Approval and Promulgation of Implementation Plans: Washington

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA8-1-5478a; WA36-1-6951a; FRL-5315-7]

Approval and Promulgation of Implementation Plans: Washington

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: In this action, the Environmental Protection Agency (EPA)

approves PM-10 contingency measures for Seattle and Kent, Washington.

At the same time, EPA is providing notice that the conditions required

under the June 23, 1994 (59 FR 32370), conditional approval of the

Seattle PM-10 attainment plan have been met.

DATES: This action is effective on December 26, 1995, unless adverse or

critical comments are received by November 27, 1995. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

SIP Manager, EPA Air & Radiation Branch (AT-082), Docket WA36-1-6951,

1200 Sixth Avenue, Seattle, Washington 98101.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW, Washington,

D.C. 20460. Copies of material submitted to EPA may be examined during

normal business hours at the following locations: EPA, Region 10, Air &

Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, Washington

98101, and the Washington Department of Ecology, PO Box 47600, Olympia,

Washington 98504.

FOR FURTHER INFORMATION CONTACT: George Lauderdale, EPA Air & Radiation

Branch (AT-082), 1200 Sixth Avenue, Seattle, Washington 98101, (206)

553-6511.

SUPPLEMENTARY INFORMATION:

I. Background

The Seattle and Kent, Washington areas were designated

nonattainment for PM-10 and classified as moderate under sections

107(d)(4)(B) and 188(a) of the Clean Air Act, by operation of law upon

enactment of the Clean Air Act Amendments of 1990.1 See 56 FR

56694 (Nov. 6, 1991) (official designation codified at 40 CFR 81.348).

The air quality planning requirements for moderate PM-10 nonattainment

areas are set out in subparts 1 and 4 of part D, title I of the Act.

The EPA has issued a ``General Preamble'' describing EPA's preliminary

views on how EPA intends to review SIP's and SIP revisions submitted

under title I of the Act, including those State submittals containing

moderate PM-10 nonattainment area SIP requirements (see generally 57 FR

13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA

is describing its interpretations here only in broad terms, the reader

should refer to the General Preamble for a more detailed discussion of

the interpretations of title I advanced in this proposal and the

supporting rationale. In this rulemaking action on the Washington

moderate PM-10 SIP for the Seattle and Kent nonattainment areas, EPA is

proposing to apply its interpretations, taking into consideration the

specific factual issues presented. Additional information supporting

EPA's action on these particular areas is available for inspection at

the address indicated above.

\1\ The 1990 Amendments to the Clean Air Act made significant

changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399.

References herein are to the Clean Air Act, as amended (``the

Act''). The Clean Air Act is codified, as amended, in the U.S. Code

at 42 U.S.C. 7401, et seq.

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Those States containing initial moderate PM-10 nonattainment areas

(those areas designated nonattainment under section 107(d)(4)(B)) were

required to submit attainment plans by November 15, 1991, with some

provisions due at a later date. States with initial moderate PM-10

nonattainment areas were required to submit contingency measures by

November 15, 1993 which become effective without further action by the

State or EPA, upon a determination by EPA that the area has failed to

achieve RFP or to attain the PM-10 NAAQS by the applicable statutory

deadline (see section 172(c)(9) and 57 FR 13543-44).

Section 110(k) of the Act sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566). Section 110(k)(4) of

the Act authorizes EPA to conditionally approve a plan revision based

on a commitment by the State to adopt specific enforceable measures by

a date certain, but not later than one year after the date of approval

of the plan revision. EPA would then assess the approvability of the

submittal after the State fulfilled its commitment. Previous EPA

actions include approval of the Kent attainment area plan and

conditional approval of the Seattle attainment area plan.

EPA conditionally approved the Seattle moderate area plan on June

23, 1994 (see 59 FR 32370). The conditional approval was based on the

commitment, contained in the May 11, 1994, SIP submittal, by the

Washington Department of Ecology (Ecology) to decrease the emission

limits for point sources contributing to the PM-10 problem. During

review of the November 15, 1991 SIP submittal for Seattle, EPA

concluded that the plan needed specific enforceable emission limits for

several point sources in the area. Emission contributions from those

sources had been estimated in the plan at the actual level. Those

actual emissions were unenforceable because the sources could emit

additional pollution without violating any regulation. Washington's

regulations in effect set higher emission limits than the facilities

were actually emitting. Before EPA could fully approve the attainment

plan, the attainment and three year maintenance demonstrations would

have to be based on the allowable emissions from the point sources. On

May 11, 1995, Ecology submitted these new emission limits and

adequately demonstrated attainment and three year maintenance using the

new limits. Progress in attaining the PM-10 standards in Seattle has

been demonstrated by the area not exceeding the PM-10 24-hour health

standard since 1989. The emission limits were developed, implemented

and will be enforced by the Puget Sound Air Pollution Authority

(PSAPCA) through Orders of Approval issued for each source by the

agency.

In addition to the enforceable emission limits, Ecology also

submitted on May 11, 1995 a contingency measure for the Seattle

nonattainment area. As provided in section 172(c)(9) of the Act, all

moderate nonattainment area SIP's that demonstrate attainment must

include contingency measures (see generally 57 FR 13543-44). These

measures were required to be submitted by November 15, 1993 for the

initial moderate PM-10 nonattainment areas. These measures must take

effect without further regulatory action by the State or EPA, upon a

determination by EPA that the area has failed to make RFP or attain the

PM-10 NAAQS by the applicable statutory deadline.

Ecology did not submit a contingency measure for Seattle by the

November 15, 1993, statutory deadline. EPA sent a letter (dated January

13, 1994) to the

[[Page 54813]]

Governor of Washington noting the deficiency to submit the contingency

measure and initiating an 18 month timeframe for the state to correct

the problem. On May 11, 1995, Ecology submitted the Seattle contingency

measure. This measure bans the use of all uncertified woodstoves in the

area where woodstoves are a major contributing factor to any NAAQS

violations. Implementation of this measure would occur if the area

fails to attain or maintain the NAAQS for PM-10. The PSAPCA regulation

which allows implementation of the contingency measure is Regulation I,

Section 13.07. State law allows this regulation to take effect on or

after July 1, 1995.

EPA approved all elements of the Kent, Washington, PM-10

nonattainment plan that were due on November 15, 1991, in a March 16,

1993 Federal Register document (see 58 FR 14194). In that approval, EPA

took no action on the contingency measure element because it was not

due until November 15, 1993. Ecology made the case in a May 11, 1994,

letter that the shut down of a major point source, Salmon Bay Steel,

resulted in significantly more control than was necessary to

demonstrate attainment. After further discussion with Ecology and

PSAPCA, EPA has concluded that the contingency measure requirement has

been met in the Kent area through the attainment and three-year

maintenance emission reduction plan. The magnitude and permanence of

the closing of the steel facility reduced the emissions so dramatically

that EPA thinks it is reasonable for Ecology to include some of the

actual reductions as early implementation of a contingency measure.

Actual air quality monitoring in the nonattainment area verifies

significant improvement to the air quality of the area. Neither the 24-

hour or annual PM-10 NAAQS have been exceeded since 1986. The highest

24-hour value in the past three years was 92 g/m3. This

action completes EPA approval of all elements of the Kent PM-10

attainment plan.

II. This Action

EPA is taking three separate actions with this notice; approval of

an uncertified woodstove ban contingency measure for the Seattle,

Washington PM-10 nonattainment area, approval of the major plant

closure overcontrol contingency measure element for the Kent,

Washington PM-10 area, and notice that the conditions have been met for

the June 23, 1994, conditional approval of the Seattle PM-10 plan which

includes allowable emission limitations. These actions will complete

EPA's State Implementation Plan (SIP) attainment area plan approvals

for both the Kent and Seattle PM-10 nonattainment areas.

III. Administrative Review

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, Part D of the CAA

do not create any new requirements, but simply approve requirements

that the state is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

The EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments enacted on November 15, 1990. The EPA has determined

that this action conforms with those requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective December 26, 1995, unless, by November 27, 1995, adverse or

critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective December 26, 1995.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by December 26, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

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review may be filed and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2), 42 U.S.C.

7607(b)(2)).

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter.

Note: Incorporation by reference of the Implementation Plan for

the State of Washington was approved by the Director of the Office

of Federal Register on July 1, 1982.

Dated: October 2, 1995.

Chuck Clarke,

Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart WW--Washington

2. Section 52.2470 is amended by adding paragraph (c) (58) to read

as follows:

Sec. 52.2470 Identification of plan.

* * * * *

(c) * * *

(58) On February 21, 1995 and May 11, 1994, WDOE submitted to EPA

revisions to the Washington SIP addressing the contingency measures for

the Seattle and Kent PM-10 nonattainment plans.

(i) Incorporation by reference.

(A) February 21, 1995 letter from the Washington Department of

Ecology to EPA Region 10 submitting PSAPCA Section 13.07--Contingency

Plan, adopted December 8, 1994, as a revision to the Seattle PM-10

attainment plan and the Washington SIP.

(B) May 11, 1994 letter from WDOE to EPA Region 10 submitting

clarifying documentation to the contingency measure for Kent Valley PM-

10 attainment plan.

[FR Doc. 95-26592 Filed 10-25-95; 8:45 am]

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