[Federal Register Volume 79, Number 93 (Wednesday, May 14, 2014)]
[Proposed Rules]
[Pages 27533-27543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11073]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2014-0333, FRL-9910-95-Region 10]


Approval and Promulgation of Implementation Plans; Washington: 
Infrastructure Requirements for the 2008 Lead National Ambient Air 
Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to partially approve and partially 
disapprove the State Implementation Plan (SIP) submittal from the State 
of Washington (Washington or the State) demonstrating that the SIP 
meets the infrastructure requirements of the Clean Air Act (CAA) for 
the National Ambient Air Quality Standards (NAAQS) promulgated for lead 
on October 15, 2008. The CAA requires that each state, after a new or 
revised NAAQS is promulgated, review their SIP to ensure that it meets 
the infrastructure requirements necessary to implement the new or 
revised NAAQS. On April 1, 2014, Washington certified that the 
Washington SIP meets the infrastructure requirements of the CAA for 
purposes of the 2008 lead NAAQS, except for those requirements related 
to the Prevention of Significant Deterioration (PSD) permitting program 
currently operated under a Federal Implementation Plan (FIP). The EPA 
is proposing to find that Washington's 2008 lead SIP is adequate for 
purposes of the infrastructure SIP requirements of CAA section 110, 
with the exception of the requirements related to PSD permitting and 
portions of the interstate transport requirements. The EPA finds that 
the SIP deficiencies related to PSD permitting, however, have been 
adequately addressed by the existing EPA FIP and, therefore, no further 
action is required by Washington or the EPA. The EPA will address the 
remaining interstate transport requirements in a separate action.

DATES: Comments must be received on or before June 13, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2014-0333, by any of the following methods:
     Email: [email protected].
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Mail: Jeff Hunt, EPA Region 10, Office of Air, Waste and 
Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101
     Hand Delivery: EPA Region 10 Mailroom, 9th floor, 1200 
Sixth Avenue, Suite 900, Seattle, WA 98101. Attention: Jeff Hunt, 
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-
2014-0333. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov your email 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, the 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 the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any

[[Page 27534]]

form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
the disclosure of which 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 
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: Jeff Hunt at: (206) 553-0256, 
[email protected], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us'' or ``our'' is used, it is intended to refer to the EPA. 
Information is organized as follows:

Table of Contents

I. Background
II. CAA Sections 110(a)(1) and (2) Infrastructure Elements
III. The EPA's Approach to Review of Infrastructure SIP Submittals
IV. Analysis of the State's Submittal
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On October 15, 2008, the EPA revised the level of the primary and 
secondary lead NAAQS from 1.5 micrograms per cubic meter ([mu]g/m\3\) 
to 0.15 [micro]g/m\3\. The CAA requires SIPs meeting the requirements 
of sections 110(a)(1) and (2) be submitted by states within three years 
after promulgation of a new or revised standard. CAA sections 110(a)(1) 
and (2) require states to address basic SIP requirements to provide for 
implementation, maintenance and enforcement of the standards, so-called 
``infrastructure'' requirements. States were required to submit such 
SIPs for the 2008 lead NAAQS to the EPA no later than October 15, 2011.
    To help states meet this statutory requirement, the EPA issued 
guidance to address infrastructure SIP elements under CAA sections 
110(a)(1) and (2).\1\ As noted in the guidance, to the extent an 
existing SIP already meets the CAA section 110(a)(2) requirements, 
states may certify that fact via a letter to the EPA. The certification 
should address all requirements of the CAA section 110(a)(2) 
infrastructure elements as applicable for the 2008 lead NAAQS. Such 
certification should include documentation demonstrating a correlation 
between each infrastructure element specified at 110(a)(2) and an 
equivalent state authority in the existing or submitted SIP. As for all 
SIP submittals, a state should provide reasonable public notice of, and 
an opportunity for a public hearing on, the certification before it is 
submitted to the EPA.
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    \1\ Stephen D. Page, Director, Office of Air Quality Planning 
and Standards. 1.) ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements Required Under Sections 110(a)(1) and (2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards.'' 
Memorandum to EPA Air Division Directors, Regions I-X, October 14, 
2011, and 2.) ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions I-X, 
September 13, 2013.
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    CAA section 110(a) imposes the obligation upon states to make a SIP 
submission to the EPA for a new or revised NAAQS, but the contents of 
that submission may vary depending upon the facts and circumstances. In 
the case of the 2008 lead NAAQS, states typically have met the basic 
program elements required in CAA section 110(a)(2) through earlier SIP 
submissions. On April 1, 2014, Washington made a submittal to the EPA 
certifying that the current Washington SIP meets the CAA section 
110(a)(1) and (2) infrastructure requirements for the 2008 lead NAAQS, 
except for certain requirements related to PSD permitting, described in 
the ``Analysis of the State's Submittal'' section of this publication. 
The submittal included an analysis of Washington's SIP as it relates to 
each section of the infrastructure requirements with regard to the 2008 
lead NAAQS. Washington provided notice and an opportunity for public 
comment on the submittal from February 14, 2014, through March 24, 
2014. A notice offering the public an opportunity to comment and 
request a hearing was published in the Daily Journal of Commerce on 
February 14, 2014. The Washington Department of Ecology (Ecology) also 
issued a news release, fact sheet, and hearing notice on Ecology's 
public involvement Web site and interested parties email list. Ecology 
received no requests for a public hearing. The EPA has evaluated 
Washington's submittal and determined that Washington has met the 
requirements for reasonable notice and public hearing under section 
110(a)(2) of the CAA.

II. CAA Sections 110(a)(1) and (2) Infrastructure Elements

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. CAA section 110(a)(2) lists specific elements that states 
must meet for infrastructure SIP requirements related to a newly 
established or revised NAAQS. These requirements include SIP 
infrastructure elements such as modeling, monitoring, and emissions 
inventories that are designed to assure attainment and maintenance of 
the NAAQS. The requirements, with their corresponding CAA subsection, 
are listed below:
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.\2\
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    \2\ Washington's submittal does not address CAA section 
110(a)(2)(D)(i)(I). At the time of the State's submission, in 
accordance with the panel of the U.S. Court of Appeals for the D.C. 
Circuit opinion, 110(a)(2)(D)(i)(I) submittals were not required 
until the EPA quantified the State's obligations under that section. 
See EME Homer City generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 
2012). On April 29, 2014, the U.S. Supreme Court reversed and 
remanded the D.C. Circuit's ruling. EPA v. EME Homer City 
Generation, L.P., No. 12-182, 572 U.S. ---- slip op. (2014). The EPA 
intends to address Washington's obligations under CAA section 
110(a)(2)(D)(i)(I) with respect to the lead NAAQS in a separate 
action. In contrast, portions of the Washington SIP submittal 
relating to 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), were 
submitted. In this notice, we are proposing to act on Washington's 
submittal for purposes of 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii) 
for the 2008 lead NAAQS.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.
     110(a)(2)(J): Consultation with government officials; 
public notification; and Prevention of Significant Deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    The EPA's October 14, 2011, guidance restated our interpretation 
that two elements identified in CAA section 110(a)(2) are not governed 
by the three-year submission deadline of CAA section 110(a)(1) because 
SIPs incorporating necessary local nonattainment area controls are not 
due

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within three years after promulgation of a new or revised NAAQS, but 
rather, are due at the time the nonattainment area plan requirements 
are due pursuant to CAA section 172 and the various pollutant specific 
subparts 2-5 of part D. These requirements are: (i) Submissions 
required by CAA section 110(a)(2)(C) to the extent that subsection 
refers to a permit program as required in part D, title I of the CAA, 
and (ii) submissions required by CAA section 110(a)(2)(I) which pertain 
to the nonattainment planning requirements of part D, title I of the 
CAA. As a result, this action does not address infrastructure elements 
related to CAA section 110(a)(2)(C) with respect to nonattainment new 
source review (NSR) or CAA section 110(a)(2)(I). Furthermore, the EPA 
interprets the CAA section 110(a)(2)(J) provision on visibility as not 
being triggered by a new NAAQS because the visibility requirements in 
part C, title I of the CAA are not changed by a new NAAQS.

III. The EPA's Approach to Review of Infrastructure SIP Submittals

    The EPA is acting upon the SIP submission from Washington that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2008 lead NAAQS. The requirement for states to make a 
SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon the EPA's taking any action other than 
promulgating a new or revised NAAQS. Section 110(a)(2) includes a list 
of specific elements that ``[e]ach such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submission from 
submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' 
submissions to address the nonattainment planning requirements of part 
D of title I of the CAA, ``regional haze SIP'' submissions required by 
the EPA rule to address the visibility protection requirements of CAA 
section 169A, and nonattainment new source review permit program 
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\3\ The EPA therefore 
believes that while the timing requirement in section 110(a)(1) is 
unambiguous, some of the other statutory provisions are ambiguous. In 
particular, the EPA believes that the list of required elements for 
infrastructure SIP submissions provided in section 110(a)(2) contains 
ambiguities concerning what is required for inclusion in an 
infrastructure SIP submission.
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    \3\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for the 
EPA to interpret some section 110(a)(1) and section 110(a)(2) 
requirements with respect to infrastructure SIP submissions for a given 
new or revised NAAQS. One example of ambiguity is that section 
110(a)(2) requires that ``each'' SIP submission must meet the list of 
requirements therein, while the EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
CAA, which specifically address nonattainment SIP requirements.\4\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires the EPA to establish a schedule for submission of such plans 
for certain pollutants when the Administrator promulgates the 
designation of an area as nonattainment, and section 107(d)(1)(B) 
allows up to two years, or in some cases three years, for such 
designations to be promulgated.\5\ This ambiguity illustrates that 
rather than apply all the stated requirements of section 110(a)(2) in a 
strict literal sense, the EPA must determine which provisions of 
section 110(a)(2) are applicable for a particular infrastructure SIP 
submission.
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    \4\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \5\ The EPA notes that this ambiguity within section 110(a)(2) 
is heightened by the fact that various subparts of part D set 
specific dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether the EPA must act upon such SIP submission 
in a single action. Although section 110(a)(1) directs states to submit 
``a plan'' to meet these requirements, the EPA interprets the CAA to 
allow states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, the EPA can elect to act on such submissions either 
individually or in a larger combined action.\6\ Similarly, the EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
the EPA has sometimes elected to act at different times on various 
elements and sub-

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elements of the same infrastructure SIP submission.\7\
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    \6\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (the EPA's final action approving the 
structural PSD elements of the New Mexico SIP submitted by the State 
separately to meet the requirements of the EPA's 2008 
PM2.5 NSR rule), and ``Approval and Promulgation of Air 
Quality Implementation Plans; New Mexico; Infrastructure and 
Interstate Transport Requirements for the 2006 PM2.5 
NAAQS,'' (78 FR 4337) (January 22, 2013) (the EPA's final action on 
the infrastructure SIP for the 2006 PM2.5 NAAQS).
    \7\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to the EPA demonstrating that the State meets the 
requirements of sections 110(a)(1) and (2). The EPA proposed action 
for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 
FR 3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), the 
EPA took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, the EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants, 
for example because the content and scope of a state's infrastructure 
SIP submission to meet this element might be very different for an 
entirely new NAAQS than for a minor revision to an existing NAAQS.\8\
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    \8\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    The EPA notes that interpretation of section 110(a)(2) is also 
necessary when the EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, the 
EPA also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), the EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, the EPA assumes that Congress could not 
have intended that each and every SIP submission, regardless of the 
NAAQS in question or the history of SIP development for the relevant 
pollutant, would meet each of the requirements, or meet each of them in 
the same way. Therefore, the EPA has adopted an approach under which it 
reviews infrastructure SIP submissions against the list of elements in 
section 110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, the EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\9\ The 
EPA most recently issued guidance for infrastructure SIPs on September 
13, 2013 (2013 Guidance).\10\ The EPA developed this document to 
provide states with up-to-date guidance for infrastructure SIPs for any 
new or revised NAAQS. Within this guidance, the EPA describes the duty 
of states to make infrastructure SIP submissions to meet basic 
structural SIP requirements within three years of promulgation of a new 
or revised NAAQS. The EPA also made recommendations about many specific 
subsections of section 110(a)(2) that are relevant in the context of 
infrastructure SIP submissions.\11\ The guidance also discusses the 
substantively important issues that are germane to certain subsections 
of section 110(a)(2). Significantly, the EPA interprets sections 
110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need 
to address certain issues and need not address others. Accordingly, the 
EPA reviews each infrastructure SIP submission for compliance with the 
applicable statutory provisions of section 110(a)(2), as appropriate.
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    \9\ The EPA notes, however, that nothing in the CAA requires the 
EPA to provide guidance or to promulgate regulations for 
infrastructure SIP submissions. The CAA directly applies to states 
and requires the submission of infrastructure SIP submissions, 
regardless of whether or not the EPA provides guidance or 
regulations pertaining to such submissions. EPA elects to issue such 
guidance in order to assist states, as appropriate.
    \10\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \11\ The EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). The EPA issued the guidance 
shortly after the U.S. Supreme Court agreed to review the D.C. 
Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which 
had interpreted the requirements of section 110(a)(2)(D)(i)(I). In 
light of the uncertainty created by ongoing litigation, the EPA 
elected not to provide additional guidance on the requirements of 
section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither 
binding nor required by statute, whether the EPA elects to provide 
guidance on a particular section has no impact on a state's CAA 
obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, the 
EPA reviews infrastructure SIP submissions to ensure that the state's 
SIP appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains the EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in the EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, the EPA's review of infrastructure SIP 
submissions with respect to the PSD program requirements in sections 
110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD 
program requirements contained in part C and the EPA's PSD regulations. 
Structural PSD program requirements include provisions necessary for 
the PSD program to address all regulated sources and NSR pollutants, 
including greenhouse gases. By contrast, structural PSD program 
requirements do not include provisions that are not required under the 
EPA's regulations at 40 CFR 51.166 but are

[[Page 27537]]

merely available as an option for the state, such as the option to 
provide grandfathering of complete permit applications with respect to 
the 2012 PM2.5 NAAQS. Accordingly, the latter optional 
provisions are types of provisions the EPA considers irrelevant in the 
context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, the EPA's review of 
a state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, the EPA evaluates whether 
the state has an EPA-approved minor new source review program and 
whether the program addresses the pollutants relevant to that NAAQS. In 
the context of acting on an infrastructure SIP submission, however, the 
EPA does not think it is necessary to conduct a review of each and 
every provision of a state's existing minor source program (i.e., 
already in the existing SIP) for compliance with the requirements of 
the CAA and EPA's regulations that pertain to such programs.
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and the EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for PSD programs that may be inconsistent with 
current requirements of the EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007). 
Thus, the EPA believes it may approve an infrastructure SIP submission 
without scrutinizing the totality of the existing SIP for such 
potentially deficient provisions and may approve the submission even if 
it is aware of such existing provisions.\12\ It is important to note 
that the EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \12\ By contrast, the EPA notes that if a state were to include 
a new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then the EPA would need to evaluate that 
provision for compliance against the rubric of applicable CAA 
requirements in the context of the action on the infrastructure SIP.
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    The EPA's approach to review of infrastructure SIP submissions is 
to identify the CAA requirements that are logically applicable to that 
submission. The EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and the EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when the EPA evaluates adequacy of the infrastructure 
SIP submission. The EPA believes that a better approach is for states 
and the EPA to focus attention on those elements of section 110(a)(2) 
of the CAA most likely to warrant a specific SIP revision due to the 
promulgation of a new or revised NAAQS or other factors.
    For example, the EPA's 2013 Guidance gives simpler recommendations 
with respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, the EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a ``SIP 
call'' whenever the EPA determines that a state's SIP is substantially 
inadequate to attain or maintain the NAAQS, to mitigate interstate 
transport, or to otherwise comply with the CAA.\13\ Section 110(k)(6) 
authorizes the EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\14\ Significantly, the EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude the EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, the EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\15\
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    \13\ For example, the EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \14\ The EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). The EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \15\ See, e.g., the EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. Analysis of the State's Submittal

110(a)(2)(A): Emission Limits and Other Control Measures

    CAA section 110(a)(2)(A) requires SIPs to include enforceable 
emission limits and other control measures, means or techniques 
(including economic incentives such as fees,

[[Page 27538]]

marketable permits, and auctions of emissions rights), as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of the CAA.
    State submittal: Washington's previous infrastructure certification 
for the 1997 ozone NAAQS outlined the State's overarching regulatory 
and statutory authorities to set emission limits and require control 
measures generally for all criteria pollutants. These statutory 
authorities include portions of Chapter 70.94 Revised Code of 
Washington (RCW) Washington Clean Air Act and Chapter 43.21A RCW 
Department of Ecology. As noted in Washington's submittal for the lead 
NAAQS, the underlying statutory authorities remain unchanged since the 
EPA's last review and approval of the 1997 ozone NAAQS infrastructure 
certification (May 24, 2012; 77 FR 30902).\16\ Like ozone, the State 
has a long history of regulating lead, therefore the broad regulatory 
authorities to address criteria pollutants generally, codified in the 
SIP at 40 CFR part 52, subpart WW, continue to protect and maintain the 
lead NAAQS. The most significant change to the SIP since the EPA's last 
review is Washington's submittal of Washington Administrative Code 
(WAC) section 173-476-120 Ambient Air Quality Standards for Lead (Pb) 
which set state standards for lead that match the EPA lead NAAQS. The 
EPA approved WAC 173-476-120 on March 4, 2014 (79 FR 12077).
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    \16\ Washington State did make changes to the Washington Clean 
Air Act modifying particulate matter control measures for 
residential wood combustion, effective June 2012. However, these 
changes are unrelated to the regulation of the lead NAAQS. The EPA 
also notes that on January 27, 2014, Ecology submitted an updated 
version of Chapter 173-400 of the Washington Administrative Code, 
General Regulations for Air Pollution Sources, however the EPA has 
not yet made a proposed determination on that submittal.
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    Washington's submittal includes an analysis of potential lead 
sources in the State. In 2010, the EPA improved the existing lead 
monitoring network by requiring monitors be placed in areas with 
sources such as industrial facilities with lead emissions of 0.5 tons 
or more. Washington currently has no known industrial facilities with 
lead emissions at these updated monitoring thresholds; nor are there 
any nonattainment areas for lead in the State. Because leaded aviation 
gasoline was considered a possible threat to attainment, the EPA 
required a year-long monitoring study of airports with estimated lead 
emissions between 0.50 and 1.0 tons per year, including two airports in 
Washington: Auburn Municipal Airport and Harvey Field in Snohomish. 
Monitoring results at these Washington airports showed little risk of 
future nonattainment, with concentrations well below one-half the 2008 
lead NAAQS, as discussed in the evaluation of CAA section 110(a)(2)(B), 
below. Given the lack of air emissions in the State at current 
reporting and monitoring thresholds for lead, Washington determined 
that no new control measures or emission standards would be necessary 
at this time. If any new facilities are found to emit lead, Washington 
determined that the existing EPA-approved minor source permitting 
program and the PSD FIP would adequately address these situations in 
the future.
    EPA analysis: The EPA agrees with Washington's determination that 
no new control measures or emission limits for lead seem necessary at 
this time, due to the lack of air emission sources in the State. The 
EPA is proposing to find that the existing Washington SIP, codified in 
40 CFR 52, subpart WW, is adequate to protect and maintain the 2008 
lead NAAQS.
    The EPA is also proposing to find that Washington's SIP meets the 
requirements of section 110(a)(2)(A) for the 2008 lead NAAQS, subject 
to the following qualifications. We are not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during startup, shutdown, or malfunction (SSM) of operations 
at a facility. The EPA believes that a number of states may have SSM 
provisions that are contrary to the CAA and existing EPA guidance and 
the EPA plans to address such state regulations.\17\ In the meantime, 
the EPA encourages any state having a deficient SSM provision to take 
steps to correct it as soon as possible. In addition, we are not 
proposing to approve or disapprove any existing state rules with regard 
to director's discretion or variance provisions. The EPA believes that 
a number of states may have such provisions that are contrary to the 
CAA and existing EPA guidance (52 FR 45109, November 24, 1987) and the 
EPA plans to take action in the future to address such state 
regulations. In the meantime, we encourage any state having a 
director's discretion or variance provision that is contrary to the CAA 
and the EPA guidance to take steps to correct the deficiency as soon as 
possible.
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    \17\ See Scope of Action on Infrastructure Submittals.
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110(a)(2)(B): Ambient Air Quality Monitoring/Data System

    CAA section 110(a)(2)(B) requires SIPs to include provisions to 
provide for establishment and operation of ambient air quality 
monitors, collecting and analyzing ambient air quality data, and making 
these data available to the EPA upon request.
    State submittal: Washington derives its general statutory authority 
to establish and operate ambient air quality monitors from RCW 
70.94.331(5) Powers and Duties of Department which states, ``[t]he 
department is directed to conduct or cause to be conducted a continuous 
surveillance program to monitor the quality of the ambient atmosphere 
as to concentrations and movements of air contaminants and conduct or 
cause to be conducted a program to determine the quantity of emissions 
to the atmosphere.'' Regulatory authority is contained in the EPA-
approved SIP provisions of WAC 173-400-105 Records, Monitoring and 
Reporting. These authorities were reviewed by the EPA as part of the 
previous 1997 ozone infrastructure approval and have not changed since 
the EPA's last review.
    With respect to lead, Washington's submittal focuses primarily on 
the airport lead monitoring study conducted from December 2011 through 
December 2012. This effort was part of a year-long EPA monitoring study 
of 15 airports with estimated lead emissions between 0.50 and 1.0 ton 
per year, which included two airports in Washington: Auburn Municipal 
Airport and Harvey Field in Snohomish. The study found that the maximum 
three-month rolling average at the Auburn Airport was 0.055 [mu]g/m\3\ 
(37% of NAAQS) and at Harvey Field was 0.032 [mu]g/m\3\ (21% of NAAQS). 
Because neither airport measured a three-month rolling average that 
exceeded 50% of the NAAQS, the lead monitoring at both airports was 
concluded December 2012, in accordance with 40 CFR part 58. Details on 
the EPA's lead monitoring study can be found at http://www.epa.gov/otaq/regs/nonroad/aviation/420f13032.pdf.
    EPA analysis: Washington submitted a comprehensive air quality 
monitoring plan to meet the requirements of 40 CFR part 58, which the 
EPA approved on April 15, 1981. This air quality monitoring plan has 
been updated annually, with the most recent submittal dated May 2013. 
The EPA approved the plan on March 10, 2014, included in the docket for 
this action. This approved plan meets the EPA's revised ambient 
monitoring requirements for lead promulgated on December 14, 2010 (75 
FR 81126) as specified in 40 CFR part 58. Washington provides air 
quality monitoring data summaries and a map of the air monitoring 
network at: https://fortress.wa.gov/ecy/enviwa/Default.htm.

[[Page 27539]]

Therefore, we are proposing to approve the Washington SIP as meeting 
the requirements of CAA section 110(a)(2)(B) for the 2008 lead NAAQS.

110(a)(2)(C): Program for Enforcement of Control Measures

    CAA section 110(a)(2)(C) requires states to include a program 
providing for enforcement of all SIP measures and the regulation of 
construction of new or modified stationary sources, including a program 
to meet PSD and nonattainment NSR requirements.
    State submittal: The Washington submittal refers to EPA-approved 
regulatory provisions contained in the SIP under WAC 173-400-230 
Regulatory Actions and WAC 173-400-240 Criminal Penalties, as well as 
the enforcement-related statutory provisions of Chapter 70.94 RCW, 
Washington Clean Air Act. All of these enforcement provisions remain 
unchanged since the EPA's last review and approval of the 1997 ozone 
infrastructure submittal (May 24, 2012; 77 FR 30902). Washington also 
cites the EPA-approved minor source permitting program contained in the 
SIP under WAC 173-400-110 New Source Review and WAC 173-400-113 
Requirements for New Sources in Attainment or Unclassifiable Areas. 
Specifically, WAC 173-400-113(3) ensures that, ``[a]llowable emissions 
from the proposed new source or modification will not delay the 
attainment date for an area not in attainment nor cause or contribute 
to a violation of any ambient air quality standard.'' Washington also 
notes that there are no lead nonattainment areas in the State and any 
major PSD sources in attainment or unclassifiable areas would be 
addressed under the existing EPA FIP codified in 40 CFR 52.2497.
    EPA analysis: With regard to the requirement to have a program 
providing for enforcement of all SIP measures, we are proposing to find 
that the Washington provisions provide the State with authority to 
enforce the air quality regulations, permits, and orders promulgated 
pursuant to the SIP. Washington may issue emergency orders to reduce or 
discontinue emission of air contaminants where air emissions cause or 
contribute to imminent and substantial endangerment under the EPA-
approved provisions of WAC 173-435 Emergency Episode Plan. Enforcement 
cases may be referred to the State Attorney General's Office for civil 
or criminal enforcement. Therefore, we are proposing to approve the 
Washington SIP as meeting the requirements of CAA section 110(a)(2)(C) 
related to enforcement for the 2008 lead NAAQS.
    To generally meet the requirements of CAA section 110(a)(2)(C) with 
regard to the regulation of construction of new or modified stationary 
sources, a state is required to have PSD, nonattainment NSR, and minor 
NSR permitting programs adequate to implement the 2008 lead NAAQS. As 
explained above, in the ``CAA Sections 110(a)(1) and (2) Infrastructure 
Elements'' discussion, we are not evaluating nonattainment related 
provisions in this action, such as the nonattainment NSR program 
required by part D, title I of the CAA. In addition, Washington has no 
designated nonattainment areas for the 2008 lead NAAQS. With regard to 
the minor NSR requirement of this element, we have determined that the 
Washington minor NSR program adopted pursuant to section 110(a)(2)(C) 
of the CAA is adequate to regulate emissions of lead because WAC 173-
400-113 prevents the cause or contribution to a violation of any 
ambient air quality standard. Lastly, as previously discussed, the PSD 
permitting program in Washington is operated under an EPA FIP. As noted 
in the EPA's October 14, 2011, infrastructure guidance, when an area is 
already subject to a FIP for PSD permitting (whether or not a state, 
local, or tribal air agency has been delegated federal authority to 
implement the PSD FIP), the air agency may choose to continue to rely 
on the PSD FIP to have permits issued pursuant to the FIP. If so, the 
EPA could not fully approve the infrastructure SIP submission; however, 
the EPA anticipates that there would be no adverse consequences to the 
air agency or to sources from this partial disapproval of the 
infrastructure SIP. Therefore, the EPA is proposing to partially 
disapprove Washington's SIP for those requirements of CAA section 
110(a)(2)(C) related to PSD.\18\
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    \18\ On January 27, 2014, Washington submitted PSD regulations 
for approval into the SIP. The EPA has not finalized our review of 
that submittal. The EPA's proposed disapproval of the PSD elements 
in this action to rely on the existing PSD FIP is not a reflection 
on Ecology's January 27, 2014, submittal. Instead, the EPA has 
determined that the existing PSD FIP currently provides protection 
and maintenance of the lead NAAQS so there is no compelling reason 
to delay a proposed determination on the adequacy of Ecology's 
infrastructure certification.
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110(a)(2)(D)(i): Interstate Transport

    CAA section 110(a)(2)(D)(i) requires state SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from contributing significantly to nonattainment, or 
interfering with maintenance of the NAAQS in another state (CAA section 
110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to 
include provisions prohibiting any source or other type of emissions 
activity in one state from interfering with measures required to 
prevent significant deterioration of air quality, or from interfering 
with measures required to protect visibility (i.e. measures to address 
regional haze) in any state (CAA section 110(a)(2)(D)(i)(II)).
    State submittal: In accordance with the U.S. Court of Appeals for 
the D.C. Circuit opinion in EME Homer City generation, L.P. v. EPA, in 
effect at the time of the State's submission, Washington's 
certification notes that states were not required to submit SIPs 
addressing CAA section 110(a)(2)(D)(i)(I) until the EPA had quantified 
their obligations under that section. With respect to the CAA section 
110(a)(2)(D)(i)(II) requirements, Washington's certification notes that 
a FIP is in place to address the PSD components. With respect to 
visibility, Washington submitted a regional haze plan in 2010, which 
the EPA proposed to partially approve and partially disapprove and 
supplement with a FIP (December 30, 2013; 78 FR 79344). Notwithstanding 
the final outcome of the EPA's proposed partial approval and partial 
FIP, the infrastructure submittal notes that Washington does not 
currently have any known sources of lead at 0.5 tons per year and 
concludes, based on the EPA's October 14, 2011, infrastructure 
guidance, that lead is not a pollutant that contributes towards 
visibility problems and there are no impacts to Class I areas in 
neighboring states from sources of lead in Washington State.
    EPA analysis: As noted in the EPA's October 14, 2011, 
infrastructure guidance, the physical properties of lead prevent 
emissions from experiencing the same travel or formation phenomena as 
fine particulate matter or ozone. Given the lack of significant 
stationary sources of lead in the State, it is extremely unlikely that 
Washington sources would contribute significantly to nonattainment, or 
interfere with maintenance of the NAAQS in another state. On April 29, 
2014, the United States Supreme Court reversed and remanded the 
decision of the D.C. Circuit in EME Homer City Generation, which had 
been relied upon by the State in making its infrastructure submission. 
The EPA intends to address the requirements of CAA Section 
110(a)(2)(D)(i)(I) in a separate action.
    The EPA believes that the CAA section 110(a)(2)(D)(i)(II) PSD sub-
element is satisfied when new major sources and major modifications in 
Washington are subject to a SIP-

[[Page 27540]]

approved PSD program that satisfactorily implements the 2008 lead 
NAAQS. As previously noted, a FIP is in place for the PSD program in 
Washington. Therefore, the EPA is proposing to disapprove the 
Washington SIP with respect to the CAA section 110(a)(2)(D)(i)(II) PSD 
sub-element.
    The EPA believes, as noted in the October 14, 2011, infrastructure 
guidance that, with regard to the CAA section 110(a)(2)(D)(i)(II) 
visibility sub-element, significant impacts from lead emissions from 
stationary sources are expected to be limited to short distances from 
the source and most, if not all lead stationary sources, are located at 
distances from Class I areas such that visibility impacts would be 
negligible. The EPA's guidance notes that, ``EPA's experience with 
initial lead designations suggests that sources that emit less than 0.5 
tpy [tons per year] or that are located more than 2 miles from a state 
border generally appear unlikely to contribute significantly to 
nonattainment in another state.'' While this statement specifically 
addressed interstate transport prongs 1 and 2 (nonattainment and 
maintenance) the physical properties of lead remain the same with 
respect to prong 4 (visibility). In Washington there are currently no 
known sources emitting lead at 0.5 tons per year.
    Therefore, the EPA is proposing to approve the Washington SIP for 
purposes of the CAA section 110(a)(2)(D)(i)(II) requirements related to 
visibility for the 2008 lead NAAQS.
    110(a)(2)(D)(ii) Interstate and International transport provisions: 
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions 
insuring compliance with the applicable requirements of CAA sections 
126 and 115 (relating to interstate and international pollution 
abatement). Specifically, CAA section 126(a) requires new or modified 
major sources to notify neighboring states of potential impacts from 
the source.
    State submittal: Washington's submittal notes that the State has no 
pending obligations under section 115 or 126(b) of the CAA. CAA section 
126(a) obligations are met through the current PSD FIP.
    EPA analysis: The EPA agrees that Washington has no pending 
interstate or international pollution obligations under CAA sections 
115 and 126(b). Because Washington does not have SIP-approved 
provisions addressing the requirements and instead relies on the PSD 
FIP to satisfy its CAA section 126(a) obligations, the EPA is proposing 
to partially disapprove the SIP for this element. However, as 
previously noted, the EPA anticipates that there would be no adverse 
consequences to Washington or to sources resulting from this proposed 
partial disapproval of the infrastructure SIP.

110(a)(2)(E): Adequate Resources

    CAA section 110(a)(2)(E) requires states to provide (i) necessary 
assurances that the state will have adequate personnel, funding, and 
authority under state law to carry out the SIP (and is not prohibited 
by any provision of Federal or state law from carrying out the SIP or 
portion thereof), (ii) requires that the state comply with the 
requirements respecting state boards under CAA section 128 and (iii) 
necessary assurances that, where the state has relied on a local or 
regional government, agency, or instrumentality for the implementation 
of any SIP provision, the state has responsibility for ensuring 
adequate implementation of such SIP provision.
    State submittal: Chapter 43.21A RCW Department of Ecology provides 
authority for the director to employ personnel necessary for 
administration of this chapter. Chapters 43.21A and 70.94 RCW provide 
the rule-making authority for Ecology. Ecology's Air Quality Program is 
funded through the following funding sources: the state general fund, 
section 105 of the CAA grant program, Air Operating Permit Account 
(permit fees from large industrial sources), and Air Pollution Control 
Account (permit fees for burning and annual fees for small industrial 
air pollution sources).
    The EPA-approved provisions of the Washington SIP under WACs 173-
400-220 Requirements for Board Members and 173-400-260 Conflict of 
Interest provide that no state board or body which approves operating 
permits or enforcement orders, either in the first instance or upon 
appeal, shall be constituted of less than a majority of members who 
represent the public interest and who do not derive a significant 
portion of their income from persons subject to operating permits. 
State law also provides that any potential conflicts of interest by 
members of such board or body or the head of any executive agency with 
similar powers be adequately disclosed. See RCW 34.05.425 
Administrative Procedure Act; RCW 42.17 Public Disclosure Act; RCW 
70.94.100 Composition of Local Air Authorities' Board; Conflict of 
Interest Requirements.
    Ecology works with other organizations and agencies and may enter 
into agreements allowing for implementation of the air pollution 
controls by another agency. However, RCW 70.94.370 states that no 
provision of this chapter or any recommendation of the state board or 
of any local or regional air pollution program is a limitation on the 
power of a state agency in the enforcement, or administration of any 
provision of law which it is specifically permitted or required to 
enforce or administer.
    EPA analysis: Regarding adequate personnel, funding and authority, 
the EPA believes the Washington SIP meets the requirements of this 
element. Washington receives CAA sections 103 and 105 grant funds from 
the EPA and provides state matching funds necessary to carry out SIP 
requirements. Regarding the state board requirements under CAA section 
128, the EPA approved WAC 173-400-220 Requirements for Board Members 
and WAC 173-400-260 Conflict of Interest as meeting the section 128 
requirements on June 2, 1995 (60 FR 28726). As part of the approval for 
the 1997 ozone infrastructure action, the EPA reviewed these provisions 
again and found that they still adequately met the section 128 
requirements (May 24, 2012; 77 FR 30902). Finally, regarding state 
responsibility and oversight of local and regional entities, RCW 
70.94.370 provides Ecology with adequate authority to carry out SIP 
obligations with respect to the 2008 lead NAAQS. Therefore, the EPA is 
proposing to approve the Washington SIP as meeting the requirements of 
CAA Section 110(a)(2)(E) for the 2008 lead NAAQS.

110(a)(2)(F): Stationary Source Monitoring System

    CAA section 110(a)(2)(F) requires (i) the installation, 
maintenance, and replacement of equipment, and the implementation of 
other necessary steps, by owners or operators of stationary sources to 
monitor emissions from such sources, (ii) periodic reports on the 
nature and amounts of emissions and emissions-related data from such 
sources, and (iii) correlation of such reports by the state agency with 
any emission limitations or standards established pursuant to the CAA, 
which shall be available at reasonable times for public inspection.
    State submittal: The EPA-approved version of WAC 173-400-105 
Records, Monitoring, and Reporting currently in the Washington SIP 
provides the authority to monitor stationary source emissions for 
compliance purposes and make the information available to the public. 
The language of WAC 173-400-105(1) provides general authority to 
require emission reporting, including lead emissions. Meanwhile, WAC 
173-400-105(2) allows Ecology to require

[[Page 27541]]

stack testing and/or ambient air monitoring, even if not required in a 
permit or other enforceable requirement as part of a continuous 
surveillance program to protect air quality. Washington currently has 
no known lead stationary sources at the EPA's updated stationary source 
monitoring threshold of 0.5 tons per year. If additional stationary 
sources are found to emit lead above this threshold, Washington has 
adequate authority under WAC 173-400-105 to compel additional 
monitoring.
    EPA analysis: The EPA-approved regulatory provisions cited by 
Washington establish compliance requirements to monitor emissions, keep 
and report records, and collect ambient air monitoring data in 
accordance with CAA section 110(a)(2)(F). Additionally, Washington is 
required to submit emissions data to the EPA for purposes of the 
National Emissions Inventory (NEI). The NEI is the EPA's central 
repository for air emissions data. The EPA published the Air Emissions 
Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). All states are required to submit a comprehensive emissions 
inventory every three years and report emissions for certain larger 
sources annually through the EPA's online Emissions Inventory System. 
States report emissions data for the six criteria pollutants and their 
associated precursors--nitrogen oxides, sulfur dioxide, ammonia, lead, 
carbon monoxide, particulate matter, and volatile organic compounds. 
The EPA compiles the emissions data, supplementing it where necessary, 
and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we are proposing to approve the 
Washington SIP as meeting the requirements of CAA section 110(a)(2)(F) 
for the 2008 lead NAAQS.

110(a)(2)(G): Emergency Episodes

    CAA section 110(a)(2)(G) requires states to provide for authority 
to address activities causing imminent and substantial endangerment to 
public health, including adequate contingency plans to implement the 
emergency episode provisions in their SIPs.
    State submittal: The State cites the EPA-approved Washington SIP 
provisions of WAC 173-435 Emergency Episode Plan, which are consistent 
with the EPA's regulations contained in 40 CFR part 51, subpart H 
(51.150-51.153). Similar to the EPA regulations in subpart H, the 
Washington SIP does not contain specific requirements for lead; however 
the general emergency episode regulations provide the State with 
adequate authority to address other emissions that are causing imminent 
danger to public health or safety.
    EPA analysis: As noted in the October 14, 2011, guidance, based on 
the EPA's experience to date with the lead NAAQS and designating lead 
nonattainment areas, the EPA expects that an emergency episode 
associated with lead emissions would be unlikely and, if it were to 
occur, would be the result of a malfunction or other emergency 
situation at a relatively large source of lead. Accordingly, the EPA 
believes that the central components of a contingency plan would be to 
reduce emissions from the source at issue and public communication, as 
needed.
    Section 303 of the CAA provides authority to the EPA Administrator 
to restrain any source from causing or contributing to emissions which 
present an ``imminent and substantial endangerment to public health or 
welfare, or the environment.'' We find that the EPA-approved Washington 
SIP at WAC 173-435-050 Action Procedures provides Washington with 
comparable authority. Specifically, WAC 173-435-050(6) states, 
``regardless of whether any episode stages have previously been 
declared, whenever the governor finds that emissions are causing 
imminent danger to public health or safety, the governor may declare an 
air pollution emergency and order the persons responsible for the 
operation of sources causing the danger, to reduce or discontinue 
emissions consistent with good operating practice, safe operating 
procedures, and SERPs [source emission reduction plans], if any.'' 
Further, WAC 173-435-050(5) requires, ``the broadest publicity 
practicable shall be given to the declaration of any episode stage. 
Such declaration shall, as soon as possible, be directly communicated 
to all persons responsible for the carrying out of SERPs within the 
affected area.'' Accordingly, we are proposing to approve the 
Washington SIP as meeting the requirements of CAA section 110(a)(2)(G) 
for the 2008 lead NAAQS.

110(a)(2)(H): Future SIP Revisions

    CAA section 110(a)(2)(H) requires that SIPs provide for revision of 
such plan (i) from time to time as may be necessary to take account of 
revisions of such national primary or secondary ambient air quality 
standard or the availability of improved or more expeditious methods of 
attaining such standard, and (ii), except as provided in paragraph 
110(a)(3)(C), whenever the Administrator finds on the basis of 
information available to the Administrator that the SIP is 
substantially inadequate to attain the NAAQS which it implements or to 
otherwise comply with any additional requirements under the CAA.
    State submittal: Washington's submittal refers to RCW 70.94 which 
gives Ecology the authority to promulgate rules and regulations to 
maintain and protect Washington's air quality and to comply with the 
federal requirements, including revisions of NAAQS, SIPs, and 
responding to EPA's findings.
    EPA analysis: RCW 70.94.510 specifically requires Ecology to 
cooperate with the federal government in order to ensure the 
coordination of the provisions of the federal and state Clean Air Acts. 
In practice, the State regularly submits revisions to the EPA to revise 
the SIP. EPA most recently approved revisions to the Washington SIP on 
October 3, 2013 (78 FR 61188, Thurston County Second 10-Year 
PM10 Limited Maintenance Plan), September 17, 2013 (78 FR 
57073, Puget Sound Clean Air Agency Regulatory Updates), and May 29, 
2013 (78 FR 32131, Tacoma-Pierce County Nonattainment Area). 
Accordingly, we are proposing to approve the Washington SIP as meeting 
the requirements of CAA section 110(a)(2)(H) for the 2008 lead NAAQS.

110(a)(2)(I): Nonattainment Area Plan Revision Under Part D

    There are two elements identified in CAA section 110(a)(2) not 
governed by the three-year submission deadline of CAA section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area controls 
are not due within three years after promulgation of a new or revised 
NAAQS, but are rather due at the time of the nonattainment area plan 
requirements pursuant to section 172 and the various pollutant specific 
subparts 2-5 of part D. These elements are: (i) submissions required by 
CAA section 110(a)(2)(C) to the extent that subsection refers to a 
permit program as required in part D, title I of the CAA, and (ii) 
submissions required by section 110(a)(2)(I) which pertain to the 
nonattainment planning requirements of part D, title I of the CAA. As a 
result, this action does not address infrastructure elements related to 
CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA 
section 110(a)(2)(I).

110(a)(2)(J): Consultation With Government Officials

    CAA section 110(a)(2)(J) requires states to provide a process for

[[Page 27542]]

consultation with local governments and federal land managers carrying 
out NAAQS implementation requirements pursuant to Section 121. CAA 
section 110(a)(2)(J) further requires states to notify the public if 
NAAQS are exceeded in an area and to enhance public awareness of 
measures that can be taken to prevent exceedances. Lastly, CAA section 
110(a)(2)(J) requires states to meet applicable requirements of part C, 
title I of the CAA related to prevention of significant deterioration 
and visibility protection.
    State submittal: The State submittal cites the following regulatory 
provisions contained in the Washington SIP to meet CAA section 
110(a)(2)(J) obligations: WAC 173-435-050 Action Procedures, WAC 173-
400-151 Retrofit Requirements for Visibility, and WAC 173-400-171 
Public Involvement. Washington also cites the following statutory 
authorities: RCW 34.05 Administrative Procedures Act, RCW 42.30 Open 
Public Meetings, RCW 70.94.141 Consultation, and RCW 70.94.240 Air 
Pollution Control Advisory Council. In addition to these SIP measures, 
Ecology uses the Washington Air Quality Advisory (WAQA) tool for 
informing the public about the levels and health effects of air 
pollution. The public can access up-to-date WAQA information on-line at 
https://fortress.wa.gov/ecy/enviwa/Default.htm.
    EPA analysis: Under the EPA-approved provisions of WAC 173-400-171 
Public Involvement, Ecology routinely coordinates with local 
governments, states, federal land managers and other stakeholders on 
air quality issues and provides notice to appropriate agencies related 
to permitting actions. Washington regularly participates in regional 
planning processes including the Western Regional Air Partnership which 
is a voluntary partnership of states, tribes, federal land managers, 
local air agencies and the EPA whose purpose is to understand current 
and evolving regional air quality issues in the West. Therefore the EPA 
is proposing to approve the Washington SIP as meeting the requirements 
of CAA Section 110(a)(2)(J) for consultation with government officials.
    Section 110(a)(2)(J) also requires the public be notified if NAAQS 
are exceeded in an area and to enhance public awareness of measures 
that can be taken to prevent exceedances. Washington actively 
participates and submits information to the EPA's AIRNOW program which 
provides information to the public on the air quality in their locale. 
In addition, Washington provides the State's annual network monitoring 
plan, annual air quality monitoring data summaries, specific warnings 
and advice to those persons who may be most susceptible, and a map of 
the air monitoring network to the public on their Web site (http://www.ecy.wa.gov/programs/air/airhome.html). Therefore, we are proposing 
to find that the Washington SIP meets the requirements of CAA section 
110(a)(2)(J) for public notification for the 2008 lead NAAQS.
    Turning to the requirement in CAA section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C of title I of the CAA, we 
have evaluated this requirement in the context of CAA section 
110(a)(2)(C) with respect to PSD permitting. As discussed previously, 
PSD in Washington is operated under a FIP. We are proposing to 
disapprove the Washington SIP for the requirements of CAA 110(a)(2)(J) 
with regard to PSD. Instead the State and the EPA will continue to rely 
on the existing PSD FIP.
    With regard to the applicable requirements for visibility 
protection, the EPA recognizes that states are subject to visibility 
and regional haze program requirements under part C of the CAA. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus we 
find that there is no new applicable requirement relating to visibility 
triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes 
effective.
    Based on the above analysis, we are proposing to approve the 
Washington SIP as meeting the requirements of CAA section 110(a)(2)(J) 
for the 2008 lead NAAQS, except for those elements related to PSD which 
we are proposing to partially disapprove.

110(a)(2)(K): Air Quality and Modeling/Data

    CAA section 110(a)(2)(K) requires that SIPs provide for (i) the 
performance of such air quality modeling as the Administrator may 
prescribe for the purpose of predicting the effect on ambient air 
quality of any emissions of any air pollutant for which the 
Administrator has established a national ambient air quality standard, 
and (ii) the submission, upon request, of data related to such air 
quality modeling to the Administrator.
    State submittal: The Washington submittal states that air quality 
modeling is conducted during development of revisions to the SIP, as 
appropriate for the State to demonstrate attainment with required air 
quality standards. Modeling is also addressed in the permitting process 
(see discussion at CAA section 110(a)(2)(C)). Estimates of ambient 
concentrations are based on air quality models, data bases and other 
requirements specified in 40 CFR part 51, Appendix W (Guidelines on Air 
Quality Models) and are routinely used by Washington. Exceptions to 
using Appendix W are handled under the provisions of 40 CFR 51.166 
which requires written approval from the EPA and an opportunity for 
public comment.
    EPA analysis: As noted in the state submittal, Washington models 
estimates of ambient concentrations based on 40 CFR part 51, Appendix W 
(Guidelines on Air Quality Models) for both permitting and SIP 
development. Any change or substitution from models specified in 40 CFR 
part 51, Appendix W is subject to notice and opportunity for public 
comment. While Washington has no nonattainment areas for lead, modeling 
was used to support maintenance plans and redesignation to attainment 
requests for the former ozone nonattainment areas of Puget Sound and 
Vancouver, approved by the EPA on September 26, 1996 (61 FR 50438) and 
May 19, 1997 (62 FR 27204), respectively. More recently, modeling was 
used to develop control measures for the Tacoma-Pierce County fine 
particulate matter nonattainment area, although the area came into 
attainment before a formal SIP submission was required (78 FR 32131, 
May 29, 2013). Based on the foregoing, we are proposing to approve 
Washington's SIP as meeting the requirements of CAA Section 
110(a)(2)(K) for the 2008 lead NAAQS.

110(a)(2)(L): Permitting Fees

    CAA section 110(a)(2)(L) requires SIPs to require each major 
stationary source to pay permitting fees sufficient to cover the cost 
of reviewing, approving, implementing and enforcing a permit, until 
such fee requirement is superseded with respect to such sources by the 
EPA's approval of a fee program under title V.
    State submittal: The State's submittal notes that there are no 
major stationary sources or nonattainment areas for lead in Washington, 
and facilities that would be subject to PSD permitting are covered 
under the EPA FIP. Notwithstanding that, Washington derives its 
authority to collect fees for new source review and title V sources 
from RCW 70.94.151, RCW 70.94.152, and RCW 70.94.162. The EPA reviewed 
Washington's fee provisions and fully approved the title V program on 
August 13, 2001 (66 FR 42439), with a revision approved on January 2, 
2003 (67 FR 71479).

[[Page 27543]]

    EPA analysis: As noted in the State's submittal, the EPA approved 
the Washington title V permitting program on August 13, 2001, with an 
effective date of September 12, 2001 (66 FR 42439). Meanwhile, 
Washington does not have a SIP-approved PSD permitting program and, 
therefore, is not required to have PSD permitting fees in its SIP. As 
discussed earlier in this notice, PSD permitting in Washington takes 
place by means of a FIP. Therefore, we are proposing to conclude that 
Washington has satisfied its current obligations under CAA section 
110(a)(2)(L) for the 2008 lead NAAQS by virtue of the EPA's prior 
approval of Washington's title V permitting program.

110(a)(2)(M): Consultation/Participation by Affected Local Entities

    CAA section 110(a)(2)(M) requires states to provide for 
consultation and participation in SIP development by local political 
subdivisions affected by the SIP.
    State submittal: Washington cites the following regulations and 
statutes as pertinent to this infrastructure SIP requirement: WAC 173-
400-171 Public Involvement, RCW 34.05 Administrative Procedure Act, RCW 
42.30 Open Public Meetings Act, and RCW 70.94.240 Air Pollution Control 
Advisory Council.
    EPA analysis: As discussed in the preamble relating to CAA section 
110(a)(2)(J), Ecology routinely coordinates with local governments and 
other stakeholders on air quality issues. The public involvement 
regulations cited in Washington's submittal were previously approved 
into Washington's federally-approved SIP on June 2, 1995 (60 FR 28726). 
Therefore, the EPA proposes to find that Washington's SIP meets the 
requirements of CAA Section 110(a)(2)(M) for the 2008 lead NAAQS.

VI. Proposed Action

    The EPA is proposing to partially approve the April 1, 2014, 
submittal from Washington to demonstrate that the SIP meets the 
requirements of sections 110(a)(1) and (2) of the CAA for the lead 
NAAQS promulgated on October 15, 2008, except for the requirements 
related to PSD permitting and portions of the interstate transport 
requirements as discussed in detail above. Specifically, we are 
proposing to find that the current EPA-approved Washington SIP meets 
the following CAA section 110(a)(2) infrastructure elements for the 
2008 lead NAAQS: (A), (B), (C)--except for those elements covered by 
the PSD FIP, (D)(i)(II)--except for those elements covered by the PSD 
FIP, (D)(ii)--except for those elements covered by the PSD FIP, (E), 
(F), (G), (H), (J)--except for those elements covered by the PSD FIP, 
(K), (L), and (M). As previously noted, the EPA anticipates that there 
would be no adverse consequences to Washington or to sources in the 
State resulting from this proposed partial disapproval of the 
infrastructure SIP related to PSD. The EPA, likewise, has no additional 
FIP responsibilities as a result of this proposed partial disapproval 
for requirements related to PSD. Remaining interstate transport 
requirements arising under CAA Section 110(a)(2)(D)(i)(I) for the 2008 
lead NAAQS will be addressed in a separate action.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves the state's law as meeting 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 the requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide the 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 it will not impose substantial direct costs on tribal 
governments or preempt tribal law. The SIP is not approved to apply in 
Indian country located in the State, except for non-trust land 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 and the EPA is therefore approving 
this SIP on such lands. Consistent with EPA policy, the EPA nonetheless 
provided a consultation opportunity to the Puyallup Tribe in a letter 
dated September 3, 2013. The EPA did not receive a request for 
consultation.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Lead, and Reporting and recordkeeping requirements.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: May 5, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-11073 Filed 5-13-14; 8:45 am]
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