[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Proposed Rules]
[Pages 13238-13248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5393]


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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.

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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:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#5406656479042136383d370b173b3939313a2027143124357a333b22"><span class="__cf_email__" data-cfemail="1a482b2a374a6f7876737945597577777f746e695a7f6a7b347d756c">[email protected]</span></a>.
    <bullet> Mail: Jeff Hunt, EPA Region 10, Office of Air, Waste and 
Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#09617c677d27636c6f6f496c7968276e667f"><span class="__cf_email__" data-cfemail="c8a0bda6bce6a2adaeae88adb8a9e6afa7be">[email protected]</span></a>, 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

[[Page 13239]]

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.
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    \1\ William 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 PM<INF>2.5</INF> National Ambient Air Quality 
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X, 
October 2, 2007 (The ``2007 Guidance'').
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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:
    <bullet> 110(a)(2)(A): Emission limits and other control measures.
    <bullet> 110(a)(2)(B): Ambient air quality monitoring/data system.
    <bullet> 110(a)(2)(C): Program for enforcement of control measures.
    <bullet> 110(a)(2)(D): Interstate transport.
    <bullet> 110(a)(2)(E): Adequate resources.
    <bullet> 110(a)(2)(F): Stationary source monitoring system.
    <bullet> 110(a)(2)(G): Emergency power.
    <bullet> 110(a)(2)(H): Future SIP revisions.
    <bullet> 110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.
    <bullet> 110(a)(2)(J): Consultation with government officials; 
public notification; and Prevention of Significant Deterioration (PSD) 
and visibility protection.
    <bullet> 110(a)(2)(K): Air quality modeling/data.
    <bullet> 110(a)(2)(L): Permitting fees.
    <bullet> 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.

[[Page 13240]]

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 
PM<INF>2.5</INF> 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\
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    \2\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket <greek-i> 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.
    \3\ As 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.
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    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 
PM<INF>2.5</INF> 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

[[Page 13241]]

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\
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    \4\ For 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.
    \5\ For 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 NO<INF>X</INF> SIP Call; Final Rule,'' 70 FR 25,162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    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\
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    \6\ See, 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)).
    \7\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM<INF>2.5</INF> 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 
PM<INF>2.5</INF> 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.
    \8\ For example, implementation of the 1997 PM<INF>2.5</INF> 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 
NAAQS, EPA gave much more specific recommendations. But for

[[Page 13242]]

other infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM<INF>2.5</INF> 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.
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    \9\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM<INF>2.5</INF> 
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.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> NAAQS, but 
were germane to these SIP submissions for the 2006 PM<INF>2.5</INF> 
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 PM<INF>2.5</INF> 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.
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    \13\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM<INF>2.5</INF>) 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'').
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    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 PM<INF>2.5</INF> 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\
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    \14\ EPA 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).
    \15\ EPA 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 Emitting-Sources 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).
    \16\ EPA 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).
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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

[[Page 13243]]

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):
    <bullet> WAC 173-400 General Regulations for Air Pollution Sources 
(3/22/91; 6/2/95; 60 FR 28726)
    <bullet> WAC 173-405 Kraft Pulping Mills (3/22/91; 1/15/93; 58 FR 
4578)
    <bullet> WAC 173-410 Sulfite Pulping Mills (3/22/91; 1/15/93; 58 FR 
4578)
    <bullet> WAC 173-415 Primary Aluminum Plants (3/22/91; 1/15/93; 58 
FR 4578)
    <bullet> WAC 173-425 Open Burning (10/18/90; 1/15/93; 58 FR 4578)
    <bullet> WAC 173-433 Solid Fuel Burning Device Standards (various 
dates from 12/16/87 to 10/18/90; 1/15/93; 58 FR 4578)
    <bullet> WAC 173-434 Solid Waste Incinerator Facilities (various 
dates from 12/16/87 to 1/22/04; 1/15/93; 58 FR 4578)
    <bullet> 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:
    <bullet> 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
    <bullet> RCW 70.94.153 Existing Stationary Source--Replacement or 
Substantial Alteration of Emission Control Technology
    <bullet> RCW 70.94.161 Operating Permits for Air Contaminant 
Sources--Generally--Fees, Report to Legislature
    <bullet> RCW 70.94.162 Annual Fees from Operating Permit Program
    <bullet> RCW 70.94.380 Emission Control Requirements
    <bullet> RCW 70.94.395 Air Contaminant Sources--Regulation by 
Department; Authorities May be More Stringent--Hearing--Standards
    <bullet> RCW 70.94.430 Penalties
    <bullet> RCW 70.94.431 Civil Penalties--Excusable Excess Emissions
    <bullet> 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 NO<INF>X</INF> 
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.
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    \17\ Steven 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.
---------------------------------------------------------------------------

    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

[[Page 13244]]

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.
    <bullet> WAC 173-400-230 Regulatory Actions (state adopted date 3/
20/93; EPA approval date 6/2/95; 60 FR 28726)
    <bullet> 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:
    <bullet> RCW 70.94.141 Air Pollution Control Authority--Powers and 
Duties of Activated Authority
    <bullet> RCW 70.94.200 Investigation of Conditions by Control 
Officer or Department--Entering Private, Public Property
    <bullet> RCW 70.94.211 Enforcement Actions by Air Authority--Notice 
to Violators
    <bullet> RCW 70.94.332 Enforcement Actions by Department--Notice to 
Violators
    <bullet> RCW 70.94.425 Restraining Orders--Injunctions
    <bullet> RCW 70.94.430 Penalties
    <bullet> RCW 70.94.431 Civil Penalties--Excusable Excess Emissions
    <bullet> 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

[[Page 13245]]

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 rule-making 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:
    <bullet> WAC 173-400-105 Records, Monitoring, and Reporting (state 
adopted date 9/20/93; EPA approval date 6/2/95; 60 FR 28726)
    <bullet> WAC 173-400-110 New Source Review (NSR) (state adopted 
date 3/22/91; EPA approval date 6/2/95; 60 FR 28726)
    <bullet> 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)
    <bullet> 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

[[Page 13246]]

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:
    <bullet> WAC 173-400-171 Public Involvement (state effective date 
9/20/93; EPA approval date 6/2/95; 60 FR 28726).
    <bullet> WAC 173-435-050 Emergency Episode Plan (state effective 
date 1/3/89; EPA approval date 1/15/93; 58 FR 4578).
    <bullet> RCW 70.94.141 Washington Clean Air Act, Air Pollution 
Control Authority--Powers and Duties of Activated Authority.
    <bullet> RCW 70.94.240 Washington Clean Air Act, Air Pollution 
Control Advisory Council.
    <bullet> RCW 34.05 Administrative Procedure Act.
    <bullet> 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.

[[Page 13247]]

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:
    <bullet> WAC 173-400-171 Public Involvement (state effective date 
9/20/93; EPA approval date 6/2/95; 60 FR 28726).
    <bullet> RCW 34.05 Administrative Procedure Act.
    <bullet> RCW 42.30 Open Public Meetings Act.
    <bullet> 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 federally-approved 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.
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    \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.
---------------------------------------------------------------------------

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:
    <bullet> 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);

[[Page 13248]]

    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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.
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    \19\ 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.
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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


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