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[Federal Register Volume 79, Number 152 (Thursday, August 7, 2014)]
[Proposed Rules]
[Pages 46211-46214]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18740]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0409; FRL-9914-84-OAR]

Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Determination of Attainment for the 2008 Lead National 
Ambient Air Quality Standard for the Lyons Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine that the Lyons, Pennsylvania (PA) nonattainment area 
(hereafter also referred to as the ``Lyons Area'' or ``Area'') has 
attained the 2008 lead (Pb) national ambient air quality standard 
(NAAQS). This proposed determination of attainment is based upon 
certified, quality-assured, and quality-controlled ambient air 
monitoring data from 2011-2013 which shows that the Area has monitored 
attainment for the 2008 Pb NAAQS. If EPA finalizes this proposed 
determination of attainment, the requirements for the Lyons Area to 
submit an attainment demonstration, associated reasonably available 
control measures (RACM), a reasonable further progress (RFP) plan, 
contingency measures, and other planning requirements related to 
attainment of the standard shall be suspended for so long as the Lyons 
Area continues to attain the 2008 Pb NAAQS.

DATES: Written comments must be received on or before September 8, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0409 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2014-0409, 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-
2014-0409. 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,

[[Page 46212]]

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.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at schmitt.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``clean data 
determination'' and ``determination of attainment'' are used 
interchangeably, ``Agency'' may be used to imply the EPA, and ``3-year 
period'' represents three (3) consecutive calendar years. For detailed 
information regarding this proposed rulemaking action, EPA prepared a 
Technical Support Document (TSD). The TSD can be viewed at http://www.regulations.gov.

I. Background

    On November 12, 2008 (73 FR 66964), EPA established a 2008 primary 
and secondary Pb NAAQS at 0.15 micrograms per cubic meter ([mu]g/m\3\) 
based on a maximum arithmetic 3-month mean concentration for a 3-year 
period. See 40 CFR 50.16. On November 22, 2010, (75 FR 71033), EPA 
published its initial air quality designations and classifications for 
the 2008 Pb NAAQS based upon available air quality monitoring data for 
calendar years 2007-2009. These designations became effective on 
December 31, 2010.\1\ The Lyons Area, which is located in Berks County 
and is bounded by Kutztown Borough, Lyons Borough, Maxatawny Township, 
and Richmond Township, was designated nonattainment for the 2008 Pb 
NAAQS. See 40 CFR 81.339.
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    \1\ EPA completed a second and final round of designations for 
the 2008 Pb NAAQS on November 22, 2011; no additional areas in 
Pennsylvania were designated as nonattainment under this rulemaking. 
See 76 FR 72097.
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    On March 31, 2014, the Commonwealth of Pennsylvania, through the 
Pennsylvania Department of Environmental Protection (PADEP), submitted 
a letter requesting EPA to make a determination that the Lyons 
nonattainment area has attained the 2008 Pb NAAQS, based on certified, 
quality-assured, and quality-controlled air monitoring data from 2011 
through 2013.

II. Summary of Proposed Action

    EPA is proposing to determine that the Lyons Area has ``clean 
data'' for the 2008 Pb NAAQS. This proposed action is based upon 
certified, quality-assured, and quality-controlled ambient air 
monitoring data for the 2011-2013 monitoring period that shows that the 
Area has monitored attainment of the 2008 Pb NAAQS.

III. Effects of Proposed Action

    If this proposed determination of attainment is made final, the 
requirements for the Lyons Area to submit an attainment demonstration 
together with RACM (encompassing reasonably available control 
technologies (RACT)), an RFP plan, contingency measures for failure to 
meet RFP goals, and any other planning SIP requirements related to 
attainment of the 2008 Pb NAAQS will be suspended. Attainment deadlines 
would be suspended until such time, if any, that EPA subsequently 
determines that the Area has violated the 2008 Pb NAAQS. The Agency's 
proposal is consistent with EPA's regulations and with its longstanding 
interpretation of subpart 1 of part D of the Clean Air Act (CAA).

IV. 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). See 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 Standards, ``RFP, 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 fine particulate 
matter (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).\2\
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    \2\ Although the D.C. Circuit remanded the 1997 PM2.5 
Implementation Rule on January 4, 2013, the decision did not cast 
doubt on EPA's interpretation of statutory provisions, including 
EPA's Clean Data Policy interpretation.
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    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, or ``clean data'' determination. See 69 FR 21717 (April 22, 
2004) (San Francisco Bay Area, 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), 77 FR 52232 (August 
29, 2012) (Bristol, Tennessee, Pb), 78 FR 66280 (November 5, 2013) 
(Bellefontaine, Ohio, Pb). For more information about the history, 
rationale and application of the Clean Data Policy, see 77 FR 35653-
35654.
    EPA also incorporated its interpretation under the Clean Data 
Policy in its 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 rulemakings applying EPA's Clean Data Policy, and have 
consistently upheld them. 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's Clean Data Policy represents the Agency's interpretation that 
certain requirements of subpart 1 of part D of the CAA are, by EPA's 
terms, not applicable to areas that have attained the NAAQS before the 
applicable attainment date.\3\ The specific requirements that are 
inapplicable to an area attaining the standard are the requirements to 
submit a SIP that provides for implementation of all: RACM, RFP, and 
contingency measures for failure to meet deadlines for RFP and 
attainment by the attainment date.
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    \3\ This discussion refers to subpart 1 as this subpart contains 
the general and substantive attainment-related requirements for all 
NAAQS. Subpart 5 establishes additional requirements for the lead 
NAAQS, including the applicable attainment date and the deadline for 
States to submit a plan to meet the substantive attainment-related 
requirements of subpart 1.
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    It is important to note that an area's obligation to submit an 
attainment demonstration and related planning submissions is suspended 
only for so long as the area continues to attain that standard. If EPA 
subsequently determines, after notice-and-comment

[[Page 46213]]

rulemaking, that the area has violated the standard, 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 Requirements for Compliance With the 2008 Lead NAAQS

    Under EPA regulations at 40 CFR 50.16, the 2008 primary and 
secondary Pb standards are met when the maximum arithmetic 3-month mean 
concentration for a 3-year period, as determined in accordance with 40 
CFR part 50, Appendix R, is less than or equal to 0.15 [mu]g/m\3\ at 
all relevant monitoring sites in the subject area. Specifically, 40 CFR 
part 50, Appendix R establishes that in order to determine compliance 
with the 2008 Pb NAAQS, a design value for each monitor is compared to 
the NAAQS level. Therefore, the 2008 Pb NAAQS is met at a monitoring 
site when the identified design value is valid and is less than or 
equal to 0.15 [mu]g/m\3\. The design value for the 2008 Pb NAAQS is the 
highest valid 3-month arithmetic lead concentration for the 38-month 
period consisting of the most recent 3-year calendar period (36 months) 
plus the two preceding months for a total of 36 3-month periods.
    Only data from Federal Reference Method (FRM) or Federal Equivalent 
Method (FEM) monitors meeting the requirements of 40 CFR part 58 and 
submitted to EPA's Air Quality System (AQS) can be used in calculating 
a design value. A lead design value that meets the 2008 Pb NAAQS is 
considered useable (e.g. valid) if it encompasses 36 consecutive valid 
3-month means from a monitoring site. On the other hand, a violating 
lead design value that is greater than the NAAQS level is useable no 
matter how many valid 3-month means in the 3-year period it 
encompasses; that is, a violating design value is useable even if this 
highest 3-month mean is the only valid 3-month mean in the 3-year time 
frame.
    Additionally, a 3-month mean is considered complete and valid if 
the average of the data capture rate of the three individual monthly 
means (3-month data capture rate) is greater than or equal to 75 
percent. As an exception, a 3-month mean that does not meet this 
completeness requirement can still be considered valid and complete, if 
it passes either of the two ``data substitution'' tests identified in 
section (4)(c)(ii) of 40 CFR 50, Appendix R. Additional explanation of 
EPA's monitoring requirements to determine compliance with the 2008 Pb 
NAAQS can be found in the TSD for this proposed rulemaking action.

VI. EPA's Evaluation of Air Quality Data for the Lyons Area

    The Lyons Area consists of two monitoring locations, Lyons Boro 
with a single FEM monitor and Lyons Park with two collocated FEM 
monitors. The Commonwealth of Pennsylvania submitted into EPA's AQS 
database quality assured, quality controlled, and certified air quality 
monitoring data for 2011-2013 for the 2008 lead NAAQS. EPA has reviewed 
this ambient air monitoring data for lead for the Lyons Area in 
accordance with the provisions of 40 CFR part 50, Appendix R. The 
monitoring data evaluated for the Lyons Area corresponds to the 36 3-
month means collected during the thirty-eight (38) months from November 
2010 to December 2013, which is the most recent certified, quality-
assured, quality-controlled data available for the Area. Table 1 shows 
the 2011-2013 lead design values for the Lyons Area monitors, which are 
based on 36 3-month means for this 3-year period.

        Table 1--2011-2013 Design Values for Lyons Area Monitors
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                                                             2011-2013
                Site name                   AQS site ID    Design values
                                                           ([mu]g/m\3\)
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Lyons Boro..............................     42-011-0021          * 0.05
Lyons Park..............................     42-011-0022            0.04
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* The design value for Lyons Boro includes incomplete data for one 3-
  month period in 2011 and one 3-month period in 2012. EPA has deemed
  data for these incomplete 3-month periods valid for computing the
  site's design value. Further explanation is provided in the TSD for
  this proposed rulemaking action.

    Consistent with the requirements contained in 40 CFR part 50, EPA's 
review of these data indicates that the Lyons nonattainment area has 
attained the 2008 Pb NAAQS, with a 2011-2013 design value of 0.05 
[mu]g/m\3\ for the Area. Additional information on EPA's evaluation of 
the 2008 Pb NAAQS air quality data for the Lyons Area can be found in 
the TSD for this rulemaking action.

VII. Proposed Action

    EPA is proposing to determine that the Lyons nonattainment area for 
the 2008 Pb NAAQS has attained the 2008 Pb NAAQS. EPA has reviewed the 
ambient air monitoring data for Pb, consistent with the requirements 
contained in 40 CFR part 50 and recorded in the EPA Air Quality System 
database for the Lyons Pb nonattainment area.
    If EPA finalizes this proposed determination of attainment, the 
requirements for the Lyons Area to submit an attainment demonstration, 
associated RACM, an RFP, contingency measures and other planning 
requirements related to attainment of the standard shall be suspended 
for so long as the Lyons area continues to attain the 2008 Pb NAAQS.

VIII. Statutory and Executive Order Reviews

    This action proposes to make a determination of attainment based on 
air quality, and would, if finalized, result in the suspension of 
certain federal requirements, and 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);

[[Page 46214]]

     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 proposed determination of attainment for the 
Lyons Area for the 2008 Pb NAAQS 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.

List of Subjects in 40 CFR Part 52

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

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

    Dated: July 25, 2014.
William C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2014-18740 Filed 8-6-14; 8:45 am]
BILLING CODE 6560-50-P
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