[Federal Register Volume 86, Number 31 (Thursday, February 18, 2021)]
[Rules and Regulations]
[Pages 10022-10025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03034]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2019-0573, FRL-10018-79-Region 10]
Air Plan Approval; Washington; Infrastructure Requirements for
the 2010 Sulfur Dioxide and 2015 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Whenever the Environmental Protection Agency (EPA) promulgates
a new or revised National Ambient Air Quality Standard (NAAQS), the
Clean Air Act requires each state to make a State Implementation Plan
(SIP) submission to establish that its SIP provides for the
implementation, maintenance, and enforcement of the revised NAAQS. This
type of SIP submission is commonly referred to as an infrastructure SIP
submission. The EPA is approving the State of Washington's September
30, 2019 and April 3, 2020, SIP submissions as meeting specific
infrastructure requirements for the 2010 sulfur dioxide and 2015 ozone
NAAQS.
DATES: This final rule is effective March 22, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R10-OAR-2019-0573. All documents in the docket are
listed on the https://www.regulations.gov website. 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 is publicly available only in hard copy form. Publicly
available docket materials are available at https://www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, EPA Region 10, 1200 Sixth
Avenue--Suite 155, Seattle, WA 98101, at (206) 553-0256, or
[email protected].
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SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA.
I. Background Information
On May 26, 2020, the EPA proposed to approve Washington's September
30, 2019 and April 3, 2020, SIP submissions as meeting certain
infrastructure requirements of the Clean Air Act (CAA) for the 2010
sulfur dioxide (SO2) and 2015 ozone NAAQS (85 FR 31421). The
initial public comment period for this proposed action ended on June
25, 2020. Due to an administrative error, the EPA omitted the technical
support document (TSD) relevant to the proposed action from the docket
during the initial comment period, open from May 26, 2020 to June 25,
2020. The EPA corrected the administrative error and on September 3,
2020, we provided an additional 30 days for public comment on the
proposed action (85 FR 54960). The public comment period ended on
October 5, 2020. The EPA received adverse comments on the proposal.
II. Response to Comments
The EPA received two adverse comments during the initial comment
period related to our administrative docket error that left out the TSD
relevant to the proposed action. The EPA addressed these comments by
including the TSD document in the docket and providing an additional
30-day comment period. The EPA received one additional comment,
unrelated to our administrative docket error, during the initial
comment period. We have summarized and responded to the adverse comment
below. The full text of the submitted comment may be found in the
docket for this action.
Comment--Adequate Resources
Summary--An anonymous commenter stated that, in its proposed
approval of CAA section 110(a)(2)(E), the EPA failed to evaluate
adequate funding and resources necessary to carry out the functions
delegated to the state and required by the state to carry out the
functions of the SIP. The commenter asserted that the EPA must audit
Washington's finances and accounting to make an affirmative
determination as to whether the state has the necessary funding and
resources. The anonymous commenter also stated that the EPA should
affirmatively determine whether Washington actually has the necessary
personnel to carry out and operate programs required under the SIP in
light of recent COVID-19 concerns.
Response--CAA section 110(a)(2)(E)(i) requires each state to
provide necessary assurances that the state will have adequate
personnel, funding, and authority under state law necessary to carry
out the SIP during the five years following the SIP submission.\1\ CAA
section 110 does not mandate a specific methodology for the EPA to
evaluate the adequacy of resources to implement the SIP. See 76 FR
42549 (July 19, 2011), at 42554. The EPA disagrees with the commenter's
assertion that an audit of the state's finances and accounting
practices is required in order to satisfy the requirements of
110(a)(2)(E)(i). The EPA's role in evaluating a SIP submission is to
assure that the air agency's SIP contains the necessary structural
requirements in order to meet the requirements of a new or revised
NAAQS. The EPA's role in approving an infrastructure SIP submission is
to determine whether the submission addresses the necessary
requirements of the Act, not to evaluate the way in which a SIP is
being implemented. See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d
971, 978 (9th Cir. 2018).
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\1\ EPA guidance identifies a five-year period following the SIP
submission as the relevant timeframe for this evaluation. See
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, at page 40 (2013 guidance).
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In our proposed action, we identified Revised Code of Washington
(RCW) 70.94 \2\ as providing the Washington Department of Ecology
(Ecology) Director authority to hire personnel to carry out duties of
the department, in coordination with local clean air agencies and the
Energy Facilities Site Evaluation Council (funded and authorized
separately under RCW 80.50). According to the Washington Department of
Ecology Budget and Program Overview 2019-2021, Ecology has an operating
budget of $43.7 million to perform its air program functions ($10.1
million from federal funds, with the remainder from state funds and
other permit and fee programs). Specifically, Washington receives CAA
sections 103 and 105 grant funds from the EPA and provides state
matching funds necessary to carry out SIP requirements. As part of our
September 3, 2020 reopening of the public comment period, we
supplemented the docket with the general CAA section 105 program grant
supporting materials for informational purposes, including our most
recent review of performance metrics under the grant at the time.\3\
The EPA expects that the COVID-19 pandemic may have impacts on state
revenues and could theoretically impact a state's ability to adequately
implement its SIP. However, the impacts of the pandemic on Washington's
personnel and resources available to satisfy the requirements of CAA
section 110(a)(2)(E) in the future is speculative at best. Based on
assurances in the state's submission and the analysis conducted as part
of the EPA's grant programs, we have a reasonable basis to conclude
that Washington has satisfied the requirements of section 110(a)(2)(E).
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\2\ Recently re-codified to RCW 70A.15, with no substantive
changes to the statute.
\3\ The EPA subsequently updated our review of performance
metrics under the CAA section 105 grant program for Federal Fiscal
Year 2020, which is included in the docket for this action.
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The EPA finds that Washington has provided the necessary assurances
of adequate sources of personnel, funding, and authority under state
law to implement its SIP for purposes of the 2010 SO2 and
2015 ozone NAAQS, consistent with the EPA's 2013 guidance. Therefore,
it is appropriate to finalize the proposed finding that Washington's
SIP satisfies the requirements of CAA section 110(a)(2)(E).
III. Final Action
The EPA is approving Washington's September 30, 2019 and April 3,
2020, infrastructure SIP submissions as meeting specific infrastructure
requirements of the CAA. We find that the Washington SIP meets the
following CAA section 110(a)(2) infrastructure elements for the 2010
SO2 and 2015 ozone NAAQS: (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).
IV. 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 state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
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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);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide 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, the SIP is not approved to apply on any Indian
reservation land or 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 and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000). 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 19, 2021. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 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.
Dated: February 9, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
For the reasons set forth in the preamble, 40 CFR part 52 is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart WW--Washington
0
2. In Sec. 52.2470, Table 2 in paragraph (e) is amended by adding an
entry for ``110(a)(2) Infrastructure Requirements--Sulfur Dioxide
Standards and 2015 Ozone Standards'' immediately below the entry
``Interstate Transport for the 2015 Ozone NAAQS'' to read as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(e) * * *
Table 2--Attainment, Maintenance, and Other Plans
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Applicable State
Name of SIP provision geographic or submittal EPA approval date Explanations
nonattainment area date
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* * * * * * *
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110(a)(2) Infrastructure and Interstate Transport
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* * * * * * *
110(a)(2) Infrastructure Statewide........... 9/30/19 and 2/18/2021, [Insert This action
Requirements--Sulfur Dioxide 4/03/20 Federal Register addresses the
Standards and 2015 Ozone citation]. following CAA
Standards. section 110(a)(2)
elements: (A), (B),
(C), (D)(i)(II),
(D)(ii), (E), (F),
(G), (H), (J), (K),
(L), and (M).
* * * * * * *
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[FR Doc. 2021-03034 Filed 2-17-21; 8:45 am]
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