13238 Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 

Veterans State Domiciliary Care; 64.015, 

Veterans State Nursing Home Care; 

64.018, Sharing Specialized Medical 

Resources; 64.019, Veterans 

Rehabilitation Alcohol and Drug 

Dependence; and 64.022, Veterans 

Home Based Primary Care. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, approved this 

document on February 28, 2012, for 

publication. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Health care, Health facilities, 

Mental health programs, Nursing 

homes, Veterans. 

Dated: March 1, 2012. 

Robert C. McFetridge, 

Director, Office of Regulation Policy and 

Management, Office of the General Counsel, 

Department of Veterans Affairs. 

For the reasons set forth in the 

preamble, we propose to amend 38 CFR 

part 17 as follows: 

PART 17—MEDICAL 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 38 U.S.C. 501, and as noted in 

specific sections. 

2. Amend § 17.108 by adding 

paragraph (e)(16) to read as follows: 

§ 17.108 Copayments for inpatient hospital 

care and outpatient medical care. 

* * * * * 

(e) * * * 

(16) In-home video telehealth care. 

* * * * * 

[FR Doc. 2012–5355 Filed 3–5–12; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2012–0112, FRL–9643–5] 

Partial Approval and Promulgation of 

Implementation Plans; Washington: 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to partially 

approve the State Implementation Plan 

(SIP) submittal from the Washington 

State Department of Ecology (Ecology) 

to demonstrate that the SIP meets the 

requirements of section 110(a)(1) and (2) 

of the Clean Air Act (CAA) for the 

National Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on July 

18, 1997. EPA is proposing to find that 

the current Washington SIP meets the 

following 110(a)(2) infrastructure 

elements for the 1997 8-hour ozone 

NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M), except for 

portions related to the major source 

Prevention of Significant Deterioration 

(PSD) permitting program which is 

implemented under a Federal 

Implementation Plan. 

DATES: Comments must be received on 

or before April 5, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2012–0112, by any of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: R10- 

Public_Comments@epa.gov. 

• Mail: Jeff Hunt, EPA Region 10, 

Office of Air, Waste and Toxics (AWT– 

107), 1200 Sixth Avenue, Suite 900, 

Seattle, WA 98101. 

• Hand Delivery/Courier: EPA Region 

10, 1200 Sixth Avenue, Suite 900, 

Seattle, WA 98101. Attention: 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–2012– 

0112 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 

whose disclosure 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 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 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, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

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 telephone number: (206) 553– 

0256, email address: hunt.jeff@epa.gov, 

or the above EPA, Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean 

EPA. Information is organized as 

follows: 

Table of Contents 

I. What action is EPA proposing? 

II. What is the background for the action that 

EPA is proposing? 

III. What infrastructure elements are required 

under sections 110(a)(1) and (2)? 

IV. What is the scope of action on 

infrastructure submittals? 

V. What is EPA’s analysis of Washington’s 

submittal? 

VI. Scope of Proposed Action 

VII. Proposed Action 

VIII. Washington Notice Provision 

IX. Statutory and Executive Order Reviews 

I. What action is EPA proposing? 

EPA is proposing to partially approve 

the State Implementation Plan (SIP) 

submittal from the State of Washington 

to demonstrate that the SIP meets the 

requirements of section 110(a)(1) and (2) 

of the Clean Air Act (CAA) for the 

National Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on July 

18, 1997. EPA is proposing to find that 

the current Washington SIP, as codified 

at 40 CFR Part 52 Subpart WW meets 


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1William T. Harnett, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards. ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards.’’ Memorandum to EPA Air Division 

Directors, Regions I–X, October 2, 2007 (The ‘‘2007 

Guidance’’). 

the following 110(a)(2) infrastructure 

elements for the 1997 8-hour ozone 

NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M), except for 

those infrastructure requirements which 

relate to regulations for preventing 

significant deterioration (PSD) of air 

quality, as explained in this Notice. PSD 

permits are implemented in Washington 

under a Federal Implementation Plan as 

specified at 40 CFR 52.2497. 

Section 110(a)(1) of the CAA requires 

that each state, after a new or revised 

NAAQS is promulgated, review their 

SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure’’ 

elements of section 110(a)(2). The State 

of Washington submitted a certification 

to EPA dated January 24, 2012, 

certifying that Washington’s SIP meets 

the infrastructure obligations for the 

1997 8-hour ozone NAAQS. The 

certification included an analysis of 

Washington’s SIP as it relates to each 

section of the infrastructure 

requirements with regard to the 1997 8- 

hour ozone NAAQS. This action does 

not address the requirements of 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS which were previously 

addressed and approved by EPA on 

January 13, 2009 (74 FR 1501). 

II. What is the background for the 

action that EPA is proposing? 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone. EPA revised the 

ozone NAAQS to provide an 8-hour 

averaging period which replaced the 

previous 1-hour averaging period, and 

the level of the NAAQS was changed 

from 0.12 parts per million (ppm) to 

0.08 ppm (62 FR 38856). 

The CAA requires SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) be submitted by states within 3 years 

after promulgation of a new or revised 

standard. Sections 110(a)(1) and (2) 

require states to address basic SIP 

requirements, including emissions 

inventories, monitoring, and modeling 

to assure attainment and maintenance of 

the standards, so-called ‘‘infrastructure’’ 

requirements. States were required to 

submit such SIPs for the 1997 8-hour 

ozone NAAQS to EPA no later than June 

2000. However, intervening litigation 

over the 1997 8-hour ozone standard 

created uncertainty about how to 

proceed, and many states did not 

provide the required infrastructure SIP 

submissions for the newly promulgated 

standard. 

To help states meet this statutory 

requirement for the 1997 8-hour ozone 

NAAQS, EPA issued guidance to 

address infrastructure SIP elements 

under section 110(a)(1) and (2).1 The 

2007 Guidance provides that, to the 

extent an existing SIP already meets the 

section 110(a)(2) requirements, states 

need only to certify that fact via a letter 

to EPA. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

federally approved SIP already contains. 

In the case of the 1997 8-hour ozone 

NAAQS, states typically have met the 

basic program elements required in 

section 110(a)(2) through earlier SIP 

submissions in connection with 

previous ozone standards. 

III. What infrastructure elements are 

required under sections 110(a)(1) and 

(2)? 

Section 110(a)(1) provides the 

procedural and timing requirements for 

SIP submissions after a new or revised 

NAAQS is promulgated. 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. 

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

• 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. 

EPA’s 2007 Guidance clarified that 

two elements identified in section 

110(a)(2) are not governed by the 3 year 

submission deadline of section 110(a)(1) 

because SIPs incorporating necessary 

local nonattainment area controls are 

not due within 3 years after 

promulgation of a new or revised 

NAAQS, but rather due at the time the 

nonattainment area plan requirements 

are due pursuant to CAA section 172. 

These requirements are: (i) Submissions 

required by 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 section 110(a)(2)(C) with respect to 

nonattainment new source review (NSR) 

or 110(a)(2)(I). This action also does not 

address the requirements of 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS which EPA previously found to 

be adequate on January 13, 2009 (74 FR 

1501). Furthermore, EPA interprets the 

section 110(a)(2)(J) provision on 

visibility as not being triggered by a new 

NAAQS because the visibility 

requirements in part C are not changed 

by a new NAAQS. 

EPA is proposing to disapprove 

Washington’s SIP for those 

infrastructure elements discussed herein 

which relate to the major source PSD 

regulation. Washington’s SIP does not 

currently include EPA-approved 

provisions for PSD regulation. Instead 

PSD regulations are implemented by 

means of a FIP in Washington which 

incorporates the requirements of 40 CFR 

52.21. See 40 CFR 52.2497. To the 

extent that Washington’s SIP does not 

include federally-approvable or 

approved PSD regulations, 

Washington’s SIP must be disapproved 

for those infrastructure elements which 

relate to PSD regulation. However, 

because these major source PSD 

regulations are implemented in the state 

by means of the FIP, neither Washington 

nor EPA have additional SIP or FIP 

obligations arising out of this proposed 

disapproval. 


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2See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

3As noted earlier, EPA is proposing to disapprove 

Washington’s SIP for those elements of CAA 

Section 110(a)(2) infrastructure requirements that 

require adequate PSD regulations as part of the 

approved SIP because the PSD program is 

implemented in Washington by means of a FIP. 

IV. What is the scope of action on 

infrastructure submittals? 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on those infrastructure SIP 

submissions.2 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements in other proposals that 

it would address two issues separately 

and not as part of actions on the 

infrastructure SIP submissions: (i) 

Existing provisions related to excess 

emissions during periods of start-up, 

shutdown, or malfunction at sources, 

that may be contrary to the CAA and 

EPA’s policies addressing such excess 

emissions (‘‘SSM’’); and (ii) existing 

provisions related to ‘‘director’s 

variance’’ or ‘‘director’s discretion’’ that 

purport to permit revisions to SIP 

approved emissions limits with limited 

public process or without requiring 

further approval by EPA, that may be 

contrary to the CAA (‘‘director’s 

discretion’’). EPA notes that there are 

two other substantive issues for which 

EPA likewise stated in other proposals 

that it would address the issues 

separately: (i) Existing provisions for 

minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source NSR’’); and (ii) 

existing provisions for PSD programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80,186 

(December 31, 2002), as amended by 72 

FR 32,526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

believes that its statements in various 

proposed actions on infrastructure SIPs 

with respect to these four individual 

issues should be explained in greater 

depth. It is important to emphasize that 

EPA is taking the same position with 

respect to these four substantive issues 

in this action on the infrastructure SIP 

for the 1997 8-hour ozone NAAQS 

submittal from Washington.3

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational, and 

to provide general notice of the 

potential existence of provisions within 

the existing SIPs of some states that 

might require future corrective action. 

EPA did not want states, regulated 

entities, or members of the public to be 

under the misconception that the 

Agency’s approval of the infrastructure 

SIP submission of a given state should 

be interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing State provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. EPA is reiterating 

that position in this action on the 1997 

8-hour ozone infrastructure SIP for 

Washington. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issues in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 

potential for certain types of 

deficiencies in existing SIPs, and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those other 

proposals, however, we want to explain 

more fully the Agency’s reasons for 

concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately from actions on 

infrastructure SIP submissions. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

address the requirements of part D, and 

a host of other specific types of SIP 

submissions that address other specific 

matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 


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4For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

5For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. 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 25,162 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

6See, e.g., Id., 70 FR 25,162, at 63–65 (May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

7EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

8For 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. 

9See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007. 10 Id., at page 2. 11 Id., at attachment A, page 1. 12 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.4 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.5

Notwithstanding that section 110(a)(2) 

provides that ‘‘each’’ SIP submission 

must meet the list of requirements 

therein, EPA has long noted that this 

literal reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).6 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.7 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s SIP. Finally, 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 and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.8

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these ozone 

and PM2.5 NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.9 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 10 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 11 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 12 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 


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13See, ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T. 

Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I–X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

14EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

15EPA has recently utilized 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 EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (Dec. 30, 2010). EPA has previously 

used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that the Agency 

determined it had approved in error. See, e.g., 61 

FR 38,664 (July 25, 1996) and 62 FR 34,641 (June 

27, 1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57,051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

16EPA has recently disapproved 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 42,342 at 

42,344 (July 21,2010)(proposed disapproval of 

director’s discretion provisions); 76 FR 4,540 (Jan. 

26, 2011)(final disapproval of such provisions). 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each State would work with its 

corresponding EPA regional office to 

refine the scope of a State’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the State’s SIP for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.13 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS, e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS. Significantly, 

neither the 2007 Guidance nor the 2009 

Guidance explicitly referred to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance and 

the 2009 Guidance, however, EPA did 

not indicate to states that it intended to 

interpret these provisions as requiring a 

substantive submission to address these 

specific issues in existing SIP provisions 

in the context of the infrastructure SIPs 

for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief 

that the states should make submissions 

in which they established that they have 

the basic SIP structure necessary to 

implement, maintain, and enforce the 

NAAQS. EPA believes that states can 

establish that they have the basic SIP 

structure, notwithstanding that there 

may be potential deficiencies within the 

existing SIP. Thus, EPA’s proposals for 

other states mentioned these issues not 

because the Agency considers them 

issues that must be addressed in the 

context of an infrastructure SIP as 

required by section 110(a)(1) and (2), 

but rather because EPA wanted to be 

clear that it considers these potential 

existing SIP problems as separate from 

the pending infrastructure SIP actions. 

The same holds true for this action on 

the 1997 8-hour ozone infrastructure SIP 

for Washington. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP 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 that, 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 EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.14 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.15

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action 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 the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.16

V. What is EPA’s analysis of 

Washington’s submittal? 

The Washington SIP submittal lists 

specific provisions of the Revised Code 

of Washington (RCW) including Chapter 

70.94 RCW Washington Clean Air Act; 

Chapter 43.21 RCW Department of 

Ecology; Chapter 34.05 RCW 

Administrative Procedure Act; Chapter 

42.30 RCW Open Public Meetings Act; 

Chapter 42.17 RCW Public Disclosure 

Act; and the Washington Administrative 

Code (WAC) Chapters 173–400 through 

–492 as codified in the SIP at 40 CFR 

part 52 Subpart WW. 

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

Control Measures 

Section 110(a)(2) requires SIPs to 

include enforceable emission limits and 

other control measures, means or 

techniques, schedules for compliance 

and other related matters. EPA notes 

that the specific nonattainment area 

plan requirements of Section 110(a)(2)(I) 

are subject to the timing requirement of 


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17Steven Herman, Assistant Administrator for 

Enforcement and Compliance Assurance, and 

Robert Perciasepe, Assistant Administrator for Air 

and Radiation. ‘‘State Implementation Plans (SIPs): 

Policy Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown.’’ 

Memorandum to EPA Air Division Directors, 

August 11, 1999. 

Section 172, not the timing requirement 

of Section 110(a)(1). 

Washington’s submittal: The 

Washington SIP submittal lists the 

emissions limitation regulations of WAC 

Chapters 173–400 through -492 as 

codified in 40 CFR 52.2470. These 

regulations are (in parenthesis: state 

adopted date; EPA approval date; and 

FR citation): 

• WAC 173–400 General Regulations 

for Air Pollution Sources (3/22/91; 6/2/ 

95; 60 FR 28726) 

• WAC 173–405 Kraft Pulping Mills 

(3/22/91; 1/15/93; 58 FR 4578) 

• WAC 173–410 Sulfite Pulping Mills 

(3/22/91; 1/15/93; 58 FR 4578) 

• WAC 173–415 Primary Aluminum 

Plants (3/22/91; 1/15/93; 58 FR 4578) 

• WAC 173–425 Open Burning (10/ 

18/90; 1/15/93; 58 FR 4578) 

• WAC 173–433 Solid Fuel Burning 

Device Standards (various dates from 

12/16/87 to 10/18/90; 1/15/93; 58 FR 

4578) 

• WAC 173–434 Solid Waste 

Incinerator Facilities (various dates from 

12/16/87 to 1/22/04; 1/15/93; 58 FR 

4578) 

• WAC 173–490 Emission Standards 

and Controls for Sources Emitting 

Volatile Organic Compounds (3/22/91; 

9/10/93; 58 FR 37426) 

As part of the federally approved SIP 

codified in 40 CFR Part 52 Subpart WW, 

Washington State has an air quality 

permitting program for minor sources. 

As discussed previously, major sources 

are subject to regulation under the PSD 

permitting program implemented by 

means of a FIP which incorporates the 

PSD program specified at 40 CFR 52.21 

(See 40 CFR 52.2497). 

Under the Washington Clean Air Act 

general authority to adopt enforceable 

emission standards and limitations and 

other measures necessary for the 

attainment and maintenance of NAAQS 

is contained in RCW 70.94.331, Powers 

and Duties of Department. The 

following sections of the statute address 

various components of the state’s 

emissions control measures and 

permitting program: 

• RCW 70.94.152 Notice May be 

Required of Construction of Proposed 

New Contaminant Source—Submission 

of Plans—Approval, Disapproval— 

Emission Control—‘‘De Minimis New 

Sources’’ Defined 

• RCW 70.94.153 Existing Stationary 

Source—Replacement or Substantial 

Alteration of Emission Control 

Technology 

• RCW 70.94.161 Operating Permits 

for Air Contaminant Sources— 

Generally—Fees, Report to Legislature 

• RCW 70.94.162 Annual Fees from 

Operating Permit Program 

• RCW 70.94.380 Emission Control 

Requirements 

• RCW 70.94.395 Air Contaminant 

Sources—Regulation by Department; 

Authorities May be More Stringent— 

Hearing—Standards 

• RCW 70.94.430 Penalties 

• RCW 70.94.431 Civil Penalties— 

Excusable Excess Emissions 

• RCW 70.94.850 Emission Credits 

Banking Program—Amount of Credit 

EPA analysis: EPA finds that 

Washington’s rules as codified in 40 

CFR 52.2470, Subpart WW define and 

reference emissions limits and 

significant emissions rates for air 

pollutants including NOX and VOCs, 

which are precursors to ozone. 

Washington has no areas designated 

nonattainment for the 1997 8-hour 

ozone NAAQS. 

Some of the rules listed above were 

approved into the SIP under part D 

because certain areas in Washington 

were historically nonattainment under 

the 1-hour ozone standard and required 

maintenance plans to ensure on-going 

compliance with the 1997 8-hour ozone 

standard. As a result, Washington 

regulates ozone and its precursors 

through its SIP-approved minor source 

permitting program and ozone 

maintenance plans. EPA does not 

consider SIP requirements triggered by 

the nonattainment area mandates in part 

D of Title I of the CAA to be governed 

by the submission deadline of section 

110(a)(1), and EPA is not proposing to 

find the SIP to be adequate for purposes 

of CAA Part D requirements in this 

action. Nevertheless, Washington has 

referenced some SIP provisions 

originally submitted in response to part 

D in its submittal documenting its 

compliance with the infrastructure 

requirements of section 110(a)(1) and 

(2). Washington has over time updated 

the elements of its SIP addressing the 

ozone NAAQS, and the provisions 

reviewed here are a weave of SIP 

revisions submitted in response to the 

infrastructure requirements of section 

110(a)(2) and the nonattainment 

requirements of part D. 

For the purposes of this action, EPA 

is reviewing any rules originally 

submitted in response to part D solely 

for the purposes of determining whether 

they support a finding that the state has 

met the basic infrastructure 

requirements under section 110(a)(2). 

EPA is proposing to approve 

Washington’s SIP as meeting the 

requirements of section 110(a)(2)(A) for 

the 1997 8-hour ozone NAAQS. 

In this action, EPA is 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. EPA believes that a number of 

states may have SSM provisions that are 

contrary to the Clean Air Act and 

existing EPA guidance 17 and the 

Agency plans to address such state 

regulations in the future. In the 

meantime, EPA encourages any state 

having a deficient SSM provision to take 

steps to correct it as soon as possible. 

In this action, EPA is not proposing to 

approve or disapprove any existing state 

rules relating to director’s discretion or 

variance provisions. EPA believes that a 

number of states may have such 

provisions that are contrary to the Clean 

Air Act and existing EPA guidance (52 

FR 45109), November 24, 1987, and the 

Agency plans to take action in the future 

to address such state regulations. In the 

meantime, EPA encourages any state 

having a director’s discretion or 

variance provision that is contrary to the 

Clean Air Act and EPA guidance to take 

steps to correct the deficiency as soon 

as possible. 

110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

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 EPA 

upon request. 

Washington’s submittal: Washington 

references RCW 70.94.331(5) which 

requires Ecology to provide for or 

conduct surveillance program that: 

monitors the quality of the ambient 

atmosphere, monitors the 

concentrations and movements of air 

contaminants, and determines the 

quantity of emissions to the atmosphere. 

The regulations implementing this 

provision are contained in WAC 173– 

400–105 Records, Monitoring and 

Reporting as codified in the SIP at 40 

CFR 52.2470, Subpart WW. 

EPA analysis: In accordance with 

EPA’s air quality monitoring 

requirements of 40 CFR part 58 states 

are required to submit annual network 

reviews to determine if the network 

achieved its required air monitoring 

objectives and if it should be modified 

(e.g., termination, relocation or 

establishment of monitoring stations) to 

meet those objectives. Washington’s 

most recent annual network review was 


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approved by EPA on December 7, 2011, 

and is available to the public on the 

Ecology Web site at http:// 

www.ecy.wa.gov/biblio/1102017.html. 

This plan includes, among other things, 

the locations for the ozone monitoring 

network. In addition, Washington sends 

real time air monitoring information for 

ozone, particulate matter, and carbon 

monoxide to EPA’s AIRNow Web page 

at http://www.airnow.gov and also 

provides the information on the Ecology 

Web site at https://fortress.wa.gov/ecy/ 

enviwa/Default.ltr.aspx. Based on the 

foregoing, EPA proposes to approve the 

Washington’s SIP as meeting the 

requirements of CAA Section 

110(a)(2)(B) for the 1997 8-hour ozone 

NAAQS. 

110(a)(2)(C): Program for Enforcement 

of Control Measures 

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. 

Washington’s submittal: Washington 

State cites the following regulatory 

provisions contained in the SIP which 

provide for the enforcement of the 

measures described in subparagraph 

(A). As discussed previously, 

Washington State has an EPA-approved 

air quality permitting program for minor 

sources. For major sources, EPA has a 

FIP in place to implement the PSD 

program. 

• WAC 173–400–230 Regulatory 

Actions (state adopted date 3/20/93; 

EPA approval date 6/2/95; 60 FR 28726) 

• WAC 173–400–240 Criminal 

Penalties (state adopted date 3/22/91; 

EPA approval date 6/2/95; 60 FR 28726) 

Ecology’s enforcement powers are 

derived from the statutory provisions in 

Chapter 70.94 RCW: 

• RCW 70.94.141 Air Pollution 

Control Authority—Powers and Duties 

of Activated Authority 

• RCW 70.94.200 Investigation of 

Conditions by Control Officer or 

Department—Entering Private, Public 

Property 

• RCW 70.94.211 Enforcement 

Actions by Air Authority—Notice to 

Violators 

• RCW 70.94.332 Enforcement 

Actions by Department—Notice to 

Violators 

• RCW 70.94.425 Restraining 

Orders—Injunctions 

• RCW 70.94.430 Penalties 

• RCW 70.94.431 Civil Penalties— 

Excusable Excess Emissions 

• RCW 70.94.435 Additional Means 

for Enforcement of Chapter 

EPA analysis: To generally meet the 

requirements of section 110(a)(2)(C), the 

state is required to have a minor NSR 

permitting program adequate to 

implement the 1997 8-hour ozone 

NAAQS. For major sources a FIP is in 

place to implement the PSD program. 

Because the SIP does not contain 

approved PSD permitting provisions, 

EPA is proposing to disapprove that 

aspect of the SIP. However, as explained 

previously, EPA need not take any 

additional action related to the section 

110(a)(2) provisions that are contingent 

upon adequate PSD permitting 

provisions in the SIP because these 

requirements are currently addressed by 

a FIP. Also, as discussed above, in this 

action EPA is not evaluating 

nonattainment related provisions, such 

as the nonattainment NSR program 

required by part D of the CAA, nor does 

Washington have nonattainment areas 

for the 1997 8-hour ozone NAAQS. 

EPA believes Washington code 

provides Ecology with the authority to 

enforce the air quality laws, regulations, 

permits, and orders promulgated 

pursuant to WAC Chapters 173–400 

through –492 as codified in the SIP at 

40 CFR 52.2470, Subpart WW. Ecology 

staffs and maintains an enforcement 

program to ensure compliance with SIP 

requirements. The Ecology director may 

issue a restraining order for polluting 

activities that constitute or will 

constitute a violation under the SIP 

approved provisions of WAC 173–400– 

230(4). Enforcement cases may be 

referred to the state Attorney General’s 

Office for civil or criminal enforcement. 

Therefore, EPA is proposing to approve 

the Washington SIP as meeting the 

requirements of 110(a)(2)(C) related to 

enforcement for the 1997 8-hour ozone 

NAAQS. 

In this action, EPA is not proposing to 

approve or disapprove the state’s 

existing minor NSR program itself to the 

extent that it is inconsistent with EPA’s 

regulations governing this program, 

such as the SSM and director’s 

discretion provisions discussed with 

respect to 110(a)(2)(A). EPA believes 

that a number of states may have minor 

NSR provisions that are contrary to the 

existing EPA regulations for this 

program. EPA intends to work with 

states to reconcile state minor NSR 

programs with EPA’s regulatory 

provisions for the program. The 

statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the states an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

110(a)(2)(D): Interstate Transport 

Section 110(a)(2)(D) requires 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, or from 

interfering with measures required to 

prevent significant deterioration of air 

quality or to protect visibility in another 

state. As noted above, this action does 

not address the requirements of 

110(a)(2)(D(i) for the 1997 8-hour ozone 

NAAQS which were previously 

approved by EPA on January 13, 2009 

(74 FR 1501). 

Interstate and International Transport 

Provisions 

Section 110(a)(2)(D)(ii) requires SIPs 

to include provisions ensuring 

compliance with the applicable 

requirements of sections 126 and 115 

(relating to interstate and international 

pollution abatement). Specifically, 

section 126(a) requires new or modified 

major sources to notify neighboring 

states of potential impacts from the 

source. 

EPA analysis: The notification 

requirements of CAA section 126(a) 

pertain only to major proposed new or 

modified sources. As previously 

discussed, the major source PSD 

program in Washington is implemented 

under a FIP and is therefore not part of 

this action. The state has no pending 

obligations under section 115 or 126(b) 

of the Act. Because the PSD permitting 

program is implemented pursuant to a 

FIP, EPA is proposing to disapprove the 

Washington SIP because it does not 

meet the requirements of CAA section 

110(a)(2)(D)(ii) for the 1997 8-hour 

ozone NAAQS. However, these 

requirements are adequately satisfied by 

the FIP and thus no additional action by 

Washington or EPA is needed to satisfy 

this infrastructure requirement for the 

1997 8-hour ozone NAAQS. 

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

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 section 


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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. 

Washington’s submittal: Ecology cites 

the following: 

Chapter 43.21A RCW provides 

authority for the director to employ 

personnel necessary for administration 

of this chapter. Chapters 43.21A and 

70.94 RCW provide for Ecology’s rulemaking authority. 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 SIP-approved provisions of 

WACs 173–400–220 Requirements for 

Board Members and 173–400–260 

Conflict of Interest (state adopted date 

3/22/91; EPA approval date 6/2/95; 60 

FR 28726) 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, EPA 

believes the Washington SIP meets the 

requirements of this element. 

Washington receives sections 103 and 

105 grant funds from EPA and provides 

state matching funds necessary to carry 

out SIP requirements. Regarding the 

state board requirements under section 

128, 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). 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 1997 8- 

hour ozone NAAQS. Therefore EPA is 

proposing to approve the Washington 

SIP as meeting the requirements of CAA 

Section 110(a)(2)(E) for the 1997 8-hour 

ozone NAAQS. 

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

Monitoring System 

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 

reports shall be available at reasonable 

times for public inspection. 

Washington’s submittal: Washington’s 

SIP submittal refers to the following SIP 

approved regulatory provisions: 

• WAC 173–400–105 Records, 

Monitoring, and Reporting (state 

adopted date 9/20/93; EPA approval 

date 6/2/95; 60 FR 28726) 

• WAC 173–400–110 New Source 

Review (NSR) (state adopted date 3/22/ 

91; EPA approval date 6/2/95; 60 FR 

28726) 

• WAC 173–400–112 Requirements 

for New Sources in Nonattainment 

Areas (state adopted date 3/22/91; EPA 

approval date 6/2/95; 60 FR 28726) 

• WAC 173–400–113 Requirements 

for New Sources in Attainment or 

Unclassifiable Areas (state adopted date 

3/22/91; EPA approval date 6/2/95; 60 

FR 28726) 

EPA analysis: The provisions cited by 

the Washington SIP submittal provide 

for monitoring, recordkeeping and 

reporting requirements for sources. As 

note previously, Washington State has 

an EPA-approved air quality permitting 

program for minor sources. A FIP 

implements the PSD program 

requirements for major sources. EPA 

proposes to approve the Washington SIP 

as meeting the requirements of CAA 

Section 110(a)(2)(F) for the 1997 8-hour 

ozone NAAQS, with the exception of 

those aspects of the infrastructure 

requirements which relate to PSD 

permitting. EPA proposes disapprove 

that aspect of the SIP because the PSD 

provisions continue to be implemented 

by a FIP. Accordingly, no additional 

action is needed by Washington or EPA 

in response to this proposed 

disapproval. 

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

Section 110(a)(2)(G) requires states to 

provide for authority to address 

activities causing imminent and 

substantial endangerment to public 

health, including contingency plans to 

implement the emergency episode 

provisions in their SIPs. 

Washington’s submittal: The 

Washington submittal cites the 

emergency episode regulations of WAC 

173–435 approved into the SIP by EPA 

on January 15, 1993 (58 FR 4578). The 

significant harm level for ozone under 

the SIP approved WAC 173–435 is 

identical to the level contained in the 

current Federal regulations at 40 CFR 

51.151. 

EPA analysis: As noted in EPA’s 

October 2, 2007 guidance, the 

significant harm level for the 8-hour 

ozone NAAQS shall remain unchanged 

at 0.60 ppm ozone, 2 hour average, as 

indicated in 40 CFR 51.151. EPA 

believes that the existing ozone-related 

provisions of 40 CFR 51 Subpart H 

remain appropriate. Washington’s 

regulations discussed above, which 

have previously been approved by EPA 

into the SIP on January 15, 1993 (58 FR 

4578) continue to be consistent with the 

requirements of 40 CFR 51.151. 

Accordingly, EPA proposes to find that 

the Washington SIP is adequate for 

purposes of CAA section 110(a)(2)(G) for 

the 1997 8-hour ozone NAAQS. 

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

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. 

Washington’s submittal: Washington’s 

SIP submittal refers to RCW 70.94 

which gives Ecology the authority to 

promulgate rules and regulations to 


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13246 Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 

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 insure the coordination of 

the provisions of the federal and state 

clean air acts. EPA proposes to approve 

the Washington SIP as meeting the 

requirements of section 110(a)(2)(H) for 

the 1997 8-hour ozone NAAQS. 

110(a)(2)(I): Nonattainment Area Plan 

Revision Under Part D 

EPA analysis: There are two elements 

identified in section 110(a)(2) not 

governed by the 3 year submission 

deadline of section 110(a)(1) because 

SIPs incorporating necessary local 

nonattainment area controls are not due 

within 3 years after promulgation of a 

new or revised NAAQS, but rather due 

at the time of the nonattainment area 

plan requirements pursuant to section 

172. These requirements are: (i) 

Submissions required by 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 

section 110(a)(2)(C) with respect to 

nonattainment NSR or section 

110(a)(2)(I). 

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

Government Officials 

Section 110(a)(2)(J) requires states to 

provide a process for consultation with 

local governments and Federal Land 

Managers carrying out NAAQS 

implementation requirements pursuant 

to Section 121 relating to consultation. 

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, 

section 110(a)(2)(J) requires states to 

meet applicable requirements of part C 

related to prevention of significant 

deterioration and visibility protection. 

Washington’s submittal: Washington’s 

SIP submittal refers to a number of laws 

and regulations relating to consultation 

and public notification: 

• WAC 173–400–171 Public 

Involvement (state effective date 9/20/ 

93; EPA approval date 6/2/95; 60 FR 

28726). 

• WAC 173–435–050 Emergency 

Episode Plan (state effective date 1/3/89; 

EPA approval date 1/15/93; 58 FR 

4578). 

• RCW 70.94.141 Washington Clean 

Air Act, Air Pollution Control 

Authority—Powers and Duties of 

Activated Authority. 

• RCW 70.94.240 Washington Clean 

Air Act, Air Pollution Control Advisory 

Council. 

• RCW 34.05 Administrative 

Procedure Act. 

• RCW 42.30 Open Public Meetings 

Act. 

EPA analysis: Under the SIP 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 U.S. EPA 

whose purpose is to understand current 

and evolving regional air quality issues 

in the West. Therefore EPA proposes to 

approve the Washington SIP as meeting 

the requirements of CAA Section 

110(a)(2)(J) for consultation with 

government officials. 

Washington sends real time air 

monitoring information for ozone, 

particulate matter, and carbon 

monoxide to EPA’s AIRNow Web page 

at http://www.airnow.gov and also 

provides the information on Ecology’s 

Web site at https://fortress.wa.gov/ecy/ 

enviwa/Default.ltr.aspx. Therefore, EPA 

is proposing to approve the Washington 

SIP as meeting the requirements of CAA 

Section 110(a)(2)(J) for public 

notification. 

Turning to the requirement in section 

110(a)(2)(J) that the SIP meet the 

applicable requirements of part C of title 

I of the CAA, EPA has evaluated this 

requirement with respect to PSD 

permitting. As previously discussed, the 

major source PSD permitting program in 

Washington is implemented by means 

of a FIP. Therefore, EPA proposes to 

find that Washington’s SIP must be 

disapproved with respect to the 

requirements of 110(a)(2)(J) because PSD 

provisions are not part of Washington’s 

SIP. However, because the PSD 

provisions are adequately addressed by 

the FIP that is in place, no further action 

is needed by Washington or EPA in 

response to this proposed disapproval. 

With regard to the applicable 

requirements for visibility protection, 

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 visibility 

obligation triggered under section 

110(a)(2)(J) when a new NAAQS 

becomes effective. 

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

Data 

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. 

Washington’s submittal: Washington’s 

SIP submittal refers to the SIP-approved 

minor source NSR permitting provisions 

in WAC 173–400–110, –112, and –113 

(State adopted date 3/22/91; EPA 

approval date 6/2/95; 60 FR 28726), 

which models pollutant concentrations 

in the ambient air based on EPA’s 

guidance and latest methodologies and 

techniques specified in 40 CFR 51, 

Appendix W (Guideline on Air Quality 

Models). Ecology also cites the 

Washington Clean Air Act (specifically 

RCW 70.94.011 Declaration of Public 

Policies and Purpose and RCW 

70.94.510 Policy to Cooperate with 

Federal Government) which directs 

Ecology to cooperate with the federal 

government in order to coordinate and 

implement federal and state clean air 

acts, which would include the 

submission of data related to air quality 

modeling to the Administrator. 

EPA analysis: Washington models 

estimates of ambient concentrations 

based on 40 CFR part 51 Appendix W 

(Guidelines on Air Quality Models). 

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 the 1997 

8-hour ozone NAAQS, modeling was 

used to support maintenance plans and 

redesignation to attainment requests for 

the historical nonattainment areas of 

Puget Sound and Vancouver approved 

by EPA on September 26, 1996 (61 FR 

50438) and May 19, 1997 (62 FR 27204), 

respectively. Modeling data has been 

provided to EPA in this context. Based 

on the foregoing, EPA proposes to 

approve Washington’s SIP as meeting 

the requirements of CAA Section 

110(a)(2)(K) for the 1997 8-hour ozone 

NAAQS. 


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Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 13247 

18 ‘‘Indian country’’ is defined under 18 U.S.C. 

1151 as: (1) All land within the limits of any Indian 

reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of 

any patent, and including rights-of-way running 

through the reservation, (2) all dependent Indian 

communities within the borders of the United 

States, whether within the original or subsequently 

acquired territory thereof, and whether within or 

without the limits of a State, and (3) all Indian 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Under this definition, EPA treats 

as reservations trust lands validly set aside for the 

use of a Tribe even if the trust lands have not been 

formally designated as a reservation. 

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

Section 110(a)(2)(L) requires SIPs to 

require each major stationary source to 

pay permitting fees to cover the cost of 

reviewing, approving, implementing, 

and enforcing a permit, until such time 

as the SIP fee requirement is superseded 

by EPA’s approval of the state’s Title V 

operating permit program. 

Washington’s submittal: Washington’s 

SIP submittal refers to RCW 70.94.162, 

Annual Fees from Operating Permit 

Program Source to Cover Cost of 

Program, which provides Ecology 

authority to establish a schedule of fees 

for permits based upon the costs of 

filing and investigating applications, 

issuing or denying permits, carrying out 

Title V requirements, and determining 

compliance. Washington’s submittal 

also refers to WAC 173–455, Air Quality 

Fee Regulation, which requires payment 

of permit fees based on a specified table 

of sources and fee schedule. 

EPA analysis: On August 13, 2001 (66 

FR 42439), EPA fully approved 

Washington’s Title V program. As part 

of the approval process, Washington’s 

Title V program included a 

demonstration the state will collect a fee 

from Title V sources above the 

presumptive minimum in accordance 

with 40 CFR 70.9(b)(2)(i). Therefore, 

EPA proposes to find that Washington 

has satisfied the requirements of CAA 

Section 110(a)(2)(L) for the 1997 8-hour 

ozone NAAQS. 

110(a)(2)(M): Consultation/Participation 

by Affected Local Entities 

Section 110(a)(2)(M) requires states to 

provide for consultation and 

participation in SIP development by 

local political subdivisions affected by 

the SIP. 

Washington’s submittal: Washington’s 

SIP submittal refers to the following 

laws and regulations: 

• WAC 173–400–171 Public 

Involvement (state effective date 9/20/ 

93; EPA approval date 6/2/95; 60 FR 

28726). 

• RCW 34.05 Administrative 

Procedure Act. 

• RCW 42.30 Open Public Meetings 

Act. 

• RCW 70.94.240 Washington Clean 

Air Act, Air Pollution Control Advisory 

Council. 

EPA analysis: As discussed in the 

narrative relating to 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 federallyapproved SIP on June 2, 1995 (60 FR 

28726). Therefore, EPA proposes to find 

that Washington’s SIP meets the 

requirements of CAA Section 

110(a)(2)(M) for the 1997 8-hour ozone 

NAAQS. 

VI. Scope of Proposed Action 

This proposed SIP approval does not 

extend to sources or activities located in 

‘‘Indian Country’’ as defined in 18 

U.S.C. 1151.18 Consistent with previous 

Federal program approvals or 

delegations, EPA will continue to 

implement the Act in Indian Country 

because Washington did not adequately 

demonstrate authority over sources and 

activities located within the exterior 

boundaries of Indian reservations and 

other areas of Indian Country. The one 

exception is within the exterior 

boundaries of the Puyallup Indian 

Reservation, also known as the 1873 

Survey Area. Under the Puyallup Tribe 

of Indians Settlement Act of 1989, 25 

U.S.C. 1773, Congress explicitly 

provided state and local agencies in 

Washington authority over activities on 

non-trust lands within the 1873 Survey 

Area. Therefore, EPA’s proposed SIP 

approval applies to sources and 

activities on nontrust lands within the 

1873 Survey Area. 

VII. Proposed Action 

EPA is proposing to approve the 

following section 110(a)(2) 

infrastructure elements for Washington 

for the 1997 ozone NAAQS: (A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), (K), (L), (M), 

except for those portions of (C), (D)(ii), 

and (J) which relate to PSD and are 

addressed by the FIP codified at 40 CFR 

52.2497. Therefore, EPA proposes to 

disapprove the SIP as inadequate for 

these PSD-related requirements, but no 

additional action is required by the state 

or EPA pursuant to this proposed 

disapproval because the requirements 

are adequately addressed by the FIP. 

EPA is also taking no action on 

infrastructure elements (D)(i) and (I) for 

the 1997 ozone NAAQS. This action is 

being taken under section 110 of the 

CAA. 

VIII. Washington Notice Provision 

Washington’s Regulatory Reform Act 

of 1995, codified at Chapter 43.05 

Revised Code of Washington (RCW), 

precludes ‘‘regulatory agencies’’, as 

defined in RCW 43.05.010, from 

assessing civil penalties under certain 

circumstances. EPA has determined that 

Chapter 43.05 of the RCW, often referred 

to as ‘‘House Bill 1010,’’ conflicts with 

the requirements of CAA section 

110(a)(2)(A) and (C) and 40 CFR 

51.230(b) and (e). Based on this 

determination, Ecology has determined 

that Chapter 43.05 RCW does not apply 

to the requirements of Chapter 173–422 

WAC. See 66 FR 35115, 35120 (July 3, 

2001). The restriction on the issuance of 

civil penalties in Chapter 43.05 RCW 

does not apply to local air pollution 

control authorities in Washington 

because local air pollution control 

authorities are not ‘‘regulatory agencies’’ 

within the meaning of that statute. See 

66 FR 35115, 35120 (July 3, 2001). 

In addition, EPA is relying on the 

State’s interpretation of another 

technical assistance law, RCW 

43.21A.085 and .087, to conclude that 

the law does not impinge on the State’s 

authority to administer Federal Clean 

Air Act programs. The Washington 

Attorney Generals’ Office has concluded 

that RCW 43.21A.085 and .087 do not 

conflict with Federal authorization 

requirements because these provisions 

implement a discretionary program. 

EPA understands from the State’s 

interpretation that technical assistance 

visits conducted by the State will not be 

conducted under the authority of RCW 

43.21A.085 and .087. See 66 FR 16, 20 

(January 2, 2001); 59 FR 42552, 42555 

(August 18, 1994). 

IX. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely 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); 


srobinson on DSK4SPTVN1PROD with PROPOSALS
13248 Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Proposed Rules 

19The one exception is within the exterior 

boundaries of the Puyallup Indian Reservation, also 

known as the 1873 Survey Area. Under the 

Puyallup Tribe of Indians Settlement Act of 1989, 

25 U.S.C. 1773, Congress explicitly provided State 

and local agencies in Washington authority over 

activities on non-trust lands within the 1873 Survey 

Area. 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in Washington 19 and EPA notes 

that it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, and Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: February 23, 2012. 

Dennis J. McLearran, 

Regional Administrator, Region 10. 

[FR Doc. 2012–5393 Filed 3–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R06–RCRA–2011–0478; FRL–9642–5] 

Texas: Final Authorization of State 

Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The State of Texas has 

applied to EPA for Final authorization 

of the changes to its hazardous waste 

program under the Resource 

Conservation and Recovery Act (RCRA). 

EPA proposes to grant Final 

authorization to the State of Texas. In 

the ‘‘Rules and Regulations’’ section of 

this Federal Register, EPA is 

authorizing the changes by an 

immediate final rule. EPA did not make 

a proposal prior to the immediate final 

rule because we believe this action is 

not controversial and do not expect 

comments that oppose it. We have 

explained the reasons for this 

authorization in the preamble to the 

immediate final rule. Unless we get 

written comments which oppose this 

authorization during the comment 

period, the immediate final rule will 

become effective on the date it 

establishes, and we will not take further 

action on this proposal. If we receive 

comments that oppose this action, we 

will withdraw the immediate final rule 

and it will not take effect. We will then 

respond to public comments in a later 

final rule based on this proposal. You 

may not have another opportunity for 

comment. If you want to comment on 

this action, you must do so at this time. 

DATES: Send your written comments by 

April 5, 2012. 

ADDRESSES: Send written comments to 

Alima Patterson, Region 6, Regional 

Authorization Coordinator, (6PD–O), 

Multimedia Planning and Permitting 

Division, at the address shown below. 

You can examine copies of the materials 

submitted by the State of Texas during 

normal business hours at the following 

locations: EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733, 

phone number (214) 665–8533; or Texas 

Commission on Environmental Quality, 

(TCEQ) 12100 Park S. Circle, Austin TX 

78753–3087, (512) 239–6079. Comments 

may also be submitted electronically or 

through hand delivery/courier; please 

follow the detailed instructions in the 

ADDRESSES section of the immediate 

final rule which is located in the Rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Alima Patterson (214) 665–8533. 

SUPPLEMENTARY INFORMATION: For 

additional information, please see the 

immediate final rule published in the 

‘‘Rules and Regulations’’section of this 

Federal Register. 

Dated: February 17, 2012 

Al Armendariz, 

Regional Administrator, Region 6. 

[FR Doc. 2012–5378 Filed 3–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2011–N251; 

FXES11130100000C4–123–FF01E00000] 

Endangered and Threatened Wildlife 

and Plants; 5-Year Status Reviews of 

46 Species in Idaho, Oregon, 

Washington, Nevada, Montana, Hawaii, 

Guam, and the Northern Mariana 

Islands 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of initiation of reviews; 

request for information. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, are initiating 5-year 

reviews for 46 species in Idaho, Oregon, 

Washington, Nevada, Montana, Hawaii, 

Guam, and the Northern Mariana 

Islands under the Endangered Species 

Act of 1973, as amended (Act). We 

request any new information on these 

species that may have a bearing on their 

classification as endangered or 

threatened. Based on the results of our 

5-year reviews we will determine 

whether these species are properly 

classified under the Act. 

DATES: To ensure consideration in our 

reviews, we are requesting submission 

of new information no later than May 7, 

2012. However, we will continue to 

accept new information about any listed 

species at any time. 

ADDRESSES: For the 44 species in 

Hawaii, Guam, and the Northern 

Mariana Islands (see Table 1 below), 

submit information to: Field Supervisor, 

Attention: 5-Year Review, U.S. Fish and 

Wildlife Service, Pacific Islands Fish 


srobinson on DSK4SPTVN1PROD with PROPOSALS