[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Proposed Rules]
[Pages 13238-13248]
[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:
     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>     Mail: Jeff Hunt, EPA Region 10, Office of Air, Waste and
Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
     Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101. Attention: Jeff Hunt, Office of Air,
Waste and Toxics, AWT-107. Such deliveries are only accepted during
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2012-0112 EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Office of Air, Waste
and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt at telephone number: (206)
553-0256, email address<EMAIL_ADDRESS>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

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 PM2.5 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:
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.
     110(a)(2)(J): Consultation with government officials;
public notification; and Prevention of Significant Deterioration (PSD)
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.
    EPA's 2007 Guidance clarified that two elements identified in
section 110(a)(2) are not governed by the 3 year submission deadline of
section 110(a)(1) because SIPs incorporating necessary local
nonattainment area controls are not due within 3 years after
promulgation of a new or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due pursuant to CAA section
172. These requirements are: (i) Submissions required by section
110(a)(2)(C) to the extent that subsection refers to a permit program
as required in part D Title I of the CAA, and (ii) submissions required
by section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. As a result, this action
does not address infrastructure elements related to section
110(a)(2)(C) with respect to nonattainment new source review (NSR) or
110(a)(2)(I). This action also does not address the requirements of
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS which EPA previously
found to be adequate on January 13, 2009 (74 FR 1501). Furthermore, EPA
interprets the section 110(a)(2)(J) provision on visibility as not
being triggered by a new NAAQS because the visibility requirements in
part C are not changed by a new NAAQS.
    EPA is proposing to disapprove Washington's SIP for those
infrastructure elements discussed herein which relate to the major
source PSD regulation. Washington's SIP does not currently include EPA-
approved provisions for PSD regulation. Instead PSD regulations are
implemented by means of a FIP in Washington which incorporates the
requirements of 40 CFR 52.21. See 40 CFR 52.2497. To the extent that
Washington's SIP does not include federally-approvable or approved PSD
regulations, Washington's SIP must be disapproved for those
infrastructure elements which relate to PSD regulation. However,
because these major source PSD regulations are implemented in the state
by means of the FIP, neither Washington nor EPA have additional SIP or
FIP obligations arising out of this proposed disapproval.

IV. What is the scope of action on infrastructure submittals?

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\2\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated in other proposals that it would address
the issues separately: (i) Existing provisions for minor source new
source review programs that may be inconsistent with the requirements
of the CAA and EPA's regulations that pertain to such programs (``minor
source NSR''); and (ii) existing provisions for PSD programs that may
be inconsistent with current requirements of EPA's ``Final NSR
Improvement Rule,'' 67 FR 80,186 (December 31, 2002), as amended by 72
FR 32,526 (June 13, 2007) (``NSR Reform''). In light of the comments,
EPA believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth. It is important to emphasize that EPA is
taking the same position with respect to these four substantive issues
in this action on the infrastructure SIP for the 1997 8-hour ozone
NAAQS submittal from Washington.\3\
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    \2\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
    \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
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the 1997 8-hour ozone infrastructure SIP for Washington.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a

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 NOX 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 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \8\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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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 PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\9\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \10\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \11\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \12\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for

other infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
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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 PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007.
    \10\ Id., at page 2.
    \11\ Id., at attachment A, page 1.
    \12\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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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
PM2.5 NAAQS.\13\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS. Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the 1997 8-hour ozone infrastructure SIP for
Washington.
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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
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T. Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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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 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\14\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\15\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\16\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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

Section 172, not the timing requirement of Section 110(a)(1).
    Washington's submittal: The Washington SIP submittal lists the
emissions limitation regulations of WAC Chapters 173-400 through -492
as codified in 40 CFR 52.2470. These regulations are (in parenthesis:
state adopted date; EPA approval date; and FR citation):
     WAC 173-400 General Regulations for Air Pollution Sources
(3/22/91; 6/2/95; 60 FR 28726)
     WAC 173-405 Kraft Pulping Mills (3/22/91; 1/15/93; 58 FR
4578)
     WAC 173-410 Sulfite Pulping Mills (3/22/91; 1/15/93; 58 FR
4578)
     WAC 173-415 Primary Aluminum Plants (3/22/91; 1/15/93; 58
FR 4578)
     WAC 173-425 Open Burning (10/18/90; 1/15/93; 58 FR 4578)
     WAC 173-433 Solid Fuel Burning Device Standards (various
dates from 12/16/87 to 10/18/90; 1/15/93; 58 FR 4578)
     WAC 173-434 Solid Waste Incinerator Facilities (various
dates from 12/16/87 to 1/22/04; 1/15/93; 58 FR 4578)
     WAC 173-490 Emission Standards and Controls for Sources
Emitting Volatile Organic Compounds (3/22/91; 9/10/93; 58 FR 37426)
    As part of the federally approved SIP codified in 40 CFR Part 52
Subpart WW, Washington State has an air quality permitting program for
minor sources. As discussed previously, major sources are subject to
regulation under the PSD permitting program implemented by means of a
FIP which incorporates the PSD program specified at 40 CFR 52.21 (See
40 CFR 52.2497).
    Under the Washington Clean Air Act general authority to adopt
enforceable emission standards and limitations and other measures
necessary for the attainment and maintenance of NAAQS is contained in
RCW 70.94.331, Powers and Duties of Department. The following sections
of the statute address various components of the state's emissions
control measures and permitting program:
     RCW 70.94.152 Notice May be Required of Construction of
Proposed New Contaminant Source--Submission of Plans--Approval,
Disapproval--Emission Control--``De Minimis New Sources'' Defined
     RCW 70.94.153 Existing Stationary Source--Replacement or
Substantial Alteration of Emission Control Technology
     RCW 70.94.161 Operating Permits for Air Contaminant
Sources--Generally--Fees, Report to Legislature
     RCW 70.94.162 Annual Fees from Operating Permit Program
     RCW 70.94.380 Emission Control Requirements
     RCW 70.94.395 Air Contaminant Sources--Regulation by
Department; Authorities May be More Stringent--Hearing--Standards
     RCW 70.94.430 Penalties
     RCW 70.94.431 Civil Penalties--Excusable Excess Emissions
     RCW 70.94.850 Emission Credits Banking Program--Amount of
Credit
    EPA analysis: EPA finds that Washington's rules as codified in 40
CFR 52.2470, Subpart WW define and reference emissions limits and
significant emissions rates for air pollutants including NOX
and VOCs, which are precursors to ozone. Washington has no areas
designated nonattainment for the 1997 8-hour ozone NAAQS.
    Some of the rules listed above were approved into the SIP under
part D because certain areas in Washington were historically
nonattainment under the 1-hour ozone standard and required maintenance
plans to ensure on-going compliance with the 1997 8-hour ozone
standard. As a result, Washington regulates ozone and its precursors
through its SIP-approved minor source permitting program and ozone
maintenance plans. EPA does not consider SIP requirements triggered by
the nonattainment area mandates in part D of Title I of the CAA to be
governed by the submission deadline of section 110(a)(1), and EPA is
not proposing to find the SIP to be adequate for purposes of CAA Part D
requirements in this action. Nevertheless, Washington has referenced
some SIP provisions originally submitted in response to part D in its
submittal documenting its compliance with the infrastructure
requirements of section 110(a)(1) and (2). Washington has over time
updated the elements of its SIP addressing the ozone NAAQS, and the
provisions reviewed here are a weave of SIP revisions submitted in
response to the infrastructure requirements of section 110(a)(2) and
the nonattainment requirements of part D.
    For the purposes of this action, EPA is reviewing any rules
originally submitted in response to part D solely for the purposes of
determining whether they support a finding that the state has met the
basic infrastructure requirements under section 110(a)(2). EPA is
proposing to approve Washington's SIP as meeting the requirements of
section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.
    In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during
startup, shutdown, or malfunction (SSM) of operations at a facility.
EPA believes that a number of states may have SSM provisions that are
contrary to the Clean Air Act and existing EPA guidance \17\ and the
Agency plans to address such state regulations in the future. In the
meantime, EPA encourages any state having a deficient SSM provision to
take steps to correct it as soon as possible.
---------------------------------------------------------------------------

    \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

approved by EPA on December 7, 2011, and is available to the public on
the Ecology Web site at http://www.ecy.wa.gov/biblio/1102017.html. This
plan includes, among other things, the locations for the ozone
monitoring network. In addition, Washington sends real time air
monitoring information for ozone, particulate matter, and carbon
monoxide to EPA's AIRNow Web page at http://www.airnow.gov and also
provides the information on the Ecology Web site at https://fortress.wa.gov/ecy/enviwa/Default.ltr.aspx. Based on the foregoing,
EPA proposes to approve the Washington's SIP as meeting the
requirements of CAA Section 110(a)(2)(B) for the 1997 8-hour ozone
NAAQS.

110(a)(2)(C): Program for Enforcement of Control Measures

    Section 110(a)(2)(C) requires states to include a program providing
for enforcement of all SIP measures and the regulation of construction
of new or modified stationary sources, including a program to meet PSD
and nonattainment NSR requirements.
    Washington's submittal: Washington State cites the following
regulatory provisions contained in the SIP which provide for the
enforcement of the measures described in subparagraph (A). As discussed
previously, Washington State has an EPA-approved air quality permitting
program for minor sources. For major sources, EPA has a FIP in place to
implement the PSD program.
     WAC 173-400-230 Regulatory Actions (state adopted date 3/
20/93; EPA approval date 6/2/95; 60 FR 28726)
     WAC 173-400-240 Criminal Penalties (state adopted date 3/
22/91; EPA approval date 6/2/95; 60 FR 28726)
    Ecology's enforcement powers are derived from the statutory
provisions in Chapter 70.94 RCW:
     RCW 70.94.141 Air Pollution Control Authority--Powers and
Duties of Activated Authority
     RCW 70.94.200 Investigation of Conditions by Control
Officer or Department--Entering Private, Public Property
     RCW 70.94.211 Enforcement Actions by Air Authority--Notice
to Violators
     RCW 70.94.332 Enforcement Actions by Department--Notice to
Violators
     RCW 70.94.425 Restraining Orders--Injunctions
     RCW 70.94.430 Penalties
     RCW 70.94.431 Civil Penalties--Excusable Excess Emissions
     RCW 70.94.435 Additional Means for Enforcement of Chapter
    EPA analysis: To generally meet the requirements of section
110(a)(2)(C), the state is required to have a minor NSR permitting
program adequate to implement the 1997 8-hour ozone NAAQS. For major
sources a FIP is in place to implement the PSD program. Because the SIP
does not contain approved PSD permitting provisions, EPA is proposing
to disapprove that aspect of the SIP. However, as explained previously,
EPA need not take any additional action related to the section
110(a)(2) provisions that are contingent upon adequate PSD permitting
provisions in the SIP because these requirements are currently
addressed by a FIP. Also, as discussed above, in this action EPA is not
evaluating nonattainment related provisions, such as the nonattainment
NSR program required by part D of the CAA, nor does Washington have
nonattainment areas for the 1997 8-hour ozone NAAQS.
    EPA believes Washington code provides Ecology with the authority to
enforce the air quality laws, regulations, permits, and orders
promulgated pursuant to WAC Chapters 173-400 through -492 as codified
in the SIP at 40 CFR 52.2470, Subpart WW. Ecology staffs and maintains
an enforcement program to ensure compliance with SIP requirements. The
Ecology director may issue a restraining order for polluting activities
that constitute or will constitute a violation under the SIP approved
provisions of WAC 173-400-230(4). Enforcement cases may be referred to
the state Attorney General's Office for civil or criminal enforcement.
Therefore, EPA is proposing to approve the Washington SIP as meeting
the requirements of 110(a)(2)(C) related to enforcement for the 1997 8-
hour ozone NAAQS.
    In this action, EPA is not proposing to approve or disapprove the
state's existing minor NSR program itself to the extent that it is
inconsistent with EPA's regulations governing this program, such as the
SSM and director's discretion provisions discussed with respect to
110(a)(2)(A). EPA believes that a number of states may have minor NSR
provisions that are contrary to the existing EPA regulations for this
program. EPA intends to work with states to reconcile state minor NSR
programs with EPA's regulatory provisions for the program. The
statutory requirements of section 110(a)(2)(C) provide for considerable
flexibility in designing minor NSR programs, and EPA believes it may be
time to revisit the regulatory requirements for this program to give
the states an appropriate level of flexibility to design a program that
meets their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.

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

    Section 110(a)(2)(D) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance of the NAAQS in another state, or from interfering with
measures required to prevent significant deterioration of air quality
or to protect visibility in another state. As noted above, this action
does not address the requirements of 110(a)(2)(D(i) for the 1997 8-hour
ozone NAAQS which were previously approved by EPA on January 13, 2009
(74 FR 1501).

Interstate and International Transport Provisions

    Section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with the applicable requirements of sections 126
and 115 (relating to interstate and international pollution abatement).
Specifically, section 126(a) requires new or modified major sources to
notify neighboring states of potential impacts from the source.
    EPA analysis: The notification requirements of CAA section 126(a)
pertain only to major proposed new or modified sources. As previously
discussed, the major source PSD program in Washington is implemented
under a FIP and is therefore not part of this action. The state has no
pending obligations under section 115 or 126(b) of the Act. Because the
PSD permitting program is implemented pursuant to a FIP, EPA is
proposing to disapprove the Washington SIP because it does not meet the
requirements of CAA section 110(a)(2)(D)(ii) for the 1997 8-hour ozone
NAAQS. However, these requirements are adequately satisfied by the FIP
and thus no additional action by Washington or EPA is needed to satisfy
this infrastructure requirement for the 1997 8-hour ozone NAAQS.

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

    Section 110(a)(2)(E) requires states to provide (i) necessary
assurances that the state will have adequate personnel, funding, and
authority under state law to carry out the SIP (and is not prohibited
by any provision of Federal or state law from carrying out the SIP or
portion thereof), (ii) requires that the state comply with the
requirements respecting state boards under section

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:
     WAC 173-400-105 Records, Monitoring, and Reporting (state
adopted date 9/20/93; EPA approval date 6/2/95; 60 FR 28726)
     WAC 173-400-110 New Source Review (NSR) (state adopted
date 3/22/91; EPA approval date 6/2/95; 60 FR 28726)
     WAC 173-400-112 Requirements for New Sources in
Nonattainment Areas (state adopted date 3/22/91; EPA approval date 6/2/
95; 60 FR 28726)
     WAC 173-400-113 Requirements for New Sources in Attainment
or Unclassifiable Areas (state adopted date 3/22/91; EPA approval date
6/2/95; 60 FR 28726)
    EPA analysis: The provisions cited by the Washington SIP submittal
provide for monitoring, recordkeeping and reporting requirements for
sources. As note previously, Washington State has an EPA-approved air
quality permitting program for minor sources. A FIP implements the PSD
program requirements for major sources. EPA proposes to approve the
Washington SIP as meeting the requirements of CAA Section 110(a)(2)(F)
for the 1997 8-hour ozone NAAQS, with the exception of those aspects of
the infrastructure requirements which relate to PSD permitting. EPA
proposes disapprove that aspect of the SIP because the PSD provisions
continue to be implemented by a FIP. Accordingly, no additional action
is needed by Washington or EPA in response to this proposed
disapproval.

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

    Section 110(a)(2)(G) requires states to provide for authority to
address activities causing imminent and substantial endangerment to
public health, including contingency plans to implement the emergency
episode provisions in their SIPs.
    Washington's submittal: The Washington submittal cites the
emergency episode regulations of WAC 173-435 approved into the SIP by
EPA on January 15, 1993 (58 FR 4578). The significant harm level for
ozone under the SIP approved WAC 173-435 is identical to the level
contained in the current Federal regulations at 40 CFR 51.151.
    EPA analysis: As noted in EPA's October 2, 2007 guidance, the
significant harm level for the 8-hour ozone NAAQS shall remain
unchanged at 0.60 ppm ozone, 2 hour average, as indicated in 40 CFR
51.151. EPA believes that the existing ozone-related provisions of 40
CFR 51 Subpart H remain appropriate. Washington's regulations discussed
above, which have previously been approved by EPA into the SIP on
January 15, 1993 (58 FR 4578) continue to be consistent with the
requirements of 40 CFR 51.151. Accordingly, EPA proposes to find that
the Washington SIP is adequate for purposes of CAA section 110(a)(2)(G)
for the 1997 8-hour ozone NAAQS.

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

    Section 110(a)(2)(H) requires that SIPs provide for revision of
such plan (i) from time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods of
attaining such standard, and (ii), except as provided in paragraph
110(a)(3)(C), whenever the Administrator finds on the basis of
information available to the Administrator that the SIP is
substantially inadequate to attain the NAAQS which it implements or to
otherwise comply with any additional requirements under the CAA.
    Washington's submittal: Washington's SIP submittal refers to RCW
70.94 which gives Ecology the authority to promulgate rules and
regulations to

maintain and protect Washington's air quality and to comply with the
federal requirements, including revisions of NAAQS, SIPs, and
responding to EPA's findings.
    EPA analysis: RCW 70.94.510 specifically requires Ecology to
cooperate with the federal government in order to insure the
coordination of the provisions of the federal and state clean air acts.
EPA proposes to approve the Washington SIP as meeting the requirements
of section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.

110(a)(2)(I): Nonattainment Area Plan Revision Under Part D

    EPA analysis: There are two elements identified in section
110(a)(2) not governed by the 3 year submission deadline of section
110(a)(1) because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but rather due at the time of the nonattainment area
plan requirements pursuant to section 172. These requirements are: (i)
Submissions required by section 110(a)(2)(C) to the extent that
subsection refers to a permit program as required in part D Title I of
the CAA, and (ii) submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements of part D, Title I
of the CAA. As a result, this action does not address infrastructure
elements related to section 110(a)(2)(C) with respect to nonattainment
NSR or section 110(a)(2)(I).

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

    Section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and Federal Land Managers carrying
out NAAQS implementation requirements pursuant to Section 121 relating
to consultation. Section 110(a)(2)(J) further requires states to notify
the public if NAAQS are exceeded in an area and to enhance public
awareness of measures that can be taken to prevent exceedances. Lastly,
section 110(a)(2)(J) requires states to meet applicable requirements of
part C related to prevention of significant deterioration and
visibility protection.
    Washington's submittal: Washington's SIP submittal refers to a
number of laws and regulations relating to consultation and public
notification:
     WAC 173-400-171 Public Involvement (state effective date
9/20/93; EPA approval date 6/2/95; 60 FR 28726).
     WAC 173-435-050 Emergency Episode Plan (state effective
date 1/3/89; EPA approval date 1/15/93; 58 FR 4578).
     RCW 70.94.141 Washington Clean Air Act, Air Pollution
Control Authority--Powers and Duties of Activated Authority.
     RCW 70.94.240 Washington Clean Air Act, Air Pollution
Control Advisory Council.
     RCW 34.05 Administrative Procedure Act.
     RCW 42.30 Open Public Meetings Act.
    EPA analysis: Under the SIP approved provisions of WAC 173-400-171
Public Involvement, Ecology routinely coordinates with local
governments, states, federal land managers, and other stakeholders on
air quality issues and provides notice to appropriate agencies related
to permitting actions. Washington regularly participates in regional
planning processes including the Western Regional Air Partnership which
is a voluntary partnership of states, tribes, federal land managers,
local air agencies, and the U.S. EPA whose purpose is to understand
current and evolving regional air quality issues in the West. Therefore
EPA proposes to approve the Washington SIP as meeting the requirements
of CAA Section 110(a)(2)(J) for consultation with government officials.
    Washington sends real time air monitoring information for ozone,
particulate matter, and carbon monoxide to EPA's AIRNow Web page at
http://www.airnow.gov and also provides the information on Ecology's
Web site at https://fortress.wa.gov/ecy/enviwa/Default.ltr.aspx.
Therefore, EPA is proposing to approve the Washington SIP as meeting
the requirements of CAA Section 110(a)(2)(J) for public notification.
    Turning to the requirement in section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C of title I of the CAA, EPA
has evaluated this requirement with respect to PSD permitting. As
previously discussed, the major source PSD permitting program in
Washington is implemented by means of a FIP. Therefore, EPA proposes to
find that Washington's SIP must be disapproved with respect to the
requirements of 110(a)(2)(J) because PSD provisions are not part of
Washington's SIP. However, because the PSD provisions are adequately
addressed by the FIP that is in place, no further action is needed by
Washington or EPA in response to this proposed disapproval.
    With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the CAA. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus we
find that there is no new visibility obligation triggered under section
110(a)(2)(J) when a new NAAQS becomes effective.

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

    Section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of such air quality modeling as the Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which the
Administrator has established a national ambient air quality standard,
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.
    Washington's submittal: Washington's SIP submittal refers to the
SIP-approved minor source NSR permitting provisions in WAC 173-400-110,
-112, and -113 (State adopted date 3/22/91; EPA approval date 6/2/95;
60 FR 28726), which models pollutant concentrations in the ambient air
based on EPA's guidance and latest methodologies and techniques
specified in 40 CFR 51, Appendix W (Guideline on Air Quality Models).
Ecology also cites the Washington Clean Air Act (specifically RCW
70.94.011 Declaration of Public Policies and Purpose and RCW 70.94.510
Policy to Cooperate with Federal Government) which directs Ecology to
cooperate with the federal government in order to coordinate and
implement federal and state clean air acts, which would include the
submission of data related to air quality modeling to the
Administrator.
    EPA analysis: Washington models estimates of ambient concentrations
based on 40 CFR part 51 Appendix W (Guidelines on Air Quality Models).
Any change or substitution from models specified in 40 CFR part 51,
Appendix W is subject to notice and opportunity for public comment.
While Washington has no nonattainment areas for the 1997 8-hour ozone
NAAQS, modeling was used to support maintenance plans and redesignation
to attainment requests for the historical nonattainment areas of Puget
Sound and Vancouver approved by EPA on September 26, 1996 (61 FR 50438)
and May 19, 1997 (62 FR 27204), respectively. Modeling data has been
provided to EPA in this context. Based on the foregoing, EPA proposes
to approve Washington's SIP as meeting the requirements of CAA Section
110(a)(2)(K) for the 1997 8-hour ozone NAAQS.

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

    Section 110(a)(2)(L) requires SIPs to require each major stationary
source to pay permitting fees to cover the cost of reviewing,
approving, implementing, and enforcing a permit, until such time as the
SIP fee requirement is superseded by EPA's approval of the state's
Title V operating permit program.
    Washington's submittal: Washington's SIP submittal refers to RCW
70.94.162, Annual Fees from Operating Permit Program Source to Cover
Cost of Program, which provides Ecology authority to establish a
schedule of fees for permits based upon the costs of filing and
investigating applications, issuing or denying permits, carrying out
Title V requirements, and determining compliance. Washington's
submittal also refers to WAC 173-455, Air Quality Fee Regulation, which
requires payment of permit fees based on a specified table of sources
and fee schedule.
    EPA analysis: On August 13, 2001 (66 FR 42439), EPA fully approved
Washington's Title V program. As part of the approval process,
Washington's Title V program included a demonstration the state will
collect a fee from Title V sources above the presumptive minimum in
accordance with 40 CFR 70.9(b)(2)(i). Therefore, EPA proposes to find
that Washington has satisfied the requirements of CAA Section
110(a)(2)(L) for the 1997 8-hour ozone NAAQS.

110(a)(2)(M): Consultation/Participation by Affected Local Entities

    Section 110(a)(2)(M) requires states to provide for consultation
and participation in SIP development by local political subdivisions
affected by the SIP.
    Washington's submittal: Washington's SIP submittal refers to the
following laws and regulations:
     WAC 173-400-171 Public Involvement (state effective date
9/20/93; EPA approval date 6/2/95; 60 FR 28726).
     RCW 34.05 Administrative Procedure Act.
     RCW 42.30 Open Public Meetings Act.
     RCW 70.94.240 Washington Clean Air Act, Air Pollution
Control Advisory Council.
    EPA analysis: As discussed in the narrative relating to
110(a)(2)(J), Ecology routinely coordinates with local governments and
other stakeholders on air quality issues. The public involvement
regulations cited in Washington's submittal were previously approved
into Washington's 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.
---------------------------------------------------------------------------

    \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:
     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);

     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
Washington \19\ and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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]
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[Federal Register Volume 80, Number 161 (Thursday, August 20, 2015)]
[Notices]
[Pages 50640-50641]
[FR Doc No: 2015-20562]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2009-N-0232]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Comment Request; Interstate Shellfish Dealers
Certificate

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA or we) is announcing an
opportunity for public comment on our proposed collection of certain
information by the Agency. Under the Paperwork Reduction Act of 1995
(the PRA), Federal Agencies are required to publish notice in the
Federal Register concerning each proposed collection of information,
including each proposed extension of an existing collection of
information, and to allow 60 days for public comment in response to the
notice. This notice solicits comments on the information collection
provisions of the Interstate Shellfish Dealers Certificate.

DATES: Submit either electronic or written comments on the collection
of information by October 19, 2015.

ADDRESSES: Submit electronic comments on the collection of information
to http://www.regulations.gov. Submit written comments on the
collection of information to the Division of Dockets Management (HFA-
305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061,
Rockville, MD 20852. All comments should be identified with the docket
number found in brackets in the heading of this document.

FOR FURTHER INFORMATION CONTACT: FDA PRA Staff, Office of Operations,
Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver
Spring, MD 20993-0002<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Under the PRA (44 U.S.C. 3501-3520), Federal
Agencies must obtain approval from the Office of Management and Budget
(OMB) for each collection of information they conduct or sponsor.
``Collection of information'' is defined in 44 U.S.C. 3502(3) and 5 CFR
1320.3(c) and includes Agency requests or requirements that members of
the public submit reports, keep records, or provide information to a
third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A))
requires Federal Agencies to provide a 60-day notice in the Federal
Register concerning each proposed collection of information, including
each proposed extension of an existing collection of information,
before submitting the collection to OMB for approval. To comply with
this requirement, we are publishing notice of the proposed collection
of information set forth in this document.
    With respect to the following collection of information, we invite
comments on these topics: (1) Whether the proposed collection of
information is necessary for the proper performance of FDA's functions,
including whether the information will have practical utility; (2) the
accuracy of FDA's estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used; (3) ways to enhance the quality, utility, and clarity of the
information to be collected; and (4) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques, when appropriate, and other forms of
information technology.

Interstate Shellfish Dealer's Certificate

OMB Control Number 0910-0021--Extension

    Under 42 U.S.C. 243, we are required to cooperate with and aid
State and local authorities in the enforcement of their health
regulations and are authorized to assist States in the prevention and
suppression of communicable diseases. Under this authority, we
participate with State regulatory agencies, some foreign nations, and
the molluscan shellfish industry in the National Shellfish Sanitation
Program (NSSP).
    NSSP is a voluntary, cooperative program to promote the safety of
molluscan shellfish by providing for the classification and patrol of
shellfish growing waters and for the inspection and certification of
shellfish processors. Each participating State and foreign nation
monitors its molluscan shellfish processors and issues certificates for
those that meet the State or foreign shellfish control authority's
criteria. Each participating State and nation provides a certificate of
its certified shellfish processors to FDA on Form FDA 3038,
``Interstate Shellfish Dealer's Certificate.'' We use this information
to publish the ``Interstate Certified Shellfish Shippers List,'' a
monthly comprehensive listing of all molluscan shellfish processors
certified under the cooperative program. If we did not collect the
information necessary to compile this list, participating States would
not be able to identify and keep out shellfish processed by uncertified
processors in other States and foreign nations. Consequently, NSSP
would not be able to control the distribution of uncertified and
possibly unsafe shellfish in interstate commerce, and its effectiveness
would be nullified.
    We estimate the burden of this collection of information as
follows:

                                                     Table 1--Estimated Annual Reporting Burden \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Number of
                Activity                   FDA Form No.      Number of      responses per     Total annual       Average burden per        Total hours
                                                            respondents       respondent       responses              response
--------------------------------------------------------------------------------------------------------------------------------------------------------
Submission of Interstate Shellfish                 3038               40               57            2,280   0.10......................             228
 Dealer's Certificate.                                                                                (6 minutes)...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.

    We estimate that 40 respondents will submit 2,280 Interstate
Shellfish Dealer's Certificates annually, for a total burden of 228
hours (2,280 submissions x 0.10 hours = 228 hours). This estimate is
based on our experience with this information collection and the number
of certificates received in the past 3 years, which has remained
constant.

    Dated: August 14, 2015.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2015-20562 Filed 8-19-15; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Notices]
[Page 12957]
[FR Doc No: 2011-5323]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EF11-4-001]

Western Area Power Administration; Notice of Filing

    Take notice that on March 3, 2011, the Western Area Power
Administration, submitted its Open Access Transmission Tariff
Compliance Filing, to be effective March 2, 2011.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on March 24, 2011.

    Dated: March 3, 2011.
Kimberly D. Bose,
Secretary.
[FR Doc. 2011-5323 Filed 3-8-11; 8:45 am]
BILLING CODE 6717-01-P