[Federal Register Volume 85, Number 101 (Tuesday, May 26, 2020)]
[Proposed Rules]
[Pages 31421-31423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10853]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2019-0573, FRL-10009-43-Region 10]
Air Plan Approval; WA; Infrastructure Requirements for the 2010
Sulfur Dioxide and 2015 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Whenever a new or revised National Ambient Air Quality
Standard (NAAQS) is promulgated, the Clean Air Act (CAA) requires
states to submit a plan for the implementation, maintenance, and
enforcement of the standard, commonly referred to as infrastructure
requirements. The Environmental Protection Agency (EPA) is proposing to
approve Washington State Implementation Plan (SIP) submissions as
meeting specific infrastructure requirements for the 2010 sulfur
dioxide (SO2) and 2015 ozone NAAQS.
DATES: Comments must be received on or before June 25, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0573 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, EPA Region 10, 1200 Sixth
Avenue--Suite 155, Seattle, WA 98101, at (206) 553-0256, or
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA. This
SUPPLEMENTARY INFORMATION section is arranged as follows:
Table of Contents
I. Background
II. Infrastructure Elements
III. The EPA Approach to Review of Infrastructure SIP Submissions
IV. The EPA Evaluation
V. Proposed Action
VI. Statutory and Executive Orders Review
I. Background
On June 2, 2010, the EPA promulgated a revised primary
SO2 NAAQS at 75 parts per billion, based on a three-year
average of the annual 99th percentile of one-hour daily maximum
concentrations (75 FR 35520). In 2015, the EPA promulgated a revision
to the ozone NAAQS retaining the existing form of the standard (three-
year average of the annual fourth-highest daily maximum 8-hour average
concentration) but lowered the level of both the primary and secondary
standards from 0.075 to 0.070 parts per million (80 FR 65292, October
26, 2015). On September 30, 2019, and as supplemented on April 3, 2020,
the Washington Department of Ecology (Ecology) submitted SIP revisions
to meet certain 2010 SO2 and 2015 ozone NAAQS infrastructure
requirements. We note that Ecology previously submitted a SIP revision
on February 7, 2018, addressing CAA section 110(a)(2)(D)(i)(I)
(interstate transport prongs 1 and 2) for the 2010 SO2 and
2015 ozone NAAQS. We approved the February 7, 2018, SIP revision as
meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 2015
ozone NAAQS on September 20, 2018 (83 FR 47568). We will address the
CAA section 110(a)(2)(D)(i)(I) requirements for the 2010 SO2
NAAQS in a separate action.
[[Page 31422]]
II. Infrastructure Elements
CAA section 110(a)(1) provides the procedure and timing for SIP
submissions after a new or revised NAAQS is promulgated. CAA section
110(a)(2) lists specific elements that states must meet related to a
newly established or revised NAAQS. The EPA has issued guidance to help
states address these requirements, most recently on September 13, 2013
(2013 Guidance).\1\ The requirements, with their corresponding CAA
subsection, are listed below:
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\1\ Stephen D. Page, Director, Office of Air Quality Planning
and Standards. ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions 1
through 10, September 13, 2013.
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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.
110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency episodes.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and
applicable requirements of part D.
110(a)(2)(J): Consultation with government officials;
public notification; and Prevention of Significant Deterioration 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 2013 Guidance restated our interpretation that two
elements are not governed by the three-year submission deadline in CAA
section 110(a)(1) because SIPs incorporating necessary local
nonattainment area controls are due on separate schedules, pursuant to
CAA section 172 and the various pollutant-specific subparts 2 through 5
of part D. These are submissions required by: (i) 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) CAA section
110(a)(2)(I). As a result, this action does not address CAA section
110(a)(2)(C) with respect to nonattainment new source review (NSR) or
CAA section 110(a)(2)(I). The EPA has also determined that the CAA
section 110(a)(2)(J) provision on visibility is not triggered by a new
NAAQS because the visibility requirements in part C, title I of the CAA
are not changed by a new NAAQS.
Ecology's September 30, 2019 infrastructure SIP revision noted that
it did not contain a narrative for CAA section 110(a)(2)(K) explaining
that additional rulemaking was necessary to update Washington's
adoption by reference of 40 CFR part 51, appendix W for air quality
modeling. On April 3, 2020, Ecology submitted a SIP revision updating
the narrative for CAA section 110(a)(2)(K) to reflect the EPA's
approval of revisions to Chapters 173-400 and 463-78 Washington
Administrative Code (WAC) with an updated adoption by reference of
Federal regulations as of January 24, 2018, including the EPA's most
recent update to 40 CFR part 51, appendix W. See 85 FR 4233 (January
24, 2020) and 85 FR 10301 (February 24, 2020). Also, as part of the
September 2019 infrastructure SIP revision, Ecology's CAA section
110(a)(2)(A) narrative included a cross reference to additional SIP-
strengthening regulations included as an appendix for EPA approval.\2\
Ecology's April 3, 2020 SIP revision updated the narrative to clarify
that the current Federally-approved Washington SIP meets all CAA
section 110(a)(2)(A) requirements and is not contingent on the EPA's
approval of the SIP-strengthening rules. The EPA agrees that the SIP-
strengthening rules are severable from the infrastructure certification
and can be addressed in a separate future action.
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\2\ See ``state submittal_173-423 WA Register'' and ``state
submittal_2010 SO2 and 2015 O3 Appendix B Table'' in the
docket for this action.
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With respect to CAA section 110(a)(2)(C), (D)(i)(II), (D)(ii), and
(J), Ecology's September 2019 infrastructure SIP revision describes how
Washington relies on a narrow set of Federal Implementation Plans
(FIPs) in implementing portions of the Prevention of Significant
Deterioration (PSD) and regional haze programs.\3\ Ecology's
infrastructure SIP revision also notes that Washington is not
submitting replacements for these FIPs at this time. The EPA's 2013
Guidance states, ``In this situation, the EPA would make a completeness
finding that extends only to the SIP elements actually submitted by the
air agency, and a finding that other relevant applicable elements were
not submitted. The EPA would be required to take action only on the
elements that were submitted, within 12 months after those elements
have been determined to be complete. The overall infrastructure SIP
would not be approvable with respect to the elements that were not
submitted, and thus the EPA could only partially approve the overall
infrastructure SIP.''
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\3\ See 40 CFR 52.2497, 40 CFR 52.2500, 40 CFR 52.2501, and 40
CFR 52.2502. Ecology's April 3, 2020 SIP revision updated the
narrative for CAA section 110(a)(2)(A) and (K) only, with no
revisions for other infrastructure elements.
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In accordance with the 2013 Guidance, we found that Ecology's
September 2019 infrastructure SIP submission was incomplete for the
portions addressing the infrastructure elements in CAA section
110(a)(2)(C), (D)(i)(II) (prong 3), (D)(ii), and (J) relating to PSD,
because Washington has not fully addressed all requirements of part C
of title I of the CAA. We also found the submission incomplete as to
element D(i)(II) (prong 4) relating to interstate visibility transport.
On November 18, 2019, the EPA sent a letter to Ecology notifying
Washington of this determination.\4\ With respect to PSD, as a result
of this incompleteness finding, the EPA is not taking action on the
portions of section 110(a)(2)(C), D(i)(II), (D)(ii), and (J) related to
the PSD FIP. The EPA recognizes, however, that Washington has elected
to comply with the Federal requirements through joint EPA and state
implementation through a FIP. Because Washington is already subject to
a FIP, Washington would not have to take further action for continued
implementation of the PSD program.
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\4\ See ``completeness letter_Taylor, Kathy, WA Department of
Ecology_11.18.19'' included in the docket for this action.
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With respect to prong 4 requirements related to interstate
visibility transport under section 110(a)(2)(D)(i)(II), Washington does
not have a fully approved regional haze SIP typically used to satisfy
element D(i)(II) (prong 4) relating to interstate visibility
transport.\5\ However, regional haze FIPs are in place to fully address
the disapproved portions of the state's SIP for the period of the first
long-term strategy for regional haze. See 79 FR 33438 (June 11, 2014).
As a result, and as explained in more detail in the technical support
document (TSD) in the docket for this action, the EPA finds that the
FIP obligations with respect to prong 4 for the 2010 SO2 and
2015 ozone NAAQS are already satisfied, and no further action is
required.
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\5\ See 2013 Guidance, page 33.
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The EPA does not anticipate any adverse consequences to Washington
as a result of this incompleteness finding for the PSD portions of CAA
section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J), or the interstate
visibility transport portion of section 110(a)(D)(i)(II). Mandatory
sanctions would not apply to Washington under CAA section 179 because
PSD and regional haze SIP
[[Page 31423]]
submissions are not required under title I part D of the CAA, and in
this instance are not in response to a SIP call under section 110(k)(5)
of the CAA.
III. The EPA Approach To Review of Infrastructure SIP Submissions
Due to ambiguity in some of the language of CAA section 110(a)(2),
the EPA believes that it is appropriate to interpret these provisions
in the specific context of taking action on infrastructure SIP
submissions. The EPA has previously provided comprehensive guidance on
the application of these provisions in the 2013 Guidance and through
regional actions on infrastructure submissions.\6\ Unless otherwise
noted below, we are following that existing approach in taking action
on these submissions. In addition, in the context of taking action on
such infrastructure submissions, the EPA evaluates the submitting
state's SIP for facial compliance with statutory and regulatory
requirements, not for the state's implementation of its SIP.\7\ The EPA
has other authority to address any issues concerning a state's
implementation of the rules, regulations, consent orders, etc. that
comprise its SIP.
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\6\ The EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance) available in the docket for this action and at https://www.epa.gov/air-quality-implementation-plans/infrastructure-sip-requirements-and-guidance).
\7\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, No. 16-71933
(August 30, 2018).
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IV. The EPA Evaluation
The EPA's evaluation and rationale for proposing action on
Washington's September 30, 2019 and April 3, 2020 infrastructure SIP
revisions are detailed in the ``Technical Support Document for the
EPA's Proposed Rulemaking for the Washington Implementation Plan
Revision for Meeting the Infrastructure Requirements in the Clean Air
Act'' (TSD). The TSD is available in the docket for this action.
V. Proposed Action
We are proposing to approve the September 2019 and April 2020
Washington infrastructure SIP revisions as meeting certain
infrastructure requirements for the 2010 SO2 and 2015 ozone
NAAQS, specifically CAA section 110(a)(2)(A), (B), (C) (except for
those provisions covered by the PSD FIP), (D)(i)(II) (except for those
provisions covered by the PSD and regional haze FIPs), (D)(ii) (except
for those provisions covered by the PSD FIP), (E), (F), (G), (H), (J)
(except for those provisions covered by the PSD FIP), (K), (L), and
(M).
VI. Statutory and Executive Orders Review
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 state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 Clean Air Act; 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).
The SIP is not approved to apply on any Indian reservation land in
Washington except as specifically noted below and is also not approved
to apply in any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law. Washington's SIP is approved to apply on 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. Consistent with EPA policy, the EPA
provided a consultation opportunity to the Puyallup Tribe in a letter
dated July 15, 2019.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 14, 2020.
Christopher Hladick,
Regional Administrator, Region 10.
[FR Doc. 2020-10853 Filed 5-22-20; 8:45 am]
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