[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Rules and Regulations]
[Pages 42439-42441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20217]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-7031-6]


Clean Air Act Full Approval of Operating Permits Program in 
Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to fully approve the operating 
permits program submitted by the State of Washington. Washington's 
operating permits program was submitted in response to the directive in 
the 1990 Clean Air Act Amendments that permitting authorities develop, 
and submit to EPA, programs for issuing operating permits to all major 
stationary sources and to certain other sources within the permitting 
authority's jurisdiction.

DATES: Effective September 12, 2001.

ADDRESSES: Copies of the State of Washington's submittal and other 
supporting information used in developing this final full approval are 
available for inspection during normal business hours at the following 
location: U.S. Environmental Protection Agency, Region 10, 1200 Sixth 
Avenue, Seattle, Washington 98101. Interested persons wanting to 
examine these documents should make an appointment with the appropriate 
office at least 24 hours before the visiting day. A reasonable fee may 
be charged for copies.

FOR FURTHER INFORMATION CONTACT: Denise Baker, EPA, Region 10, Office 
of Air Quality (OAQ-107), 1200 6th Avenue, Seattle, WA 98101, (206) 
553-8087.

SUPPLEMENTARY INFORMATION:

I. Background

    The Clean Air Act (CAA) Amendments of 1990 required all state and 
local permitting authorities to develop operating permits programs that 
meet certain Federal criteria. Washington's operating permits program 
was submitted in response to this directive. EPA granted interim 
approval to Washington's air operating permit program on November 9, 
1994 (59 FR 55813). EPA repromulgated final interim approval on one 
issue, and a notice of correction for Washington's operating permits 
program, on December 8, 1995 (60 FR 62992).
    After the state and local agencies that implement the Washington 
operating permits program revised their programs to address the 
conditions of the interim approval, EPA promulgated a proposal to 
approve Washington's title V operating permits program on January 2, 
2001, (66 FR at 84). At the same time, because EPA viewed the proposal 
as a noncontroversial action and did not anticipate adverse public 
comment on the proposal, EPA also published a direct final rule 
approving the Washington operating permits program (66 FR 16).
    EPA received one adverse public comment on the proposal. Therefore, 
EPA removed the direct final approval on April 2, 2001 ( 66 FR 17512). 
After carefully reviewing and considering the issues raised by the 
commenter, EPA is taking final action to give full approval to the 
Washington operating permits program.

II. Response to Comments

    The comment received by EPA related to Washington's provisions for 
insignificant emission units (IEUs). As discussed in the direct final 
approval notice, the Washington operating permits program specifically 
exempts IEUs from monitoring, recordkeeping, reporting, and compliance 
certification requirements except where such requirements are 
specifically imposed in the applicable requirement itself. See WAC 173-
401-530(2)(c) and (d); see also 66 FR at 19. Because EPA does not 
believe that part 70 exempts IEUs from the monitoring, recordkeeping, 
reporting, and compliance certification requirements of 40 CFR 70.6, 
but instead provides only a limited exemption from permit application 
requirements for IEUs, EPA initially determined that Ecology must 
revise its IEU regulations as a condition of full approval. See 60 FR 
at 62993-62997 (final interim approval of Washington's operating 
permits program based on exemption of IEUs from certain permit content 
requirements); 60 FR 50166 (September 28, 1995) (proposed interim 
approval of Washington's operating permits program on same basis).
    As also discussed in the direct final notice, however, the Western 
States Petroleum Association (WSPA), together with several other 
companies and the

[[Page 42440]]

Washington Department of Ecology, challenged EPA's determination that 
Ecology must revise its IEU regulations as a condition of full 
approval. See 66 FR at 19. On June 17, 1996, the Ninth Circuit found in 
favor of the petitioners. WSPA v. EPA, 87 F.3d 280 (9th Cir. 1996). The 
Ninth Circuit did not opine on whether EPA's position was consistent 
with part 70. It did, however, find that EPA had acted inconsistently 
in its title V approvals, and had failed to explain the departure from 
precedent that the Court perceived in the Washington interim approval. 
The Court then remanded the matter to EPA, instructing EPA to give full 
approval to Washington's IEU regulations. In light of the Court's 
order, EPA proposed in the direct final notice to give full approval to 
Washington's operating permits program even though Washington continued 
to exempt IEUs from monitoring, recordkeeping, reporting, and 
compliance certification requirements. See 66 FR at 19. EPA noted, 
however, that it continued to believe that part 70 does not allow the 
exemption of IEUs from the monitoring, recordkeeping, reporting, and 
compliance certification requirements of 40 CFR 70.6. See 66 FR at 19.
    The commenter on EPA's direct final action objected to EPA giving 
full approval to the Washington operating permits program without first 
requiring correction of the Washington's provisions for IEUs. The 
commenter agreed with EPA that part 70 does not allow the exemption of 
IEUs subject to applicable requirements from the monitoring, 
recordkeeping, reporting, and compliance certification requirements of 
40 CFR part 70. The commenter further asserted, however, that the Ninth 
Circuit's decision in WSPA v. EPA does not compel EPA to now grant full 
program approval to Washington because the procedural circumstances 
forming the basis for that decision no longer exist. EPA assumes the 
commenter is referring to EPA's statement in the direct final notice 
that, with respect to three of the states identified by the Ninth 
Circuit, EPA has determined that the states' regulations were not in 
fact inconsistent with EPA's position on IEUs and, in the case of the 
five other states identified by the Ninth Circuit, EPA has been working 
with these permitting authorities to ensure changes are made to their 
IEU provisions. See 66 FR at 19.
    After carefully reviewing the Ninth Circuit's order, EPA continues 
to believe that it must give full approval to Washington's operating 
permits program even though Washington's regulations exempt IEUs from 
monitoring, recordkeeping, reporting, and compliance certification 
requirements because the Court ordered EPA to do so. The Court 
subsequently denied EPA's request for rehearing on the matter. WSPA v. 
EPA, No. 95-70034 (9th Cir. October 17, 1996).
    As stated in the direct final notice, however, EPA maintains its 
position that part 70 does not allow the exemption of IEUs subject to 
generally applicable requirements from the monitoring, recordkeeping, 
reporting, and compliance certification requirements of 40 CFR 70.6. 
See 66 FR at 19. EPA will therefore be addressing this deficiency in 
Washington's IEU regulations in another context. On December 11, 2000 
(65 FR 77376), EPA published a Federal Register notice notifying the 
public of the opportunity to submit comments identifying any 
programmatic or implementation deficiencies in state title V programs 
that had received interim or full approval. In that notice, EPA 
committed to respond to the merits of any such claims of deficiency on 
or before December 1, 2001, for those states, such as Washington, that 
have received interim approval and on or before April 1, 2002, for 
states that have received full approval. In response to that December 
11, 2000, Federal Register notice, a commenter identified Washington's 
IEU regulations as deficient because Washington exempts IEUs subject to 
generally applicable requirements from monitoring, recordkeeping, 
reporting, and compliance certification requirements. Therefore, if the 
deficiencies in Washington's IEU regulations are not promptly 
addressed, EPA will respond to the deficiencies in Washington's IEU 
regulations and those of any other states identified by the WSPA Court 
that have not already been addressed in accordance with the time frames 
set forth in the December 11, 2000, Federal Register notice.

III. Final Action

    EPA is granting full approval of the State of Washington's 
operating permits program implemented by Ecology, EFSEC, and the seven 
local air authorities in Washington. Except with respect to non-trust 
lands within the 1873 Survey Area of the Puyallup Reservation,\1\ this 
approval does not extend to ``Indian Country'', as defined in 18 U.S.C. 
151. See 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR at 55815, 
55818; 59 FR 42552, 42554 (August 18, 1994).
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    \1\ These terms are defined in the Agreement among the Puyallup 
Tribe of Indians, local governments in Pierce County, the State of 
Washington, the United States, and certain private property owners 
dated August 27, 1988.
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IV. Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this final 
approval will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it approves pre-existing requirements under 
state law and does not impose any additional enforceable duties beyond 
that required by state law. This rule also does not have tribal 
implications because it will not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes, as 
specified by Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). This 
rule also does not have Federalism implications because it will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132, ``Federalism'' (64 FR 43255, 
August 10, 1999). This rule merely approves existing requirements under 
state law, and does not alter the relationship or the distribution of 
power and responsibilities between the State and the Federal government 
established in the Clean Air Act. This final approval also is not 
subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) or Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This action will not impose any

[[Page 42441]]

collection of information subject to the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., other than those previously 
approved and assigned OMB control number 2060-0243. For additional 
information concerning these requirements, see 40 CFR part 70. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program , to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply.
    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 rule 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). This rule will be effective September 12, 2001.
    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 October 12, 2001. 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 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: July 31, 2001.
Ronald A. Kreizenbeck,
Acting Regional Administrator, Region 10.

    40 CFR part 70, chapter I, title 40 of the Code of Federal 
Regulations is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.
    2. In appendix A to part 70, the entry for Washington is amended by 
revising paragraphs (a), (b), (c), (d), (e), (f), (g), (h), and (i) to 
read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

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Washington

    (a) Department of Ecology (Ecology): submitted on November 1, 
1993; interim approval effective on December 9, 1994; revisions 
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 
24, 1999; full approval effective on September 12, 2001.
    (b) Energy Facility Site Evaluation Council (EFSEC): submitted 
on November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 
1998, and May 24, 1999; full approval effective on September 12, 
2001.
    (c) Benton County Clean Air Authority (BCCAA): submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 
1998, and May 24, 1999; full approval effective on September 12, 
2001.
    (d) Northwest Air Pollution Authority (NWAPA): submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 
1998, and May 24, 1999; full approval effective on September 12, 
2001.
    (e) Olympic Air Pollution Control Authority (OAPCA): submitted 
on November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 
1998, and May 24, 1999; full approval effective on September 12, 
2001.
    (f) Puget Sound Clean Air Agency (PSCAA): submitted on November 
1, 1993; interim approval effective on December 9, 1994; revisions 
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 
24, 1999; full approval effective on September 12, 2001.
    (g) Spokane County Air Pollution Control Authority (SCAPCA): 
submitted on November 1, 1993; interim approval effective on 
December 9, 1994; revisions submitted on June 5, 1996, October 3, 
1996, August 25, 1998, and May 24, 1999; full approval effective on 
September 12, 2001.
    (h) Southwest Clean Air Agency (SWCAA): submitted on November 1, 
1993; interim approval effective on December 9, 1994; revisions 
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 
24, 1999; full approval effective on September 12, 2001.
    (i) Yakima Regional Clean Air Authority (YRCAA): submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 
1998, and May 24, 1999; full approval effective on September 12, 
2001.
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[FR Doc. 01-20217 Filed 8-10-01; 8:45 am]
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