[Federal Register Volume 62, Number 17 (Monday, January 27, 1997)]
[Rules and Regulations]
[Pages 3800-3803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1847]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA7-1-5542; WA38-1-6974; FRL-5675-7]


Approval and Promulgation of State Implementation Plans; 
Washington

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
portions of Washington State Implementation Plan revision submittals 
for particulate matter for the Spokane and Wallula, Washington, 
particulate matter nonattainment areas. EPA is also granting temporary 
waivers of the attainment date for both areas. This action extends the 
attainment date for particulate matter air pollution from December 31, 
1994, to December 31, 1997, in both nonattainment areas. The granting 
of the temporary waivers will provide the Washington Department of 
Ecology (Ecology) time to complete technical evaluations of the 
anthropogenic and nonanthropogenic sources of windblown dust in the 
area. The purpose of the submitted revisions is to bring about the 
attainment of the national ambient air quality standards (NAAQS) for 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers (PM10). The implementation plans were 
submitted by Ecology to satisfy certain federal Clean Air Act 
requirements for an approvable moderate PM10 nonattainment area 
SIPs for Spokane and Wallula, Washington.

EFFECTIVE DATE: March 28, 1997.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, EPA, Office of Air Quality (OAQ 107), 1200 Sixth Avenue, 
Seattle, Washington 98101.
    Copies of the State's request and other information supporting this 
proposed action are available for inspection during normal business 
hours at the following locations: EPA, Office of Air Quality, 1200 
Sixth Avenue (AT-082), Seattle, Washington 98101, and State of 
Washington Department of Ecology, 300 Desmond Drive, Lacey, Washington 
98503.

FOR FURTHER INFORMATION CONTACT: George Lauderdale, Office of Air 
Quality (AT-082), EPA, Region 10, Seattle, Washington 98101, (206) 553-
6511.

SUPPLEMENTARY INFORMATION:

I. Background

    The Spokane and Wallula, Washington areas were designated 
nonattainment for PM-10 and classified as moderate under sections 
107(d)(4)(B) and 188(a) of the Clean Air Act, upon enactment of the 
Clean Air Act Amendments of 1990.1 See 56 FR 56694 (November 6, 
1991). The air quality planning requirements for moderate PM10 
nonattainment areas are set out in subparts 1 and 4 of Part D, Title I 
of the

[[Page 3801]]

Act.2 EPA has issued a ``General Preamble'' describing EPA's 
preliminary views on how EPA intends to review SIP's and SIP revisions 
submitted under Title I of the Act, including those state submittals 
containing materials to satisfy moderate PM10 nonattainment area 
SIP requirements. See generally 57 FR 13498 (April 16, 1992); see also 
57 FR 18070 (April 28, 1992).
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    \1\ The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399. 
References herein are to the Clean Air Act, as amended (``the 
Act''). The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. sections 7401, et seq.
    \2\ Subpart 1 contains provisions applicable to nonattainment 
areas generally and subpart 4 contains provisions specifically 
applicable to PM-10 nonattainment areas. At times, subpart 1 and 
subpart 4 overlap or conflict. EPA has attempted to clarify the 
relationship among these provisions in the ``General Preamble'' and, 
as appropriate, in today's notice and supporting information.
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    EPA published its proposed approval of the moderate nonattainment 
area PM-10 SIP for Spokane, Washington on July 9, 1996 (61 FR 35998-
36004). On December 8, 1995, EPA announced its proposed approval of the 
moderate nonattainment area PM10 SIP for Wallula, Washington (60 
FR 63019-63023). In those rulemaking actions, EPA described its 
interpretations of Title 1 and its rationale for proposing to approve 
temporary waivers of the PM-10 attainment date for the Spokane and 
Wallula areas taking into consideration the specific factual issues 
presented.
    Those states containing initial moderate PM10 nonattainment 
areas (those areas designated nonattainment under section 107(d)(4)(B)) 
were required to submit an implementation plan that includes, among 
other things, the following by November 15, 1991:
    1. Provisions to assure that reasonably available control measures 
(RACM) (including such reductions in emissions from existing sources in 
the area as may be obtained through the adoption, at a minimum, of 
reasonably available control technology (RACT)) shall be implemented no 
later than December 10, 1993;
    2. Either a demonstration (including air quality modeling) that the 
plan will provide for attainment as expeditiously as practicable but no 
later than December 31, 1994, or a demonstration that attainment by 
that date is impracticable;
    3. Quantitative milestones which are to be achieved every three 
years and which demonstrate reasonable further progress (RFP) toward 
attainment by December 31, 1994; and
    4. Provisions to assure that the control requirements applicable to 
major stationary sources of PM10 also apply to major stationary 
sources of PM10 precursors except where the Administrator 
determines that such sources do not contribute significantly to 
PM10 levels which exceed the NAAQS in the area. See sections 
172(c), 188, and 189 of the Act.

II. Response To Comments

    EPA received four letters containing comments on the July 9, 1996, 
proposal for Spokane (61 FR 35998). All comments were either positive 
in nature, requested further explanation on certain aspects of the 
proposed rulemaking, or indicated minor factual errors in the proposal. 
EPA appreciates the positive comments received from the Spokane Chamber 
of Commerce, City of Spokane, Kaiser Aluminum and the Spokane County 
Air Pollution Control Authority (SCAPCA).
    Comment: Both the City of Spokane and the Spokane Area Chamber of 
Commerce letters, while generally supportive of EPA's proposal, 
commented that they consider using less traction sand and additional 
street sweeping as reasonable but an unfunded federal mandate.
    Response: EPA understands the concern about costs of implementing 
these measures; however, it is necessary to point out that the federal 
Clean Air Act does not mandate specific control measures for 
particulates. Under the CAA, the state and local governments determine 
which sources of particulates are to be controlled and how those 
controls will be implemented. In Spokane's situation several miles of 
unpaved roads were paved using federal Department of Transportation 
funding and it is EPA's understanding that the purchase of street 
sweepers can be an eligible cost under certain conditions. EPA 
encourages the city to further investigate that funding source.
    Comment: SCAPCA pointed out that a SCAPCA regulation for 
controlling emissions from paved surfaces should be referenced.
    Response: EPA is adopting into the SIP Section 6.14 of SCAPCA 
Regulation 1, as the control measure for paved roads.
    Comment: SCAPCA provided two comments regarding the new Natural 
Events Policy (May 30, 1996, Memorandum from Mary D. Nichols, Assistant 
Administrator for Air and Radiation, regarding ``Areas Affected by PM-
10 Natural Events''). First, SCAPCA questioned the EPA requirement that 
RACM for nonanthropogenic sources of PM-10 be evaluated as part of the 
Columbia Plateau PM-10 study. SCAPCA's interpretation of the new policy 
is that EPA will not impose RACM requirements on nonanthropogenic 
sources. The second comment related to the options available to EPA 
once the temporary waiver expires. SCAPCA thinks that EPA should apply 
the new Natural Events Policy after expiration of the temporary waiver.
    Response: Specific issues regarding the application of the Natural 
Events Policy to the Spokane and/or Wallula nonattainment areas is not 
within the purpose and scope of this rulemaking. EPA intends to address 
the above comments along with other issues related to the application 
of the policy, in close cooperation with both SCAPCA and Ecology in the 
near future.
    Comment: SCAPCA's final comment related to the federal 
enforceability of the SCAPCA Orders 96-03, #96-04, #96-05 and #96-06 
(all dated April 24, 1996) which lowered the potential to emit for the 
Kaiser Aluminum--Trentwood facility. SCAPCA reasoned that since the 
orders were issued under WAC 173-400-091, ``Voluntary Limits on 
Emissions'', they were automatically adopted into the SIP and therefore 
there was no need for EPA to specifically adopt the orders into the 
Spokane nonattainment area SIP.
    Response: WAC-173-400-091 provides that an order issued under its 
authority shall be federally enforceable. However, the fact that the 
requirements of the orders may be federally enforceable does not make 
them federally enforceable without EPA approval of the orders as part 
of the SIP. Since these orders were submitted as part of the state's 
SIP revision, EPA is acting to approve submittals that are consistent 
with the Act. Under the Act, EPA must approve SIPs in order to assure 
that the SIP requirements will be both federally enforceable and 
permanent. SCAPCA issues orders under WAC 173-400-091 at the request of 
a source to limit a source's potential to emit, but SCAPCA also must 
revise or revoke the orders if the source proposes to deviate from any 
conditions in the order, so long as those limits are less than the 
limits approved into the SIP. Here, SCAPCA relies upon the potential to 
emit limitations of these orders in its attainment demonstration. The 
Clean Air Act requires that emission limitations and other measures 
relied on to ensure attainment and maintenance of the NAAQS be 
permanent. The voluntary nature of orders issued pursuant to WAC 173-
400-091 does not ensure permanence of the potential to emit limits for 
the Kaiser Trentwood facility. Even though there is no reason to think 
the source would choose to increase the voluntary limits, the source 
could request and, under state law, SCAPCA would revise or revoke those 
limits without seeking EPA approval. Therefore, EPA is adopting the 
specific April 24, 1996, orders as part of the

[[Page 3802]]

Spokane attainment plan in order to make them a permanent part of the 
Washington SIP. Any changes to the conditions of the orders that would 
result in an increase in emissions above those specified in the order 
approved today will have to be approved by EPA as a revision to the 
SIP.
    EPA received no comments on its December 8, 1995, (60 FR 63019-
63023) Federal Register proposal to approve the Wallula moderate 
nonattainment area PM10 SIP as a revision.

III. Today's Action

    Section 110(k) of the Act sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-66). For PM-10 nonattainment 
areas Section 188(f) of the Act (Waivers for Certain Areas) can apply 
as well.
    In this action, EPA is granting a temporary waiver of the 
attainment date for the Spokane and the Wallula nonattainment areas. 
Specific discussion of EPA's requirements for a temporary waiver are 
detailed in 59 FR 41998-42017 (August 16, 1994). This EPA guidance 
provides certain flexibility for areas where the relative significance 
of anthropogenic and nonanthropogenic sources is unknown. Ecology has 
presented preliminary data, based on an analysis of the relative 
contributions of anthropogenic and nonanthropogenic sources of PM-10 
contributing to eastern Washington exceedences, indicating that 
nonanthropogenic sources may be significant in the Spokane and Wallula 
nonattainment areas during windblown dust events. EPA accepts this 
preliminary information and grants temporary waivers of the moderate 
area attainment date to December 31, 1997 to allow Ecology to evaluate 
further the Spokane and Wallula nonattainment areas. Once that 
evaluation is completed, and/or the temporary waiver expires, EPA will 
make final determinations on the designations and other requirements.
    The Memorandum of Agreement signed in August 1995, by Chuck Clarke, 
Regional Administrator EPA, Region 10, and Mary Riveland, Director, 
Washington State Department of Ecology will be in effect though the 
temporary waiver timeframe. This agreement outlines the approach each 
agency will take in completing work on the PM-10 problems in both the 
Spokane and Wallula nonattainment areas. The agreement states that 
``the Spokane and Wallula nonattainment areas will retain the 
classification of a moderate PM-10 nonattainment area, until 12/31/97 
unless PM-10 air quality data indicates that the area has failed to 
attain the 24-hour health standard because of exceedences that cannot 
be primarily attributed to windblown dust.'' As required in the EPA 
guidance, Ecology and EPA are proceeding under written agreements which 
include a protocol for both technical analysis (emission inventory, 
emission factor development, dispersion modeling, receptor modeling, 
etc.) and evaluation of alternative control measures, including Best 
Available Control Measures. The activities required under the protocol 
are generally referred to as the Columbia Plateau PM-10 Project funded 
by EPA, Ecology, and the U.S. Department of Agriculture (USDA).
    Today's action does not relieve the areas from the Clean Air Act 
requirement to implement RACM. In the Spokane situation, EPA has 
concluded that agricultural windblown dust, residential wood 
combustion, and paved and unpaved roads have been reasonably 
controlled. In the Wallula situation, EPA has concluded that the 
dominant significant source of PM-10, agricultural windblown dust, as 
well as the two less significant sources, Boise Cascade papermill and 
Simplot Feeders Limited Partnership feedlot, in the nonattainment area 
have been reasonably controlled. Thus, EPA thinks it would not be 
reasonable to require other smaller sources of PM-10 in the areas to 
implement potentially available control measures or technology. 
Further, EPA believes implementation of such additional controls in the 
areas would not expedite attainment.
    The 1991 SIP revision for Wallula contained a commitment from 
Ecology to adopt provisions of the federal Food Security Act (FSA) into 
state regulation. Although Ecology did not develop such a regulation 
EPA now determines that Ecology need not develop, adopt and submit 
state regulations that accomplish the same results as the current 
federal law and regulations. Such action would be unnecessary since the 
federal government (U.S. Department of Agriculture) has the primary 
responsibility for implementation, and enforcement, of provisions of 
the FSA.
    EPA's approval of the temporary waiver of the attainment date 
defers approval/disapproval actions on several otherwise required 
elements of the moderate area plans for both Spokane and Wallula. EPA 
will take final action on the attainment demonstration, emission 
inventory, and contingency measures after the Columbia Plateau analysis 
is completed and/or the temporary waiver expires or if the new natural 
events policy is applied to these nonattainment areas.
    Finally, EPA concludes that due to the small relative contribution 
of stationary sources to both the Spokane and Wallula nonattainment 
areas, stationary sources of PM-10 precursors provide an insignificant 
contribution to the areas ambient PM-10 concentrations. EPA grants the 
areas an exclusion from PM-10 precursor control requirements authorized 
under section 189(e) of the act for both nonattainment areas. Note that 
while EPA is making a general finding for the areas, this finding is 
based on the current character of the areas including, for example, the 
existing mix of sources in the areas. It is possible, therefore, that 
future growth could change the significance of precursors in the areas.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

IV. Administrative Review

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the 
Administrator certifies that it does not

[[Page 3803]]

have a significant impact on any small entities affected. Moreover, due 
to the nature of the Federal-State relationship under the CAA, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of state action. The Clean Air Act 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action approves pre-existing 
requirements under State or local law, and imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. section 804(2).

E. Petitions for Judicial Review

    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 28, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Particulate matter.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Washington was approved by the Director of the Office 
of Federal Register on July 1, 1982.

    Dated: December 23, 1996.
Chuck Clarke,
Regional Administrator.
    Part 52, 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. 7401-7671q.

Subpart WW--Washington

    2. Section 52.2470 is amended by adding paragraph (c)(69) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (69) EPA received from the Washington Department of Ecology 
PM10 nonattainment area plans for Wallula and Spokane, Washington, 
as revisions to the Washington state implementation plan.
    (i) Incorporation by reference.
    (A) November 13, 1991 letter from Washington Department of Ecology 
(WDOE) to EPA Region 10 submitting the State Implementation Plan for 
Particulate Matter in the Wallula Study Area, A Plan for Attaining and 
Maintaining the National Ambient Air Quality Standard for PM10 
(including Appendices ``D'' (Exceptional Events Analysis), ``E'' 
(Reasonably Available Control Measure Analysis), ``F'' (Reasonably 
Available Control Technical Analysis of Boise Cascade, Wallula), and 
``H'' (Discussion of Modified Attainment Demonstration)), adopted 
November 14, 1991; May 18, 1993 letter from WDOE forwarding a report 
titled, ``Addendum to the State Implementation Plan for the Wallula PM-
10 Nonattainment Area, Reasonably Available Control Measure Analysis'', 
further describing the control measures being implemented in the area; 
June 23, 1994 letter from WDOE providing additional information 
describing the status of the control measures and forwarding an 
analysis of windblown dust in the area; April 28 and May 18, 1995, 
letters from WDOE to EPA Region 10, providing additional information on 
the allowable and fugitive emissions for point sources and air quality 
dispersion modeling; June 1, 1995, letter from WDOE providing 
information on allowable emissions; and a September 6, 1995, letter 
from WDOE forwarding a revised emission inventory for point sources 
within the Wallula nonattainment area.
    (B) December 9, 1994, letter from WDOE submitting the Spokane 
PM10 Attainment Plan (including Appendices ``C'' (Analysis of 
PM10 Data/Exceedances of the 24-Hour Standard), ``E'' (Detailed 
Analysis of Dust Storms/Analysis of the Impact of Biogenic PM10 
Sources), ``F'' (Analysis of PM10 Data/Exceedances of the 24-Hour 
Standard, Excluding Dust Storms), ``I'' (Reasonable Available Control 
Measures Analysis), ``J,'' (Additional Controls/Contingency Measures), 
``K,'' (Dispersion Modelling and Attainment Demonstration), and ``L,'' 
(Demonstration of Attainment of the Annual Standard)), dated December 
1994, and adopted December 12, 1994;
    (C) Spokane County Air Pollution Control Authority (SCAPCA) Order 
No. 91-01 providing for an alternate opacity limit for the Kaiser 
Aluminum and Chemical Corporation, Trentwood aluminum facility; SCAPCA 
Orders 96-03, 96-04, 96-05 and 96-06 (all dated April 24, 1996) 
lowering the potential to emit for the Kaiser Aluminum--Trentwood 
facility; and
    (D) SCAPCA regulations: Article VI, section 6.05, ``Particulate 
Matter and Preventing Particulate Matter from Becoming Airborne,'' 
section 6.14, ``Standards for Control of Particulate Matter on Paved 
Surfaces,'' and section 6.15, ``Standards for Control of Particulate 
Matter on Unpaved Roads;'' (effective November 12, 1993); and Article 
VIII, ``Solid Fuel Burning Device Standards,'' (adopted April 7, 1988).
    (ii) Additional material.
    (A) SCAPCA's zoning ordinance provisions requiring the paving of 
new parking lots (4.17.059 and 4.802.080 of the Zoning Code of Spokane 
County, dated 5/24/90).

[FR Doc. 97-1847 Filed 1-24-97; 8:45 am]
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