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

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 subsectio n 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 obtainapproval. The State may revise and resubmit the proposed program for revie w 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 > > >