Air Plan Approval; Washington: General Regulations for Air Pollution Sources, Energy Facility Site Evaluation Council, 14648-14654 [2017-05467]
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Federal Register / Vol. 82, No. 54 / Wednesday, March 22, 2017 / Proposed Rules
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FOR FURTHER INFORMATION CONTACT:
Beth
Buckler or Colleen Lee, Office of
Regulations, Center for Tobacco
Products (CTP), Food and Drug
Administration, Document Control
Center, 10903 New Hampshire Ave.,
Bldg. 71, Rm. G335, Silver Spring, MD
20993–0002, 877–287–1373,
CTPRegulations@fda.hhs.gov.
In the
Federal Register of January 23, 2017,
FDA published a proposed rule with a
75-day comment period to request
comments on our proposal to establish
a limit for NNN in finished smokeless
tobacco products. Comments on the
proposed rule will inform FDA’s
SUPPLEMENTARY INFORMATION:
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rulemaking to establish a tobacco
product standard for NNN.
The Agency has received requests for
a 75-day extension of the comment
period for the proposed rule. Each
request expressed concern that the
current 75-day comment period does
not allow the public sufficient time to
develop thoughtful responses to the
proposed rule.
The Agency also has received a
request to clarify a formula in the
Laboratory Information Bulletin (LIB)
titled, ‘‘Determination of Nnitrosonornicotine (NNN) in Smokeless
Tobacco and Tobacco Filler by HPLC–
MS/MS’’ (LIB No. 4620, January 2017).
Upon further review, FDA has
determined that the formula for
converting NNN on a wet weight basis
to a dry weight basis contains a
typographical error—some of the terms
and variables in the numerator and
denominator were inadvertently
switched. FDA has revised the LIB to
correct this error (LIB No. 4623, March
2017, available at https://www.fda.gov/
downloads/ScienceResearch/
FieldScience/UCM546874.pdf). We note
that the typographical error in the LIB
did not affect our calculations in the
preamble of the proposed rule or the
supporting analyses.
FDA has considered the requests and
is extending the comment period for the
proposed rule for 90 days, until [July 10,
2017. The 90-day extension will provide
additional time for interested persons to
submit comments on all aspects of the
proposed rule, including whether the
approach proposed in the rule is
appropriate.
Dated: March 15, 2017.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2017–05490 Filed 3–21–17; 8:45 am]
BILLING CODE 4164–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2016–0785: FRL–9959–02Region 10]
Air Plan Approval; Washington:
General Regulations for Air Pollution
Sources, Energy Facility Site
Evaluation Council
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to revise the
Washington State Implementation Plan
SUMMARY:
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(SIP) to approve updates to the Energy
Facility Site Evaluation Council
(EFSEC) air quality regulations. The
EFSEC regulations primarily adopt by
reference the Washington Department of
Ecology (Ecology) general air quality
regulations, which the EPA approved in
the fall of 2014 and spring of 2015.
Consistent with our approval of the
Ecology general air quality regulations,
we are also proposing to approve
revisions to implement the
preconstruction permitting regulations
for large industrial (major source)
facilities in attainment and
unclassifiable areas, called the
Prevention of Significant Deterioration
(PSD) program. The PSD program for
major energy facilities under EFSEC’s
jurisdiction has historically been
operated under a Federal
Implementation Plan (FIP), in
cooperation with the EPA and Ecology.
If finalized, the EPA’s proposed
approval of the EFSEC PSD program
would narrow the FIP to include only
those few potential facilities, emission
sources, geographic areas, and permits
for which EFSEC does not have
jurisdiction or authority. The EPA is
also proposing to approve EFSEC’s
visibility protection permitting program
which overlaps significantly with the
PSD program in most cases.
Written comments must be
received on or before April 21, 2017.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2016–0785 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
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accompanied by a written comment.
The written comment is considered the
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make. The EPA will generally not
consider comments or comment
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submission (i.e. on the web, cloud, or
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submissions, and general guidance on
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ADDRESSES:
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Federal Register / Vol. 82, No. 54 / Wednesday, March 22, 2017 / Proposed Rules
Jeff
Hunt, Air Planning Unit, Office of Air
and Waste (AWT–150), Environmental
Protection Agency, Region 10, 1200
Sixth Ave, Suite 900, Seattle, WA
98101; telephone number: (206) 553–
0256; email address: hunt.jeff@epa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Table of Contents
jstallworth on DSK7TPTVN1PROD with PROPOSALS
I. Background for Proposed Action
II. Washington SIP Revisions
A. Revised EFSEC Regulations
B. Personnel, Funding, and Authority
III. Effect of Recent Court Decisions Vacating
and Remanding Certain Federal Rules
A. Sierra Club v. EPA
B. Utility Air Regulatory Group v. EPA
IV. The EPA’s Proposed Action
A. Regulations to Approve and Incorporate
by Reference into the SIP
B. Regulations to Approve but Not
Incorporate by Reference
C. Regulations to Remove from the SIP
D. Proposed Transfer of Existing EPAissued PSD Permits
E. Scope of Proposed Action
F. The EPA’s Oversight Role
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background for Proposed Action
By statute, EFSEC has jurisdiction for
managing the air program with respect
to major energy facilities in the State of
Washington. See Chapter 80.50 of the
Revised Code of Washington (RCW).
The EFSEC air quality regulations are
contained in Chapter 463–78
Washington Administrative Code
(WAC) General and Operating Permit
Regulations for Air Pollution Sources.
These EFSEC regulations rely primarily
on the incorporation by reference of the
corresponding Ecology general air
quality regulations contained in Chapter
173–400 WAC General Regulations for
Air Pollution Sources. On July 27, 2015,
effective August 27, 2015, EFSEC
updated its regulations to generally
adopt by reference the version of
Chapter 173–400 WAC approved into
the SIP at that time.1 On December 20,
2016, EFSEC, in cooperation with
Ecology, requested that the EPA approve
the updated EFSEC regulations
consistent with our phased approval of
Chapter 173–400 WAC. See 79 FR 59653
(October 3, 2014, approval of general
provisions), 79 FR 66291 (November 7,
2014, approval of major source
nonattainment new source review), and
1 On October 6, 2016, the EPA approved minor
revisions to Chapter 173–400 WAC, primarily
updating the adoption by reference date of cited
Federal regulations (81 FR 69385). Because EFSEC
already modified its regulations to include an
updated adoption by reference date for cited
Federal regulations, this minor change to Chapter
173–400 WAC does not substantively affect
EFSEC’s submission.
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80 FR 23721 (April 29, 2015, approval
of PSD and visibility protection
permitting programs).
II. Washington SIP Revisions
A. Revised EFSEC Regulations
The EPA last approved EFSEC’s air
quality regulations on May 23, 1996 (61
FR 25791). Aside from recodification
from 463–39 to 463–78 WAC,
grammatical changes, and minor
clarifications, the EFSEC air quality
regulations remain substantially
unchanged since the EPA’s last
approval. The more substantive changes
include EFSEC’s modification of WAC
463–78–095 Permit Issuance to clarify
that new permits, and modifications to
existing permits, shall be conditioned
upon compliance with all provisions of
the federally-approved SIP. Other
changes include updating citations in
Chapter 463–78 WAC to better align
with the associated provisions in
Chapter 173–400 WAC. A full redline/
strikeout comparison of the 1996 SIPapproved version of the EFSEC
regulations to the submitted 2015
version is included in the docket for this
action. We reviewed the revisions to the
regulations and are proposing to
determine that they meet the
requirements of section 110 of the Clean
Air Act (CAA).
The most substantive component of
EFSEC’s regulations is WAC 463–78–
005 Adoption by Reference, which
generally adopts by reference Chapter
173–400 WAC to match the EPA’s
October 3, 2014, November 7, 2014, and
April 29, 2015 phased approval of
Ecology’s general air quality rules. We
note that EFSEC’s adoption by reference
of Chapter 173–400 WAC is modified in
three ways. First, references in Chapter
173–400 WAC regarding appeals are
modified to reflect EFSEC’s
independent appeals process in WAC
463–78–140. Second, the cross
references to fees under Chapter 173–
455 WAC are modified to reflect
EFSEC’s independent fee structure set
out in Chapter 80.50 RCW. Lastly, WAC
173–400–720 contains Ecology’s
adoption by reference of the federal PSD
program regulations contained in 40
CFR 52.21, with some exceptions.
EFSEC modified the adoption by
reference of WAC 173–400–720 to
reflect the most recent version of 40 CFR
52.21 available at that time (May 1,
2015).
We note two additional factors
regarding EFSEC’s incorporation by
reference of Chapter 173–400 WAC.
First, while EFSEC generally adopts
most of the provisions of Chapter 173–
400 WAC by reference, not all
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14649
provisions are included. For example,
consistent with the EPA’s prior approval
of the EFSEC regulations, EFSEC did not
adopt by reference the enforcement and
authority provisions contained in WAC
173–400–220 through 260. For these
provisions, EFSEC relies on its own
independent authorities, which are
currently part of Washington’s federallyapproved SIP under WAC 463–39–135
through 230. In other cases, such as
WAC 173–400–118 Designation of Class
I, II, and III Areas, WAC 173–400–151
Retrofit Requirements for Visibility
Protection, and parts of WAC 173–400–
070 Emission Standards for Certain
Source Categories, EFSEC did not adopt
these Chapter 173–400 WAC provisions
by reference because they pertain to
source categories or authorities outside
the scope of EFSEC’s jurisdiction. The
second factor is that many parts of
Chapter 173–400 WAC contain
provisions that are not related to the
criteria pollutants regulated under title
I of the CAA, not related to the
requirements for SIPs under section 110
of the CAA, or have not been revised
since last approved by the EPA. For this
reason, EFSEC only submitted for SIP
approval those parts of the
incorporation by reference of Chapter
173–400 WAC consistent with the EPA’s
October 3, 2014, November 7, 2014, and
April 29, 2015 phased approval. A full
listing of the Chapter 173–400 WAC
provisions submitted for approval is
included in Section IV.
B. Personnel, Funding, and Authority
Section 110(a)(2)(E)(i) of the CAA
requires that agencies have adequate
personnel, funding, and authority under
state law to carry out the SIP. EFSEC’s
authority under state law to carry out
the air program for major energy
facilities, including the PSD and
visibility protection permitting
programs, is derived from Chapter 80.50
RCW. With respect to personnel and
funding, EFSEC has issued CAA PSD
permits, in coordination with Ecology,
under a partial delegation agreement
with the EPA since 1993. These PSD
permits include the visibility protection
requirements of WAC 173–400–117
Special Protection Requirements for
Federal Class I Areas, adopted by
reference in EFSEC’s regulations. As
described in our April 29, 2015 final
approval of WAC 173–400–117, these
visibility protection requirements would
also apply to visibility-related elements
associated with permits issued under
the major nonattainment new source
review program under WAC 173–400–
800 through 860, also adopted by
reference in the EFSEC regulations (see
80 FR 23721, at page 23726). The staff
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of engineers and air quality modelers at
both EFSEC and Ecology, who
supported issuance of permits under the
delegation agreement with the EPA, will
continue to support EFSEC’s issuance of
permits under a SIP-approved PSD and
visibility protection program. Chapter
80.50 RCW also provides EFSEC the
authority to charge fees for the
coordinated EFSEC and Ecology review
of any new or modified permits. The
EPA therefore proposes to find that
EFSEC has adequate personnel, funding,
and authority to implement the PSD and
visibility protection programs for
facilities in its jurisdiction.
III. Effect of Court Decisions Vacating
and Remanding Certain Federal Rules
A. Sierra Club v. EPA
The EPA’s January 7, 2015 proposed
approval of Ecology’s PSD program
included a discussion of the Sierra Club
v. EPA, 703 F.3d 458 (D.C. Cir. 2013)
decision which vacated certain
provisions of the Federal PSD
regulations related to fine particulate
matter (PM2.5). See 80 FR 838, at page
842. As discussed in the proposed
approval, Ecology’s regulations at that
time in WAC 173–400–720(4)(a)(vi)
generally incorporated by reference the
Federal PSD permitting provisions in
effect as of August 13, 2012, including
the vacated provisions of 40 CFR
52.21(i) (relating to the significant
monitoring concentration) and 40 CFR
52.21(k) (relating to the significant
impact level). The EPA subsequently
removed the vacated PM2.5 SIL and SMC
provisions from the Federal PSD
regulations effective December 9, 2013
(78 FR 73698). Ecology resolved this
issue by revising WAC 173–400–
720(4)(a)(vi) to an updated version of 40
CFR 52.21 that did not contain the
vacated provisions (81 FR 69385,
October 6, 2016). Similarly, we are
proposing to determine that EFSEC has
resolved this issue by modifying its
incorporation by reference of WAC 173–
400–720(4)(a)(vi) to reflect the May 1,
2015 version of 40 CFR 52.21 that does
not contain the vacated PM2.5 SIL and
SMC provisions.
B. Utility Air Regulatory Group v. EPA
On June 23, 2014, the U.S. Supreme
Court issued a decision in Utility Air
Regulatory Group (UARG) v. EPA, 134
S. Ct. 2427, addressing the application
of stationary source permitting
requirements to greenhouse gases
(GHGs). The U.S. Supreme Court held
that the EPA may not treat GHGs as an
air pollutant for the specific purpose of
determining whether a source is a major
source (or a modification thereof) and
thus required to obtain a PSD or title V
permit. In response to the Supreme
Court’s decision, and the subsequent
vacatur of 40 CFR 51.166(b)(48)(v) and
40 CFR 52.21(b)(49)(v) by the Court of
Appeals for the District of Columbia
Circuit, the EPA removed these
requirements from the federal PSD
regulations (80 FR 50199, August 19,
2015). Because the EPA’s removal of the
vacated provisions occurred after
EFSEC’s May 1, 2015 citation date
incorporating 40 CFR 52.21, the EFSEC
regulations adopted by reference in
WAC 463–78–005 have not yet captured
the EPA’s update. In order to align with
the Supreme Court decision and to
prevent delay in the EPA’s
consideration of the EFSEC regulations,
EFSEC clarified in the December 20,
2016 SIP submittal that it is not
submitting the incorporation by
reference of 40 CFR 52.21(b)(49)(v) for
approval. EFSEC intends to incorporate
by reference a more recent version of 40
CFR 52.21 that does not contain the
vacated provisions, as soon as
practicable.
EFSEC’s SIP submittal does not
discuss the fact that, because it adopted
the EPA’s PSD regulations as of May 1,
2015, its rules include the elements of
the EPA’s 2012 rule implementing Step
3 of the phase-in of PSD permitting
requirements for GHGs described in the
Tailoring Rule, which became effective
on August 13, 2012 (77 FR 41051, July
12, 2012). The incorporation of the Step
3 rule provisions allows GHG-emitting
sources to obtain plantwide
applicability limits (PALs) for their GHG
emissions on a carbon dioxide
equivalent (CO2e) basis. The Federal
GHG PAL provisions, as currently
written, include some provisions that
may no longer be appropriate in light of
the Supreme Court decision. Because
the Supreme Court has determined that
sources and modifications may not be
defined as ‘‘major’’ solely on the basis
of the level of greenhouse gases emitted
or increased, PALs for greenhouse gases
may no longer have value in some
situations where a source might have
triggered PSD based on GHG emissions
alone. However, PALs for GHGs may
still have a role in determining whether
a modification that triggers PSD for a
pollutant other than GHGs should also
be subject to Best Available Control
Technology (BACT) for GHGs. These
provisions will likely be revised
pending further legal action. However,
these provisions do not add new
requirements for sources or
modifications that only emit or increase
GHGs above the major source threshold
or the 75,000 tons per year (tpy) GHG
threshold in 40 CFR 52.21(b)(49)(iv).
Rather, the PALs provisions provide
increased flexibility to sources that
choose to address their GHG emissions
in a PAL. Because this flexibility may
still be valuable to sources in at least
one context described above, we believe
that it is appropriate to approve these
provisions into the Washington SIP at
this point in time. The EPA is therefore
proposing to determine that EFSEC’s
SIP revision meets the necessary PSD
requirements at this time, consistent
with the Supreme Court’s decision.
IV. The EPA’s Proposed Action
A. Regulations To Approve and
Incorporate by Reference Into the SIP
The EPA proposes to approve and
incorporate by reference into the
Washington SIP at 40 CFR 52.2470(c)—
Table 3—Additional Regulations
Approved for the Energy Facilities Site
Evaluation Council (EFSEC)
Jurisdiction, the revised EFSEC
regulations listed in Table 1 below.
jstallworth on DSK7TPTVN1PROD with PROPOSALS
TABLE 1—ENERGY FACILITIES SITE EVALUATION COUNCIL (EFSEC) REGULATIONS FOR PROPOSED APPROVAL AND
INCORPORATION BY REFERENCE
State/local
citation
State/local
effective date
Title/subject
Explanation
Chapter 463–78 WAC, General and Operating Permit Regulations for Air Pollution Sources.
78–005 ...........................
Adoption by Reference .........................................
8/27/15
78–010 ...........................
78–020 ...........................
Purpose ................................................................
Applicability ...........................................................
8/27/15
11/11/04
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Except: (2), (3), (4), and (5). See table below for
revised Chapter 173–400 WAC provisions incorporated by reference.
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14651
TABLE 1—ENERGY FACILITIES SITE EVALUATION COUNCIL (EFSEC) REGULATIONS FOR PROPOSED APPROVAL AND
INCORPORATION BY REFERENCE—Continued
State/local
citation
Title/subject
State/local
effective date
78–030 ...........................
Additional Definitions ............................................
8/27/15
78–095 ...........................
78–120 ...........................
Permit Issuance ....................................................
Monitoring and Special Report .............................
8/27/15
11/11/04
Explanation
Except references to 173–401–200 and 173–
406–101.
TABLE 2—REVISED CHAPTER 173–400 WAC REGULATIONS INCORPORATED BY REFERENCE IN WAC 463–78–005 2
State citation
State effective
date
Title/subject
Explanations
Washington Administrative Code, Chapter 173–400—General Regulations for Air Pollution Sources.
173–400–030 .................
173–400–036 .................
173–400–040 .................
Definitions .............................................................
Relocation of Portable Sources ...........................
General Standards for Maximum Emissions .......
12/29/12
12/29/12
4/1/11
173–400–050 .................
Emission Standards for Combustion and Incineration Units.
Emission Standards for General Process Units ..
Emission Standards for Certain Source Categories.
12/29/12
.................
.................
.................
.................
Startup and Shutdown ..........................................
Voluntary Limits on Emissions .............................
Records, Monitoring, and Reporting ....................
New Source Review (NSR) for Sources and
Portable Sources.
4/1/11
4/1/11
12/29/12
12/29/12
173–400–111 .................
Processing Notice of Construction Applications
for Sources, Stationary Sources and Portable
Sources.
12/29/12
173–400–060 .................
173–400–070 .................
jstallworth on DSK7TPTVN1PROD with PROPOSALS
173–400–081
173–400–091
173–400–105
173–400–110
2/10/05
12/29/12
Except: 173–400–030(91).
Except: 173–400–040(2)(c); 173–400–040(2)(d);
173–400–040(3); 173–400–040(5); 173–400–
040(7), second paragraph.
Except: 173–400–050(2); 173–400–050(4); 173–
400–050(5).
Except: 173–400–070(1); 173–400–070(2); 173–
400–070(3);
173–400–070(4);
173–400–
070(6); 173–400–070(7); 173–400–070(8).
Except:
173–400–110(1)(c)(ii)(C);
173–400–
110(1)(e); 173–400–110(2)(d); The part of
WAC 173–400–110(4)(b)(vi) that says,
• ‘‘not for use with materials containing toxic air
pollutants, as listed in chapter 173–460
WAC,’’;
The part of 400–110 (4)(e)(iii) that says,
• ‘‘where toxic air pollutants as defined in chapter 173–460 WAC are not emitted’’;
The part of 400–110(4)(f)(i) that says,
• ‘‘that are not toxic air pollutants listed in chapter 173–460 WAC’’;
The part of 400–110 (4)(h)(xviii) that says,
• ‘‘, to the extent that toxic air pollutant gases as
defined in chapter 173–460 WAC are not emitted’’;
The part of 400–110 (4)(h)(xxxiii) that says,
• ‘‘where no toxic air pollutants as listed under
chapter 173–460 WAC are emitted’’;
The part of 400–110(4)(h)(xxxiv) that says,
• ‘‘, or ≤ 1% (by weight) toxic air pollutants as
listed in chapter 173–460 WAC’’;
The part of 400–110(4)(h)(xxxv) that says,
• ‘‘or ≤ 1% (by weight) toxic air pollutants’’;
The part of 400–110(4)(h)(xxxvi) that says,
• ‘‘or ≤ 1% (by weight) toxic air pollutants as listed in chapter 173–460 WAC’’; 400–
110(4)(h)(xl), second sentence; The last row of
the table in 173–400–110(5)(b) regarding exemption levels for Toxic Air Pollutants.
Except: 173–400–111(3)(h); 173–400–111 (5)(a)
(last six words); 173–400–111 (6);
The part of 173–400–111(8)(a)(v) that says,
• ‘‘and 173–460–040,’’; 173–400–111(9).
173–400–112 .................
173–400–113 .................
173–400–116 .................
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Requirements for New Sources in Nonattainment
Areas—Review for Compliance with Regulations.
New Sources in Attainment or Unclassifiable
Areas—Review for Compliance with Regulations.
Increment Protection ............................................
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12/29/12
12/29/12
Except: 173–400–113(3), second sentence.
9/10/11
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TABLE 2—REVISED CHAPTER 173–400 WAC REGULATIONS INCORPORATED BY REFERENCE IN WAC 463–78–005 2—
Continued
State effective
date
State citation
Title/subject
173–400–117 .................
Special Protection Requirements for ...................
Federal Class I Areas ..........................................
Issuance of Emission Reduction Credits .............
Use of Emission Reduction Credits (ERC) ..........
Public Notice and Opportunity for Public Comment.
12/29/12
Public Information .................................................
Creditable Stack Height and Dispersion Techniques.
Review of Major Stationary Sources of Air Pollution.
Definitions .............................................................
Prevention of Significant Deterioration (PSD) ......
2/10/05
2/10/05
173–400–131 .................
173–400–136 .................
173–400–171 .................
173–400–175 .................
173–400–200 .................
173–400–700 .................
173–400–710 .................
173–400–720 .................
173–400–730 .................
173–400–740 .................
173–400–750 .................
173–400–800 .................
173–400–810 .................
173–400–820 .................
173–400–830 .................
173–400–840 .................
173–400–850 .................
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173–400–860 .................
Prevention of Significant Deterioration Application Processing Procedures.
PSD Permitting Public Involvement .....................
Requirements .......................................................
Revisions to PSD Permits ....................................
Major Stationary Source and Major .....................
Modification in a Nonattainment Area ..................
Major Stationary Source and Major Modification
Definitions.
Determining if a New Stationary Source or Modification to a Stationary Source is Subject to
these Requirements.
Permitting Requirements ......................................
Emission Offset Requirements .............................
Actual Emissions Plantwide Applicability Limitation (PAL).
Public Involvement Procedures ............................
B. Regulations To Approve but Not
Incorporate by Reference
In addition to the regulations
proposed for approval and
incorporation by reference above, the
EPA reviews and approves state
submissions to ensure they provide
adequate enforcement authority and
other general authority to implement
and enforce the SIP. However,
regulations describing state enforcement
and other general authorities are
generally not incorporated by reference,
so as to avoid potential conflict with the
EPA’s independent authorities. The EPA
has reviewed and is proposing to
approve WAC 463–78–135 Criminal
2 Several of the provision of Chapter 173–400
WAC incorporated by reference remain unchanged
since the EPA’s last approval of EFSEC’s regulations
and were not resubmitted as part of the December
20, 2016 SIP revision.
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Except:
The part of 173–400–171(3)(b) that says,
• ‘‘or any increase in emissions of a toxic air
pollutant above the acceptable source impact
level for that toxic air pollutant as regulated
under chapter 173–460 WAC’’;173–400–
171(12).
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Except: 173–400–720(4)(a)(i through iv); 173–
400–720(4)(b)(iii)(C);
and
173–400–
720(4)(a)(vi) with respect to the incorporation
by reference of the text in 40 CFR
52.21(b)(49)(v).
* For the purpose of EFSEC’s incorporation by
reference of 40 CFR 52.21, the date in WAC
173–400–720 (4)(a)(vi) is May 1, 2015.
Except 173–400–730(4)
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4/1/11
Except: 173–400–750(2) second sentence.
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Penalties, WAC 463–78–140 Appeals
Procedure (except subsections 3 and 4
which deal with permits outside the
scope of CAA section 110), WAC 463–
78–170 Conflict of Interest, and WAC
463–78–230 Regulatory Actions, as
providing EFSEC with adequate
enforcement and other general authority
for purposes of implementing and
enforcing its SIP, but is not
incorporating these sections by
reference into the SIP codified in 40
CFR 52.2470(c). Instead, the EPA is
proposing to include these sections in
40 CFR 52.2470(e), EPA Approved
Nonregulatory Provisions and QuasiRegulatory Measures, as approved but
not incorporated by reference regulatory
provisions.
PO 00000
Explanations
C. Regulations To Remove From the SIP
As discussed in our July 10, 2014
proposed approval of revisions to
Chapter 173–400 WAC, Ecology
formerly relied on the registration
program under WAC 173–400–100 for
determining the applicability of the new
source review (NSR) permitting program
(see 79 FR 39351 at page 39354). By
statutory directive, this means of
determining NSR applicability was
replaced by revisions to WAC 173–400–
110 which set de minimis emission
unit, activity, and annual emission
thresholds. In our October 3, 2014 final
action, we approved WAC 173–400–110
as the means of determining NSR
applicability, and at Ecology’s request,
removed WAC 173–400–100 from the
SIP (79 FR 59653). Consistent with our
proposed and final approval of revisions
to Chapter 173–400 WAC, we are now
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proposing to remove, at EFSEC’s
request, WAC 463–39–100 Registration
(recodified to WAC 463–78–100) from
the SIP because it is no longer used as
the means of determining NSR
applicability.
As previously discussed, EFSEC
adopted by reference most of the
provisions in Chapter 173–400 WAC,
but excluded certain provisions
pertaining to authorities or source
categories outside EFSEC’s jurisdiction.
WAC 173–400–151 Retrofit
Requirements for Visibility Protection is
one such provision. The EPA’s May 23,
1996 approval of EFSEC’s regulations
included the incorporation by reference
of WAC 173–400–151 (61 FR 25791).
These regulations establish Best
Available Retrofit Technology (BART)
as part of the visibility protection
program for an ‘‘existing stationary
facility.’’ Under WAC 173–400–151 an
‘‘existing stationary facility’’ is defined,
among other factors, as a facility not in
operation prior to August 7, 1962, and
also in existence on August 7, 1977.
EFSEC has advised the EPA that there
are no sources under EFSEC’s
jurisdiction that meet the definition of
BART-eligible sources. The EPA is
therefore proposing to grant EFSEC’s
request to remove the incorporation by
reference of WAC 173–400–151 from the
SIP.
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D. Proposed Transfer of Existing EPAIssued PSD Permits
As part of the SIP submittal, EFSEC
requested approval to exercise its
authority to fully administer the PSD
program with respect to those sources
under EFSEC’s permitting jurisdiction
that have existing PSD permits issued
by the EPA. This includes authority to
conduct general administration of these
existing permits, authority to process
and issue any and all subsequent PSD
permit actions relating to such permits
(e.g., modifications, amendments, or
revisions of any nature), and authority
to enforce such permits. Since 1993,
EFSEC has had partial delegation of the
PSD permitting program under the FIP.
Therefore, many of the EPA permits
subject to proposed transfer were also
issued under state authority. For those
permits issued solely by the EPA prior
to delegation, EFSEC, in coordination
with Ecology, has demonstrated
adequate authority to enforce and
modify these permits. Concurrent with
our approval of EFSEC’s PSD program
into the Washington SIP, we are
proposing to transfer the EPA-issued
permits to EFSEC for the Chehalis
Generation Facility and Grays Harbor
Energy Center facilities.
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E. Scope of Proposed Action
The EPA is excluding from the scope
of this proposed approval certain
limitations as they relate to PSD
requirements for carbon dioxide
emissions from industrial combustion of
biomass. As discussed in our April 29,
2015 approval of Ecology’s PSD
program, a Washington State statutory
provision contained in RCW 70.235.020
Greenhouse Gas Emissions
Reductions—Reporting Requirements
states, ‘‘Except for purposes of
reporting, emissions of carbon dioxide
from industrial combustion of biomass
in the form of fuel wood, wood waste,
wood by-products, and wood residuals
shall not be considered a greenhouse gas
as long as the region’s silvicultural
sequestration capacity is maintained or
increased.’’ See 80 FR 23721, at page
23722. As a result, consistent with our
prior approval, the EPA is proposing to
retain a FIP to issue partial PSD permits
to ensure that major sources in
Washington have a means to satisfy the
CAA construction permit requirements
for GHGs when CO2 emissions from the
industrial combustion of biomass in
Washington are not being considered or
regulated by EFSEC under its PSD rules.
If finalized, the EPA is proposing to
revise the PSD FIP at 40 CFR 52.2497
and the visibility protection FIP at 40
CFR 52.2498 to reflect the approval of
EFSEC’s PSD and visibility permitting
programs. Specifically, the EPA is
proposing to delete paragraph (a)(1) of
40 CFR 52.2497 and paragraph (a)(1) of
40 CFR 52.2498, both of which address
facilities subject to the jurisdiction of
EFSEC in these FIPs.
F. The EPA’s Oversight Role
In approving state NSR rules into
SIPs, the EPA has a responsibility to
ensure that all states properly
implement their SIP-approved
preconstruction permitting programs.
The EPA’s proposed approval of
EFSEC’s PSD rules does not divest the
EPA of the responsibility to continue
appropriate oversight to ensure that
permits issued by EFSEC are consistent
with the requirements of the CAA,
Federal regulations, and the SIP. The
EPA’s authority to oversee permit
program implementation is set forth in
sections 113, 167, and 505(b) of the
CAA. For example, section 167 provides
that the EPA shall issue administrative
orders, initiate civil actions, or take
whatever other action may be necessary
to prevent the construction or
modification of a major stationary
source that does not ‘‘conform to the
requirements of’’ the PSD program.
Similarly, section 113(a)(5) of the CAA
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14653
provides for administrative orders and
civil actions whenever the EPA finds
that a state ‘‘is not acting in compliance
with’’ any requirement or prohibition of
the CAA regarding the construction of
new sources or modification of existing
sources. Likewise, section 113(a)(1)
provides for a range of enforcement
remedies whenever the EPA finds that
a person is in violation of an applicable
implementation plan.
In making judgments as to what
constitutes compliance with the CAA
and regulations issued thereunder, the
EPA looks to (among other sources) its
prior interpretations regarding those
statutory and regulatory requirements
and policies for implementing them. It
follows that state actions implementing
the Federal CAA that do not conform to
the CAA may lead to potential oversight
action by the EPA.
V. Incorporation by Reference
In this rule, the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to revise our incorporation by
reference of 40 CFR 52.2470(c)—Table
3—Additional Regulations Approved for
the Energy Facilities Site Evaluation
Council (EFSEC) Jurisdiction to reflect
the regulations shown in the tables in
section IV.A. Regulations to Approve
and Incorporate by Reference into the
SIP and the rules proposed for removal
from the SIP in section IV.C.
Regulations to Remove from the SIP.
The EPA has made, and will continue
to make, these materials generally
available through www.regulations.gov
and/or at the EPA Region 10 Office
(please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
section of this preamble for more
information).
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
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jstallworth on DSK7TPTVN1PROD with PROPOSALS
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• 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 the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
this action does not involve technical
standards; and
• does not provide the EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because it will not
impose substantial direct costs on tribal
governments or preempt tribal law. As
discussed above, the SIP is not
approved to apply in Indian country
located in the state, except for non-trust
land within the exterior boundaries of
the Puyallup Indian Reservation (also
known as the 1873 Survey Area), or any
other area where the EPA or an Indian
tribe has demonstrated that a tribe has
jurisdiction. Consistent with EPA
policy, the EPA provided a consultation
opportunity to the Puyallup Tribe in a
letter dated July 1, 2016. The EPA did
not receive a request for consultation.
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, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
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14:55 Mar 21, 2017
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Authority: 42 U.S.C. 7401 et seq.
Dated: March 10, 2017.
Nancy J. Lindsay,
Acting Regional Administrator, Region 10.
[FR Doc. 2017–05467 Filed 3–21–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2015–0333; FRL–9959–06–
Region 10]
Approval and Promulgation of
Implementation Plans; Oregon:
Permitting and General Rule Revisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) proposes to approve, and
incorporate by reference, specific
changes to Oregon’s State
Implementation Plan (SIP) submitted on
April 22, 2015. The changes relate to the
criteria pollutants for which the EPA
has established national ambient air
quality standards—carbon monoxide,
lead, nitrogen dioxide, ozone,
particulate matter, and sulfur dioxide.
Specifically, the changes account for
new federal requirements for fine
particulate matter, update the major and
minor source pre-construction
permitting programs, and add state-level
air quality designations. The changes
also address public notice procedures
for informational meetings, and tighten
emission standards for dust and smoke.
In addition, Oregon reorganized rules in
the SIP by consolidating definitions,
removing duplicate provisions,
correcting errors, and removing
outdated provisions. We note that
certain rule changes are not appropriate
for SIP approval, or are inconsistent
with Clean Air Act requirements. In
those cases, we are not approving the
revisions.
DATES: Comments must be received on
or before April 21, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2015–0333, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
SUMMARY:
PO 00000
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Fmt 4702
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restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall, Air Planning Unit, Office of
Air and Waste (OAW–150),
Environmental Protection Agency—
Region 10, 1200 Sixth Ave., Seattle, WA
98101; telephone number: (206) 553–
6357; email address:
hall.kristin@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is
intended to refer to the EPA.
Table of Contents
I. Background
II. Evaluation of Revisions
A. Division 200: General Air Pollution
Procedures and Definitions
B. Division 202: Ambient Air Quality
Standards and PSD Increments
C. Division 204: Designation of Air Quality
Areas
D. Division 206: Air Pollution Emergencies
E. Division 208: Visible Emissions and
Nuisance Requirements
F. Division 209: Public Participation
G. Division 210: Stationary Source
Notification Requirements
H. Division 212: Stationary Source Testing
and Monitoring
I. Division 214: Stationary Source
Reporting Requirements
J. Division 216: Air Contaminant Discharge
Permits
K. Division 222: Stationary Source Plant
Site Emission Limits
L. Division 224: New Source Review
M. Division 225: Air Quality Analysis
Requirements
N. Division 226: General Emission
Standards
O. Division 228: Requirements for Fuel
Burning Equipment and Fuel Sulfur
Content
P. Division 232: Emission Standards for
VOC Point Sources
Q. Division 234: Emissions Standards for
Wood Products Industries
R. Division 236: Emissions Standards for
Specific Industries
S. Division 240: Rules for Areas With
Unique Air Quality Needs
T. Division 242: Rules Applicable to the
Portland Area
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]]>Agencies
[Federal Register Volume 82, Number 54 (Wednesday, March 22, 2017)]
[Proposed Rules]
[Pages 14648-14654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05467]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2016-0785: FRL-9959-02-Region 10]
Air Plan Approval; Washington: General Regulations for Air
Pollution Sources, Energy Facility Site Evaluation Council
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
revise the Washington State Implementation Plan (SIP) to approve
updates to the Energy Facility Site Evaluation Council (EFSEC) air
quality regulations. The EFSEC regulations primarily adopt by reference
the Washington Department of Ecology (Ecology) general air quality
regulations, which the EPA approved in the fall of 2014 and spring of
2015. Consistent with our approval of the Ecology general air quality
regulations, we are also proposing to approve revisions to implement
the preconstruction permitting regulations for large industrial (major
source) facilities in attainment and unclassifiable areas, called the
Prevention of Significant Deterioration (PSD) program. The PSD program
for major energy facilities under EFSEC's jurisdiction has historically
been operated under a Federal Implementation Plan (FIP), in cooperation
with the EPA and Ecology. If finalized, the EPA's proposed approval of
the EFSEC PSD program would narrow the FIP to include only those few
potential facilities, emission sources, geographic areas, and permits
for which EFSEC does not have jurisdiction or authority. The EPA is
also proposing to approve EFSEC's visibility protection permitting
program which overlaps significantly with the PSD program in most
cases.
DATES: Written comments must be received on or before April 21, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2016-0785 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
[[Page 14649]]
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, Air Planning Unit, Office
of Air and Waste (AWT-150), Environmental Protection Agency, Region 10,
1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206)
553-0256; email address: hunt.jeff@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background for Proposed Action
II. Washington SIP Revisions
A. Revised EFSEC Regulations
B. Personnel, Funding, and Authority
III. Effect of Recent Court Decisions Vacating and Remanding Certain
Federal Rules
A. Sierra Club v. EPA
B. Utility Air Regulatory Group v. EPA
IV. The EPA's Proposed Action
A. Regulations to Approve and Incorporate by Reference into the
SIP
B. Regulations to Approve but Not Incorporate by Reference
C. Regulations to Remove from the SIP
D. Proposed Transfer of Existing EPA-issued PSD Permits
E. Scope of Proposed Action
F. The EPA's Oversight Role
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background for Proposed Action
By statute, EFSEC has jurisdiction for managing the air program
with respect to major energy facilities in the State of Washington. See
Chapter 80.50 of the Revised Code of Washington (RCW). The EFSEC air
quality regulations are contained in Chapter 463-78 Washington
Administrative Code (WAC) General and Operating Permit Regulations for
Air Pollution Sources. These EFSEC regulations rely primarily on the
incorporation by reference of the corresponding Ecology general air
quality regulations contained in Chapter 173-400 WAC General
Regulations for Air Pollution Sources. On July 27, 2015, effective
August 27, 2015, EFSEC updated its regulations to generally adopt by
reference the version of Chapter 173-400 WAC approved into the SIP at
that time.\1\ On December 20, 2016, EFSEC, in cooperation with Ecology,
requested that the EPA approve the updated EFSEC regulations consistent
with our phased approval of Chapter 173-400 WAC. See 79 FR 59653
(October 3, 2014, approval of general provisions), 79 FR 66291
(November 7, 2014, approval of major source nonattainment new source
review), and 80 FR 23721 (April 29, 2015, approval of PSD and
visibility protection permitting programs).
---------------------------------------------------------------------------
\1\ On October 6, 2016, the EPA approved minor revisions to
Chapter 173-400 WAC, primarily updating the adoption by reference
date of cited Federal regulations (81 FR 69385). Because EFSEC
already modified its regulations to include an updated adoption by
reference date for cited Federal regulations, this minor change to
Chapter 173-400 WAC does not substantively affect EFSEC's
submission.
---------------------------------------------------------------------------
II. Washington SIP Revisions
A. Revised EFSEC Regulations
The EPA last approved EFSEC's air quality regulations on May 23,
1996 (61 FR 25791). Aside from recodification from 463-39 to 463-78
WAC, grammatical changes, and minor clarifications, the EFSEC air
quality regulations remain substantially unchanged since the EPA's last
approval. The more substantive changes include EFSEC's modification of
WAC 463-78-095 Permit Issuance to clarify that new permits, and
modifications to existing permits, shall be conditioned upon compliance
with all provisions of the federally-approved SIP. Other changes
include updating citations in Chapter 463-78 WAC to better align with
the associated provisions in Chapter 173-400 WAC. A full redline/
strikeout comparison of the 1996 SIP-approved version of the EFSEC
regulations to the submitted 2015 version is included in the docket for
this action. We reviewed the revisions to the regulations and are
proposing to determine that they meet the requirements of section 110
of the Clean Air Act (CAA).
The most substantive component of EFSEC's regulations is WAC 463-
78-005 Adoption by Reference, which generally adopts by reference
Chapter 173-400 WAC to match the EPA's October 3, 2014, November 7,
2014, and April 29, 2015 phased approval of Ecology's general air
quality rules. We note that EFSEC's adoption by reference of Chapter
173-400 WAC is modified in three ways. First, references in Chapter
173-400 WAC regarding appeals are modified to reflect EFSEC's
independent appeals process in WAC 463-78-140. Second, the cross
references to fees under Chapter 173-455 WAC are modified to reflect
EFSEC's independent fee structure set out in Chapter 80.50 RCW. Lastly,
WAC 173-400-720 contains Ecology's adoption by reference of the federal
PSD program regulations contained in 40 CFR 52.21, with some
exceptions. EFSEC modified the adoption by reference of WAC 173-400-720
to reflect the most recent version of 40 CFR 52.21 available at that
time (May 1, 2015).
We note two additional factors regarding EFSEC's incorporation by
reference of Chapter 173-400 WAC. First, while EFSEC generally adopts
most of the provisions of Chapter 173-400 WAC by reference, not all
provisions are included. For example, consistent with the EPA's prior
approval of the EFSEC regulations, EFSEC did not adopt by reference the
enforcement and authority provisions contained in WAC 173-400-220
through 260. For these provisions, EFSEC relies on its own independent
authorities, which are currently part of Washington's federally-
approved SIP under WAC 463-39-135 through 230. In other cases, such as
WAC 173-400-118 Designation of Class I, II, and III Areas, WAC 173-400-
151 Retrofit Requirements for Visibility Protection, and parts of WAC
173-400-070 Emission Standards for Certain Source Categories, EFSEC did
not adopt these Chapter 173-400 WAC provisions by reference because
they pertain to source categories or authorities outside the scope of
EFSEC's jurisdiction. The second factor is that many parts of Chapter
173-400 WAC contain provisions that are not related to the criteria
pollutants regulated under title I of the CAA, not related to the
requirements for SIPs under section 110 of the CAA, or have not been
revised since last approved by the EPA. For this reason, EFSEC only
submitted for SIP approval those parts of the incorporation by
reference of Chapter 173-400 WAC consistent with the EPA's October 3,
2014, November 7, 2014, and April 29, 2015 phased approval. A full
listing of the Chapter 173-400 WAC provisions submitted for approval is
included in Section IV.
B. Personnel, Funding, and Authority
Section 110(a)(2)(E)(i) of the CAA requires that agencies have
adequate personnel, funding, and authority under state law to carry out
the SIP. EFSEC's authority under state law to carry out the air program
for major energy facilities, including the PSD and visibility
protection permitting programs, is derived from Chapter 80.50 RCW. With
respect to personnel and funding, EFSEC has issued CAA PSD permits, in
coordination with Ecology, under a partial delegation agreement with
the EPA since 1993. These PSD permits include the visibility protection
requirements of WAC 173-400-117 Special Protection Requirements for
Federal Class I Areas, adopted by reference in EFSEC's regulations. As
described in our April 29, 2015 final approval of WAC 173-400-117,
these visibility protection requirements would also apply to
visibility-related elements associated with permits issued under the
major nonattainment new source review program under WAC 173-400-800
through 860, also adopted by reference in the EFSEC regulations (see 80
FR 23721, at page 23726). The staff
[[Page 14650]]
of engineers and air quality modelers at both EFSEC and Ecology, who
supported issuance of permits under the delegation agreement with the
EPA, will continue to support EFSEC's issuance of permits under a SIP-
approved PSD and visibility protection program. Chapter 80.50 RCW also
provides EFSEC the authority to charge fees for the coordinated EFSEC
and Ecology review of any new or modified permits. The EPA therefore
proposes to find that EFSEC has adequate personnel, funding, and
authority to implement the PSD and visibility protection programs for
facilities in its jurisdiction.
III. Effect of Court Decisions Vacating and Remanding Certain Federal
Rules
A. Sierra Club v. EPA
The EPA's January 7, 2015 proposed approval of Ecology's PSD
program included a discussion of the Sierra Club v. EPA, 703 F.3d 458
(D.C. Cir. 2013) decision which vacated certain provisions of the
Federal PSD regulations related to fine particulate matter
(PM2.5). See 80 FR 838, at page 842. As discussed in the
proposed approval, Ecology's regulations at that time in WAC 173-400-
720(4)(a)(vi) generally incorporated by reference the Federal PSD
permitting provisions in effect as of August 13, 2012, including the
vacated provisions of 40 CFR 52.21(i) (relating to the significant
monitoring concentration) and 40 CFR 52.21(k) (relating to the
significant impact level). The EPA subsequently removed the vacated
PM2.5 SIL and SMC provisions from the Federal PSD
regulations effective December 9, 2013 (78 FR 73698). Ecology resolved
this issue by revising WAC 173-400-720(4)(a)(vi) to an updated version
of 40 CFR 52.21 that did not contain the vacated provisions (81 FR
69385, October 6, 2016). Similarly, we are proposing to determine that
EFSEC has resolved this issue by modifying its incorporation by
reference of WAC 173-400-720(4)(a)(vi) to reflect the May 1, 2015
version of 40 CFR 52.21 that does not contain the vacated
PM2.5 SIL and SMC provisions.
B. Utility Air Regulatory Group v. EPA
On June 23, 2014, the U.S. Supreme Court issued a decision in
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427, addressing
the application of stationary source permitting requirements to
greenhouse gases (GHGs). The U.S. Supreme Court held that the EPA may
not treat GHGs as an air pollutant for the specific purpose of
determining whether a source is a major source (or a modification
thereof) and thus required to obtain a PSD or title V permit. In
response to the Supreme Court's decision, and the subsequent vacatur of
40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v) by the Court of
Appeals for the District of Columbia Circuit, the EPA removed these
requirements from the federal PSD regulations (80 FR 50199, August 19,
2015). Because the EPA's removal of the vacated provisions occurred
after EFSEC's May 1, 2015 citation date incorporating 40 CFR 52.21, the
EFSEC regulations adopted by reference in WAC 463-78-005 have not yet
captured the EPA's update. In order to align with the Supreme Court
decision and to prevent delay in the EPA's consideration of the EFSEC
regulations, EFSEC clarified in the December 20, 2016 SIP submittal
that it is not submitting the incorporation by reference of 40 CFR
52.21(b)(49)(v) for approval. EFSEC intends to incorporate by reference
a more recent version of 40 CFR 52.21 that does not contain the vacated
provisions, as soon as practicable.
EFSEC's SIP submittal does not discuss the fact that, because it
adopted the EPA's PSD regulations as of May 1, 2015, its rules include
the elements of the EPA's 2012 rule implementing Step 3 of the phase-in
of PSD permitting requirements for GHGs described in the Tailoring
Rule, which became effective on August 13, 2012 (77 FR 41051, July 12,
2012). The incorporation of the Step 3 rule provisions allows GHG-
emitting sources to obtain plantwide applicability limits (PALs) for
their GHG emissions on a carbon dioxide equivalent (CO2e)
basis. The Federal GHG PAL provisions, as currently written, include
some provisions that may no longer be appropriate in light of the
Supreme Court decision. Because the Supreme Court has determined that
sources and modifications may not be defined as ``major'' solely on the
basis of the level of greenhouse gases emitted or increased, PALs for
greenhouse gases may no longer have value in some situations where a
source might have triggered PSD based on GHG emissions alone. However,
PALs for GHGs may still have a role in determining whether a
modification that triggers PSD for a pollutant other than GHGs should
also be subject to Best Available Control Technology (BACT) for GHGs.
These provisions will likely be revised pending further legal action.
However, these provisions do not add new requirements for sources or
modifications that only emit or increase GHGs above the major source
threshold or the 75,000 tons per year (tpy) GHG threshold in 40 CFR
52.21(b)(49)(iv). Rather, the PALs provisions provide increased
flexibility to sources that choose to address their GHG emissions in a
PAL. Because this flexibility may still be valuable to sources in at
least one context described above, we believe that it is appropriate to
approve these provisions into the Washington SIP at this point in time.
The EPA is therefore proposing to determine that EFSEC's SIP revision
meets the necessary PSD requirements at this time, consistent with the
Supreme Court's decision.
IV. The EPA's Proposed Action
A. Regulations To Approve and Incorporate by Reference Into the SIP
The EPA proposes to approve and incorporate by reference into the
Washington SIP at 40 CFR 52.2470(c)--Table 3--Additional Regulations
Approved for the Energy Facilities Site Evaluation Council (EFSEC)
Jurisdiction, the revised EFSEC regulations listed in Table 1 below.
Table 1--Energy Facilities Site Evaluation Council (EFSEC) Regulations for Proposed Approval and Incorporation
by Reference
----------------------------------------------------------------------------------------------------------------
State/local
State/local citation Title/subject effective date Explanation
----------------------------------------------------------------------------------------------------------------
Chapter 463-78 WAC, General and Operating Permit Regulations for Air Pollution Sources.
----------------------------------------------------------------------------------------------------------------
78-005.............................. Adoption by Reference....... 8/27/15 Except: (2), (3), (4), and
(5). See table below for
revised Chapter 173-400 WAC
provisions incorporated by
reference.
78-010.............................. Purpose..................... 8/27/15 ............................
78-020.............................. Applicability............... 11/11/04 ............................
[[Page 14651]]
78-030.............................. Additional Definitions...... 8/27/15 Except references to 173-401-
200 and 173-406-101.
78-095.............................. Permit Issuance............. 8/27/15 ............................
78-120.............................. Monitoring and Special 11/11/04 ............................
Report.
----------------------------------------------------------------------------------------------------------------
Table 2--Revised Chapter 173-400 WAC Regulations Incorporated by Reference in WAC 463-78-005 \2\
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date Explanations
----------------------------------------------------------------------------------------------------------------
Washington Administrative Code, Chapter 173-400--General Regulations for Air Pollution Sources.
----------------------------------------------------------------------------------------------------------------
173-400-030......................... Definitions................. 12/29/12 Except: 173-400-030(91).
173-400-036......................... Relocation of Portable 12/29/12 ............................
Sources.
173-400-040......................... General Standards for 4/1/11 Except: 173-400-040(2)(c);
Maximum Emissions. 173-400-040(2)(d); 173-400-
040(3); 173-400-040(5); 173-
400-040(7), second
paragraph.
173-400-050......................... Emission Standards for 12/29/12 Except: 173-400-050(2); 173-
Combustion and Incineration 400-050(4); 173-400-050(5).
Units.
173-400-060......................... Emission Standards for 2/10/05 ............................
General Process Units.
173-400-070......................... Emission Standards for 12/29/12 Except: 173-400-070(1); 173-
Certain Source Categories. 400-070(2); 173-400-070(3);
173-400-070(4); 173-400-
070(6); 173-400-070(7); 173-
400-070(8).
173-400-081......................... Startup and Shutdown........ 4/1/11 ............................
173-400-091......................... Voluntary Limits on 4/1/11 ............................
Emissions.
173-400-105......................... Records, Monitoring, and 12/29/12 ............................
Reporting.
173-400-110......................... New Source Review (NSR) for 12/29/12 Except: 173-400-
Sources and Portable 110(1)(c)(ii)(C); 173-400-
Sources. 110(1)(e); 173-400-
110(2)(d); The part of WAC
173-400-110(4)(b)(vi) that
says,
``not for use with
materials containing toxic
air pollutants, as listed
in chapter 173-460 WAC,'';
The part of 400-110
(4)(e)(iii) that says,
``where toxic air
pollutants as defined in
chapter 173-460 WAC are not
emitted'';
The part of 400-110(4)(f)(i)
that says,
``that are not
toxic air pollutants listed
in chapter 173-460 WAC'';
The part of 400-110
(4)(h)(xviii) that says,
``, to the extent
that toxic air pollutant
gases as defined in chapter
173-460 WAC are not
emitted'';
The part of 400-110
(4)(h)(xxxiii) that says,
``where no toxic
air pollutants as listed
under chapter 173-460 WAC
are emitted'';
The part of 400-
110(4)(h)(xxxiv) that says,
``, or <= 1% (by
weight) toxic air
pollutants as listed in
chapter 173-460 WAC'';
The part of 400-
110(4)(h)(xxxv) that says,
``or <= 1% (by
weight) toxic air
pollutants'';
The part of 400-
110(4)(h)(xxxvi) that says,
``or <= 1% (by
weight) toxic air
pollutants as listed in
chapter 173-460 WAC''; 400-
110(4)(h)(xl), second
sentence; The last row of
the table in 173-400-
110(5)(b) regarding
exemption levels for Toxic
Air Pollutants.
173-400-111......................... Processing Notice of 12/29/12 Except: 173-400-111(3)(h);
Construction Applications 173-400-111 (5)(a) (last
for Sources, Stationary six words); 173-400-111
Sources and Portable (6);
Sources.
The part of 173-400-
111(8)(a)(v) that says,
``and 173-460-
040,''; 173-400-111(9).
173-400-112......................... Requirements for New Sources 12/29/12 ............................
in Nonattainment Areas--
Review for Compliance with
Regulations.
173-400-113......................... New Sources in Attainment or 12/29/12 Except: 173-400-113(3),
Unclassifiable Areas-- second sentence.
Review for Compliance with
Regulations.
173-400-116......................... Increment Protection........ 9/10/11 ............................
[[Page 14652]]
173-400-117......................... Special Protection 12/29/12 ............................
Requirements for.
Federal Class I Areas.......
173-400-131......................... Issuance of Emission 4/1/11 ............................
Reduction Credits.
173-400-136......................... Use of Emission Reduction 4/1/11 ............................
Credits (ERC).
173-400-171......................... Public Notice and 12/29/12 Except:
Opportunity for Public The part of 173-400-
Comment. 171(3)(b) that says,
``or any increase
in emissions of a toxic air
pollutant above the
acceptable source impact
level for that toxic air
pollutant as regulated
under chapter 173-460
WAC'';173-400-171(12).
173-400-175......................... Public Information.......... 2/10/05 ............................
173-400-200......................... Creditable Stack Height and 2/10/05 ............................
Dispersion Techniques.
173-400-700......................... Review of Major Stationary 4/1/11 ............................
Sources of Air Pollution.
173-400-710......................... Definitions................. 12/29/12 ............................
173-400-720......................... Prevention of Significant 12/29/12 Except: 173-400-720(4)(a)(i
Deterioration (PSD). through iv); 173-400-
720(4)(b)(iii)(C); and 173-
400-720(4)(a)(vi) with
respect to the
incorporation by reference
of the text in 40 CFR
52.21(b)(49)(v).
* For the purpose of EFSEC's
incorporation by reference
of 40 CFR 52.21, the date
in WAC 173-400-720
(4)(a)(vi) is May 1, 2015.
173-400-730......................... Prevention of Significant 12/29/12 Except 173-400-730(4)
Deterioration Application
Processing Procedures.
173-400-740......................... PSD Permitting Public 12/29/12 ............................
Involvement.
Requirements................
173-400-750......................... Revisions to PSD Permits.... 12/29/12 Except: 173-400-750(2)
second sentence.
173-400-800......................... Major Stationary Source and 4/1/11 ............................
Major.
Modification in a
Nonattainment Area.
173-400-810......................... Major Stationary Source and 12/29/12 ............................
Major Modification
Definitions.
173-400-820......................... Determining if a New 12/29/12 ............................
Stationary Source or
Modification to a
Stationary Source is
Subject to these
Requirements.
173-400-830......................... Permitting Requirements..... 12/29/12 ............................
173-400-840......................... Emission Offset Requirements 12/29/12 ............................
173-400-850......................... Actual Emissions Plantwide 12/29/12 ............................
Applicability Limitation
(PAL).
173-400-860......................... Public Involvement 4/1/11 ............................
Procedures.
----------------------------------------------------------------------------------------------------------------
B. Regulations To Approve but Not Incorporate by Reference
---------------------------------------------------------------------------
\2\ Several of the provision of Chapter 173-400 WAC incorporated
by reference remain unchanged since the EPA's last approval of
EFSEC's regulations and were not resubmitted as part of the December
20, 2016 SIP revision.
---------------------------------------------------------------------------
In addition to the regulations proposed for approval and
incorporation by reference above, the EPA reviews and approves state
submissions to ensure they provide adequate enforcement authority and
other general authority to implement and enforce the SIP. However,
regulations describing state enforcement and other general authorities
are generally not incorporated by reference, so as to avoid potential
conflict with the EPA's independent authorities. The EPA has reviewed
and is proposing to approve WAC 463-78-135 Criminal Penalties, WAC 463-
78-140 Appeals Procedure (except subsections 3 and 4 which deal with
permits outside the scope of CAA section 110), WAC 463-78-170 Conflict
of Interest, and WAC 463-78-230 Regulatory Actions, as providing EFSEC
with adequate enforcement and other general authority for purposes of
implementing and enforcing its SIP, but is not incorporating these
sections by reference into the SIP codified in 40 CFR 52.2470(c).
Instead, the EPA is proposing to include these sections in 40 CFR
52.2470(e), EPA Approved Nonregulatory Provisions and Quasi-Regulatory
Measures, as approved but not incorporated by reference regulatory
provisions.
C. Regulations To Remove From the SIP
As discussed in our July 10, 2014 proposed approval of revisions to
Chapter 173-400 WAC, Ecology formerly relied on the registration
program under WAC 173-400-100 for determining the applicability of the
new source review (NSR) permitting program (see 79 FR 39351 at page
39354). By statutory directive, this means of determining NSR
applicability was replaced by revisions to WAC 173-400-110 which set de
minimis emission unit, activity, and annual emission thresholds. In our
October 3, 2014 final action, we approved WAC 173-400-110 as the means
of determining NSR applicability, and at Ecology's request, removed WAC
173-400-100 from the SIP (79 FR 59653). Consistent with our proposed
and final approval of revisions to Chapter 173-400 WAC, we are now
[[Page 14653]]
proposing to remove, at EFSEC's request, WAC 463-39-100 Registration
(recodified to WAC 463-78-100) from the SIP because it is no longer
used as the means of determining NSR applicability.
As previously discussed, EFSEC adopted by reference most of the
provisions in Chapter 173-400 WAC, but excluded certain provisions
pertaining to authorities or source categories outside EFSEC's
jurisdiction. WAC 173-400-151 Retrofit Requirements for Visibility
Protection is one such provision. The EPA's May 23, 1996 approval of
EFSEC's regulations included the incorporation by reference of WAC 173-
400-151 (61 FR 25791). These regulations establish Best Available
Retrofit Technology (BART) as part of the visibility protection program
for an ``existing stationary facility.'' Under WAC 173-400-151 an
``existing stationary facility'' is defined, among other factors, as a
facility not in operation prior to August 7, 1962, and also in
existence on August 7, 1977. EFSEC has advised the EPA that there are
no sources under EFSEC's jurisdiction that meet the definition of BART-
eligible sources. The EPA is therefore proposing to grant EFSEC's
request to remove the incorporation by reference of WAC 173-400-151
from the SIP.
D. Proposed Transfer of Existing EPA-Issued PSD Permits
As part of the SIP submittal, EFSEC requested approval to exercise
its authority to fully administer the PSD program with respect to those
sources under EFSEC's permitting jurisdiction that have existing PSD
permits issued by the EPA. This includes authority to conduct general
administration of these existing permits, authority to process and
issue any and all subsequent PSD permit actions relating to such
permits (e.g., modifications, amendments, or revisions of any nature),
and authority to enforce such permits. Since 1993, EFSEC has had
partial delegation of the PSD permitting program under the FIP.
Therefore, many of the EPA permits subject to proposed transfer were
also issued under state authority. For those permits issued solely by
the EPA prior to delegation, EFSEC, in coordination with Ecology, has
demonstrated adequate authority to enforce and modify these permits.
Concurrent with our approval of EFSEC's PSD program into the Washington
SIP, we are proposing to transfer the EPA-issued permits to EFSEC for
the Chehalis Generation Facility and Grays Harbor Energy Center
facilities.
E. Scope of Proposed Action
The EPA is excluding from the scope of this proposed approval
certain limitations as they relate to PSD requirements for carbon
dioxide emissions from industrial combustion of biomass. As discussed
in our April 29, 2015 approval of Ecology's PSD program, a Washington
State statutory provision contained in RCW 70.235.020 Greenhouse Gas
Emissions Reductions--Reporting Requirements states, ``Except for
purposes of reporting, emissions of carbon dioxide from industrial
combustion of biomass in the form of fuel wood, wood waste, wood by-
products, and wood residuals shall not be considered a greenhouse gas
as long as the region's silvicultural sequestration capacity is
maintained or increased.'' See 80 FR 23721, at page 23722. As a result,
consistent with our prior approval, the EPA is proposing to retain a
FIP to issue partial PSD permits to ensure that major sources in
Washington have a means to satisfy the CAA construction permit
requirements for GHGs when CO2 emissions from the industrial
combustion of biomass in Washington are not being considered or
regulated by EFSEC under its PSD rules.
If finalized, the EPA is proposing to revise the PSD FIP at 40 CFR
52.2497 and the visibility protection FIP at 40 CFR 52.2498 to reflect
the approval of EFSEC's PSD and visibility permitting programs.
Specifically, the EPA is proposing to delete paragraph (a)(1) of 40 CFR
52.2497 and paragraph (a)(1) of 40 CFR 52.2498, both of which address
facilities subject to the jurisdiction of EFSEC in these FIPs.
F. The EPA's Oversight Role
In approving state NSR rules into SIPs, the EPA has a
responsibility to ensure that all states properly implement their SIP-
approved preconstruction permitting programs. The EPA's proposed
approval of EFSEC's PSD rules does not divest the EPA of the
responsibility to continue appropriate oversight to ensure that permits
issued by EFSEC are consistent with the requirements of the CAA,
Federal regulations, and the SIP. The EPA's authority to oversee permit
program implementation is set forth in sections 113, 167, and 505(b) of
the CAA. For example, section 167 provides that the EPA shall issue
administrative orders, initiate civil actions, or take whatever other
action may be necessary to prevent the construction or modification of
a major stationary source that does not ``conform to the requirements
of'' the PSD program. Similarly, section 113(a)(5) of the CAA provides
for administrative orders and civil actions whenever the EPA finds that
a state ``is not acting in compliance with'' any requirement or
prohibition of the CAA regarding the construction of new sources or
modification of existing sources. Likewise, section 113(a)(1) provides
for a range of enforcement remedies whenever the EPA finds that a
person is in violation of an applicable implementation plan.
In making judgments as to what constitutes compliance with the CAA
and regulations issued thereunder, the EPA looks to (among other
sources) its prior interpretations regarding those statutory and
regulatory requirements and policies for implementing them. It follows
that state actions implementing the Federal CAA that do not conform to
the CAA may lead to potential oversight action by the EPA.
V. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to revise our
incorporation by reference of 40 CFR 52.2470(c)--Table 3--Additional
Regulations Approved for the Energy Facilities Site Evaluation Council
(EFSEC) Jurisdiction to reflect the regulations shown in the tables in
section IV.A. Regulations to Approve and Incorporate by Reference into
the SIP and the rules proposed for removal from the SIP in section
IV.C. Regulations to Remove from the SIP. The EPA has made, and will
continue to make, these materials generally available through
www.regulations.gov and/or at the EPA Region 10 Office (please contact
the person identified in the For Further Information Contact section of
this preamble for more information).
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735,
[[Page 14654]]
October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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 the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because this action does not involve technical standards; and
does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because it will not impose substantial direct costs on tribal
governments or preempt tribal law. As discussed above, the SIP is not
approved to apply in Indian country located in the state, except for
non-trust land within the exterior boundaries of the Puyallup Indian
Reservation (also known as the 1873 Survey Area), or any other area
where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. Consistent with EPA policy, the EPA provided a
consultation opportunity to the Puyallup Tribe in a letter dated July
1, 2016. The EPA did not receive a request for consultation.
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, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 10, 2017.
Nancy J. Lindsay,
Acting Regional Administrator, Region 10.
[FR Doc. 2017-05467 Filed 3-21-17; 8:45 am]
BILLING CODE 6560-50-P
