2011-6872. Approval and Promulgation of Implementation Plans; Washington: Correction

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to correct errors in the State Implementation Plan (SIP) for the State of Washington regarding the scope of certain regulations incorporated by reference into the SIP. This correction would limit the applicability of certain regulations to pollutants for which National Ambient Air Quality Standards (NAAQS) have been established and precursors to those NAAQS pollutants. It would thus ensure that these regulations are reasonably related to attainment or maintenance of the NAAQS in Washington.

DATES:

Comments must be received on or before April 22, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R10-OAR-2011-0315, by any of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Mail: Kristin Hall, EPA Region 10, Office of Air, Waste and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
• Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101. Attention: Kristin Hall, Office of Air, Waste and Toxics, AWT-107. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-2011-0315. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail 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 docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., 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. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT:

Kristin Hall at telephone number: [phone], e-mail address: [e-mail], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. What action is EPA proposing?

II. What is the basis for the action that EPA is proposing?

III. Statutory and Executive Order Reviews

I. What action is EPA proposing?

Section 109 of the Clean Air Act (CAA) requires EPA to promulgate regulations establishing national ambient air quality standards (NAAQS) for those air pollutants for which air quality criteria have been issued pursuant to Section 108 of the CAA (referred to as criteria or NAAQS pollutants). EPA has set NAAQS for six pollutants: sulfur dioxide, particulate matter, nitrogen dioxide, carbon monoxide, ozone and lead at 40 CFR part 50. EPA has identified ammonia, volatile organic compounds, nitrogen oxides, and sulfur dioxide as precursors to one or more of these NAAQS pollutants. See CAA 302(g); 40 CFR 51.1000. Section 110 of the CAA requires States to adopt and submit to EPA for approval State Implementation Plans (SIPs) to implement, maintain, and enforce the NAAQS. In general, State and local regulations approved by EPA into the SIP under Section 110 of the CAA must reasonably relate to attainment and maintenance of the NAAQS. See generally CAA 110; see also Memorandum from Michael A. James, EPA, to Regional Counsels, Re: Status of State/Local Air Pollution Control Measures Not Related to NAAQS, dated February 7, 1979 (“measures to control non-criteria pollutants [pollutants that are not NAAQS pollutants or their precursors] may not legally be made part of a SIP.”).^[1]

In several instances in the past, EPA has approved into the Washington SIP general air pollution regulations that cover a broader range of air pollutants than NAAQS pollutants or their precursors. To the extent EPA's prior approvals of these general provisions did not distinguish between those pollutants that reasonably relate to attainment and maintenance of the NAAQS (that is, NAAQS pollutants and their precursors), such approvals were overly broad, approved in error, and should be corrected.

EPA is therefore proposing to correct its previous approval of the following provisions of the Washington SIP to make clear that EPA's approval of such regulations is limited to application of these requirements to air pollutants that are NAAQS pollutants or precursors to a NAAQS pollutant:

Department of Ecology (Ecology): WAC 173-400-040 (except WAC 173-400-040(1)(c), (1)(d), (2), (4) and the second paragraph of (6) ^[2] ) (state effective 9/20/93; EPA effective 6/2/95);

Energy Facility Site Evaluation Council (EFSEC): WAC 463-39-005(1) (EFSEC's incorporation by reference of WAC 173-400-040, except for WAC 173-400-040(1)(c), (1)(d), (2), (4) and the second paragraph of (6)) (state effective 9/21/95; EPA effective 7/22/96);

Northwest Clean Air Authority (NWCAA): NWCAA Sec. 104.1 (NWCAA's incorporation by reference of WAC 173-400-040 except for WAC 173-400-040(1)(c), (1)(d), (2), (4) and the second paragraph of (6)) (state effective 11/13/94; EPA effective 12/26/95);

Puget Sound Clean Air Agency (PSCAA): PSCAA Reg. I, Sec. 304 (except for Reg. 1, Sec. 304(e)) (state effective 3/11/99; EPA effective 9/30/04);

Southwest Clean Air Agency (SWCAA): SWCAA Sec. 400-040 (except SWCAA Sec. 400-040(1)(c), (1)(d), (2), (4), and (6)(a)) (state effective 9/21/95; EPA effective 4/28/97);

Yakima Regional Clean Air Authority (YRCAA): YRCAA Article V, Section 5.06 (state effective 12/15/95; EPA effective 3/4/98); Section 5.12 (state effective 12/15/95; EPA effective 3/4/98); Section 12.01 (YRCAA's incorporation by reference of WAC 173-400-040 except WAC 173-400-040(1)(c), (1)(d), (2), (4) and the second paragraph of (6)) (state effective 12/15/95; EPA effective 3/4/98).

In a letter dated March 10, 2011, Ecology and SWCAA stated their support of EPA's approval of this correction and narrowing of the Washington SIP.

II. What is the basis for the action that EPA is proposing?

Under section 110(k)(6) of the CAA, whenever EPA determines that its action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.

Pursuant to section 110(k)(6), EPA is proposing to find that its approval of these State and local provisions was in error, and to clarify and, as necessary, narrow its approval of certain regulations in the Washington SIP so that EPA's approval of those regulations as part of the Washington SIP is limited to their application to those pollutants that are reasonably related to attainment or maintenance of the NAAQS, that is, NAAQS pollutants and their precursors. EPA has previously similarly relied on section 110(k)(6) of the CAA to remove from other States' SIPs provisions that do not relate to attainment or maintenance of the NAAQS or to narrow SIP provisions consistent with CAA requirements. See, e.g., 75 FR 2440 (January 15, 2010) (removing from Kentucky SIP rule regulating hazardous air pollutants); 74 FR 27442 (June 10, 2009) (removing from the Indiana SIP provisions relating to hazardous air pollutants); 73 FR 21546 (April 22, 2008) (removing the word “odor” from the definition of air contaminant in the New York SIP); 70 FR 58311 (October 6, 2005) (removing from the Idaho SIP a cross-reference to toxic air pollutants); 66 FR 57391 (November 15, 2001) (removing from the Missoula City-County portion of the Montana SIP provisions relating to, among other things, fluoride emission standards); see also Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule, 75 FR 82536, 82543-44 (Dec. 30, 2010) (relying on the authority of CAA 110(k)(6) to narrow the scope of Federal approval of State Prevention of Significant Deterioration (PSD) SIP provisions to ensure that federally enforceable requirements of the PSD programs of these States did not apply at lower thresholds for greenhouse gases than those under Federal PSD requirements in the Tailoring Rule).

Narrowing EPA's approval of these regulations to NAAQS pollutants and their precursors will have no affect on Washington's ability to demonstrate attainment and maintenance of the NAAQS or to meet any other requirement of the CAA.

III. Statutory and Executive Order Reviews

Under the CAA, 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 CAA. Accordingly, this proposed action merely corrects EPA's prior SIP approvals to be consistent with Federal requirements and does not impose additional requirements beyond those imposed by the State's 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);
• 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 Washington,^[3] 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
• Intergovernmental relations, and Reporting and recordkeeping requirements

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

Dated: March 16, 2011.

Dennis J. McLerran,

Regional Administrator, Region 10.

Footnotes

1.  Of course, SIP approved Prevention of Significant Deterioration programs must cover any “regulated NSR pollutant,” see 40 CFR 52.21(b)(50), which definition includes more than NAAQS pollutants and NAAQS precursors.

2.  The excepted provisions have not been approved into the Washington SIP for any air pollutant.

3.  The one exception is within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area.