E9-357. Approval and Promulgation of Implementation Plans; Washington; Interstate Transport of Pollution

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving the action of the Washington State Department of Ecology (Ecology) to address the provisions of Clean Air Act (CAA) section 110(a)(2)(D)(i) for the 8-hour ozone and PM2.5 National Ambient Air Quality Standards (NAAQS). CAA section 110(a)(2)(D)(i) requires each state to submit a State Implementation Plan (SIP) revision that prohibits emissions that adversely affect another state's air quality through interstate transport. EPA received no comments on its proposal to approve Ecology's SIP revision addressing these provisions. Therefore, EPA is finalizing its proposed approval of this revision for the State of Washington. Because EPA received adverse comments on its proposal to approve the SIP revision from the Idaho Department of Environmental Quality (IDEQ), EPA is not taking final action on the proposed approval for the State of Idaho at this time and will address those comments and take final action on IDEQ's submittal at a later date.

DATES:

This action is effective on February 12, 2009.

ADDRESSES:

The EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2007-0110. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information 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 through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Donna Deneen, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Information is organized as follows:

Table of Contents

I. What Is the Background of This Rulemaking?

II. What Comments Did We Receive on the Proposed Action?

III. What Is Our Final Action?

IV. Statutory and Executive Order Reviews

I. What Is the Background of This Rulemaking?

On June 26, 2007, EPA published a direct final rule to approve the actions of IDEQ and Ecology to address the requirements of Clean Air Act section 110(a)(2)(D)(i). 72 FR 35015. This Clean Air Act section requires each state to submit a SIP that prohibits emissions that could adversely affect another state, addressing four key elements. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in another state, (2) interfere with maintenance of the NAAQS by another state, (3) interfere with plans in another state to prevent significant deterioration of air quality, or (4) interfere with efforts of another state to protect visibility.

II. What Comments Did We Receive on the Proposed Action?

We stated in the direct final rule that if EPA received adverse comment, we would publish a timely withdrawal of the direct final rule. We received adverse comments on the Idaho portion of the direct final rule, and, therefore, we withdrew our direct final rule it its entirety. 72 FR 46157 (August 17, 2007). In a parallel notice of proposed rulemaking, also published on June 26, 2007, we stated that if we received adverse comments we would address all public comments in a subsequent final rule based on the proposed rule. 72 FR 35022. We received no comments on our proposal to approve Ecology's SIP revision addressing section 110(a)(2)(D)(i). Therefore, we are finalizing our proposed approval of this revision for the State of Washington. Because we received adverse comments on our proposal to approve the SIP revision from IDEQ, we are not taking final action on the proposed approval for the State of Idaho at this time and will address those comments and take final action on IDEQ's submittal at a later date.

III. What Is Our Final Action?

We are finalizing our approval of Ecology's action to address the requirements of Clean Air Act section 110(a)(2)(D)(i). We made a minor change in the organization of the regulatory language contained in the proposal to be consistent with how the regulatory language is organized for similar actions. See, e.g., 73 FR 60955 (October 15, 2008) and 73 FR 75600 (December 12, 2008). We are not taking final action at this time to approve IDEQ's action to address CAA section 110(a)(2)(D)(i).

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. 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 Clean Air Act; 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.

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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 16, 2009. 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. This action 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
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: December 31, 2008.

Elin D. Miller,

Regional Administrator, Region 10.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart WW—Washington

2. Section 52.2499 is added to read as follows:

§ 52.2499

Interstate Transport for the 1997 8-hour ozone and PM_2.5 NAAQS.

On January 17, 2007, the Washington State Department of Ecology submitted a SIP revision to meet the requirements of Clean Air Act section 110(a)(2)(D)(i). EPA is approving this submittal.