Air Quality Designations for the 2008 Lead (Pb) National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes air quality designations for certain areas in the United States for the 2008 lead (Pb) National Ambient Air Quality Standards (NAAQS). Based on air quality monitoring data, EPA is issuing this rule to identify areas that do not meet the 2008 Pb NAAQS and areas that contribute to Pb air pollution in a nearby area that does not meet the Pb NAAQS. EPA is deferring designation for all other areas of the United States, including Indian country, pending collection and review of additional data from recently deployed Pb monitors. The Clean Air Act (CAA) requires areas designated nonattainment by this rule to undertake certain planning and pollution control activities to attain the standards as quickly as reasonably possible.

DATES:

Effective Date: The effective date of this rule is December 31, 2010.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2009-0443. All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (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 the docket or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 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.

In addition, EPA has established a Web site for this rulemaking at: http://www.epa.gov/leaddesignations/2008standards/index.html. The Web site includes EPA's final state and tribal designations, as well as state initial recommendation letters, EPA modification letters, technical support documents, responses to comments and other related technical information.

FOR FURTHER INFORMATION CONTACT:

Rhonda Wright, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-1087 or by e-mail at: wright.rhonda@epa.gov; or Tom Rosendahl, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-5314 or by e-mail at: rosendahl.tom@epa.gov.

SUPPLEMENTARY INFORMATION:

Regional Office Contacts

Region I—Robert McConnell (617) 918-1046,

Region II—Mazeeda Khan (212) 637-3715,

Region III—Melissa Linden (215) 814-2096,

Region IV—Lynorae Benjamin (404) 562-9040,

Region V—Andy Chang (312) 886-0258,

Region VI—Emad Shahin (214) 665-6717,

Region VII—Stephanie Doolan (913) 551-7719,

Region VIII—Kevin Leone (303) 312-6227,

Region IX—Ginger Vagenas (415) 972-3964,

Region X—Steve Body (206) 553-0782.

The public may inspect the rule and state-specific technical support information at the following locations:

Table of Contents

The following is an outline of the Preamble.

I. Preamble Glossary of Terms and Acronyms

II. What is the purpose of this document?

III. What is lead?

IV. What are the health and welfare concerns addressed by the Pb standards?

V. What are the CAA requirements for air quality designations and what action has EPA taken to meet these requirements?

VI. What guidance did EPA issue and how did EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

VII. What air quality data has EPA used?

VIII. How do designations affect Indian country?

IX. Where can I find information forming the basis for this rule and exchanges between EPA, states, and tribes related to this rule?

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

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 Populations and Low-Income Populations

K. Congressional Review Act

L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act

AQS Air Quality System

CAA Clean Air Act

CBI Confidential Business Information

CFR Code of Federal Regulations

D.C. District of Columbia

EO Executive Order

EPA Environmental Protection Agency

FR Federal Register

FRM Federal Reference Method

IQ Intelligence Quotient

NAAQS National Ambient Air Quality Standards

NTTAA National Technology Transfer and Advancement Act

OMB Office of Management and Budget

Pb Lead

PM Particulate Matter

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

SBA Small Business Administration

SIP State Implementation Plan

UMRA Unfunded Mandate Reform Act of 1995

TAR Tribal Authority Rule

TSD Technical Support Document

TSP Total Suspended Particulate

TPY Tons Per Year

U.S. United States

VCS Voluntary Consensus Standards

II. What is the purpose of this document?

The purpose of this action is to announce and promulgate designations and boundaries for areas of the country not meeting the 2008 Pb NAAQS based on available information, in accordance with the requirements of the CAA. The list of areas being designated nonattainment in each state, and the boundaries of each area, appear in the table at the end of this final rule. EPA has been working closely with the states involved in these designations and several steps have been taken to announce that this rule is available. EPA has posted the notice on several EPA Web sites and provided a copy of the rule to those states with nonattainment areas.

This notice identifies the 16 areas being designated as nonattainment areas for the 2008 Pb NAAQS. The basis for designating these areas as “nonattainment” is monitored air quality data from calendar years 2007-2009 indicating a violation of the NAAQS. For these areas being designated nonattainment, states must develop a State Implementation Plan (SIP) that meets the requirements of section 172(c) and 191 of the CAA and provides for attainment of the NAAQS as expeditiously as practicable, but no later than December 31, 2015. These SIPs must be submitted to EPA within eighteen months of the effective date of these designations, i.e., by June 30, 2012.

III. What is lead?

Lead (Pb) is a metal found naturally in the environment and present in some manufactured products. The major sources of Pb air emissions were historically motor vehicles (such as cars and trucks) and industrial sources. Motor vehicle emissions of Pb have been dramatically reduced with the phase-out of leaded gasoline, but Pb is still used as an additive in general aviation gasoline used in piston-engine aircraft and remains a trace contaminant in other fuels. Larger industrial sources of Pb emissions currently include metals processing, particularly primary and secondary Pb smelters. Lead is also emitted from sources such as: Iron and steel foundries; primary and secondary copper smelters; industrial, commercial, and institutional boilers; waste incinerators; glass manufacturing; and cement manufacturing.

IV. What are the health and welfare concerns addressed by the Pb standards?

Lead is generally emitted in the form of particles, which can end up being deposited in water, soil and dust. People may be exposed to Pb by inhaling it, or by ingesting lead-contaminated food, water, soil, or dust. Once in the body, Pb is quickly absorbed into the bloodstream and can result in a broad range of adverse health effects. These include damage to the central nervous system, cardiovascular function, kidneys, immune system, and red blood cells. Children are particularly vulnerable to Pb exposure, in part because they are more likely to ingest Pb and in part because their still-developing bodies are more sensitive to the effects of Pb. Urban children are also of particular risk if the mother is exposed to lead. The harmful effects to children's developing nervous systems (including their brains) arising from Pb exposure may include IQ loss, poor academic achievement, long-term learning disabilities, and an increased risk of delinquent behavior.

Lead is persistent in the environment and accumulates in soils and sediments through deposition from air sources, direct discharge of waste streams to water bodies, mining, and erosion. Ecosystems near some longstanding point sources of Pb demonstrate a wide range of adverse effects including losses in biodiversity, changes in community composition, decreased growth and reproductive rates in plants and animals, and neurological effects in vertebrates.

V. What are the CAA requirements for air quality designations and what action has EPA taken to meet these requirements?

After the promulgation of a new or revised NAAQS, EPA is required to designate areas as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. The Administrator signed a final rule revising the Pb NAAQS on October 15, 2008, which was published in the Federal Register on November 12, 2008, and became effective January 12, 2009. Based on the Administrator's review of the scientific evidence, including numerous studies published since the last review of the Pb NAAQS, and taking into consideration the comments expressed by the Clean Air Scientific Advisory Committee and the public, the Administrator revised the standard from a level of 1.5 µg/m³ to a level of 0.15 µg/m³. In addition, the Administrator changed the averaging time and form to a rolling 3-month average evaluated over a 3-year period. The rule also established new requirements for Pb monitoring networks, including the requirement that new Pb monitors be located in close proximity to the largest Pb emissions sources by January 1, 2010.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d) of the CAA. The CAA requires EPA to complete the initial area designation process within 2 years of promulgating a new or revised NAAQS. However, if the Administrator has insufficient information to make these designations within that time frame, EPA has the authority to extend the designation process by up to one additional year. In light of the new monitoring network which is generating additional information that could be used to support additional designations in the upcoming year, EPA intends to complete the initial area designations for Pb in two rounds. In this rule, EPA is completing the first round by designating as “nonattainment” any area that is violating the 2008 Pb NAAQS based on 2007-2009 air quality data from the pre-2010 monitoring network. For all other areas, EPA is extending the deadline for designations by up to 1 year so that data from the newly deployed monitors can be considered in making appropriate designation decisions. EPA intends to complete the second round of area designations for the Pb NAAQS no later than October 15, 2011.

By not later than 1 year after the promulgation of a new or revised NAAQS, each state Governor is required to recommend air quality designations, including the appropriate boundaries for areas, to EPA. EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by EPA. If EPA is considering modifications to a state's initial recommendation, EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to EPA's promulgation of the final designation. If the state does not agree with EPA's modification, it then has an opportunity to respond to EPA and to demonstrate why it believes the modification proposed by EPA is inappropriate, as contemplated by section 107(d)(1)(B)(ii). Even if a state fails to provide any recommendation for an area, in whole or in part, EPA still must promulgate a designation that the Administrator deems appropriate, pursuant to section 107(d)(1)(B)(ii).

Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as any area that does not meet an ambient air quality standard or that is contributing to ambient air quality in a nearby area that does not meet the standard. If an area meets either prong of this definition, then EPA is obligated to designate the area as “nonattainment.” Section 107(d)(1)(A)(iii) provides that any area that EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.”

EPA believes that section 107(d) provides the Agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, EPA believes that the statute does not require the Agency to establish bright line tests or thresholds for what constitutes contribution or nearby for purposes of designations.

Similarly, EPA believes that the statute permits EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, and contiguous or non-contiguous areas, as may be appropriate for a particular NAAQS. For example, section 107(d)(1)(B)(ii) explicitly provides that EPA can make modifications to designation recommendations for an area “or portions thereof,” and under section 107(d)(1)(B)(iv), a designation remains in effect for an area “or portion thereof” until EPA redesignates it.

Designation activities for federally-recognized tribes are covered under the authority of section 301(d) of the CAA. This provision of the CAA authorizes EPA to treat eligible tribes in a similar manner as states. Pursuant to section 301(d)(2), we promulgated regulations, known as the Tribal Authority Rule (TAR), on February 12, 1999. 63 FR 7254, codified at 40 CFR 49 (1999). That rule specifies those provisions of the CAA for which it is appropriate to treat tribes in a similar manner as states. Under the TAR, tribes may choose to develop and implement their own CAA programs, but are not required to do so. The TAR also establishes procedures and criteria by which tribes may request from EPA a determination of eligibility for such treatment. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to EPA. In addition, CAA section 301(d)(4) gives EPA discretionary authority, in cases where it determines that treatment of tribes as identical to states is “inappropriate or administratively infeasible,” to provide for direct administration by regulation to achieve the appropriate purpose.

To date, one tribe has applied under the TAR for eligibility to submit its own recommendations under section 107(d). Nonetheless, EPA invited all tribes to submit recommendations concerning designations for the 2008 Pb NAAQS. EPA worked with the tribes that requested an opportunity to submit designation recommendations. Tribes were provided an opportunity to submit their own recommendations and supporting documentation and could also comment on state recommendations and EPA modifications.

Designation recommendations and supporting documentation were submitted by most states and a few tribes to EPA by October 15, 2009. After receiving recommendations from states and tribes, and after reviewing and evaluating each recommendation, EPA provided a response to the states and tribes on June 15, 2010. In these letter responses, we indicated whether EPA intended to make modifications to the initial state or tribal recommendations and explained EPA's reasons for making any such modifications. EPA requested that states and tribes respond to any proposed EPA modifications by August 16, 2010. We received comments from some states suggesting changes to EPA's proposed modifications and providing additional information. EPA evaluated these comments, and all of the timely supporting technical information provided. As a result, some of the final designations reflect further modifications to the initial state and tribal recommendations. The state and tribal letters, including the initial recommendations, and EPA's June 2010 responses to those letters, including any modifications, and the subsequent state and tribal comment letters are in the docket for this action.

Although not required by section 107(d) of the CAA, EPA also provided an opportunity for members of the public to comment on EPA's June 2010 response letters. In order to gather additional information for EPA to consider before making final designations, EPA published a notice on July 8, 2010 (75 FR 39254) which invited the public to comment on EPA's intended designations. In that notice, EPA provided the opportunity to all interested parties other than states and tribes to submit comments by August 16, 2010. State and tribal initial recommendations and EPA's responses, including modifications, were posted on a publically accessible Web Site ( http://www.epa.gov/leaddesignations/2008standards/index.html ). Timely comments from the public and EPA's responses to significant comments are in the docket for this action.

VI. What guidance did EPA issue and how did EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

In the notice of proposed rulemaking for the revised Pb NAAQS (73 FR 29184), EPA issued proposed guidance on its approach to implementing the standard, including its approach to initial area designations. EPA solicited comment on that guidance and, in the notice of final rulemaking (73 FR 66964), adopted guidance concerning how to determine the boundaries for nonattainment areas for the Pb NAAQS. In that guidance EPA recommended that monitoring data from the three most recent calendar years be used to identify a violation of the Pb NAAQS. This is appropriate because the form of the Pb NAAQS is calculated over 36 consecutive valid 3-month site means (specifically for a 3 calendar year period and the 2 previous months). EPA is basing these final designations on monitored Pb concentrations from Federal Reference Method (FRM) monitors from calendar years 2007-2009. EPA notes that data from 2006-2008 were the most recent data available to states when states made their recommendations to EPA. Accordingly, although the determination of whether an area violates the standard was based on 2007-2009 data, EPA considered state recommendations and data from 2006-2008 as appropriate in determining boundaries for nonattainment areas.

In the guidance, EPA stated that the perimeter of a county containing a violating monitor would be the initial presumptive boundary for nonattainment areas, but also stated that the state, tribe and/or EPA could conduct additional area specific analyses that could justify establishing either a larger or smaller area. EPA indicated that the following factors should be considered in an analysis of whether to exclude portions of a county and whether to include additional nearby areas outside the county as part of the designated nonattainment area: (1) Emissions in areas potentially included versus excluded from the nonattainment area; (2) Air quality in potentially included versus excluded areas; (3) Population density and degree of urbanization including commercial development in included versus excluded areas; (4) Expected growth (including extent, pattern and rate of growth); (5) Meteorology (weather/transport patterns); (6) Geography/topography (mountain ranges or other air basin boundaries); (7) Jurisdictional boundaries (e.g., counties, air districts, reservations, etc.); and (8) Level of control of emission sources. EPA further indicated that we would consider information provided by the state resulting from one or more of the following techniques: (1) Qualitative analysis; (2) spatial interpolation of air quality monitoring data; or (3) air quality simulation by dispersion modeling.

EPA received comments on the proposed guidance suggesting that violations of the Pb NAAQS were likely to occur in close proximity to stationary sources of Pb. In response, EPA indicated that it agreed that Pb emissions do not generally transport over long distances (e.g., as compared to fine particulate matter), and that in situations where a single source, rather than multiple sources, is causing a NAAQS violation, EPA believes that a state may well be able to use area-specific analyses to determine whether a nonattainment area that is smaller than the county boundary is appropriate.

EPA found that states did use the factors and the variety of techniques identified by EPA in making recommendations for nonattainment areas smaller than the county. In recommending boundaries, EPA and states began with monitors that recorded a violation of the 2008 Pb NAAQS. As provided in Appendix R to 40 CFR part 50, all valid Pb-TSP data and all valid Pb-PM₁₀ data measured by a FRM or equivalent method submitted to EPA's Air Quality System (AQS), or otherwise available to EPA, and meeting the requirements of 40 CFR part 58, including Appendices A, C, and E are used in design value calculations. In some cases, states requested unclassifiable designations for areas around monitors with a design value exceeding the standard. EPA does not believe such a designation would be consistent with the requirements of the CAA when we have valid data supporting a designation of nonattainment.

For areas with a violating monitor, the designated nonattainment area must encompass the entire area that does not meet, and any nearby area that contributes to ambient air quality in the area that does not meet, the 2008 Pb NAAQS. Given the sources and characteristics of Pb emissions, states and EPA generally found factors such as emissions, air quality and meteorology to be particularly relevant in determining appropriate boundaries, while factors such as population density and expected growth were not as relevant for the 2008 Pb NAAQS, and thus did not play a significant role in determining boundaries. In some cases, states made a judgment that it was important to follow jurisdictional boundaries, particularly where jurisdictional boundaries smaller than a county exist. In other cases, states chose to rely primarily on air dispersion modeling to determine the recommended boundaries for nonattainment areas. In each case, EPA reviewed the state recommendations and, for the most part, EPA has accepted the state's recommendations; however, where EPA felt that changes were necessary to a state's initial recommendation, we conveyed those issues to the state and have worked with the state to revise the boundaries.

VII. What air quality data has EPA used?

The final Pb designations contained in this action are based upon air quality monitoring data from calendar years 2007-2009. Some stakeholders have requested that EPA delay designations, or designate areas unclassifiable, by not considering all relevant data (e.g., excluding 2007 or 2008 data) in making designation decisions. As discussed previously, the form of the standard requires comparison of monitoring values from 36 three-month rolling averages (i.e., 3 years, plus 2 preceding months). Thus, a violation will have generally occurred if any of the 36 three-month average concentrations of either Pb-TSP or Pb-PM₁₀ exceeds the level of the NAAQS, and a finding of compliance will require that all 36 three-month averages of Pb-TSP be at or below the level of the NAAQS. Moreover, pursuant to the CAA, EPA is making designations as expeditiously as practicable. Accordingly, where sufficient data from 2007-2009 are available to support a nonattainment designation, EPA does not have discretion to postpone designations or to exclude certain years from consideration in considering whether monitored data results in a violation of the Pb NAAQS pursuant to 40 CFR 50.16. Section 107(d) requires EPA to designate areas as nonattainment if sufficient data exist to support such a designation. EPA can only delay designations for up to one extra year if we do not have sufficient data to make a designation within the prescribed 2-year period.

VIII. How do designations affect Indian country?

All counties, partial counties or Air Quality Control Regions listed in the table at the end of this document are designated as indicated. For the first round of Pb designations, EPA is only designating nonattainment areas. There are no areas in Indian country being designated nonattainment at this time.

IX. Where can I find information forming the basis for this rule and exchanges between EPA, states, and tribes related to this rule?

Information providing the basis for this action and related decisions are provided in the technical support documents (TSDs), response to comments document, and other information in the docket. The TSDs, applicable EPA guidance memoranda, copies of correspondence regarding this process between EPA and the states, tribes, and other parties, and EPA's responses to comments, are available for review at the EPA Docket Center listed above in the addresses section of this document and on our designation Web site at http://www.epa.gov/leaddesignations/2008standards/index.html. State specific information is available from the EPA Regional Offices.

X. Statutory and Executive Order Reviews

Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, EPA assigns designations to areas as required.

A. Executive Order 12866: Regulatory Planning and 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 the EO.

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. Burden is defined at 5 CFR 1320.3(b). This rule responds to the requirement to promulgate air quality designations after promulgation of a NAAQS. This requirement is prescribed in the CAA section 107 of title 1. The present final rule does not establish any new information collection.

C. Regulatory Flexibility Act

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because the rule is not subject to the APA and is subject to CAA section 107(d)(2)(B), which does not require that the Agency issue a notice of proposed rulemaking before issuing this rule.

D. Unfunded Mandates Reform Act

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or 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 sections 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. It does not create any additional requirements beyond those of the CAA and Pb NAAQS (40 CFR 50.16); therefore, no UMRA analysis is needed. This rule establishes nonattainment designations for certain areas of the country for the Pb NAAQS. The CAA requires states to develop plans, including control measures, based on the designations for areas within the state.

One mandate that may apply as a consequence of this action to all designated nonattainment areas is the requirement under CAA section 176(c) and associated regulations to demonstrate general conformity of federal actions to SIPs. These rules apply to federal agencies making conformity determinations. The EPA concludes that such conformity determinations will not cost $100 million or more in the aggregate.

The EPA believes that any new controls imposed as a result of this action will not cost in the aggregate $100 million or more annually. Thus, this federal action will not impose mandates that will require expenditures of $100 million or more in the aggregate in any one year.

Nonetheless, EPA carried out consultation with government entities affected by this rule, including states, tribal governments, and local air pollution control agencies.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires 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 Executive Order 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 Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the Pb NAAQS. This rule will not modify the relationship of the states and EPA for purposes of developing programs to implement the Pb NAAQS. Thus, Executive Order 13132 does not apply to this rule.

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

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 2, 2000), requires 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 action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule concerns the designation of areas as attainment and nonattainment for the Pb NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas based on their designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs such as programs to attain and maintain the Pb NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the Pb NAAQS (40 CFR section 50.16). This rule establishes the designation for certain areas of the country for the Pb NAAQS but no areas in Indian country are being designated under this rule. Additionally, no tribe has implemented a CAA program to attain the Pb NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have tribal implications, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to this rule, EPA communicated with tribal leaders and environmental staff regarding the designations process. EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2008 Pb NAAQS, to provide the EPA designations guidance, and to offer consultation with EPA. EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to EPA about EPA's intended designations for the Pb standards and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to EPA about the general designations process for the Pb NAAQS, as well as concerns specific to a tribe, and informed EPA about key tribal concerns regarding designations as the rule was under development.

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

The action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866. However, the protection offered by the Pb NAAQS may be especially important for children because neurological effects in children are among if not the most sensitive health endpoints for Pb exposure. Because children are considered a sensitive population, in setting the Pb NAAQS we carefully evaluated the environmental health effects of exposure to Pb pollution among children. These effects and the size of the population affected are summarized in the EPA's 2006 Air Quality Criteria Document for Pb and in the proposed and final Pb NAAQS rules. ( http://www.epa.gov/airquality/lead/fr/20081112.pdf)

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

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

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 EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards 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 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, 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.

Executive Order 12898 (59 FR 7629 (Feb. 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 U.S.

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on any population, including minority or low-income populations.

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 U.S. 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 U.S. 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). This rule will be effective December 31, 2010.

L. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. 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 rule designating areas for the 2008 Pb NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2008 Pb NAAQS. At the core of this rulemaking is EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a 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 rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the DC Circuit.

Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

For the reasons set forth in the preamble, 40 CFR Part 81, is amended as follows:

PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

2. Section 81.301 is amended by revising the table for “Alabama—Lead” to read as follows:

3. Section 81.305 is amended by adding the table for “California—Lead” at the end of the section to read as follows:

4. Section 81.310 is amended by revising the table for “Florida—Lead” to read as follows:

5. Section 81.314 is amended by adding the table for “Illinois—Lead” to the end of the section to read as follows:

6. Section 81.315 is amended by revising the table for “Indiana—Lead” to read as follows:

7. Section 81.324 is amended by revising the table for “Minnesota—Lead” to read as follows:

8. Section 81.326 is amended by revising the table for “Missouri—Lead” to read as follows:

9. Section 81.336 is amended by revising the table for “Ohio—Lead” to read as follows:

10. Section 81.339 is amended by adding the table for “Pennsylvania—Lead” to the end of the section to read as follows:

11. Section 81.343 is amended by revising the table for “Tennessee—Lead” to read as follows:

12. Section 81.344 is amended by revising the table for “Texas—Lead” to read as follows: