[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Rules and Regulations]
[Pages 62455-62459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24125]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0499; FRL-9901-35-Region3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Infrastructure Requirements for the 2008 Lead 
National Ambient Air Quality Standards and State Board Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve two State 
Implementation Plan (SIP) revisions submitted by the District of 
Columbia (hereafter ``the District'') pursuant to the Clean Air Act 
(CAA). Whenever new or revised national ambient air quality standards 
(NAAQS) are promulgated, the CAA requires states to submit a plan for 
the implementation, maintenance, and enforcement of such NAAQS. The 
plan is required to address basic program elements including, but not 
limited to, regulatory structure, monitoring, modeling, legal 
authority, and adequate resources necessary to assure attainment and 
maintenance of the NAAQS. These elements are referred to as 
infrastructure requirements. The District made a submittal addressing 
the infrastructure requirements for the 2008 lead (Pb) NAAQS and a 
separate submittal addressing requirements in

[[Page 62456]]

relation to State Boards. EPA is approving portions of the 
infrastructure requirements for the 2008 lead NAAQS and the 
requirements addressing State Boards for the District in accordance 
with the requirements of the CAA.

DATES: This rule is effective on December 23, 2013 without further 
notice, unless EPA receives adverse written comment by November 21, 
2013. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0499 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2013-0499, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0499. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the District of Columbia Department of the 
Environment, Air Quality Division, 1200 1st Street NE., 5th floor, 
Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by email at [email protected].

SUPPLEMENTARY INFORMATION: On July 18, 2013, the District Department of 
the Environment (DDOE) submitted a revision to the District's SIP to 
satisfy the requirements of section 110(a)(2) of the CAA for the 2008 
lead NAAQS (the infrastructure submittal). On this same date, DDOE 
submitted a revision to the District SIP addressing the State Board 
requirements under sections 128 and 110(a)(2)(E)(ii) of the CAA.

I. Background

    On October 15, 2008, EPA substantially strengthened the primary and 
secondary lead NAAQS, revising the level of the primary (health-based) 
standard from 1.5 micrograms per cubic meter ([mu]g/m\3\) to 0.15 
[mu]g/m\3\, measured as total suspended particles (TSP) and not to be 
exceeded with an averaging time of a rolling 3-month period. EPA also 
revised the secondary (welfare-based) standard to be identical to the 
primary standard, as well as the associated ambient air monitoring 
requirements. See 40 CFR 50.16.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS or within such shorter period as EPA may prescribe. 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 affect 
the content of the submission. The contents of such SIP submission may 
also vary depending upon what provisions the state's existing SIP 
already contains.
    Pursuant to section 110(a)(1) of the CAA, states are required to 
submit SIPs meeting the applicable requirements of section 110(a)(2) 
within three years after promulgation of a new or revised NAAQS or 
within such shorter period as EPA may prescribe. Section 110(a)(1) 
provides the procedural and timing requirements for SIPs and section 
110(a)(2) requires states to address 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. More specifically, section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS.
    For the 2008 lead NAAQS, states typically have met many of the 
basic program elements required in section 110(a)(2) through earlier 
SIP submissions in connection with previous NAAQS. Nevertheless, 
pursuant to section 110(a)(1), states have to review and revise, as 
appropriate, their existing SIPs to ensure that the SIPs are adequate 
to address the 2008 lead NAAQS. To assist states in meeting this 
statutory requirement, EPA issued a guidance on October 14, 2011, 
entitled, ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements Required Under sections 110(a)(1) and 110(a)(2) for the 2008 
Lead (Pb) National Ambient Air Quality Standards (NAAQS)'' (hereafter 
the ``2011 Lead Infrastructure Guidance''), which lists the basic 
elements that states should include in their SIPs for the 2008 lead 
NAAQS.
    Section 110(a)(2)(E)(ii) requires the states to satisfy for each 
NAAQS the requirements of section 128 of the CAA in relation to State 
Boards. Section 128(a) requires SIPs to contain provisions that: (1) 
Any board or body which approves permits or enforcement orders under 
the CAA have at least a majority of its members represent the public 
interest and not derive any significant portion of their income from 
persons subject to permits or enforcement orders under the CAA; and (2) 
any potential conflict of interest by members of such board or body or 
the

[[Page 62457]]

head of an executive agency with similar powers be adequately 
disclosed.

II. Summary of SIP Revision

A. Infrastructure Requirements

    On July 18, 2013, DDOE provided a submittal to satisfy the 
requirements of section 110(a)(2) of the CAA for the 2008 lead NAAQS. 
This submittal addresses the following infrastructure elements, which 
EPA is proposing to approve: CAA section 110(a)(2)(A), (B), (C), 
(D)(i)(I), (D)(i)(II), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), 
(K), (L), and (M), or portions thereof. The infrastructure element 
(E)(ii) requirements, pertaining to State Boards, are satisfied by a 
separate submittal which was received by EPA on the same date and it is 
addressed in section II.B of this rulemaking action. The District did 
not submit element (I) which pertains to the nonattainment requirements 
of part D, Title I of the CAA, since this element is not required to be 
submitted by the 3-year submission deadline of section 110(a)(1), and 
will be addressed in a separate process, if necessary.
    While the District failed to submit a complete SIP addressing the 
portions of (C), (D)(i)(II), (D)(ii), and (J) relating to the part C, 
Title I of the CAA for the 2008 lead NAAQS, EPA recognizes that such 
requirements have already been addressed by a Federal Implementation 
Plan (FIP) that remains in place, containing the Prevention of 
Significant Deterioration (PSD) permit program. EPA concludes that such 
findings of incompleteness would not trigger any additional FIP 
obligation for the District with respect to these infrastructure 
requirements. Therefore, EPA is not taking any action for the 2008 lead 
NAAQS for elements (C), (D)(i)(II), (D)(ii), and (J), for the portions 
which relate to the PSD permit program required by part C, Title I of 
the CAA.
    In accordance with the decision of the U.S. Court of Appeals for 
the D.C. Circuit, EPA at this time is not treating the 
110(a)(2)(D)(i)(I) SIP submission from the District as a required SIP 
submission. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 (2013). However, even 
if the submission is not considered to be ``required,'' EPA must act on 
the 110(a)(2)(D)(i)(I) SIP submission from the District because section 
110(k)(2) of the CAA requires EPA to act on all SIP submissions. Unless 
the EME Homer City decision is reversed or otherwise modified by the 
Supreme Court, states are not required to submit 110(a)(2)(D)(i)(I) 
SIPs until EPA has quantified their obligations under that section. In 
this action, EPA is acting on the District's 110(a)(2)(D)(i)(I) 
submission.
    A detailed summary of EPA's review and rationale for approving the 
District's infrastructure submittal may be found in the Technical 
Support Document (TSD) for this rulemaking action, which is available 
online at www.regulations.gov, Docket number EPA-R03-OAR-2013-0499.

B. State Board Requirements

    On July 18, 2013, DDOE also submitted a separate SIP revision 
addressing the requirements of CAA section 128 in relation to the State 
Board requirements. This submission also satisfies the State Board 
requirements under 110(a)(2)(E)(ii) for the 2008 lead NAAQS. The SIP 
revision consists of updating the existing provisions in the District 
SIP which satisfy the obligations under sections 128 and 
110(a)(2)(E)(ii). In this SIP revision, DDOE states that the relevant 
section 128 requirements are currently found in chapter 11A 
``Government Ethics and Accountability'' of title I ``Government 
Organization'' of the District of Columbia Official Code (2012 Supp.), 
which the District through DDOE is requesting EPA to approve as part of 
the District's SIP. The conduct of the DDOE Director, and that of his 
employees, is currently subject to the requirements of title I, chapter 
11A of the District of Columbia Official Code. All District employees 
are required to follow the laws in title I, chapter 11A of the District 
of Columbia Official Code regarding employee conduct.
    Specifically, the SIP revision consists of incorporating into the 
SIP the following provisions of title I, chapter 11A of the District of 
Columbia Official Code, specifically section 1-1161.01 
(``Definitions''); section 1-1162.23 (``Conflicts of Interest''); 
section 1-1162.24 (``Public Reporting''); and section 1-1162.25 
(``Confidential Disclosure of Financial Interest''). These provisions 
supersede the section 128 provisions previously approved in the SIP, 
and DDOE requests as part of this SIP revision the removal of the prior 
provisions which addressed section 128 requirements from the District's 
SIP. See (49 FR 22810, June 1, 1984), as codified in 40 CFR 50.470(e).
    The requirements of section 128(a)(1) are not applicable to the 
District because it does not have any board or body which approves air 
quality permits or enforcement orders. The requirements of section 
128(a)(2), however, are applicable to the District because DDOE's 
Director (i.e., the head of an executive agency) has the similar powers 
discussed in section 128(a)(2). DDOE approves all CAA permits and 
enforcement orders in the District. DDOE is an executive agency that 
acts through its Director or a delegated state employee subordinate.
    EPA finds that the measures in these provisions (sections 1-
1161.01, 1-1162.23, 1-1162.24, and 1-1162.25 of the District of 
Columbia Official Code) are adequate to meet the District's obligations 
under section 128 as well as the infrastructure requirements of section 
110(a)(2)(E)(ii). EPA also finds that the submittal specifically meets 
the infrastructure requirements of section 110(a)(2)(E)(ii) for the 
2008 lead NAAQS.

III. Final Action

    EPA is approving the District's two SIP revisions. EPA is approving 
the District's SIP revision addressing the following section 110(a)(2) 
elements for the 2008 lead NAAQS: (A), (B), (C), (D)(i)(I), (D)(i)(II), 
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M), or 
portions thereof. This SIP revision provides the basic program elements 
specified in section 110(a)(2) necessary to implement, maintain, and 
enforce the 2008 lead NAAQS. This action does not include section 
110(a)(2)(I) of the CAA which pertains to the nonattainment 
requirements of part D, title I of the CAA. EPA is also approving the 
District's SIP revision addressing the requirements of section 128. 
This SIP revision, which consists of incorporating the relevant 
provisions of title I, chapter 11A of the District of Columbia Official 
Code (2012 Supp.) in the District SIP and removing superseded 
provisions in the SIP under 40 CFR 50.470(e), meets the requirements of 
section 128. EPA is also approving this SIP revision as meeting the 
infrastructure requirements of section 110(a)(2)(E)(ii) for the 2008 
lead NAAQS. The SIP revisions were formally and individually submitted 
on July 18, 2013. EPA is publishing this rule without prior proposal 
because EPA views this as a noncontroversial amendment and anticipates 
no adverse comment. However, in the ``Proposed Rules'' section of 
today's Federal Register, EPA is publishing a separate document that 
will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective on December 23, 2013 
without further notice unless EPA receives adverse comment by November 
21, 2013. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments

[[Page 62458]]

in a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this 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, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for 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 appropriate circuit by December 23, 2013. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking action. This action, which satisfies certain infrastructure 
requirements of section 110(a)(2) of the CAA for the 2008 lead NAAQS 
and State Board requirements under section 128 of the CAA for the 
District, may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Reporting and 
recordkeeping requirements.

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

    Dated: September 13, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart J--District of Columbia

0
2. Sec.  52.470 is amended by:
0
a. Revising the table heading in paragraph (c) to read EPA-Approved 
Regulations and Statutes in the District of Columbia SIP.
0
b. Adding at the end of the table in paragraph (c) headings for D.C. 
Official Code and Title I--Chapter 11A Government Ethics and 
Accountability, and entries for Sections 1-1161.01 and 1-1161.23 
through 1-1161.25.
0
c. In paragraph (e):
0
i. Removing from the table the entry ``Revisions for conflict of 
interest procedures [CAA Section 128 SIP]''.
0
ii. Adding at the end of the table an entry ``Section 110(a)(2) 
Infrastructure Requirements for the 2008 Lead NAAQS''.
0
iii. Adding at the end of the table an entry ``CAA section 128 
requirements in relation to State Boards''.
    The amendments read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (c) * * *

[[Page 62459]]



                      EPA-Approved Regulations and Statutes in the District of Columbia SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
          State citation               Title/subject      effective     EPA approval date        Additional
                                                             date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                               D.C. Official Code
----------------------------------------------------------------------------------------------------------------
                            Title I--Chapter 11A Government Ethics and Accountability
----------------------------------------------------------------------------------------------------------------
Section 1-1161.01................  Definitions.........      4/27/12  10/22/13 [Insert      ....................
                                                                       page number where
                                                                       the document
                                                                       begins].
Section 1-1162.23................  Conflicts of              4/27/12  10/22/13 [Insert      ....................
                                    Interest.                          page number where
                                                                       the document
                                                                       begins].
Section 1-1162.24................  Public Reporting....      4/27/12  10/22/13 [Insert      ....................
                                                                       page number where
                                                                       the document
                                                                       begins].
Section 1-1162.25................  Confidential              4/27/12  10/22/13 [Insert      ....................
                                    Disclosure of                      page number where
                                    Financial Interest.                the document
                                                                       begins].
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* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure   Statewide...........      7/18/13  10/22/13 [Insert      This action
 Requirements for the 2008 Lead                                        Federal Register      addresses the
 NAAQS.                                                                page number where     following CAA
                                                                       the document begins   elements:
                                                                       and date].            110(a)(2)(A), (B),
                                                                                             (C), (D), (E), (F),
                                                                                             (G), (H), (J), (K),
                                                                                             (L), and (M), or
                                                                                             portions thereof.
CAA section 128 requirements in    Statewide...........      7/18/13  10/22/13 [Insert      ....................
 relation to State Boards.                                             page number where
                                                                       the document
                                                                       begins].
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[FR Doc. 2013-24125 Filed 10-21-13; 8:45 am]
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