[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16365-16367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6872]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2011-0315, FRL-9285-6]


Approval and Promulgation of Implementation Plans; Washington: 
Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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: [email protected].
     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

[[Page 16366]]

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: 
(206) 553-6357, e-mail address: [email protected], 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\
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    \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.
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    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);
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    \2\ The excepted provisions have not been approved into the 
Washington SIP for any air pollutant.
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    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,

[[Page 16367]]

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.
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    \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.
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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.
[FR Doc. 2011-6872 Filed 3-22-11; 8:45 am]
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