO 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    EO 13175, entitled ``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 rule does not have tribal 
implications, as specified in EO 13175. This rule responds to the 
requirement in the CAA for states to submit SIPs under section 110(a) 
to satisfy certain elements required under section 110(a)(2) of the CAA 
for the 2008 lead NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that provide for implementation, maintenance and 
enforcement of a new or revised NAAQS, and which satisfy the applicable 
requirements of section 110(a)(2), within 3 years of promulgation of 
such standard, or within such shorter period as the EPA may provide. No 
tribe is subject to the requirement to submit an implementation plan 
under section 110(a) within 3 years of promulgation of a new or revised 
NAAQS.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets EO 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 EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it is not an action that concerns health or 
safety risks. This action is finding that certain states have failed to 
submit a complete SIP that provides certain basic program elements of 
section 110(a)(2) necessary to implement the 2008 lead NAAQS.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This rule is not a ``significant energy action'' as defined in EO 
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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 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 Populations and Low-Income Populations

    EO 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 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 rule 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 notice is making a finding that certain states have 
failed to submit a complete SIP that provides certain basic program 
elements of section 110(a)(2) necessary to implement the 2008 lead 
NAAQS.

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 rule 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

[[Page 12965]]

``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective March 28, 2013.

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which federal Courts of 
Appeal have venue for petitions of review of final agency actions by 
the EPA under the CAA. This section provides, in part, that petitions 
for review must be filed in the Court of Appeals for the District of 
Columbia Circuit (i) when the agency action consists of ``nationally 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, if ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.''
    This final rule consisting of findings of failure to submit certain 
of the required infrastructure SIP provisions is ``nationally 
applicable'' within the meaning of section 307(b)(1). This rule affects 
seven states across the country that are located in five of the ten EPA 
Regions, five different federal circuits, and multiple time zones. In 
addition, the rule addresses a common core of knowledge and analysis 
involved in formulating the decision and a common interpretation of the 
requirements of 40 CFR 51 appendix V applied to determining the 
completeness of SIPs in states across the country.
    This determination is appropriate because in the 1977 CAA 
Amendments that revised CAA section 307(b)(1), Congress noted that the 
Administrator's determination that an action is of ``nationwide scope 
or effect'' would be appropriate for any action that has ``scope or 
effect beyond a single judicial circuit.'' H.R. Rep. No. 95-294 at 323-
324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect 
of this action extends to the five judicial circuits that include the 
states across the country affected by this action. In these 
circumstances, section 307(b)(1) and its legislative history authorize 
the Administrator to find the rule to be of ``nationwide scope or 
effect'' and thus to indicate that venue for challenges lies in the 
D.C. Circuit. Accordingly, the EPA is determining that this is a rule 
of nationwide scope or effect. 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 District of Columbia Circuit 
within 60 days from the date final action is published in the Federal 
Register. Filing a petition for review by the Administrator of this 
final action does not affect the finality of the 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 such rule or action. Thus, any petitions for review of 
this action must be filed in the Court of Appeals for the District of 
Columbia Circuit within 60 days from the date this final action is 
published in the Federal Register.

List of Subjects in 40 CFR Part 52

    Approval and promulgation of implementation plans, Environmental 
protection, Administrative practice and procedures, Air pollution 
control, Incorporation by reference, Intergovernmental relations, and 
Reporting and recordkeeping requirements.

    Dated: February 15, 2013.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2013-04293 Filed 2-25-13; 8:45 am]
BILLING CODE 6560-50-P


