[Federal Register Volume 63, Number 21 (Monday, February 2, 1998)]
[Rules and Regulations]
[Pages 5269-5272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2492]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA9-1-5540, WA28-1-6613, WA34-1-6937; FRL-5951-2]


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 
revisions to the Washington State Implementation Plan (SIP) for 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers (PM10) for the Yakima, Washington nonattainment 
area. On March 24, 1989, the Washington Department of Ecology (WDOE) 
submitted a plan for attaining and maintaining the National Ambient Air 
Quality Standard (NAAQS) for PM10 in the Yakima PM10 moderate 
nonattainment area and the plan was amended with additional submittals 
between 1992 and 1995. EPA proposed to approve and disapprove portions 
of the SIP submitted by the state of Washington on November 7, 1995. 
Subsequent to the November, 1995 proposal, EPA received two additional 
revisions from WDOE, dated November 3, and December 27, 1995 that 
resolved EPA's concerns in the proposed disapproval of portions of the 
Yakima PM10 nonattainment plan. Although EPA promulgated a new PM 
NAAQS, which became effective on September 16, 1997, the requirements 
which are

[[Page 5270]]

the subject of this document arise under the pre-existing PM NAAQS.

EFFECTIVE DATE: This action is effective on March 4, 1998.

ADDRESSES: Copies of the State's request and other information 
supporting this action are available for inspection during normal 
business hours at the following locations: EPA, Office of Air Quality 
(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, and the 
Washington State Department of Ecology, 300 Desmond Drive, Lacey, WA 
98503. Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, EPA, 401 M Street, SW., Washington, DC 20460, as well as the 
above addresses.

FOR FURTHER INFORMATION CONTACT: Regina C. Thompson, Office of Air 
Quality (OAQ-107), EPA, Seattle, Washington, (206) 553-1498.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 7, 1995, EPA published a document in the Federal 
Register proposing a limited approval and limited disapproval of the 
SIP submitted by the State of Washington for the purpose of bringing 
about attainment of the NAAQS for PM10 in Yakima, WA (60 FR 56129-
56133).
    In the Yakima nonattainment area, the Yakima Regional Clean Air 
Authority (YRCAA), formerly the Yakima County Clean Air Authority, is 
authorized under State law, as approved by EPA, to implement the CAA. 
EPA is clarifying that the approved SIP does not extend to lands which 
are within the boundaries of the Yakama Indian Nation.
    The November 7, 1995 proposal provided information on requirements 
for PM10 nonattainment area SIPs and the history of this rulemaking 
action. The portions of the plan which did not meet EPA requirements 
and for which EPA proposed disapproval included: the attainment 
demonstration; the maintenance demonstration; provisions to assure that 
reasonably available control measures (RACM) are implemented; the 
quantitative milestones to be achieved every three years which 
demonstrate reasonable further progress towards attainment; and, the 
enforceability of the local authority regulations.
    Subsequent to publishing the Federal Register proposal, EPA 
received two submittals from WDOE on November 3, 1995 and December 27, 
1995. These submittals addressed the concerns that EPA had with the 
package as proposed. A Technical Support Document on file at the EPA 
Region 10 office contains additional analysis of the submittals.

II. Review of State Submittals

A. Attainment Demonstration

    The State's November 3, 1995 submittal revised an analysis of 
emissions from a facility. Previously, the facility's actual emissions 
were used to estimate its impacts. This was revised so that the 
facility's allowable emissions were used. This analysis completed the 
demonstration of attainment and is, therefore, now approved by EPA.

B. Maintenance Demonstration and Quantitative Milestone

    The State's November 3, 1995 submittal included a maintenance 
demonstration and quantitative milestone report. These included the 
revised emissions prepared for the attainment demonstration above. This 
completed the maintenance demonstration and quantitative milestone 
report and is, therefore, now approved by EPA.

C. Implementation of RACM

    In the evaluation conducted by EPA to prepare the proposed rule, a 
number of the YRCAA regulations were found to be less stringent than 
the Washington Administrative Code (WAC). The December 27, 1995 
submittal from the State provided an amended set of YRCAA regulations, 
which included an acceptable woodsmoke control program. The regulations 
less stringent than the WAC were revised to make them at least as 
stringent as the state regulations. The regulations are, therefore, now 
approved by EPA.

D. Enforceability

    The State requires that local agency rules be at least as stringent 
as the State's regulations. When the YRCAA rules were less stringent 
than the State rules, it was questionable whether such rules could be 
enforced, as the rules did not meet State requirements. As the YRCAA 
rules have been revised with the December 27, 1995 submittal, and are 
now as stringent as the State rules, the question of enforceability is 
resolved. The revision addresses EPA's earlier concerns and is, 
therefore, now approved by EPA.

E. Indian Country

    By this approval in today's document, EPA is limiting its approval 
as not including any reference to authority of YRCAA over activities or 
air resources that are located within the exterior boundaries of the 
Yakama Indian Reservation. The WDOE submittal and the YRCAA rules do 
not specifically assert jurisdiction over air resources within the 
Yakama Reservation, and do not provide any information to demonstrate 
authority over such air resources. EPA is guided by Federal law and 
EPA's Indian Policy in making decisions affecting Tribes. In an earlier 
decision, EPA declined to approve WDOE programs within the State of 
Washington within Indian country under the Resource Conservation and 
Recovery Act, and EPA's decision was upheld in Washington Department of 
Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985). The court's conclusion 
was informed by ``well-settled principles of Indian law'' including the 
principle that ``States are generally precluded from exercising 
jurisdiction over Indians in Indian country unless Congress has clearly 
expressed an intention to permit it.'' Washington Department of Ecology 
v. EPA, 752 F.2d at 1469. In 1988, EPA concluded that the application 
of the State of Washington to operate the Underground Injection Control 
(UIC) program under the Safe Drinking Water Act was insufficient for 
EPA to authorize the State of Washington to regulate UIC activities 
within Indian reservations. See 53 FR 43080, October 25, 1988. More 
recently, EPA concluded that WDOE did not adequately demonstrate 
authority to regulate Title V sources located within reservation 
boundaries. See 59 FR 55813, November 29, 1994. Based on the approach 
articulated in these prior decisions, EPA concludes that WDOE has not 
adequately demonstrated authority over air resources located within the 
Yakama Indian Reservation. Therefore, EPA is by this document 
clarifying that its approval today does not include any portion of the 
YRCAA rules that would apply to areas within the exterior boundaries of 
the Yakama Indian Reservation.

III. Response To Comments

    EPA received no comments on the proposed rulemaking of November 7, 
1995. (60 FR 56129-56133)

IV. Final Action

    EPA approves Washington State's PM10 attainment plan for the Yakima 
moderate PM10 nonattainment area. This plan is contained in documents 
submitted to EPA by the State on: March 24, 1989, the original Yakima 
plan (docket #WA9-1-5540); May 1, 1992, a supplement to the original 
plan with changes required by the 1990 Clean Air Act Amendments; August 
19, 1992, a modeling and inventory supplement to the original plan; 
February 3, 1994, an addendum with contingency measures;

[[Page 5271]]

March 10, 1995, supplemental information primarily on emissions and 
modeling; June 27, 1995, a supplemental letter on monitoring, public 
notice and emissions; August 17, 1995, a supplemental emissions 
analysis; November 3, 1995, more emissions analysis and the maintenance 
demonstration; and December 27, 1995, revised regulations of the Yakima 
County Clean Air Authority.
    The portions of the December 27, 1995 submittal which EPA approves 
as part of the SIP for Washington include: Article I on policy, a short 
title and definitions; Article II on general provisions, except Section 
2.01; Article III on violations; Article IV on registration and notice 
of construction; Article V on emission standards and preventative 
measures, except Section 5.09; Article VIII on penalties and 
severability; Article IX on woodstoves and fireplaces; Article XI on 
the rules' effective date; Article XII on adoption of State 
regulations, except Section 12.02 on Federal regulations; and Article 
XIII on fee schedules and other charges, except Sections 13.04 and 
13.05.
    The portions of the December 27, 1995 submittal on which EPA is 
taking no action include: Article VI, which covers operating permits, 
as these were approved in a separate rulemaking process under Title V 
of the Clean Air Act; Section 5.09 of Article V, Article X, Section 
12.02 of Article XII, and Sections 13.04 and 13.05 of Article XIII, as 
these provisions relate to pollutants other than the criteria 
pollutants, and cannot be addressed through the State Implementation 
plan process; and Section 2.01 of Article II and Article VII, as these 
relate to variances, and variance procedures cannot be approved as part 
of the state implementation plan.
    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.

V. Administrative Requirements

A. Executive Order 12866

    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 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 
the 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 promulgated 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. 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 April 3, 1998. 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).)
    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 April 3, 1998. 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), 42 U.S.C. 
7607(b)(2))

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: January 6, 1998.
Chuck Clarke,
Regional Administrator, Region 10.

    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 et seq.


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Subpart WW--Washington

    2. Section 52.2470 is amended by adding paragraph (c) (76) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (76) On March 24, 1989, the Washington Department of Ecology 
submitted a plan for attaining and maintaining the NAAQS for PM10 in 
the Yakima PM10 moderate nonattainment area requesting EPA's review and 
approval. The plan was amended with additional submittals between 1992 
and 1995.
    (i) Incorporation by reference.
    (A) The attainment plan is contained in the following documents: a 
submittal of March 24, 1989, adopted that same date, from Washington 
State Department of Ecology, titled, State Implementation Plan for 
Particulate Matter--Yakima Area A Plan for Attaining and Maintaining 
the National Ambient Air Quality Standard for PM10; a supplement to the 
plan adopted August 19, 1992, titled, Supplement State Implementation 
Plan for Particulate Matter (PM10) in Yakima, WA and an addendum 
adopted February 3, 1994 on contingency measures.
    (B) Portions of Restated Regulation I of the Yakima County Clean 
Air Authority, effective December 15, 1995, including Article I; 
Article II except Section 2.01; Article III; Article IV; Article V 
except Section 5.09; Article VIII; Article IX; Article XI; Article XII 
except Section 12.02; and, Article XIII except Sections 13.04 and 
13.05.
    (ii) Additional material:
    (A) August 19, 1992: A modeling and inventory supplement to the 
original plan.
    (B) March 10, 1995: A supplemental information package primarily on 
emissions and modeling.
    (C) June 27, 1995: A supplemental letter on monitoring, public 
notice and emissions.
    (D) August 17, 1995: A supplemental emissions analysis.
    (E) November 3, 1995: More emissions analysis and the maintenance 
demonstration.
[FR Doc. 98-2492 Filed 1-30-98; 8:45 am]
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