Re: 7412(l)(1)-(9) 

Julie Vergeront to: Patty Martin 04/27/2011 03:08 PM

Bcc: Jeff Hunt

History: This message has been replied to.

Patty,

State programs approved under section 112(l) are not part of the SIP.

The provisions under Section 112(l) do provide for rule substitutions--where a State passes a section 112 

rule that is more stringent than an EPA section 112 rule. Those rules are approved by EPA and are 

enforceable by EPA but they are not approved into the SIP.

I am not aware that Ecology has asked for any rule substitutions under section 112. Instead, they have 

adopted the federal section 112 rules (called MACT and NESHAP rules) into state law without change, 

and then asked for and received from EPA "delegation" of those federal standards. Delegation is where 

both the state and federal MACT/NESHAP apply (and are usually in fact the same), but EPA generally 

looks to the state to enforce its own state MACT/NESHAP. For delegation, EPA retains its authority to 

enforce the federal MACT/NSEHAP against all sources and does not have authority to enforce the state 

rule .

The SIP correction notice would not in any way affect Washington's ability to request a rule substitution 

under Section 112 and to have a section 112 rule more stringent than EPA's section 112 rules. The rules 

at issue in the SIP correction were not rules submitted by Ecology to EPA to carry out any authority under 

Section 112 of the Act.

If you have any comments on the Washington SIP correction proposal, please submit them in writing by 

the close of the public comment period.

Julie A. Vergeront

Office of Regional Counsel

U.S. Environmental Protection Agency

Region 10

1200 Sixth Avenue, ORC-158

Seattle, WA 98101

Phone (206) 553-1497

Fax (206) 553-0163

"Patty Martin" (l) State programs (1) In general 04/27/2011 02:50:20 PM

From: "Patty Martin" <martin@nwi.net>

To: Julie Vergeront/R10/USEPA/US@EPA

Date: 04/27/2011 02:50 PM

Subject: 7412(l)(1)-(9)

(l) State programs

(1) In general

Each State may develop and submit to the Administrator for approval a 

program for the implementation and enforcement (including a review of 

enforcement delegations previously granted) of emission standards and other 

requirements for air pollutants subject to this section or requirements for 

the prevention and mitigation of accidental releases pursuant to subsection 
(r) of this section. A program submitted by a State under this subsection

may provide for partial or complete delegation of the Administrator’s 

authorities and responsibilities to implement and enforce emissions 

standards and prevention requirements but shall not include authority to set 

standards less stringent than those promulgated by the Administrator under 

this chapter.

(2) Guidance

Not later than 12 months after November 15, 1990, the Administrator shall 

publish guidance that would be useful to the States in developing programs 

for submittal under this subsection. The guidance shall also provide for the 

registration of all facilities producing, processing, handling or storing 

any substance listed pursuant to subsection (r) of this section in amounts 

greater than the threshold quantity. The Administrator shall include as an 

element in such guidance an optional program begun in 1986 for the review of 

high-risk point sources of air pollutants including, but not limited to, 

hazardous air pollutants listed pursuant to subsection (b) of this section.

(3) Technical assistance

The Administrator shall establish and maintain an air toxics clearinghouse 

and center to provide technical information and assistance to State and 

local agencies and, on a cost recovery basis, to others on control 

technology, health and ecological risk assessment, risk analysis, ambient 

monitoring and modeling, and emissions measurement and monitoring. The 

Administrator shall use the authority of section 7403 of this title to 

examine methods for preventing, measuring, and controlling emissions and 

evaluating associated health and ecological risks. Where appropriate, such 

activity shall be conducted with not-for-profit organizations. The 

Administrator may conduct research on methods for preventing, measuring and 

controlling emissions and evaluating associated health and environment 

risks. All information collected under this paragraph shall be available to 

the public.

(4) Grants

Upon application of a State, the Administrator may make grants, subject to 

such terms and conditions as the Administrator deems appropriate, to such 

State for the purpose of assisting the State in developing and implementing 

a program for submittal and approval under this subsection. Programs 

assisted under this paragraph may include program elements addressing air 

pollutants or extremely hazardous substances other than those specifically 

subject to this section. Grants under this paragraph may include support for 

high-risk point source review as provided in paragraph (2) and support for 

the development and implementation of areawide area source programs pursuant 

to subsection (k) of this section.

(5) Approval or disapproval

Not later than 180 days after receiving a program submitted by a State, and 

after notice and opportunity for public comment, the Administrator shall 

either approve or disapprove such program. The Administrator shall 

disapprove any program submitted by a State, if the Administrator determines 

that—

(A) the authorities contained in the program are not adequate to assure 

compliance by all sources within the State with each applicable standard, 

regulation or requirement established by the Administrator under this 

section;

(B) adequate authority does not exist, or adequate resources are not 

available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by 

affected sources is not sufficiently expeditious; or

(D) the program is otherwise not in compliance with the guidance issued by 

the Administrator under paragraph (2) or is not likely to satisfy, in whole 

or in part, the objectives of this chapter.

If the Administrator disapproves a State program, the Administrator shall 

notify the State of any revisions or modifications necessary to obtain 
approval. The State may revise and resubmit the proposed program for review

and approval pursuant to the provisions of this subsection.

(6) Withdrawal

Whenever the Administrator determines, after public hearing, that a State is 

not administering and enforcing a program approved pursuant to this 

subsection in accordance with the guidance published pursuant to paragraph 

(2) or the requirements of paragraph (5), the Administrator shall so notify 

the State and, if action which will assure prompt compliance is not taken 

within 90 days, the Administrator shall withdraw approval of the program. 

The Administrator shall not withdraw approval of any program unless the 

State shall have been notified and the reasons for withdrawal shall have 

been stated in writing and made public.

(7) Authority to enforce

Nothing in this subsection shall prohibit the Administrator from enforcing 

any applicable emission standard or requirement under this section.

(8) Local program

The Administrator may, after notice and opportunity for public comment, 

approve a program developed and submitted by a local air pollution control 

agency (after consultation with the State) pursuant to this subsection and 

any such agency implementing an approved program may take any action 

authorized to be taken by a State under this section.

(9) Permit authority

Nothing in this subsection shall affect the authorities and obligations of 

the Administrator or the State under subchapter V of this chapter

----- Original Message ----- 

From: <Vergeront.Julie@epamail.epa.gov>

To: "Patty Martin" <martin@nwi.net>

Sent: Wednesday, April 27, 2011 1:28 PM

Subject: Re: EPA correction to WA SIP

> Please let me know what provisions you are referring to. I am not aware

> of a provision in 112 that discusses state rules being adopted by EPA

> into a State Implementation Plan.

>

>

> Julie A. Vergeront

> Office of Regional Counsel

> U.S. Environmental Protection Agency

> Region 10

> 1200 Sixth Avenue, ORC-158

> Seattle, WA 98101

> Phone (206) 553-1497

> Fax (206) 553-0163

>

>

>

>

>

> From: "Patty Martin" <martin@nwi.net>

> To: Julie Vergeront/R10/USEPA/US@EPA

> Date: 04/27/2011 01:06 PM

> Subject: Re: EPA correction to WA SIP

>

>

>

> Julie,

>

> Thank you for clarifying, I thought I had missed something. I re-read

> section 42 USC 7412 and there are provisions for those regulations to be
>

> included in an SIP and enforced by EPA. Will that still be the case

> with

> the rule change?

>

> Patty

>

> ----- Original Message -----

> From: <Vergeront.Julie@epamail.epa.gov>

> To: "Patty Martin" <martin@nwi.net>

> Sent: Wednesday, April 27, 2011 8:51 AM

> Subject: Re: EPA correction to WA SIP

>

>

>> Thank you for your email, Patty.

>>

>> It is not correct that EPA can only enforce the NAAQS. What I

> believed

>> I said is that SIPs are programs under section 110 of the Clean Air

> Act

>> and that with certain exceptions, regulations approved by EPA as part

>> of a State SIP must reasonably relate to attainment and maintenance of

>> the NAAQS. This is described in the Federal Register proposal for the

>> SIP correction, which I believe you have a copy of.

>>

>> "In general, State and local regulations approved by EPA into the

>>

>>

>> SIP under Section 110 of the CAA must reasonably relate to attainment

>>

>>

>> and maintenance of the National Ambient Air Quality Standards (NAAQS).

>>

>>

>> See generally CAA 110; see also Memorandum from Michael A. James, EPA,

>>

>>

>> to Regional Counsels, Re: Status of State/Local Air Pollution Control

>>

>>

>> Measures Not Related to NAAQS, dated February 7, 1979 (“measures to

>>

>>

>> control non-criteria pollutants [pollutants that are not NAAQS

>>

>>

>> pollutants or their precursors] may not legally be made part of a

>>

>>

>> SIP.”).fn

>>

>>

>> fn Of course, SIP approved Prevention of Significant

> Deterioration

>>

>>

>> programs must cover any “regulated NSR pollutant,” see 40 CFR 52.21

>>

>>

>> (b)(50), which definition includes more than NAAQS pollutants and
> NAAQS

>>

>>

>> precursors."

>>

>>

>>

>>

>>

>> With respect to Section 112, what I said was that Section 112 is a

>> program regarding hazardous air pollutants and is separate from the

> SIP

>> program. Regulations adopted by States that are based on regulations

>> issued by EPA under Section 112 of the Clean Air Act are not approved

> by

>> EPA into the State SIP. Such regulations can be submitted by States

> and

>> approved by EPA under Section 112 of the Clean Air Act, but those

>> regulations are not part of the SIP. With a few exceptions, where EPA

>> approves State regulations under section 112 of the Clean Air Act, EPA

>> continues to enforce the EPA regulations under section 112 of the

> Clean

>> Air Act, and not the state regulations.

>>

>> If you have any comments on EPA's proposal to correct the Washington

>> SIP, please submit your comments in writing as directed in the

> original

>> proposal and in the extension.

>>

>> Thank you for your interest.

>>

>> Julie A. Vergeront

>> Office of Regional Counsel

>> U.S. Environmental Protection Agency

>> Region 10

>> 1200 Sixth Avenue, ORC-158

>> Seattle, WA 98101

>> Phone (206) 553-1497

>> Fax (206) 553-0163

>>

>>

>>

>>

>>

>>

>> From: "Patty Martin" <martin@nwi.net>

>> To: Julie Vergeront/R10/USEPA/US@EPA

>> Date: 04/27/2011 07:09 AM

>> Subject: EPA correction to WA SIP

>>

>>

>>

>> Julie,

>>

>> I spoke with you yesterday regarding the change to WA's SIP. I want

> to

>> be sure I understood the explanation that you provided me regarding

> why

>> the changes are taking place. It is my understanding from our

>> conversation, that EPA can only enforce the NAAQS. That is the limit
> of

>> their authority.

>>

>> It is also my understanding from our conversation (and please correct

> me

>> if I am wrong), that Hazardous Air Pollutants listed under 7412 and

>> included in SIPs are not enforceable by EPA.

>>

>> Please clarify any misunderstanding I may have of the rationale for

> the

>> change to WAs SIP.

>>

>> Thank you.

>>

>> Patty

>

>

>