[Federal Register Volume 85, Number 101 (Tuesday, May 26, 2020)]
[Proposed Rules]
[Pages 31421-31423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10853]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2019-0573, FRL-10009-43-Region 10]


Air Plan Approval; WA; Infrastructure Requirements for the 2010 
Sulfur Dioxide and 2015 Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Whenever a new or revised National Ambient Air Quality 
Standard (NAAQS) is promulgated, the Clean Air Act (CAA) requires 
states to submit a plan for the implementation, maintenance, and 
enforcement of the standard, commonly referred to as infrastructure 
requirements. The Environmental Protection Agency (EPA) is proposing to 
approve Washington State Implementation Plan (SIP) submissions as 
meeting specific infrastructure requirements for the 2010 sulfur 
dioxide (SO2) and 2015 ozone NAAQS.

DATES: Comments must be received on or before June 25, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0573 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, EPA Region 10, 1200 Sixth 
Avenue--Suite 155, Seattle, WA 98101, at (206) 553-0256, or 
hunt.jeff@epa.gov.

SUPPLEMENTARY INFORMATION:  Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA. This 
SUPPLEMENTARY INFORMATION section is arranged as follows:

Table of Contents

I. Background
II. Infrastructure Elements
III. The EPA Approach to Review of Infrastructure SIP Submissions
IV. The EPA Evaluation
V. Proposed Action
VI. Statutory and Executive Orders Review

I. Background

    On June 2, 2010, the EPA promulgated a revised primary 
SO2 NAAQS at 75 parts per billion, based on a three-year 
average of the annual 99th percentile of one-hour daily maximum 
concentrations (75 FR 35520). In 2015, the EPA promulgated a revision 
to the ozone NAAQS retaining the existing form of the standard (three-
year average of the annual fourth-highest daily maximum 8-hour average 
concentration) but lowered the level of both the primary and secondary 
standards from 0.075 to 0.070 parts per million (80 FR 65292, October 
26, 2015). On September 30, 2019, and as supplemented on April 3, 2020, 
the Washington Department of Ecology (Ecology) submitted SIP revisions 
to meet certain 2010 SO2 and 2015 ozone NAAQS infrastructure 
requirements. We note that Ecology previously submitted a SIP revision 
on February 7, 2018, addressing CAA section 110(a)(2)(D)(i)(I) 
(interstate transport prongs 1 and 2) for the 2010 SO2 and 
2015 ozone NAAQS. We approved the February 7, 2018, SIP revision as 
meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 2015 
ozone NAAQS on September 20, 2018 (83 FR 47568). We will address the 
CAA section 110(a)(2)(D)(i)(I) requirements for the 2010 SO2 
NAAQS in a separate action.

[[Page 31422]]

II. Infrastructure Elements

    CAA section 110(a)(1) provides the procedure and timing for SIP 
submissions after a new or revised NAAQS is promulgated. CAA section 
110(a)(2) lists specific elements that states must meet related to a 
newly established or revised NAAQS. The EPA has issued guidance to help 
states address these requirements, most recently on September 13, 2013 
(2013 Guidance).\1\ The requirements, with their corresponding CAA 
subsection, are listed below:
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    \1\ Stephen D. Page, Director, Office of Air Quality Planning 
and Standards. ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and 
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions 1 
through 10, September 13, 2013.
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency episodes.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and 
applicable requirements of part D.
     110(a)(2)(J): Consultation with government officials; 
public notification; and Prevention of Significant Deterioration and 
visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    The EPA's 2013 Guidance restated our interpretation that two 
elements are not governed by the three-year submission deadline in CAA 
section 110(a)(1) because SIPs incorporating necessary local 
nonattainment area controls are due on separate schedules, pursuant to 
CAA section 172 and the various pollutant-specific subparts 2 through 5 
of part D. These are submissions required by: (i) CAA 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) CAA section 
110(a)(2)(I). As a result, this action does not address CAA section 
110(a)(2)(C) with respect to nonattainment new source review (NSR) or 
CAA section 110(a)(2)(I). The EPA has also determined that the CAA 
section 110(a)(2)(J) provision on visibility is not triggered by a new 
NAAQS because the visibility requirements in part C, title I of the CAA 
are not changed by a new NAAQS.
    Ecology's September 30, 2019 infrastructure SIP revision noted that 
it did not contain a narrative for CAA section 110(a)(2)(K) explaining 
that additional rulemaking was necessary to update Washington's 
adoption by reference of 40 CFR part 51, appendix W for air quality 
modeling. On April 3, 2020, Ecology submitted a SIP revision updating 
the narrative for CAA section 110(a)(2)(K) to reflect the EPA's 
approval of revisions to Chapters 173-400 and 463-78 Washington 
Administrative Code (WAC) with an updated adoption by reference of 
Federal regulations as of January 24, 2018, including the EPA's most 
recent update to 40 CFR part 51, appendix W. See 85 FR 4233 (January 
24, 2020) and 85 FR 10301 (February 24, 2020). Also, as part of the 
September 2019 infrastructure SIP revision, Ecology's CAA section 
110(a)(2)(A) narrative included a cross reference to additional SIP-
strengthening regulations included as an appendix for EPA approval.\2\ 
Ecology's April 3, 2020 SIP revision updated the narrative to clarify 
that the current Federally-approved Washington SIP meets all CAA 
section 110(a)(2)(A) requirements and is not contingent on the EPA's 
approval of the SIP-strengthening rules. The EPA agrees that the SIP-
strengthening rules are severable from the infrastructure certification 
and can be addressed in a separate future action.
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    \2\ See ``state submittal_173-423 WA Register'' and ``state 
submittal_2010 SO2 and 2015 O3 Appendix B Table'' in the 
docket for this action.
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    With respect to CAA section 110(a)(2)(C), (D)(i)(II), (D)(ii), and 
(J), Ecology's September 2019 infrastructure SIP revision describes how 
Washington relies on a narrow set of Federal Implementation Plans 
(FIPs) in implementing portions of the Prevention of Significant 
Deterioration (PSD) and regional haze programs.\3\ Ecology's 
infrastructure SIP revision also notes that Washington is not 
submitting replacements for these FIPs at this time. The EPA's 2013 
Guidance states, ``In this situation, the EPA would make a completeness 
finding that extends only to the SIP elements actually submitted by the 
air agency, and a finding that other relevant applicable elements were 
not submitted. The EPA would be required to take action only on the 
elements that were submitted, within 12 months after those elements 
have been determined to be complete. The overall infrastructure SIP 
would not be approvable with respect to the elements that were not 
submitted, and thus the EPA could only partially approve the overall 
infrastructure SIP.''
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    \3\ See 40 CFR 52.2497, 40 CFR 52.2500, 40 CFR 52.2501, and 40 
CFR 52.2502. Ecology's April 3, 2020 SIP revision updated the 
narrative for CAA section 110(a)(2)(A) and (K) only, with no 
revisions for other infrastructure elements.
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    In accordance with the 2013 Guidance, we found that Ecology's 
September 2019 infrastructure SIP submission was incomplete for the 
portions addressing the infrastructure elements in CAA section 
110(a)(2)(C), (D)(i)(II) (prong 3), (D)(ii), and (J) relating to PSD, 
because Washington has not fully addressed all requirements of part C 
of title I of the CAA. We also found the submission incomplete as to 
element D(i)(II) (prong 4) relating to interstate visibility transport. 
On November 18, 2019, the EPA sent a letter to Ecology notifying 
Washington of this determination.\4\ With respect to PSD, as a result 
of this incompleteness finding, the EPA is not taking action on the 
portions of section 110(a)(2)(C), D(i)(II), (D)(ii), and (J) related to 
the PSD FIP. The EPA recognizes, however, that Washington has elected 
to comply with the Federal requirements through joint EPA and state 
implementation through a FIP. Because Washington is already subject to 
a FIP, Washington would not have to take further action for continued 
implementation of the PSD program.
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    \4\ See ``completeness letter_Taylor, Kathy, WA Department of 
Ecology_11.18.19'' included in the docket for this action.
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    With respect to prong 4 requirements related to interstate 
visibility transport under section 110(a)(2)(D)(i)(II), Washington does 
not have a fully approved regional haze SIP typically used to satisfy 
element D(i)(II) (prong 4) relating to interstate visibility 
transport.\5\ However, regional haze FIPs are in place to fully address 
the disapproved portions of the state's SIP for the period of the first 
long-term strategy for regional haze. See 79 FR 33438 (June 11, 2014). 
As a result, and as explained in more detail in the technical support 
document (TSD) in the docket for this action, the EPA finds that the 
FIP obligations with respect to prong 4 for the 2010 SO2 and 
2015 ozone NAAQS are already satisfied, and no further action is 
required.
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    \5\ See 2013 Guidance, page 33.
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    The EPA does not anticipate any adverse consequences to Washington 
as a result of this incompleteness finding for the PSD portions of CAA 
section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J), or the interstate 
visibility transport portion of section 110(a)(D)(i)(II). Mandatory 
sanctions would not apply to Washington under CAA section 179 because 
PSD and regional haze SIP

[[Page 31423]]

submissions are not required under title I part D of the CAA, and in 
this instance are not in response to a SIP call under section 110(k)(5) 
of the CAA.

III. The EPA Approach To Review of Infrastructure SIP Submissions

    Due to ambiguity in some of the language of CAA section 110(a)(2), 
the EPA believes that it is appropriate to interpret these provisions 
in the specific context of taking action on infrastructure SIP 
submissions. The EPA has previously provided comprehensive guidance on 
the application of these provisions in the 2013 Guidance and through 
regional actions on infrastructure submissions.\6\ Unless otherwise 
noted below, we are following that existing approach in taking action 
on these submissions. In addition, in the context of taking action on 
such infrastructure submissions, the EPA evaluates the submitting 
state's SIP for facial compliance with statutory and regulatory 
requirements, not for the state's implementation of its SIP.\7\ The EPA 
has other authority to address any issues concerning a state's 
implementation of the rules, regulations, consent orders, etc. that 
comprise its SIP.
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    \6\ The EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013 Infrastructure 
SIP Guidance) available in the docket for this action and at https://www.epa.gov/air-quality-implementation-plans/infrastructure-sip-requirements-and-guidance).
    \7\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 
(August 30, 2018).
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IV. The EPA Evaluation

    The EPA's evaluation and rationale for proposing action on 
Washington's September 30, 2019 and April 3, 2020 infrastructure SIP 
revisions are detailed in the ``Technical Support Document for the 
EPA's Proposed Rulemaking for the Washington Implementation Plan 
Revision for Meeting the Infrastructure Requirements in the Clean Air 
Act'' (TSD). The TSD is available in the docket for this action.

V. Proposed Action

    We are proposing to approve the September 2019 and April 2020 
Washington infrastructure SIP revisions as meeting certain 
infrastructure requirements for the 2010 SO2 and 2015 ozone 
NAAQS, specifically CAA section 110(a)(2)(A), (B), (C) (except for 
those provisions covered by the PSD FIP), (D)(i)(II) (except for those 
provisions covered by the PSD and regional haze FIPs), (D)(ii) (except 
for those provisions covered by the PSD FIP), (E), (F), (G), (H), (J) 
(except for those provisions covered by the PSD FIP), (K), (L), and 
(M).

VI. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land in 
Washington except as specifically noted below and is also not approved 
to apply in any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law. Washington's SIP is approved to apply on non-trust land within the 
exterior boundaries of the Puyallup Indian Reservation, also known as 
the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement 
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and 
local agencies in Washington authority over activities on non-trust 
lands within the 1873 Survey Area. Consistent with EPA policy, the EPA 
provided a consultation opportunity to the Puyallup Tribe in a letter 
dated July 15, 2019.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

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

    Dated: May 14, 2020.
Christopher Hladick,
Regional Administrator, Region 10.
[FR Doc. 2020-10853 Filed 5-22-20; 8:45 am]
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