Proposed Rule2024-22171
Designation of Areas for Air Quality Planning Purposes; Redesignation Request and Associated Maintenance Plan for Whatcom County, WA 2010 SO2 Nonattainment Area
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 27, 2024
Issuing agencies
Environmental Protection Agency
Abstract
On July 25, 2024, the State of Washington (WA) submitted a request for the Environmental Protection Agency (EPA) to redesignate to attainment a portion of Whatcom County immediately surrounding the now permanently closed aluminum smelter, Intalco Aluminum LLC, which the EPA designated nonattainment for the 2010 sulfur dioxide (SO<INF>2</INF>) primary National Ambient Air Quality Standard (NAAQS). Washington also submitted a request for the EPA to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the area. In response to this submittal, the EPA is proposing to take the following actions: determine that the Whatcom County (partial) SO<INF>2</INF> nonattainment area (NAA) is attaining the 2010 SO<INF>2</INF> primary NAAQS; approve Washington's plan for maintaining attainment of the 2010 SO<INF>2</INF> primary NAAQS in the area; and redesignate the Whatcom County (partial) SO<INF>2</INF> NAA to attainment for the 2010 1-hour primary SO<INF>2</INF> NAAQS.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 188 (Friday, September 27, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 188 (Friday, September 27, 2024)]
[Proposed Rules]
[Pages 79195-79203]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22171]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2024-0371; FRL-12159-01-R10]
Designation of Areas for Air Quality Planning Purposes;
Redesignation Request and Associated Maintenance Plan for Whatcom
County, WA 2010 SO2 Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On July 25, 2024, the State of Washington (WA) submitted a
request for the Environmental Protection Agency (EPA) to redesignate to
attainment a portion of Whatcom County immediately surrounding the now
permanently closed aluminum smelter, Intalco Aluminum LLC, which the
EPA designated nonattainment for the 2010 sulfur dioxide
(SO<INF>2</INF>) primary National Ambient Air Quality Standard (NAAQS).
Washington also submitted a request for the EPA to approve a State
Implementation Plan (SIP) revision containing a maintenance plan for
the area. In response to this submittal, the EPA is proposing to take
the following actions: determine that the Whatcom County (partial)
SO<INF>2</INF> nonattainment area (NAA) is attaining the 2010
SO<INF>2</INF> primary NAAQS; approve Washington's plan for maintaining
attainment of the 2010 SO<INF>2</INF> primary NAAQS in the area; and
redesignate the Whatcom County (partial) SO<INF>2</INF> NAA to
attainment for the 2010 1-hour primary SO<INF>2</INF> NAAQS.
DATES: Written comments must be received on or before October 28, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2024-0371 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://regulations.gov">regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://regulations.gov">regulations.gov</a>. For either manner of submission, the EPA may publish
any comment received to its public docket. Do not submit electronically
any information you consider to be confidential business information or
other information the disclosure of which is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy, information about confidential
business information or multimedia submissions, and general guidance on
making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, EPA Region 10, 1200 Sixth
Avenue, Suite 155, Seattle, WA 98101, at (206) 553-6357 or
<a href="/cdn-cgi/l/email-protection#9df5e8f3e9b3f7f8fbfbddf8edfcb3faf2eb"><span class="__cf_email__" data-cfemail="4e263b203a60242b28280e2b3e2f60292138">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, the use of ``we''
and ``our'' means the EPA.
I. What is the background for the EPA's proposed actions?
On June 22, 2010, the EPA published a new 1-hour primary
SO<INF>2</INF> NAAQS of 75 parts per billion (ppb), which is met at an
ambient air quality monitoring site when the 3-year average of the
annual 99th percentile of daily maximum 1-hour average concentrations
does not exceed 75 parts per billion (ppb), as determined in accordance
with appendix T of 40 CFR part 50 (75 FR 35520). Under Clean Air Act
(CAA) section 107(d)(1), the EPA is required to designate areas as
``nonattainment,'' ``attainment,'' or ``unclassifiable'' within two
years of establishing a new or revising an existing standard. As part
of this process, states must submit recommendations for area
designations and boundaries to the EPA within one year of the effective
date of the standard. In 2011, Washington State, like many states
across the nation, did not have sufficient SO<INF>2</INF> monitoring
data for specific stationary sources that may cause or contribute to
violations of the revised SO<INF>2</INF> NAAQS and recommended that all
areas in the state be designated as unclassifiable. In response to the
lack of sufficient SO<INF>2</INF> monitoring data across the nation,
the EPA promulgated the Data Requirements Rule (DRR) on August 21, 2015
(80 FR 51052), which established a phased-in approach for state air
agencies to characterize air quality via additional monitoring or
modeling in areas associated with sources meeting certain criteria. In
addition to the original round of nonattainment designations published
on August 5, 2013 (78 FR 47191), the EPA promulgated three subsequent
rounds of designations in 2016 (81 FR 45039, July 12, 2016), 2018 (83
FR1098, January 9, 2018), and 2021 (86 FR 16055, March 26, 2021), as
information to characterize air quality became available. The EPA
designated Whatcom County (partial), Washington (also referred to as
the ``nonattainment area'' or ``area'') as nonattainment effective
April 30, 2021, as part of the Agency's Round 4 designations (86 FR
16055, March 26, 2021).
In the case of Washington, the EPA and the Washington Department of
Ecology (Ecology) identified the Alcoa Intalco Aluminum LLC (Intalco)
facility, located in the Cherry Point Industrial Area in Whatcom
County, as emitting 2,000 tons or more of SO<INF>2</INF> annually,
which triggered the DRR requirement for additional modeling or
monitoring to characterize air quality in the area. Washington chose to
meet this DRR requirement via the establishment of monitoring at the
Intalco facility beginning on January 1, 2017. Based on the monitoring
data established under the DRR, the Ferndale Mountain View Road monitor
(AQS ID 53-073-0017) violated the 75 ppb level of the revised 1-hour
primary SO<INF>2</INF> NAAQS with a 2017-2019 design value of 106
ppb.\1\ The state did not send an updated formal designation
recommendation for Whatcom County. However, Ecology, in collaboration
with Northwest Clean Air Agency (NWCAA), submitted a technical report
and modeling analysis on June 12, 2020, to help inform the EPA's
nonattainment boundary determination using data from the monitors that
were installed pursuant to
[[Page 79196]]
the DRR. Given that the state did not provide a formal recommendation
for the boundary, the EPA conducted an extensive review of the
submitted modeling to develop sufficient evidence to support the
determination of a nonattainment boundary. The nonattainment boundary
must contain all of the area where the NAAQS are not attained and all
areas that contribute to the violations. Based on our review, the EPA
determined that the state's modeling assessment was reliable for
determining the extent of the area of violation of the 1-hour primary
SO<INF>2</INF> NAAQS. Specifically, we agreed that the region of
violation was most likely due to plume downwash at the Intalco facility
during certain wind conditions, that the modeled area of violation did
not extend far from the Intalco facility fence line, that the gradient
of concentration near the areas of violation was steep, quickly
dropping with distance from the Intalco facility fence line, and that
other nearby industrial facilities did not sufficiently contribute to
violations of the 1-hour primary SO<INF>2</INF> NAAQS to warrant
inclusion in the NAA boundary. In our final nonattainment boundary
determination, we concurred with Ecology and NWCAA's view that the
boundary should be drawn to encompass the cause of the SO<INF>2</INF>
violations, the Intalco facility. However, we used a simpler
nonattainment boundary consisting of four Universal Transverse Mercator
(UTM) coordinates instead of the various roadways and property lines
suggested by NWCAA in a June 9, 2020, letter. For more information
about the specific modeling and the EPA's analysis, please see
``Appendix A Whatcom County SO<INF>2</INF> Area Designation'' included
in the docket for this action.
---------------------------------------------------------------------------
\1\ The design value is the metric used for determining
compliance with the SO<INF>2</INF> NAAQS under appendix T of 40 CFR
part 50.
---------------------------------------------------------------------------
In response to the EPA's designation of the NAA, Washington
submitted an attainment plan on December 15, 2022, to the EPA for
approval. This plan and associated order required significant upgrades
to the Intalco facility including installation and operation of a new
SO<INF>2</INF> wet scrubber.\2\ Subsequently, on March 16, 2023, Alcoa
Corporation publicly announced their plans to permanently close the
Intalco facility.\3\ Ecology issued a notice of intent to revoke the
associated minor new source review (NSR) and Title V Operating Permits
on November 30, 2023, which became effective December 7, 2023.\4\ Under
Revised Code of Washington (RCW) and Washington Administrative Code
(WAC), Intalco cannot operate the facility without first obtaining a
new Title V operating permit and applicable NSR permits, including a
demonstration of compliance with the 2010 1-hour SO<INF>2</INF> NAAQS.
Since the 2022 attainment plan, which imposed specific control
requirements on Intalco, became functionally moot with the 2023
permanent closure of the facility, Ecology proceeded directly to
submitting a redesignation request and maintenance plan for the area.
Upon the EPA's final approval of the redesignation request and
maintenance plan for the area, Ecology intends to withdraw the now
outdated 2022 attainment plan. The EPA is not proposing to act on the
2022 attainment plan in this action.
---------------------------------------------------------------------------
\2\ See 202_Intalco Sulfur Dioxide Attainment Plan_2202035.pdf,
included in the docket for this action.
\3\ See Appendix A of state submittal included in the docket for
this action.
\4\ Id, November 30, 2023, from James DeMay to Tia Daulph,
``Termination of Title V Air Operating Permit No. 0002950 and Notice
of Construction Orders, Compliance Orders, and Agreed Orders'' and
December 7, 2023, from Tia Daulph to James DeMay, ``Re: Termination
of Title V Air Operating Permit No. 0002950'' included in the docket
for this action.
---------------------------------------------------------------------------
II. What are the criteria for redesignation?
The CAA provides the requirements for redesignating a NAA to
attainment. Specifically, section 107(d)(3)(E) of the CAA allows for
redesignation of a NAA provided that: (1) the Administrator determines
that the area has attained the applicable NAAQS; (2) the Administrator
has fully approved the applicable implementation plan for the area
under section 110(k); (3) the Administrator determines that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
SIP and applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (4) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
section 175A; and (5) the State containing such area has met all
requirements applicable to the area for purposes of redesignation under
section 110 and part D of the CAA.
On April 16, 1992, the EPA provided guidance on redesignation in
the General Preamble for the Implementation of title I of the CAA
Amendments of 1990 (57 FR 13498) and supplemented this guidance on
April 28, 1992 (57 FR 18070). The EPA has provided further guidance on
processing redesignation requests in several guidance documents. For
the purposes of this action, the EPA will be referencing two of these
documents: (1) the September 4, 1992, Memorandum from John Calcagni
titled ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' (hereafter referred to as the ``Calcagni Memo''); and (2)
the April 23, 2014, Memorandum from Stephen D. Page titled ``Guidance
for 1-Hour SO<INF>2</INF> Nonattainment Area SIP Submissions,''
(hereafter referred to as ``2014 SO<INF>2</INF> NAA Guidance'').
III. What is the EPA's analysis of the request?
The EPA's evaluation of Washington's redesignation request and
maintenance plan was based on consideration of the five redesignation
criteria provided under CAA section 107(d)(3)(E).
Criteria (1)--The Whatcom County (Partial) SO2 Nonattainment Area Has
Attained the 2010 1-Hour SO2 NAAQS
For redesignating a NAA, the CAA requires the EPA to determine that
the area has attained the applicable NAAQS (CAA section
107(d)(3)(E)(i)). The two primary methods for evaluating ambient air
quality impacted by SO<INF>2</INF> emissions are through dispersion
modeling and air quality monitoring. For SO<INF>2</INF>, an area may be
considered attaining the 2010 1-hour SO<INF>2</INF> NAAQS if it meets
the NAAQS as determined in accordance with 40 CFR 50.17 and appendix T
of part 50, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain the NAAQS based
on monitoring, the 3-year average of the annual 99th percentile (fourth
highest value) of 1-hour daily maximum concentrations measured at each
monitor within an area must be less than or equal to 75 ppb. The data
must be collected and quality-assured in accordance with 40 CFR part 58
and recorded in the EPA Air Quality System (AQS). The EPA's
determination of attainment can be based on monitoring data alone,
without the need for dispersion modeling analyses, if the air agency
provides an analysis demonstrating that the monitor(s) for the affected
area is located in the area of maximum ambient concentration of
SO<INF>2</INF>.\5\
---------------------------------------------------------------------------
\5\ See 2014 SO<INF>2</INF> NAA Guidance, at 62.
---------------------------------------------------------------------------
In this action, the EPA is proposing to determine that the Whatcom
County (partial) SO<INF>2</INF> nonattainment area is attaining the
2010 1-hour SO<INF>2</INF> NAAQS. The EPA reviewed SO<INF>2</INF>
monitoring data from the two monitoring stations inside the Whatcom
County (partial) SO<INF>2</INF> nonattainment area, the Ferndale-
Mountain View Road station (AQS Site
[[Page 79197]]
ID 53-073-0017) and the Ferndale-Kickerville Road station (AQS Site ID
53-073-0013). The monitoring station data have been quality-assured,
are recorded in the EPA's Air Quality System (AQS), and indicate that
the area is attaining the 2010 1-hour SO<INF>2</INF> NAAQS. The fourth-
highest 1-hour SO<INF>2</INF> values at the monitoring stations for the
3-year averages of these values (i.e., design values), are summarized
in Table 1, below.
Table 1--Whatcom County (Partial) Monitored SO2 Concentrations
[ppb]
----------------------------------------------------------------------------------------------------------------
2021 99th 2022 99th 2023 99th 2021-2023
Station Percentile Percentile Percentile Design value
----------------------------------------------------------------------------------------------------------------
Ferndale-Mountain View Road........................... 2.6 3.3 4.4 3
Ferndale-Kickerville Road............................. 2.4 3.1 4.4 3
----------------------------------------------------------------------------------------------------------------
As shown, the 3-year design values for 2021-2023 at the monitoring
stations are well below the 2010 1-hour SO<INF>2</INF> NAAQS.
Concentrations of SO<INF>2</INF> at these monitoring stations decreased
significantly from the 2017-2019 design value of 106 ppb following the
shutdown of the Intalco facility. Since the facility last operated in
July 2020, 99th percentile values at the monitoring stations have not
exceeded 4.4 ppb SO<INF>2</INF>. These low values are anticipated to be
consistent, as the state demonstrated in its analysis that
SO<INF>2</INF> emissions since 2020 have consistently decreased to
levels well below the 2010 1-hour SO<INF>2</INF> NAAQS during both
curtailment and permanent closure of the Intalco facility.\6\
---------------------------------------------------------------------------
\6\ Whatcom County (partial) redesignation request, at pages 20-
22.
---------------------------------------------------------------------------
As part of Washington's 2022 attainment plan and 2024 redesignation
request, Ecology submitted information to support a showing that the
Ferndale-Mountain View Road monitor was sited in the area of maximum
ambient SO<INF>2</INF> concentration within the Whatcom County
(partial) SO<INF>2</INF> NAA in accordance with the 2014 SO<INF>2</INF>
NAA Guidance. Ecology identified appropriate locations for the two
Ferndale monitors in 2015 by running the AERMOD \7\ dispersion model
using SO<INF>2</INF> actual emissions from Intalco.\8\ The EPA reviewed
Washington's information regarding this showing in designating the area
nonattainment in Round 4. We found that the state's modeling assessment
was reliable for determining the extent of the area of violation of the
1-hour SO<INF>2</INF> NAAQS. Specifically, we agreed that the region of
violation was most likely due to plume downwash at the Intalco facility
during certain wind conditions, that the modeled area of violation does
not extend far from the Intalco facility fenceline, that the gradient
of concentration near the areas of violation is steep, quickly dropping
with distance from the Intalco facility fenceline, and that other
nearby industrial facilities do not sufficiently contribute to
violations of the SO<INF>2</INF> NAAQS to warrant inclusion in the
nonattainment area boundary.\9\ With Intalco permanently closed,
monitored SO<INF>2</INF> concentrations in the Whatcom County (partial)
SO<INF>2</INF> nonattainment area are well below the 75 ppb standard.
---------------------------------------------------------------------------
\7\ AERMOD is one of the EPA's preferred and recommended
dispersion models listed in the Guideline on Air Quality Models--
Appendix W to be used for State Implementation Plan (SIP) revisions
for existing sources and for New Source Review (NSR) and Prevention
of Significant Deterioration (PSD) programs. See <a href="https://www.epa.gov/scram/air-quality-dispersion-modeling-preferred-and-recommended-models">https://www.epa.gov/scram/air-quality-dispersion-modeling-preferred-and-recommended-models</a>.
\8\ See 201_Appendix A Whatcom County SO<INF>2</INF> Area
Designation and 203 Appendix C Intalco SO<INF>2</INF> Attainment
Modeling Report, included in the docket for this action.
\9\ Id.
---------------------------------------------------------------------------
In this action, the EPA is proposing to determine that the Whatcom
County (partial) SO<INF>2</INF> nonattainment area is attaining the
2010 1-hour SO<INF>2</INF> NAAQS, and therefore meets the requirements
of CAA section 107(d)(3)(E)(i). If the 3-year design value exceeds the
NAAQS prior to the EPA taking action in response to the state's
request, the EPA will not take final action to approve the
redesignation request.\10\
---------------------------------------------------------------------------
\10\ See 2014 SO<INF>2</INF> NAA Guidance, at 56.
---------------------------------------------------------------------------
Because the EPA's analysis in determining whether an area has
attained under the clean data policy is the same as its analysis under
the first redesignation criterion, the EPA is also here proposing that
the Whatcom County (partial) SO<INF>2</INF> nonattainment area
qualifies for a determination of attainment under the clean data
policy, based on the 2021-2023 monitoring data at the two Ferndale
monitoring stations. The clean data policy represents the EPA's
interpretation that certain requirements of part D of title I of the
Act are suspended for areas that are currently attaining the NAAQS. The
requirements that are suspended in an area attaining the standard
include the requirements to submit an ``attainment SIP'' that provides
for: attainment of the NAAQS; implementation of all reasonably
available control measures (RACM); reasonable further progress (RFP);
and implementation of contingency measures for failure to meet
deadlines for RFP and attainment. In the 2014 SO<INF>2</INF> NAA
Guidance, the EPA explained our intention to apply the EPA's clean data
policy to the 2010 SO<INF>2</INF> primary NAAQS.\11\
---------------------------------------------------------------------------
\11\ Id. at 52.
---------------------------------------------------------------------------
In the event that the EPA does not finalize the proposed
redesignation, the EPA may choose to finalize the clean data
determination, thereby suspending attainment planning-related
requirements for the area for as long as the area continues to attain
the standard.
Criteria (2)--Washington Has a Fully Approved SIP Under Section 110(k)
and Criteria (5)--Washington Has Met All Applicable Requirements Under
Section 110 and Part D of Title I of the CAA
For redesignating a nonattainment area to attainment under a NAAQS,
the CAA requires the EPA to determine that the state has met all
applicable requirements for that NAAQS under section 110 and part D of
title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has
a fully approved SIP under section 110(k) for that NAAQS for the area
(CAA section 107(d)(3)(E)(ii)). The EPA proposes to find that
Washington has met all applicable SIP requirements for the Whatcom
County (partial) SO<INF>2</INF> nonattainment area for the 2010
SO<INF>2</INF> NAAQS under section 110 of the CAA (general SIP
requirements) for purposes of redesignation. Additionally, the EPA
proposes to find that the Washington SIP satisfies the criterion that
it meets applicable SIP requirements for purposes of redesignation
under part D of title I of the CAA in accordance with section
107(d)(3)(E)(v). Further, the EPA proposes to determine that the SIP is
fully approved with respect to all requirements applicable for the 2010
SO<INF>2</INF> NAAQS for purposes of redesignation in accordance with
section 107(d)(3)(E)(ii). In making the determinations, the EPA
ascertained
[[Page 79198]]
which requirements are applicable to the Whatcom County (partial)
SO<INF>2</INF> nonattainment area and, if applicable, that they are
fully approved under section 110(k).
a. The Whatcom County (Partial) SO<INF>2</INF> Nonattainment Area Has
Met All Applicable Requirements Under Section 110 and Part D of the CAA
General SIP Requirements. General SIP elements and requirements are
delineated in section 110(a)(2) of title I, part A of the CAA. These
requirements include, but are not limited to, the following: submittal
of a SIP that has been adopted by the state after reasonable public
notice and hearing; provisions for establishment and operation of
appropriate procedures needed to monitor ambient air quality;
implementation of a source permit program; provisions for the
implementation of part C requirements (Prevention of Significant
Deterioration (PSD)) and provisions for the implementation of part D
requirements (New Source Review (NSR) permit programs); provisions for
air pollution modeling; and provisions for public and local agency
participation in planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, the EPA
has required certain states to establish programs to address the
interstate transport of air pollutants. The section 110(a)(2)(D)
requirements for a state are not linked with a particular nonattainment
area's designation and classification in that state. The EPA believes
that the requirements linked with a particular nonattainment area's
designation and classifications are the relevant measures to evaluate
in reviewing a redesignation request. The transport SIP submittal
requirements, where applicable, continue to apply to a state regardless
of the designation of any one particular area in the state. Thus, the
EPA does not believe that the CAA's interstate transport requirements
should be construed to be applicable requirements for purposes of
redesignation.
In addition, the EPA believes other section 110 elements that are
neither connected with nonattainment plan submissions nor linked with
an area's attainment status are applicable requirements for purposes of
redesignation. The area will still be subject to these requirements
after the area is redesignated. The section 110 and part D requirements
which are linked with a particular area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. This approach is consistent with the EPA's
existing policy on applicability (i.e., for redesignations) of
conformity and oxygenated fuels requirements, as well as with section
184 ozone transport requirements. See Reading, Pennsylvania, proposed
and final rules (61 FR 53174-53176, October 10, 1996), (62 FR 24826,
May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rule (61 FR 20458,
May 7,1996); and Tampa, Florida, final rule (60 FR 62748, December 7,
1995). See also the discussion on this issue in the Cincinnati, Ohio,
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh,
Pennsylvania, redesignation (66 FR 0399, October 19, 2001).
Title I, Part D, Applicable SIP Requirements. Section 172(c) of the
CAA sets forth the basic requirements of attainment plans for NAAs that
are required to be submitted pursuant to section 172(b). Subpart 5 of
part D, which includes section 191 and 192 of the CAA, establishes
requirements for SO<INF>2,</INF> nitrogen dioxide and lead NAAs. A
thorough discussion of the requirements contained in sections 172(c)
can be found in the General Preamble for Implementation of Title I (57
FR 13498, April 16, 1992).
Section 172(c)(1) requires the plans for all NAAs to provide for
the implementation of all RACM as expeditiously as practicable and to
provide for attainment of the NAAQS. The EPA interprets this
requirement to impose a duty on all nonattainment areas to consider all
available control measures and to adopt and implement such measures as
are reasonably available for implementation in each area as components
of the area's attainment demonstration. Under section 172, states with
nonattainment areas must submit plans providing for timely attainment
and meeting a variety of other requirements.
The EPA's longstanding interpretation of the nonattainment planning
requirements of section 172 is that once an area is attaining the
NAAQS, those requirements are not ``applicable'' for purposes of CAA
sections 107(d)(3)(E)(ii) and (v) and therefore, need not be approved
into the SIP before the EPA can redesignate the area. In the 1992
General Preamble for Implementation of Title I, the EPA set forth its
interpretation of applicable requirements for purposes of evaluating
redesignation requests when an area is attaining a standard. See 57 FR
13498, 13564 (April 16, 1992). The EPA noted that the requirements for
RFP and other measures designed to provide for attainment do not apply
in evaluating redesignation requests because those nonattainment
planning requirements ``have no meaning'' for an area that has already
attained the standard. Id. This interpretation was also reiterated in
the 1992 Calcagni Memo and consistently applied in many proposed and
final redesignation actions since. The EPA's understanding of section
172 also forms the basis of its Clean Data Policy, which was
articulated with regard to SO<INF>2</INF> in the 2014 SO<INF>2</INF>
NAA Guidance and suspends a state's obligation to submit most of the
attainment planning requirements that would otherwise apply, including
an attainment demonstration and planning SIPs to provide for RFP, RACM,
and contingency measures under section 172(c)(9). Courts have upheld
the EPA's interpretation of section 172(c)(1) for ``reasonably
available'' control measures and control technology as meaning only
those controls that advance attainment, which precludes the need to
require additional measures where an area is already attaining. NRDC v.
EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d
155, 162 (D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735, 744 (5th
Cir. 2002); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). But see
Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015).
Therefore, because the design values for 2021-2023 are well below
the NAAQS in the Whatcom County (partial) SO<INF>2</INF> NAA, no
additional measures are needed to provide for attainment, and section
172(c)(1) requirements for an attainment demonstration and RACM are not
part of the ``applicable implementation plan'' required to have been
approved prior to redesignation per CAA section 107(d)(3)(E)(ii). The
other section 172 requirements that are designed to help an area
achieve attainment--the section 172(c)(2) requirement that
nonattainment plans contain provisions promoting reasonable further
progress, the requirement to submit the section 172(c)(9) contingency
measures that would apply if the area fails to timely attain, and the
section 172(c)(6) requirement for the SIP to contain control measures
necessary to provide for attainment of the NAAQS--are also not required
to be approved as part of the ``applicable implementation plan'' for
purposes of satisfying CAA section 107(d)(3)(E)(ii).
Section 172(c)(3) requires submission and approval of a
comprehensive, accurate, and current inventory of actual emissions. The
requirement for an emission inventory can be satisfied by
[[Page 79199]]
meeting the inventory requirements of the maintenance plan.\12\ Ecology
submitted an emissions inventory as part of the maintenance plan for
the Whatcom County (partial) SO<INF>2</INF> nonattainment area, and
this inventory will be discussed further in the maintenance plan
portion of this proposed action.
---------------------------------------------------------------------------
\12\ Calcagni Memo at 6.
---------------------------------------------------------------------------
Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources to be
allowed in an area, and section 172(c)(5) requires source permits for
the construction and operation of new and modified major stationary
sources anywhere in the nonattainment area. The EPA has determined
that, since PSD requirements will apply after redesignation, areas
being redesignated need not comply with the requirement that a NSR
program be approved prior to redesignation, provided that the area
demonstrates maintenance of the NAAQS without part D NSR. A more
detailed rationale for this view is described in a memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation, dated October
14, 1994, entitled ``Part D New Source Review Requirements for Areas
Requesting Redesignation to Attainment.'' Ecology has demonstrated that
the Whatcom County (partial) SO<INF>2</INF> nonattainment area will be
able to maintain the NAAQS without part D NSR in effect, and therefore
Washington need not have fully approved part D NSR programs prior to
approval of the redesignation request. Nevertheless, we note that
Washington's nonattainment NSR for major sources was last approved by
the EPA on October 6, 2016 (81 FR 69386) and the NWCAA's nonattainment
NSR for minor sources was last approved by the EPA on June 5, 2020 (85
FR 36156). Both programs meet all relevant NSR requirements for
SO<INF>2</INF>. Washington's PSD program for major sources will become
effective in the Whatcom County (partial) SO<INF>2</INF> nonattainment
area upon redesignation to attainment. Section 172(c)(7) requires the
SIP to meet the applicable provisions of section 110(a)(2). As noted
above, the EPA believes the Washington SIP meets the requirements of
section 110(a)(2) applicable for purposes of redesignation.
Section 176 Conformity Requirements. Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. The requirement to determine
conformity applies to transportation plans, programs, and projects that
are developed, funded, or approved under title 23 of the United States
Code (U.S.C.) and the Federal Transit Act (transportation conformity)
as well as to all other federally supported or funded projects (general
conformity). State transportation conformity SIP revisions must be
consistent with Federal conformity regulations relating to
consultation, enforcement, and enforceability that the EPA promulgated
pursuant to its authority under the CAA.
The EPA interprets the conformity SIP requirements as not applying
for purposes of evaluating a redesignation request under section 107(d)
because, like other requirements listed above, state conformity rules
are still required after redesignation and Federal conformity rules
apply where state rules have not been approved. See Wall v. EPA, 265
F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60
FR 62748 (December 7, 1995) (redesignation of Tampa, Florida).
For these reasons, the EPA proposes to find that Washington has
satisfied all applicable requirements for purposes of redesignation of
the Whatcom County (partial) SO<INF>2</INF> nonattainment area under
section 110 and part D of title I of the CAA.
b. The Whatcom County (Partial) SO<INF>2</INF> Nonattainment Area Has a
Fully Approved Applicable SIP Under Section 110(k) of the CAA
The EPA has fully approved the applicable Washington SIP for the
Whatcom County (partial) area under section 110(k) of the CAA for all
requirements applicable for purposes of redesignation. As indicated
above, the EPA believes that the section 110 elements that are neither
connected with nonattainment plan submissions nor linked to an area's
nonattainment status are not applicable requirements for purposes of
redesignation. The EPA has approved all part D requirements applicable
under the 2010 SO<INF>2</INF> NAAQS, as identified above, for purposes
of this redesignation.
Criteria (3)--The Air Quality Improvement in the Whatcom County
(Partial) SO2 Nonattainment Area Is Due to Permanent and Enforceable
Reductions in Emissions
For redesignating a nonattainment area to attainment, the CAA
requires the EPA to determine that the air quality improvement in the
area is due to permanent and enforceable reductions in emissions
resulting from implementation of the SIP, applicable Federal air
pollution control regulations, and other permanent and enforceable
reductions (CAA section 107(d)(3)(E)(iii)). The EPA proposes to find
that Washington has demonstrated that the observed air quality
improvement in the Whatcom County (partial) SO<INF>2</INF> NAA is due
to permanent and enforceable reductions in emissions. Specifically, the
EPA considers the shutdown of the Intalco facility, identified as the
key contributor to the SO<INF>2</INF> NAAQS violations at the Ferndale-
Mountain View Road monitor,\13\ to be both permanent and enforceable.
Given the well-established correlation of much lower SO<INF>2</INF>
emissions at the two Ferndale monitors during periods when Intalco has
not operated and the very low SO<INF>2</INF> concentrations following
the facility's permanent shutdown, the EPA anticipates that the area
will continue to attain the SO<INF>2</INF> NAAQS. As stated in the
Calcagni Memo, ``Emission reductions from source shutdowns can be
considered permanent and enforceable to the extent that those shutdowns
have been reflected in the SIP and all applicable permits have been
modified accordingly.'' \14\ Ecology revoked Alcoa's Title V
(operating) and NSR permits for the Intalco facility.\15\ The facility
is now permanently closed, making its future operation impossible and
thus displaying the permanence of the emissions reductions in the NAA.
Any new sources that may come into being within the area would be
required to demonstrate that their new SO<INF>2</INF> emissions would
not interfere with attainment and maintenance of the 2010 1-hour
primary SO<INF>2</INF> NAAQS. Therefore, the EPA is proposing to find
that the air quality improvement in the Whatcom County (partial)
SO<INF>2</INF> NAA is due to permanent and enforceable reductions in
emissions.
---------------------------------------------------------------------------
\13\ See EPA's final Technical Support Document (TSD) for the
Whatcom County (partial) SO<INF>2</INF> nonattainment area, included
in the docket for this action. See 201_Appendix A Whatcom County
SO<INF>2</INF> Area Designation.pdf.
\14\ Calcagni Memo at 10.
\15\ Ecology's November 30, 2023, permit revocation letter is
included in appendix A of the redesignation request, included in the
docket for this action.
---------------------------------------------------------------------------
Criteria (4)--The Whatcom County (Partial) SO2 Nonattainment Area Has a
Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA
To redesignate a NAA to attainment, the CAA requires the EPA to
determine that the area has a fully approved maintenance plan pursuant
to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In
conjunction with its
[[Page 79200]]
request to redesignate the Whatcom County (partial) SO<INF>2</INF>
nonattainment area to attainment for the 2010 1-hour SO<INF>2</INF>
NAAQS, Ecology submitted a SIP revision to provide for the maintenance
of the 2010 1-hour SO<INF>2</INF> NAAQS for at least 10 years after the
effective date of redesignation to attainment. The EPA is proposing to
find that this maintenance plan for the area meets the requirements for
approval under section 175A of the CAA.
a. What is required in a maintenance plan?
CAA section 175A sets forth the elements of a maintenance plan for
areas seeking redesignation from nonattainment to attainment. Under
section 175A, the plan must demonstrate continued attainment of the
applicable NAAQS for at least 10 years after the Administrator approves
a redesignation to attainment. Eight years after the redesignation, the
state must submit a revised maintenance plan demonstrating that
attainment will continue to be maintained for the 10 years following
the initial 10-year period. To address the possibility of future NAAQS
violations, the maintenance plan must contain contingency measures as
the EPA deems necessary to assure prompt correction of any future 2010
1-hour SO<INF>2</INF> violations. The Calcagni Memo provides further
guidance on the content of a maintenance plan, explaining that a
maintenance plan should address five elements: The attainment emissions
inventory, maintenance demonstration, monitoring, verification of
continued attainment, and a contingency plan. As is discussed more
fully below, the EPA is proposing to determine that Washington's
maintenance plan includes all the necessary components and is thus
proposing to approve it as a revision to the Washington SIP.
b. Attainment Emissions Inventory
As part of a state's maintenance plan for a 2010 SO<INF>2</INF>
NAA, the air agency should develop an attainment inventory to identify
the level of emissions in the affected area which is sufficient to
attain and maintain the SO<INF>2</INF> NAAQS.\16\ Washington selected
2020 as the base year (i.e., attainment emissions inventory year) for
developing an emissions inventory for SO<INF>2</INF> in the NAA through
2033. The 2020 base year represents the most contemporaneous National
Emissions Inventory (NEI) available. The 2020 base year also represents
Intalco's final year of operation with facility emissions of 1,613 tons
of SO<INF>2.</INF>
---------------------------------------------------------------------------
\16\ See 2014 SO<INF>2</INF> NAA Guidance, at 66.
---------------------------------------------------------------------------
In the 2019-2021 monitoring period, representative of the base
year, the Ferndale-Mountain View Road monitor had a 3-year design value
of 56 ppb and the Ferndale-Kickerville Road monitor had a 3-year design
value of 44 ppb, both below the 75 ppb concentration of the 1-hour
SO<INF>2</INF> NAAQS. The 2020 99th percentiles recorded at the two
monitors are consistent with these low design values at 62.0 ppb and
59.2 ppb, respectively. The EPA has therefore determined that this is a
level sufficient to attain the 2010 1-hour SO<INF>2</INF> NAAQS and is
proposing to find that the attainment inventory submitted as part of
Washington's maintenance plan meets the ``Attainment Emissions
Inventory'' requirement.
The EPA notes that the permanent shutdown of Intalco has left the
Whatcom County (partial) SO<INF>2</INF> NAA with no significant sources
of SO<INF>2</INF>, and the maintenance plan for the area contains an
emissions inventory which projects no significant SO<INF>2</INF>
emissions in the NAA from 2020 through 2033. The EPA therefore does not
anticipate emissions activity in the 2010 SO<INF>2</INF> nonattainment
area that will approach 1,613 tons of SO<INF>2</INF>.
Table 2--Base Year 2020 and Projection Years 2026 and 2033 SO2 Emissions for the Maintenance Area
[Tons per year]
----------------------------------------------------------------------------------------------------------------
2026 2033
Source 2020 Base year Projection Projection
----------------------------------------------------------------------------------------------------------------
Alcoa Primary Metals Intalco Works.............................. 1613.4000 0 0
Residential non-wood fuel use................................... 0.0026 0.0026 0.0026
Residential wood combustion (home heating)...................... 0.0266 0.0266 0.0266
On-road mobile sources.......................................... 0.0095 0.0095 0.0095
Ships (commercial marine vessels)............................... 0.0221 0.0221 0.0221
Railroad (locomotives).......................................... 0.0002 0.0002 0.0002
Non-road mobile equipment and vehicles (NEC).................... 0.0010 0.0010 0.0010
-----------------------------------------------
Total....................................................... 1,613.4620 0.0620 0.0620
----------------------------------------------------------------------------------------------------------------
c. Maintenance Demonstration
An air agency may generally demonstrate maintenance of the NAAQS by
either showing that future emissions of SO<INF>2</INF> will not exceed
the level of the attainment inventory, or by modeling to show that the
future mix of sources and emission rates will not cause a violation of
the NAAQS.\17\ Washington has demonstrated maintenance by showing that
future year emissions (through ``out year'' 2033) of SO<INF>2</INF> in
the maintenance area are expected to remain near zero following the
Intalco shutdown. Due to the small geographic scope of the
nonattainment area surrounding the facility boundary (4.5 square
miles), other contributing sources such as mobile sources and area
sources are nearly nonexistent and are projected to remain constant
through 2033. The EPA considers the inventory projection sufficient to
attain and maintain the SO<INF>2</INF> NAAQS. The EPA is therefore also
proposing to find that Washington's ``Maintenance Demonstration''
requirement is met based on this projected emissions inventory.
---------------------------------------------------------------------------
\17\ See 2014 SO<INF>2</INF> NAA Guidance at 67.
---------------------------------------------------------------------------
d. Monitoring Network and Verification of Continued Attainment
According to the Calcagni Memo, the state should continue to
operate an appropriate air quality monitoring network to verify the
attainment status of the area.\18\ In addition, the state must have the
legal authority to implement and enforce all measures necessary to
attain and maintain the NAAQS and the maintenance plan should contain
provisions to track the progress of the maintenance plan.
---------------------------------------------------------------------------
\18\ Calcagni Memo at 11.
---------------------------------------------------------------------------
With respect to the monitoring network, Ecology maintains two
SO<INF>2</INF> monitors in the nonattainment area:
[[Page 79201]]
Ferndale-Mountain View Road and the Ferndale-Kickerville Road. These
monitors were included in Ecology's 2023 Ambient Air Monitoring Network
Plan as microscale SLAMS monitors.\19\ EPA approved this network plan
on November 16, 2023.\20\ As discussed in the EPA's 2020 designation of
the area and the 2022 attainment plan included in the docket for this
action, the Ferndale-Mountain View Road and the Ferndale-Kickerville
Road SO<INF>2</INF> monitors were sited for the specific purpose of
measuring building downwash impacts from the Intalco facility.\21\ With
the closure of the Intalco facility, these monitors would not be
considered to be sited in the area of maximum concentration if a new
SO<INF>2</INF> emitting source were to locate to the area.
---------------------------------------------------------------------------
\19\ Department of Ecology, State of Washington, 2023 Ambient
Air Monitoring Network Plan, Publication 23-02-043, June 2023, at p.
20.
\20\ November 16, 2023, Letter from Debra Suzuki, Air Planning
and State/Tribal Coordination Branch, EPA Region 10, to Jill
Schulte, Ambient Air Monitoring Coordinator, Department of Ecology.
\21\ See 201_Appendix A Whatcom County SO<INF>2</INF> Area
Designation.pdf and 202_Intalco Sulfur Dioxide Attainment
Plan_2202035.pdf, included in the docket for this action.
---------------------------------------------------------------------------
Therefore, Ecology included in its maintenance plan a stepwise
analytical process for deploying SO<INF>2</INF> monitors in the
maintenance area and verifying continued attainment. Ecology's
intentions with this process are twofold: (1) provide an alternative to
maintaining the existing microscale monitors for the duration of the
maintenance period and (2) providing a basis for potential future
discontinuation of the two microscale Ferndale monitors under 40 CFR
58.14(c)(3). Note, EPA is not proposing in this action to approve any
discontinuation of any monitoring sites. Any future discontinuation of
monitoring is subject to the approval procedures in 40 CFR part 58.
Ecology lays out its plan for deploying monitors and verifying
continued attainment in Chapter 6 Verification of Attainment, Control
Measures, and Maintenance Demonstration of the maintenance plan. This
plan builds upon Washington's SIP-approved minor and major NSR
programs. Washington's SIP includes NWCAA Rule 300 which establishes
the minor NSR program applicable to sources constructed or modified in
the Ferndale Area. Under Rule 300, save for certain limited exemptions,
sources with a potential to emit more than 2.0 tons per year (tpy) of
SO<INF>2</INF> must obtain approval prior to construction.\22\ NWCAA
may not approve construction or modification unless, among other
things, the source will employ best available control technology and
allowable emissions will not cause or contribute to a violation of any
NAAQS.\23\ As to the latter, NWCAA may require modeling using EPA
guidelines in appendix W of 40 CFR part 51 to determine whether
construction and operation of the source will cause or contribute to a
violation of any NAAQS.
---------------------------------------------------------------------------
\22\ Rule 300.1(A); 300.4.
\23\ Rule 300.9.
---------------------------------------------------------------------------
Washington's SIP also includes a major new source review program to
regulate the construction and modification of major sources constructed
or modified in the Ferndale Area.\24\ In general, Washington's major
NSR program incorporates by reference the Federal major NSR program at
40 CFR 52.21. The major NSR program applies to sources with a potential
to emit 100 tpy of any regulated NSR pollutant for certain listed
source categories, and 250 tpy of any regulated NSR pollutant for
unlisted sources. Regulated NSR pollutant includes pollutants for which
the EPA has established a NAAQS.
---------------------------------------------------------------------------
\24\ 40 CFR 52.2470(c); WAC 173-400-113 and WAC 173-400-700
through 173-400-750.
---------------------------------------------------------------------------
Similar to the minor NSR program, all sources subject to the major
NSR program must obtain a permit before commencing construction. In
order to obtain a permit, the source must, among other things,
demonstrate the source will apply best available control technologies
for each regulated NSR pollutant that the source has the potential to
emit in significant amounts. In the case of SO<INF>2</INF>, the
significant emissions rate is 40 tpy. In addition, the source must
demonstrate through dispersion modeling that construction and operation
of the source will not cause or contribute to a violation of any NAAQS
or violate any prevention of significant deterioration increment.
In addition to the preexisting NSR programs, Washington's
maintenance plan includes a stepwise process for assessing the
cumulative impacts of new sources constructed in the area and
triggering deployment of SO<INF>2</INF> monitors. This process will
ensure that cumulative impacts remain below the NAAQS should multiple
facilities move to the nonattainment area. Under the maintenance plan
verification of continued attainment provisions, Washington, with NWCAA
as the lead agency for the jurisdiction in coordination with Ecology,
will evaluate the cumulative impacts of the new source or modifications
using three sequential ``Action Levels.'' Under Action Level 1,
Washington will conduct cumulative dispersion modeling using potential
emissions if two conditions are met: (1) the cumulative potential
SO<INF>2</INF> emissions in the area are greater than or equal to 250
tons per year of SO<INF>2</INF> and (2) the proposed new source or
modification has the potential to emit 40 tons per year of
SO<INF>2</INF> (the significant emission rate under the major NSR
program). Washington will use EPA's preferred screening and dispersion
modeling tools identified in 40 CFR part 51 appendix W (``Appendix W'')
as normally applicable for any source seeking a construction permit
under the NSR program. If the results of the modeling under Action
Level 1 indicate a design concentration of greater than or equal to 90%
of the 1-hour NAAQS, then Washington will proceed to Action Level 2.
Under Action Level 2, Washington will conduct refined dispersion
modeling that uses actual emissions from existing sources and potential
emissions from the new source or modification. If the results of that
modeling indicate a design concentration of greater than or equal to
50% of the 1-hour SO<INF>2</INF> NAAQS, then Washington will proceed to
Action Level 3.
Under Action Level 3, Washington will deploy SO<INF>2</INF> ambient
monitors within 1 year of the initial startup of the new source or
modification. Any new monitors established for verification of
continued attainment will be operated as State and Local Air Monitoring
Stations (SLAMS) as part of Ecology's Primary Quality Assurance
Organization (PQAO). Ecology will verify that monitor siting complies
with 40 CFR part 58 appendix E (Probe and Monitoring Path Siting
Criteria for Ambient Air Quality Monitoring) and will include any new
site proposals in its annual Ambient Air Monitoring Network Plan. This
plan is available for public inspection and comment for at least 30
days before its submission to the EPA by July 1 of each year. Any such
proposal will be subject to review and approval by the EPA Regional
Administrator, following the process described in 40 CFR 58.10.
The State of Washington has the legal authority to enforce and
implement the maintenance plan for the Whatcom County (partial) 2010
SO<INF>2</INF> NAA. This includes the authority to conduct the stepwise
ambient air quality analysis, deploy monitors, and adopt, implement,
and enforce any subsequent emissions control contingency measures
[[Page 79202]]
determined to be necessary to correct future SO<INF>2</INF> attainment
problems.\25\
---------------------------------------------------------------------------
\25\ The EPA last determined that Washington's SIP was
sufficient to meet the requirements of 110(a)(2)(E)(i) of the CAA on
February 18, 2021 (86 FR 10022).
---------------------------------------------------------------------------
Washington's SIP-approved NSR programs coupled with the stepwise
approach for assessing cumulative impacts is adequate to verify
continued maintenance of the SO<INF>2</INF> NAAQS. The 250 tpy
inventory threshold and 40 tpy PTE threshold in Action Level 1 are set
at emission levels the EPA anticipates would not cause or contribute to
a violation of the NAAQS. For comparison, the emissions inventory in
2017 when the area exceeded the NAAQS was 3,987 tpy of emissions from
the Intalco facility.\26\ Refining the modeling to take into
consideration actual emissions of existing sources is also sufficiently
protective, particularly considering that Washington will deploy
monitors if the design concentration from this modeling is greater than
or equal to 50% of the SO<INF>2</INF> NAAQS. For these reasons, the EPA
is proposing to find that Washington's maintenance plan meets the
Monitoring and ``Verification of Continued Attainment'' requirements.
---------------------------------------------------------------------------
\26\ See 202_Intalco Sulfur Dioxide Attainment Plan_2202035.pdf,
at page 45, included in the docket for this action.
---------------------------------------------------------------------------
e. Contingency Measures in the Maintenance Plan
Section 175A of the CAA requires that a maintenance plan include
such contingency measures as the EPA deems necessary to assure that the
state will promptly correct a violation of the NAAQS that occurs after
redesignation. The maintenance plan should identify the contingency
measures to be adopted, a schedule and procedure for adoption and
implementation, and a time limit for action by the state. A state
should also identify specific indicators to be used to determine when
the contingency measures need to be implemented. The maintenance plan
must also include a requirement that a state will implement all
measures with respect to control of the pollutant that were contained
in the SIP before redesignation of the area to attainment in accordance
with section 175A(d).
The maintenance plan includes an action level to determine when the
contingency plan process is triggered and a process of developing and
implementing appropriate control measures. If an SO<INF>2</INF> monitor
records a consecutive two-year average of the annual 99th percentile of
1-hour daily maximum SO<INF>2</INF> values exceeding 67.5 ppb (90
percent of the NAAQS), and such data is certified as accurate, the
action level is triggered. If the action level is triggered, NWCAA will
first evaluate whether elevated SO<INF>2</INF> readings are due to
exceptional events, as defined at 40 CFR 50.1(j), and follow the EPA's
exceptional events policy. If the action level is triggered and is not
found to be due to an exceptional event, NWCAA will determine if the
exceedance was a result of a stationary source's non-compliance with
existing regulations and/or permit conditions. If so, NWCAA will
undertake enforcement actions in accordance with current agency policy
and guidance related to compliance and enforcement. If the high levels
of SO<INF>2</INF> are not found to be due to a stationary source's non-
compliance, NWCAA will work with the entity or entities believed to be
responsible for the high levels of SO<INF>2</INF> to evaluate control
measures necessary to ensure future attainment of the NAAQS. The
implementation of the control measures will take place no later than 18
months after NWCAA decides, based on quality-assured ambient data, that
the action-level response described above was triggered (a consecutive
two-year average of the annual 99th percentile of 1-hour daily maximum
SO<INF>2</INF> values exceeding 67.5 ppb).
Washington must submit to the EPA its analysis demonstrating that
the proposed control measures are adequate to ensure continued
maintenance of the 2010 1-hour SO<INF>2</INF> NAAQS in the area or to
return the area to attainment of the NAAQS. Since the only significant
source of SO<INF>2</INF> in the nonattainment area has shut down, it is
not possible to develop specific contingency measures until the cause
of the elevated concentrations is known. The EPA is proposing to find
that Washington's maintenance plan meets the ``Contingency Measures''
requirement.
The EPA has concluded that the maintenance plan adequately
addresses the five basic components of a maintenance plan: The
attainment emissions inventory, maintenance demonstration, monitoring,
verification of continued attainment, and a contingency plan.
Therefore, the EPA proposes to find that the maintenance plan SIP
revision submitted by Washington for the Whatcom County (partial) 2010
SO<INF>2</INF> NAA meets the requirements of section 175A of the CAA
and is approvable.
IV. What are the actions the EPA is proposing to take?
The EPA is proposing to take the following four separate but
related actions: (1) determine that the Whatcom County (partial)
SO<INF>2</INF> nonattainment area is attaining the 2010 1-hour
SO<INF>2</INF> NAAQS; (2) approve Washington's plan for maintaining the
2010 1-hour SO<INF>2</INF> NAAQS (maintenance plan), including proposed
approval of a ``reproducible approach'' to representing the air quality
of the affected area in the event that the monitors that were sited for
the Intalco facility shut down; (3) redesignate the Whatcom County
(partial) SO<INF>2</INF> nonattainment area to attainment for the 2010
1-hour SO<INF>2</INF> NAAQS; and (4) determine that the Whatcom County
(partial) SO<INF>2</INF> NAA has clean monitoring data. Section III of
this document provides a discussion of each of these proposed actions.
The EPA is also proposing to approve the maintenance plan under the
2010 NAAQS for the Whatcom County (partial) SO<INF>2</INF>
nonattainment area into the Washington SIP (under CAA section 175A).
The maintenance plan demonstrates that the area will continue to
maintain the 2010 1-hour SO<INF>2</INF> NAAQS and includes a process to
develop contingency measures to remedy any future violations of the
2010 1-hour SO<INF>2</INF> NAAQS and procedures for evaluation of
potential violations.
Additionally, the EPA is proposing to determine that the Whatcom
County (partial) SO<INF>2</INF> nonattainment area has met the criteria
under CAA section 107(d)(3)(E) for redesignation from nonattainment to
attainment for the 2010 1-hour SO<INF>2</INF> NAAQS. On this basis, the
EPA is proposing to approve Washington's redesignation request for the
area. Final approval of Washington's redesignation request would change
the legal designation of the portion of Whatcom County designated
nonattainment at 40 CFR 81.348 to attainment for the 2010 1-hour
SO<INF>2</INF> NAAQS.
The EPA is also proposing to determine that the Whatcom County
(partial) SO<INF>2</INF> nonattainment area has attaining monitoring
data for the 2010 SO<INF>2</INF> primary NAAQS based on the most recent
complete three-year period (2021-2023) design value period that meets
the clean data policy. As noted elsewhere, in the event that EPA does
not finalize the proposed redesignation, the EPA may choose to finalize
the clean data determination, thereby suspending the attainment
planning related requirements for the area.
V. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment is an action
that affects the status of a geographical area and does not impose any
additional regulatory requirements on sources beyond those imposed by
state law. A redesignation to attainment does not in
[[Page 79203]]
and of itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. In addition, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Clean Air Act and applicable Federal regulations. 42 U.S.C.
7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's
role is to approve state choices, provided that they meet the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
approve state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For these
reasons, this proposed action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act.
In addition, this proposed action, pertaining to redesignation of
the Whatcom County (partial) SO<INF>2</INF> nonattainment area and
approval of a maintenance plan for the area, would not be approved to
apply on any Indian reservation land or in any other area where the EPA
or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In
those areas of Indian country, the rule would not have Tribal
implications and would not impose substantial direct costs on tribal
governments or preempt Tribal law as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). Consistent with EPA policy, the EPA
provided a consultation opportunity to Tribes located near the
nonattainment area, in letters dated July 25, 2024 and July 29, 2024,
included in the docket for this action.
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on communities with environmental justice
(EJ) concerns to the greatest extent practicable and permitted by law.
The EPA defines EJ as ``the fair treatment and meaningful involvement
of all people regardless of race, color, national origin, or income
with respect to the development, implementation, and enforcement of
environmental laws, regulations, and policies.'' The EPA further
defines the term fair treatment to mean that ``no group of people
should bear a disproportionate burden of environmental harms and risks,
including those resulting from the negative environmental consequences
of industrial, governmental, and commercial operations or programs and
policies.''
The Washington Department of Ecology did evaluate environmental
justice considerations as part of its SIP submittal; the CAA and
applicable implementing regulations neither prohibit nor require such
an evaluation. The EPA did not perform an EJ analysis and did not
consider EJ in this action. Consideration of EJ is not required as part
of this action, and there is no information in the record inconsistent
with the stated goal of Executive Order 12898 of achieving
environmental justice for communities with EJ concerns.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 19, 2024.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2024-22171 Filed 9-26-24; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 27, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.