[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.
[[Page 5272]]
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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