Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and Malfunction Revisions, Energy Facility Site Evaluation Council, 84322-84327 [2024-24211]
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TABLE 1 TO PARAGRAPH (a)—Continued
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(b) Definitions. As used in this
section, designated representative
means a Coast Guard Patrol
Commander, including a Coast Guard
coxswain, petty officer, or other officer
operating a Coast Guard vessel and a
Federal, State, and local officer
designated by or assisting the First Coast
Guard District Commander in the
enforcement of the safety zones. Local
officer means any officer, agent, or
employee of a unit of local government
authorized by law or by a local
government agency to engage in or
supervise the prevention, detection,
investigation, or prosecution of any
violation of criminal law.
(c) Regulations. No vessel may enter
or remain in this safety zone except for
the following:
(1) An attending vessel as defined in
33 CFR 147.20;
(2) A vessel authorized by the First
Coast Guard District Commander or a
designated representative.
(d) Request for Permission. Persons or
vessels seeking to enter the safety zone
must request authorization from the
First Coast Guard District Commander
or a designated representative. If
permission is granted, all persons and
vessels must comply with lawful
instructions of the First Coast Guard
District Commander or designated
representative via VHF–FM channel 16
or by phone at 866–842–1560 (First
Coast Guard District Command Center).
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(e) Effective and enforcement periods.
This section will be effective from
March 1, 2025, through 11:59 p.m. on
February 29, 2028. But it will only be
enforced during active construction or
other instances which may cause a
hazard to navigation deemed necessary
by the First Coast Guard District
Commander. The First Coast Guard
District Commander will make
notification of the exact dates and times
in advance of each enforcement period
for the safety zones in paragraph (a) of
this section to the local maritime
community through the Local Notice to
Mariners and will issue a Broadcast
Notice to Mariners via marine channel
16 (VHF–FM) as soon as practicable in
response to an emergency. If the project
is completed before February 29, 2028,
enforcement of the safety zones will be
suspended, and notice given via Local
Notice to Mariners. The First Coast
Guard District Local Notice to Mariners
can be found at: https://
www.navcen.uscg.gov.
(f) Processing of violations. Violations
of this section may be processed in
accordance with 33 CFR 140.40 on civil
and criminal penalty proceedings.
M.E. Platt,
Rear Admiral, U.S. Coast Guard, Commander,
First Coast Guard District.
[FR Doc. 2024–24393 Filed 10–21–24; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2024–0372; FRL–12293–
01–R10]
Air Plan Approval; WA; Excess
Emissions, Startup, Shutdown, and
Malfunction Revisions, Energy Facility
Site Evaluation Council
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
Washington State Implementation Plan
(SIP) revisions to the Energy Facility
Site Evaluation Council (EFSEC) air
quality regulations submitted by the
State of Washington, through the
Department of Ecology (Ecology) on
June 15, 2023. The revisions were
submitted in response to EPA’s June 12,
2015 ‘‘SIP call’’ in which the EPA found
a substantially inadequate Washington
SIP provision providing affirmative
defenses that operate to limit the
jurisdiction of the Federal court in an
enforcement action related to excess
emissions during startup, shutdown,
and malfunction (SSM) events. The EPA
is proposing approval of the SIP
revisions and proposing to determine
that removal of the substantially
SUMMARY:
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inadequate provision corrects the
EFSEC deficiency identified in the 2015
SSM SIP call and the EPA’s January
2022 finding of failure to submit.
Washington withdrew some portions of
the revisions submitted that were not
identified in the 2015 SSM SIP call and
therefore the EPA is not proposing
action on those withdrawn portions.
DATES: Comments must be received on
or before November 21, 2024.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2024–0372, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not
electronically submit any information
you consider to be Confidential
Business Information (CBI) 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. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, the full EPA public comment
policy, information about CBI or
multimedia submissions, and general
guidance on making effective
comments, please visit https://
www.epa.gov/dockets/commenting-epadockets.
FOR FURTHER INFORMATION CONTACT:
Randall Ruddick, EPA Region 10 1200
Sixth Avenue (Suite 155), Seattle, WA
98101, (206) 553–1999; or email
ruddick.randall@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ or ‘‘our,’’ is used, it refers to EPA.
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Table of Contents
I. Background
II. Analysis of SIP Submission
A. The Provision Subject to the 2015 SSM
SIP Call
B. Additional SIP Revisions Submitted But
Not Specified in the 2015 SSM SIP Call
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review
I. Background
On June 12, 2015, pursuant to CAA
section 110(k)(5), the EPA finalized
‘‘State Implementation Plans: Response
to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy
Applicable to SIPs; Findings of
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Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess
Emissions During Periods of Startup,
Shutdown and Malfunction,’’ (80 FR
33840, June 12, 2015), hereinafter
referred to as the ‘‘2015 SSM SIP
Action.’’ The 2015 SSM SIP Action
clarified, restated, and updated EPA’s
interpretation that SSM exemption and
affirmative defense SIP provisions are
inconsistent with CAA requirements.
The 2015 SSM SIP Action found that
certain SIP provisions in 36 states
(including Washington State) were
substantially inadequate to meet CAA
requirements and issued a SIP call to
those states to submit SIP revisions to
address the inadequacies. EPA
established an 18-month deadline by
which the affected states had to submit
such SIP revisions. States were required
to submit corrective revisions to their
SIPs in response to the SIP calls by
November 22, 2016.
With regard to the Washington SIP,
EPA determined that, to the extent that
Wash. Admin. Code (WAC) 173–400–
107 was intended to be an affirmative
defense, it was not consistent with the
requirements of the CAA. Therefore,
EPA issued a SIP call with respect to
this provision. The detailed rationale for
issuing the SIP call to Washington can
be found in the 2015 SSM SIP Action
and preceding proposed actions.1 2
On January 12, 2022, the EPA issued
Findings of Failure to Submit (FFS) to
12 air agencies, including EFSEC, that
had not submitted SIPs responding to
the 2015 SSM SIP call by the November
22, 2016, deadline per the requirements
of section 110(k)(5) of the Act.3
On March 1, 2024, the United States
Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) issued a
decision in Environ. Comm. Fl. Elec.
Power v. EPA, No. 15–1239 (‘‘D.C.
1 See State Implementation Plans: Response to
Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460
(February 22, 2013).
2 See SNPR (‘‘State Implementation Plans:
Response to Petition for Rulemaking; Findings of
Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown and Malfunction;
Supplemental Proposal To Address Affirmative
Defense Provisions in States Included in the
Petition for Rulemaking and in Additional States;
Supplemental notice of proposed rulemaking,’’ 79
FR 55919, September 17, 2014).
3 Findings of Failure To Submit State
Implementation Plan Revisions in Response to the
2015 Findings of Substantial Inadequacy and SIP
Calls To Amend Provisions Applying To Excess
Emissions During Periods of Startup, Shutdown,
and Malfunction, 87 FR 1680 (January 12, 2022),
available at Regulations.gov, Docket ID No. EPA–
HQ–OAR–2021–0863.
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84323
Circuit decision’’).4 The case was a
consolidated set of petitions for review
of the 2015 SSM SIP Action. The Court
granted the petitions in part, vacating
the SIP call with respect to SIP
provisions that EPA identified as
automatic exemptions, director’s
discretion provisions, and affirmative
defenses that are functionally
exemptions; and denied the petitions as
to other provisions that EPA identified
as overbroad enforcement discretion
provisions, or affirmative defense
provisions that would preclude or limit
a court from imposing relief in the case
of violations, which the Court also refers
to as ‘‘specific relief.’’
With respect to affirmative defense
provisions against specific relief, the
Court reaffirmed that states cannot limit
courts’ discretion to determine and
apply appropriate civil penalties for
violations of SIPs and denied the
petitions for review as to affirmative
defenses against monetary damages.5
This is in keeping with the EPA’s
interpretation of the CAA in our 2015
SSM SIP Action that states do not have
authority to create, and thus the EPA
does not have authority to approve, SIP
provisions that include an affirmative
defense that would operate to alter the
jurisdiction of Federal courts to assess
penalties or other forms of relief
authorized in sections 113 and 304.6 As
explained in the 2015 SSM SIP Action,
WAC 173–400–107 provides affirmative
defenses that operate to limit the
jurisdiction of the Federal court in an
enforcement action to assess monetary
penalties or impose injunctive relief
under certain circumstances as
contemplated in CAA sections 113 and
304.7
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).
EFSEC air quality regulations primarily
adopt by reference Ecology’s general air
quality regulations, including WAC
173–400–107. Thus, in our 2015 SSM
SIP Action, the EPA also issued a SIP
call with respect to EFSEC’s adoption by
reference of WAC 173–400–107 in WAC
463–39–005.8
In response to the EPA’s 2015 SSM
SIP call, Ecology removed WAC 173–
400–107 from the SIP. The EPA
approved this SIP revision, along with
4 See Environ. Comm. Fl. Elec. Power v. EPA, 94
F.4th 77, 115 (D.C. Cir. 2024).
5 Id. at 114–15.
6 As stated in our supplemental notice of
proposed rulemaking 79 FR 55920 at 55929. See
also 80 FR 33840 at 33853, 33870.
7 See 79 FR 55920 at 55952. See also 80 FR 33974.
8 See 80 FR 33840, June 12, 2015.
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others, on December 28, 2023 (88 FR
89582). In its June 15, 2023 SIP
submittal, Washington is, among other
revisions, removing adoption by
reference of WAC 173–400–107 in
EFSEC’s regulations.
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II. Analysis of SIP Submission
A. The Provision Subject to the 2015
SSM SIP Call
In the 2015 SSM SIP Action, the EPA
identified WAC 463–39–005 as
inconsistent with CAA requirements
because it contained adoption by
reference of WAC 173–400–107. The
EPA last approved EFSEC’s adoption by
reference of WAC 173–400–107 on May
23, 1996 (61 FR 25791). In 2015, EFSEC
recodified 463–39 as 463–78 but
otherwise retained the adoption by
reference of WAC 173–400–107. The
EPA approved this ministerial change,
among other revisions, on May 30, 2017,
(82 FR 24531) and January 24, 2020, (85
FR 4233). Accordingly, the June 15,
2023, SIP submittal references EFSEC’s
adoptions by reference in WAC 463–78
rather than the WAC 463–39 referenced
in the 2015 SSM SIP call.
Subsequent to the EPA’s January 2022
FFS, Washington submitted a SIP
revision on June 15, 2023, that removed
the EFSEC’s adoption by reference of
WAC 173–400–107 in its entirety and
included additional revisions to the SIP
for EFSEC’s jurisdiction.
We reviewed Washington’s June 15,
2023 SIP submittal and found the
submission technically and
administratively complete. We
subsequently issued a completeness
determination letter to Washington on
August 8, 2023.9 This completeness
determination stopped the 18-month
sanctions clock for EFSEC’s jurisdiction
that was started by the 2022 FFS. This
completeness determination did not
address the other SIP revisions included
in the June 15, 2023 SIP submittal.
The EPA has assessed the impact of
the D.C. Circuit decision with respect to
the removal of the specific affirmative
defense provision at issue in WAC 173–
400–107. We have concluded that the
previously stated reasons for the
proposed removal of these provisions,
as articulated in the 2015 SSM SIP
Action, are consistent with the recent
D.C. Circuit decision. The Court upheld
the EPA’s 2015 SSM SIP Action with
regard to affirmative defenses against
specific relief, finding that because CAA
304(a) and 113(b) authorize citizens and
the EPA to seek injunctive relief and
9 See 301_EFSEC SSM SIP Call FFS Completeness
Letter.pdf, included in the docket for this action.
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monetary penalties against sources that
violate a SIP’s emission rules, such an
affirmative defense would ‘‘block that
aspect of the Act’s enforcement
regime.’’ 10
We are proposing to find that the
removal of EFSEC’s adoption by
reference of WAC 173–400–107 in WAC
463–78–005 from the Washington SIP
will satisfy the 2015 SSM SIP call as it
will no longer provide an affirmative
defense that may operate to limit the
jurisdiction of the Federal court in an
enforcement action.
B. Additional SIP Revisions Submitted
But Not Specified in the 2015 SSM SIP
Call
Washington also included SIP
revisions in the June 15, 2023 SIP
submittal that are not subject to the
2015 SSM SIP call. On July 26, 2024,
Washington submitted a letter dated
July 24, 2024, to the EPA withdrawing
certain other SIP revisions not subject to
the 2015 SSM SIP call.11 Therefore, the
EPA is not proposing action on the
withdrawn provisions and will not
cover them in this analysis. The
remaining SIP revisions for which we
are proposing action: correct a
typographical error; establish the
process for defining facility-specific
alternate emission standards; remove
excess emission provisions not
consistent with the EPA’s 2015 SSM
policy; revise cross-references as
necessary to align with updates to the
analogous Federal laws or the EPA’s
2015 SSM policy; and remove some
provisions in deference to equally or
more stringent relevant Federal laws.
Many of the revisions are conditioned to
only take effect upon the effective date
of the EPA’s removal of WAC 173–400–
107 from the Washington SIP. The EPA
approved identical revisions to WAC
173–400 applicable to Ecology’s
jurisdiction on December 28, 2023 (88
FR 89582). See the preamble to the
EPA’s June 15, 2023, proposed rule for
a full explanation of these rule
revisions. Washington also requested
the EPA correct a typographical error in
the SIP regarding a state effective date.
The additional revisions included in
the June 15, 2023 SIP submittal that
were not specified in the 2015 SSM SIP
call or 2022 FFS were adopted in two
different state rulemaking actions in
2018 for provisions in WAC 173–400,
10 See
94 F.4th at 114–15.
201_state submittal supplement_EFSEC
Partial Withdrawal Request Letter - Ecology.pdf and
202_state submittal supplement_EFSEC Partial
Withdrawal Request Letter - EFSEC.pdf included in
the docket for this action.
11 See
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General Air Regulations for Air
Pollution Sources.
WAC 173–400, General Air
Regulations for Air Pollution Sources. In
its June 15, 2023, SIP submittal,
Washington requested approval of
revisions to WAC 173–030, Definitions;
WAC 173–400–070, Emission standards
for certain source categories; WAC 173–
400–081, Startup and Shutdown; WAC
173–400–082, Alternative emission
limit that exceeds an emission standard
in the SIP; WAC 173–400–107, Excess
emissions; WAC 173–400–136, Use of
Emission Reduction Credits (ERC); and
WAC 173–400–171, Public involvement.
Many of the revisions are nonsubstantive changes.
WAC 173–400–030, Definitions. As
described in our most recent approval of
WAC 173–400–030 (88 FR 89582,
December 28, 2023) which EFSEC
adopts by reference: Washington revised
this section to aid in implementation of
provisions such as those addressing
transient (short-term) modes of
operation, including startup and
shutdown, and to clarify commonly
used ‘terms of art’ (such as ‘‘hog
fuel’’).12 Most definitions in WAC 173–
400–030 remain unchanged since our
last approval; 13 however, the addition
of new definitions resulted in changes
to the numbering sequence. Even
though the text of those definitions
remains as approved, the state effective
date changed to reflect the numbering
sequence changes. Therefore,
Washington requested the EPA approve
all of WAC 173–400–030 as submitted
on June 15, 2023, except definition (96)
related to toxic air pollutants or odors,
because it is outside the scope of CAA
section 110 requirements for SIPs.14 A
complete redline/strikeout analysis of
the updated definitions in WAC 173–
400–030 is included in the docket for
this action.15 Updating the state
effective date for those definitions in
WAC 173–400–030 previously approved
into Washington’s SIP that remain
unchanged will have no effect on
emissions.
12 For more details, see Chapter 2 of Washington’s
November 12, 2019, submission, included in the
docket for this action as 102_state submittal_SIP_
SSM_400_405_410_415.pdf.
13 EPA reviewed those definitions and approved
them in a previous action (85 FR 4233, January 20,
2020).
14 Definition (96) was excluded for the same
reasons in our January 20, 2020 approval (88 FR
4233).
15 See Appendix C in 104_state submittal_
Publication 19-02-030.pdf, included in the docket
for this action.
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The two revisions to existing
definitions in WAC 173–400–030 were
to:
(32) 16 ‘‘Excess emissions’’: to clarify
that the term also includes emissions
above limits established in permits or
orders, including alternative emission
limits. This definition comports with
our 2015 SSM SIP Action;17 and
(38) 18 ‘‘Federally enforceable’’: to
include emission limitations during
startup and shutdown.
Washington also adopted several new
definitions which are discussed below:
(6) ‘‘ ‘Alternative emission limit’ or
‘limitation’ ’’: to clarify implementation
of the provisions for transient (shortterm) modes of operation such as
startup and shutdown provisions in
WAC 173–400–040(2), 081 and 082,
107, 108 and 109. This definition is
defined substantively the same as in our
2015 SSM SIP Action; 19
(45) ‘‘Hog fuel’’: to define what has
been used as a 1term of art’ for wood
waste, especially hogged wood waste,
utilized for burning and to clarify
implementation of emissions standards
for boilers in WAC 173–400–040(2) and
WAC 173–400–070(2). This definition,
while narrower in scope, is generally in
keeping with the Federal defintion for
biomass or bio-based solid fuel for
boilers and process heaters in the EPA’s
National Emission Standard for
Hazardous Air Pollutants (NESHAP) for
Major Sources: Industrial, Commercial,
and Institutional Boilers and Process
Heaters, codified at 40 CFR part 63,
‘‘Subpart DDDDD’’); 20
(83) ‘‘Shutdown’’ and (89) ‘‘Startup’’:
to clarify the general meanings of the
terms 21 for purposes of implementation
of WAC 173–400.
(97) ‘‘Transient code of operation’’: to
include short-term operating periods,
16 ‘‘Excess Emissions’’ was previously codified as
WAC 173–400–030(30), state effective December 29,
2012. EPA approved the December 29, 2012
versions of Washington’s definitions of ‘‘excess
emissions’’ and ‘‘federally enforceable’’ in a May
30, 2017 action (82 FR 24533). Since that action,
EPA has approved more recent versions of
Washington’s definitions rule, but explicitly
excluded the definitions for ‘‘excess emissions’’ and
federally enforceable’’ from those actions. This
means the 2012 versions of these definitions are
currently effective for purposes of EFSEC’s
jurisdiction in the Washington SIP, and it is those
versions that EPA is proposing to revise in this
action—the same as we did for Ecology’s and
Benton Clean Air Agency’s jurisdiction in our
December 28, 2023 approval (88 FR 89582).
17 See 80 FR 33840, June 12, 2015, specifically
page 33842.
18 ‘‘Federally enforceable’’ was previously
codified as WAC 173–400–030(36), state effective
December 29, 2012.
19 See 80 FR 33840, June 12, 2015, especially page
33912.
20 See specifically 40 CFR 63.7575.
21 40 CFR 63.7575.
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including periods of startup and
shutdown. This term is used for
facilitating development of alternative
emission limitations (AELs) for startup
and shutdown periods, as well as other
short-term modes of operation such as
soot blowing (also known as boiler
lancing), grate cleaning, and refractory
curing, during which a source is unable
to meet otherwise applicable emissions
limits;
(100) ‘‘Useful thermal energy’’: to
clarify the general meanings of the terms
for purposes of implementation of WAC
173–400. The definition is nearly
verbatim from, and is substantively the
same as, the EPA’s Boiler NESHAP.22
(103) ‘‘Wigwam’’ or ‘‘silo burner’’:
This definition clarifies the types of
units that are now prohibited under
WAC 173–400–070(1).23
(104) ‘‘Wood-fired boiler’’: to clarify
implementation of regulations tailored
specifically for this unique subset of
boilers. This definition is similar to, but
more narrowly defined than, ‘‘boiler’’ in
40 CFR 63.7575 and in as much as it is
used to regulate boilers, comports with
the Federal CAA.
For the reasons stated above, the EPA
is proposing to approve the above
changes to Washington’s definitions
under WAC 173–400–030 for EFSEC’s
jurisdiction. We approved identical
revisions to WAC 173–400 applicable to
Ecology’s jurisdiction on December 28,
2023 (88 FR 89582).
WAC 173–400–070, Emission
standards for certain source categories.
Most subsections apply to source
categories not regulated by EFSEC, the
EPA previously only approved
subsection (5) Catalytic Cracking Units
into the SIP for EFSEC’s jurisdiction (82
FR 24533, May 30, 2017). EFSEC is now
requesting removal of their adoption by
reference of WAC 173–400–070 in the
SIP because subsection (5) is obsolete
and to reduce unnecessary duplication
of Federal requirements as
corresponding Federal regulations,
which the State adopts by reference,
have more stringent requirements.24 For
22 See
specifically 40 CFR 63.7575 and 63.11237.
these definitions to WAC 173–400–030
does not constitute a prohibition, rather it is for
clarification purposes as the terms were not defined
elsewhere in WAC 173–400. However, the terms are
used in WAC 173–400–070(1) which previously
allowed the use of these units for disposal burning
of waste wood. Revisions in the June 15, 2023 SIP
submittal prohibit their use as of January 1, 2020.
24 EPA approved removal of WAC 173–400–
070(5) Catalytic Cracking Units on December 28,
2023, (88 FR 89582) because the Federal rule (40
CFR 60.102a) Washingtons adopts by reference in
WAC 173–400–115 has more stringent requirements
for catalytic cracking units than the requirements in
the deleted rule. This Federal rule (40 CFR 60.102a)
sets a particulate matter emission standard of 0.040
grains/dscf standard, which is significantly more
23 Adding
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84325
these reasons, the EPA is proposing to
approve the removal of WAC 173–400–
070 for EFSEC’s jurisdiction.
WAC 173–400–081, Emission limits
during startup and shutdown. As
described in our most recent approval of
WAC 173–400–081 (88 FR 89582,
December 28, 2023) which EFSEC
adopts by reference: this section
establishes a case-by-case technologybased permitting pathway for
establishing startup and shutdown
AELs. Numerous non-substantive
changes were made to clarify
applicability and requirements
associated with establishing AELs. The
most substantive change is the addition
of (4)(b) which requires the permitting
authority comply with the applicable
requirements in WAC 173–400–082.
Under WAC 173–400–081(4)(a), if an
emission limitation or other parameter
created increases allowable emissions
over levels already authorized in
Washington’s SIP, it will not take effect
unless it is approved by the EPA as a
SIP amendment. For these reasons, EPA
is proposing to approve the submitted
revisions to WAC 173–400–081 for
EFSEC’s jurisdiction.
WAC 173–400–082 Alternative
emission limit that exceeds an emission
standard in the SIP. As described in our
most recent approval of WAC 173–400–
082 (88 FR 89582, December 28, 2023)
which EFSEC adopts by reference: this
is an entirely new section establishing a
process for an owner or operator to
request—and the State to approve via a
regulatory order—an alternative
emission limit that would apply during
a specified transient mode of operation.
This process was designed to establish
AELs that meet the seven criteria
discussed above. Any AEL established
under this section only applies to the
specified emissions units at the facility
requesting the regulatory order.
Moreover, any such AEL only goes into
effect if the EPA approves the new limit
into the SIP. For these reasons, the EPA
is proposing to approve the submitted
revisions to WAC 173–400–082 for
EFSEC’s jurisdiction.
WAC 173–400–136 Use of Emission
Reduction Credits (ERC). The EPA’s
May 30, 2017 (82 FR 24531) approval of
EFSEC’s adoption by reference errantly
listed April 1, 2011, as the state effective
date. The EPA is proposing to correct
the state effective date to read December
stringent than the deleted rule that sets it at 0.20
grains/dscf. Similarly, 40 CFR 60.102a (d) provides
a formula for setting site-specific opacity limits
based on the PM emission rate measured during a
source test. We expect this to be lower because of
the more stringent PM standard. We deleted this
subsection to simplify compliance by reducing
duplication of the Federal requirements in our rule.
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ddrumheller on DSK120RN23PROD with PROPOSALS1
29, 2012, consistent with our November
7, 2014 (79 FR 66291) approval for
Ecology’s direct jurisdiction.
WAC 173–400–171 Public notice and
opportunity for public comment. As
described in our most recent approval of
WAC 173–400–171 (88 FR 89582,
December 28, 2023) which EFSEC
adopts by reference: while many
changes were made to this section, the
only substantive change is the addition
of (3)(o) which requires mandatory
public comment periods for orders
(permits) establishing AELs under WAC
173–400–081 or –082 that exceed
otherwise SIP applicable limits. For
these reasons, the EPA is proposing to
approve the submitted revisions to WAC
173–400–171 for EFSEC’s jurisdiction.
III. Proposed Action
The EPA is proposing to approve and
incorporate by reference into the
Washington SIP the revisions
Washington submitted on June 15, 2023,
except for those withdrawn by
Washington.25 This action includes
removal of WAC 173–400–107—the
provision identified as inconsistent with
CAA requirements in our 2015 SSM SIP
call—from the Washington SIP for
EFSEC’s jurisdiction, as well as
incorporate by reference at 40 CFR
52.2470(c)—Table 3—Additional
Regulations Approved for the Energy
Facilities Site Evaluation Council
(EFSEC) Jurisdiction, the following
revised regulations:
• WAC 173–400–030, Definitions,
(state effective September 16, 2018);
• WAC 173–400–070, Emission
standards for certain source categories,
(state effective September 16, 2018);
• WAC 173–400–081 Emission limits
during startup and shutdown, (state
effective September 16, 2018);
• WAC 173–400–082 Alternative
emission limit that exceeds an emission
standard in the SIP, (state effective
September 16, 2018);
• WAC 173–400–136 Use of Emission
Reduction Credits (ERC), (state effective
December 29, 2012); and
• WAC 173–400–171 Public Notice
and Opportunity for Public Comment,
(state effective September 16, 2018).
The proposed revisions, upon
finalization, will apply specifically to
the jurisdiction of the Washington State
Energy Facility Site Evaluation Council.
IV. Incorporation by Reference
In this document, EPA proposes to
include in a final rule, regulatory text
25 See 201_state submittal supplement_EFSEC
Partial Withdrawal Request Letter - Ecology.pdf and
202_state submittal supplement_EFSEC Partial
Withdrawal Request Letter - EFSEC.pdf included in
the docket for this action.
VerDate Sep<11>2014
16:51 Oct 21, 2024
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that includes incorporation by
reference. In accordance with the
requirements of 1 CFR 51.5, EPA
proposes to incorporate by reference the
provisions described in sections II and
III of this document. EPA is also
proposing to remove regulatory text as
described in sections II and III of this
document that includes incorporation
by reference. In accordance with
requirements of 1 CFR 51.5, EPA
proposes to remove WAC 173–400–107
from the incorporation by reference at
40 CFR 52.2470. EPA has made, and
will continue to make, these documents
generally available through https://
www.regulations.gov and at the EPA
Region 10 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
V. Statutory and Executive Orders
Review
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
• 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 subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a state program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
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• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA.
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. 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.’’ 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 air agency did not
evaluate environmental justice
considerations as part of its SIP
submittal; the CAA and applicable
implementing regulations neither
prohibit nor require such an evaluation.
EPA did not perform an EJ analysis and
did not consider EJ in this action. Due
to the nature of the action being taken
here, this action is expected to have a
neutral to positive impact on the air
quality of the affected area.
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 E.O. 12898 of
achieving environmental justice for
communities with EJ concerns.
The SIP is not approved to apply on
any Indian reservation land in
Washington except as specifically noted
below and is also not approved to apply
in any other area where the EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
Washington’s SIP is approved to apply
on non-trust land within the exterior
boundaries of the Puyallup Indian
Reservation, also known as the 1873
Survey Area. Under the Puyallup Tribe
of Indians Settlement Act of 1989, 25
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U.S.C. 1773, Congress explicitly
provided state and local agencies in
Washington authority over activities on
non-trust lands within the 1873 Survey
Area.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
VerDate Sep<11>2014
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Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: October 11, 2024.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2024–24211 Filed 10–21–24; 8:45 am]
BILLING CODE 6560–50–P
Authority: 42 U.S.C. 7401 et seq.
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]]>Agencies
[Federal Register Volume 89, Number 204 (Tuesday, October 22, 2024)]
[Proposed Rules]
[Pages 84322-84327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24211]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2024-0372; FRL-12293-01-R10]
Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and
Malfunction Revisions, Energy Facility Site Evaluation Council
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve Washington State Implementation Plan (SIP) revisions to the
Energy Facility Site Evaluation Council (EFSEC) air quality regulations
submitted by the State of Washington, through the Department of Ecology
(Ecology) on June 15, 2023. The revisions were submitted in response to
EPA's June 12, 2015 ``SIP call'' in which the EPA found a substantially
inadequate Washington SIP provision providing affirmative defenses that
operate to limit the jurisdiction of the Federal court in an
enforcement action related to excess emissions during startup,
shutdown, and malfunction (SSM) events. The EPA is proposing approval
of the SIP revisions and proposing to determine that removal of the
substantially
[[Page 84323]]
inadequate provision corrects the EFSEC deficiency identified in the
2015 SSM SIP call and the EPA's January 2022 finding of failure to
submit. Washington withdrew some portions of the revisions submitted
that were not identified in the 2015 SSM SIP call and therefore the EPA
is not proposing action on those withdrawn portions.
DATES: Comments must be received on or before November 21, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2024-0372, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not electronically submit any
information you consider to be Confidential Business Information (CBI)
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. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10 1200
Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' or
``our,'' is used, it refers to EPA.
Table of Contents
I. Background
II. Analysis of SIP Submission
A. The Provision Subject to the 2015 SSM SIP Call
B. Additional SIP Revisions Submitted But Not Specified in the
2015 SSM SIP Call
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review
I. Background
On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA
finalized ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' (80 FR 33840, June 12, 2015), hereinafter
referred to as the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action
clarified, restated, and updated EPA's interpretation that SSM
exemption and affirmative defense SIP provisions are inconsistent with
CAA requirements. The 2015 SSM SIP Action found that certain SIP
provisions in 36 states (including Washington State) were substantially
inadequate to meet CAA requirements and issued a SIP call to those
states to submit SIP revisions to address the inadequacies. EPA
established an 18-month deadline by which the affected states had to
submit such SIP revisions. States were required to submit corrective
revisions to their SIPs in response to the SIP calls by November 22,
2016.
With regard to the Washington SIP, EPA determined that, to the
extent that Wash. Admin. Code (WAC) 173-400-107 was intended to be an
affirmative defense, it was not consistent with the requirements of the
CAA. Therefore, EPA issued a SIP call with respect to this provision.
The detailed rationale for issuing the SIP call to Washington can be
found in the 2015 SSM SIP Action and preceding proposed
actions.1 2
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\1\ See State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
\2\ See SNPR (``State Implementation Plans: Response to Petition
for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental Proposal To Address
Affirmative Defense Provisions in States Included in the Petition
for Rulemaking and in Additional States; Supplemental notice of
proposed rulemaking,'' 79 FR 55919, September 17, 2014).
---------------------------------------------------------------------------
On January 12, 2022, the EPA issued Findings of Failure to Submit
(FFS) to 12 air agencies, including EFSEC, that had not submitted SIPs
responding to the 2015 SSM SIP call by the November 22, 2016, deadline
per the requirements of section 110(k)(5) of the Act.\3\
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\3\ Findings of Failure To Submit State Implementation Plan
Revisions in Response to the 2015 Findings of Substantial Inadequacy
and SIP Calls To Amend Provisions Applying To Excess Emissions
During Periods of Startup, Shutdown, and Malfunction, 87 FR 1680
(January 12, 2022), available at Regulations.gov, Docket ID No. EPA-
HQ-OAR-2021-0863.
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On March 1, 2024, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) issued a decision in
Environ. Comm. Fl. Elec. Power v. EPA, No. 15-1239 (``D.C. Circuit
decision'').\4\ The case was a consolidated set of petitions for review
of the 2015 SSM SIP Action. The Court granted the petitions in part,
vacating the SIP call with respect to SIP provisions that EPA
identified as automatic exemptions, director's discretion provisions,
and affirmative defenses that are functionally exemptions; and denied
the petitions as to other provisions that EPA identified as overbroad
enforcement discretion provisions, or affirmative defense provisions
that would preclude or limit a court from imposing relief in the case
of violations, which the Court also refers to as ``specific relief.''
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\4\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115
(D.C. Cir. 2024).
---------------------------------------------------------------------------
With respect to affirmative defense provisions against specific
relief, the Court reaffirmed that states cannot limit courts'
discretion to determine and apply appropriate civil penalties for
violations of SIPs and denied the petitions for review as to
affirmative defenses against monetary damages.\5\ This is in keeping
with the EPA's interpretation of the CAA in our 2015 SSM SIP Action
that states do not have authority to create, and thus the EPA does not
have authority to approve, SIP provisions that include an affirmative
defense that would operate to alter the jurisdiction of Federal courts
to assess penalties or other forms of relief authorized in sections 113
and 304.\6\ As explained in the 2015 SSM SIP Action, WAC 173-400-107
provides affirmative defenses that operate to limit the jurisdiction of
the Federal court in an enforcement action to assess monetary penalties
or impose injunctive relief under certain circumstances as contemplated
in CAA sections 113 and 304.\7\
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\5\ Id. at 114-15.
\6\ As stated in our supplemental notice of proposed rulemaking
79 FR 55920 at 55929. See also 80 FR 33840 at 33853, 33870.
\7\ See 79 FR 55920 at 55952. See also 80 FR 33974.
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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). EFSEC air
quality regulations primarily adopt by reference Ecology's general air
quality regulations, including WAC 173-400-107. Thus, in our 2015 SSM
SIP Action, the EPA also issued a SIP call with respect to EFSEC's
adoption by reference of WAC 173-400-107 in WAC 463-39-005.\8\
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\8\ See 80 FR 33840, June 12, 2015.
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In response to the EPA's 2015 SSM SIP call, Ecology removed WAC
173-400-107 from the SIP. The EPA approved this SIP revision, along
with
[[Page 84324]]
others, on December 28, 2023 (88 FR 89582). In its June 15, 2023 SIP
submittal, Washington is, among other revisions, removing adoption by
reference of WAC 173-400-107 in EFSEC's regulations.
II. Analysis of SIP Submission
A. The Provision Subject to the 2015 SSM SIP Call
In the 2015 SSM SIP Action, the EPA identified WAC 463-39-005 as
inconsistent with CAA requirements because it contained adoption by
reference of WAC 173-400-107. The EPA last approved EFSEC's adoption by
reference of WAC 173-400-107 on May 23, 1996 (61 FR 25791). In 2015,
EFSEC recodified 463-39 as 463-78 but otherwise retained the adoption
by reference of WAC 173-400-107. The EPA approved this ministerial
change, among other revisions, on May 30, 2017, (82 FR 24531) and
January 24, 2020, (85 FR 4233). Accordingly, the June 15, 2023, SIP
submittal references EFSEC's adoptions by reference in WAC 463-78
rather than the WAC 463-39 referenced in the 2015 SSM SIP call.
Subsequent to the EPA's January 2022 FFS, Washington submitted a
SIP revision on June 15, 2023, that removed the EFSEC's adoption by
reference of WAC 173-400-107 in its entirety and included additional
revisions to the SIP for EFSEC's jurisdiction.
We reviewed Washington's June 15, 2023 SIP submittal and found the
submission technically and administratively complete. We subsequently
issued a completeness determination letter to Washington on August 8,
2023.\9\ This completeness determination stopped the 18-month sanctions
clock for EFSEC's jurisdiction that was started by the 2022 FFS. This
completeness determination did not address the other SIP revisions
included in the June 15, 2023 SIP submittal.
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\9\ See 301_EFSEC SSM SIP Call FFS Completeness Letter.pdf,
included in the docket for this action.
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The EPA has assessed the impact of the D.C. Circuit decision with
respect to the removal of the specific affirmative defense provision at
issue in WAC 173-400-107. We have concluded that the previously stated
reasons for the proposed removal of these provisions, as articulated in
the 2015 SSM SIP Action, are consistent with the recent D.C. Circuit
decision. The Court upheld the EPA's 2015 SSM SIP Action with regard to
affirmative defenses against specific relief, finding that because CAA
304(a) and 113(b) authorize citizens and the EPA to seek injunctive
relief and monetary penalties against sources that violate a SIP's
emission rules, such an affirmative defense would ``block that aspect
of the Act's enforcement regime.'' \10\
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\10\ See 94 F.4th at 114-15.
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We are proposing to find that the removal of EFSEC's adoption by
reference of WAC 173-400-107 in WAC 463-78-005 from the Washington SIP
will satisfy the 2015 SSM SIP call as it will no longer provide an
affirmative defense that may operate to limit the jurisdiction of the
Federal court in an enforcement action.
B. Additional SIP Revisions Submitted But Not Specified in the 2015 SSM
SIP Call
Washington also included SIP revisions in the June 15, 2023 SIP
submittal that are not subject to the 2015 SSM SIP call. On July 26,
2024, Washington submitted a letter dated July 24, 2024, to the EPA
withdrawing certain other SIP revisions not subject to the 2015 SSM SIP
call.\11\ Therefore, the EPA is not proposing action on the withdrawn
provisions and will not cover them in this analysis. The remaining SIP
revisions for which we are proposing action: correct a typographical
error; establish the process for defining facility-specific alternate
emission standards; remove excess emission provisions not consistent
with the EPA's 2015 SSM policy; revise cross-references as necessary to
align with updates to the analogous Federal laws or the EPA's 2015 SSM
policy; and remove some provisions in deference to equally or more
stringent relevant Federal laws. Many of the revisions are conditioned
to only take effect upon the effective date of the EPA's removal of WAC
173-400-107 from the Washington SIP. The EPA approved identical
revisions to WAC 173-400 applicable to Ecology's jurisdiction on
December 28, 2023 (88 FR 89582). See the preamble to the EPA's June 15,
2023, proposed rule for a full explanation of these rule revisions.
Washington also requested the EPA correct a typographical error in the
SIP regarding a state effective date.
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\11\ See 201_state submittal supplement_EFSEC Partial Withdrawal
Request Letter - Ecology.pdf and 202_state submittal
supplement_EFSEC Partial Withdrawal Request Letter - EFSEC.pdf
included in the docket for this action.
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The additional revisions included in the June 15, 2023 SIP
submittal that were not specified in the 2015 SSM SIP call or 2022 FFS
were adopted in two different state rulemaking actions in 2018 for
provisions in WAC 173-400, General Air Regulations for Air Pollution
Sources.
WAC 173-400, General Air Regulations for Air Pollution Sources. In
its June 15, 2023, SIP submittal, Washington requested approval of
revisions to WAC 173-030, Definitions; WAC 173-400-070, Emission
standards for certain source categories; WAC 173-400-081, Startup and
Shutdown; WAC 173-400-082, Alternative emission limit that exceeds an
emission standard in the SIP; WAC 173-400-107, Excess emissions; WAC
173-400-136, Use of Emission Reduction Credits (ERC); and WAC 173-400-
171, Public involvement. Many of the revisions are non-substantive
changes.
WAC 173-400-030, Definitions. As described in our most recent
approval of WAC 173-400-030 (88 FR 89582, December 28, 2023) which
EFSEC adopts by reference: Washington revised this section to aid in
implementation of provisions such as those addressing transient (short-
term) modes of operation, including startup and shutdown, and to
clarify commonly used `terms of art' (such as ``hog fuel'').\12\ Most
definitions in WAC 173-400-030 remain unchanged since our last
approval; \13\ however, the addition of new definitions resulted in
changes to the numbering sequence. Even though the text of those
definitions remains as approved, the state effective date changed to
reflect the numbering sequence changes. Therefore, Washington requested
the EPA approve all of WAC 173-400-030 as submitted on June 15, 2023,
except definition (96) related to toxic air pollutants or odors,
because it is outside the scope of CAA section 110 requirements for
SIPs.\14\ A complete redline/strikeout analysis of the updated
definitions in WAC 173-400-030 is included in the docket for this
action.\15\ Updating the state effective date for those definitions in
WAC 173-400-030 previously approved into Washington's SIP that remain
unchanged will have no effect on emissions.
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\12\ For more details, see Chapter 2 of Washington's November
12, 2019, submission, included in the docket for this action as
102_state submittal_SIP_SSM_400_405_410_415.pdf.
\13\ EPA reviewed those definitions and approved them in a
previous action (85 FR 4233, January 20, 2020).
\14\ Definition (96) was excluded for the same reasons in our
January 20, 2020 approval (88 FR 4233).
\15\ See Appendix C in 104_state submittal_Publication 19-02-
030.pdf, included in the docket for this action.
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[[Page 84325]]
The two revisions to existing definitions in WAC 173-400-030 were
to:
(32) \16\ ``Excess emissions'': to clarify that the term also
includes emissions above limits established in permits or orders,
including alternative emission limits. This definition comports with
our 2015 SSM SIP Action; \17\ and
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\16\ ``Excess Emissions'' was previously codified as WAC 173-
400-030(30), state effective December 29, 2012. EPA approved the
December 29, 2012 versions of Washington's definitions of ``excess
emissions'' and ``federally enforceable'' in a May 30, 2017 action
(82 FR 24533). Since that action, EPA has approved more recent
versions of Washington's definitions rule, but explicitly excluded
the definitions for ``excess emissions'' and federally enforceable''
from those actions. This means the 2012 versions of these
definitions are currently effective for purposes of EFSEC's
jurisdiction in the Washington SIP, and it is those versions that
EPA is proposing to revise in this action--the same as we did for
Ecology's and Benton Clean Air Agency's jurisdiction in our December
28, 2023 approval (88 FR 89582).
\17\ See 80 FR 33840, June 12, 2015, specifically page 33842.
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(38) \18\ ``Federally enforceable'': to include emission
limitations during startup and shutdown.
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\18\ ``Federally enforceable'' was previously codified as WAC
173-400-030(36), state effective December 29, 2012.
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Washington also adopted several new definitions which are discussed
below:
(6) `` `Alternative emission limit' or `limitation' '': to clarify
implementation of the provisions for transient (short-term) modes of
operation such as startup and shutdown provisions in WAC 173-400-
040(2), 081 and 082, 107, 108 and 109. This definition is defined
substantively the same as in our 2015 SSM SIP Action; \19\
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\19\ See 80 FR 33840, June 12, 2015, especially page 33912.
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(45) ``Hog fuel'': to define what has been used as a 1term of art'
for wood waste, especially hogged wood waste, utilized for burning and
to clarify implementation of emissions standards for boilers in WAC
173-400-040(2) and WAC 173-400-070(2). This definition, while narrower
in scope, is generally in keeping with the Federal defintion for
biomass or bio-based solid fuel for boilers and process heaters in the
EPA's National Emission Standard for Hazardous Air Pollutants (NESHAP)
for Major Sources: Industrial, Commercial, and Institutional Boilers
and Process Heaters, codified at 40 CFR part 63, ``Subpart DDDDD'');
\20\
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\20\ See specifically 40 CFR 63.7575.
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(83) ``Shutdown'' and (89) ``Startup'': to clarify the general
meanings of the terms \21\ for purposes of implementation of WAC 173-
400.
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\21\ 40 CFR 63.7575.
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(97) ``Transient code of operation'': to include short-term
operating periods, including periods of startup and shutdown. This term
is used for facilitating development of alternative emission
limitations (AELs) for startup and shutdown periods, as well as other
short-term modes of operation such as soot blowing (also known as
boiler lancing), grate cleaning, and refractory curing, during which a
source is unable to meet otherwise applicable emissions limits;
(100) ``Useful thermal energy'': to clarify the general meanings of
the terms for purposes of implementation of WAC 173-400. The definition
is nearly verbatim from, and is substantively the same as, the EPA's
Boiler NESHAP.\22\
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\22\ See specifically 40 CFR 63.7575 and 63.11237.
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(103) ``Wigwam'' or ``silo burner'': This definition clarifies the
types of units that are now prohibited under WAC 173-400-070(1).\23\
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\23\ Adding these definitions to WAC 173-400-030 does not
constitute a prohibition, rather it is for clarification purposes as
the terms were not defined elsewhere in WAC 173-400. However, the
terms are used in WAC 173-400-070(1) which previously allowed the
use of these units for disposal burning of waste wood. Revisions in
the June 15, 2023 SIP submittal prohibit their use as of January 1,
2020.
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(104) ``Wood-fired boiler'': to clarify implementation of
regulations tailored specifically for this unique subset of boilers.
This definition is similar to, but more narrowly defined than,
``boiler'' in 40 CFR 63.7575 and in as much as it is used to regulate
boilers, comports with the Federal CAA.
For the reasons stated above, the EPA is proposing to approve the
above changes to Washington's definitions under WAC 173-400-030 for
EFSEC's jurisdiction. We approved identical revisions to WAC 173-400
applicable to Ecology's jurisdiction on December 28, 2023 (88 FR
89582).
WAC 173-400-070, Emission standards for certain source categories.
Most subsections apply to source categories not regulated by EFSEC, the
EPA previously only approved subsection (5) Catalytic Cracking Units
into the SIP for EFSEC's jurisdiction (82 FR 24533, May 30, 2017).
EFSEC is now requesting removal of their adoption by reference of WAC
173-400-070 in the SIP because subsection (5) is obsolete and to reduce
unnecessary duplication of Federal requirements as corresponding
Federal regulations, which the State adopts by reference, have more
stringent requirements.\24\ For these reasons, the EPA is proposing to
approve the removal of WAC 173-400-070 for EFSEC's jurisdiction.
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\24\ EPA approved removal of WAC 173-400-070(5) Catalytic
Cracking Units on December 28, 2023, (88 FR 89582) because the
Federal rule (40 CFR 60.102a) Washingtons adopts by reference in WAC
173-400-115 has more stringent requirements for catalytic cracking
units than the requirements in the deleted rule. This Federal rule
(40 CFR 60.102a) sets a particulate matter emission standard of
0.040 grains/dscf standard, which is significantly more stringent
than the deleted rule that sets it at 0.20 grains/dscf. Similarly,
40 CFR 60.102a (d) provides a formula for setting site-specific
opacity limits based on the PM emission rate measured during a
source test. We expect this to be lower because of the more
stringent PM standard. We deleted this subsection to simplify
compliance by reducing duplication of the Federal requirements in
our rule.
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WAC 173-400-081, Emission limits during startup and shutdown. As
described in our most recent approval of WAC 173-400-081 (88 FR 89582,
December 28, 2023) which EFSEC adopts by reference: this section
establishes a case-by-case technology-based permitting pathway for
establishing startup and shutdown AELs. Numerous non-substantive
changes were made to clarify applicability and requirements associated
with establishing AELs. The most substantive change is the addition of
(4)(b) which requires the permitting authority comply with the
applicable requirements in WAC 173-400-082. Under WAC 173-400-
081(4)(a), if an emission limitation or other parameter created
increases allowable emissions over levels already authorized in
Washington's SIP, it will not take effect unless it is approved by the
EPA as a SIP amendment. For these reasons, EPA is proposing to approve
the submitted revisions to WAC 173-400-081 for EFSEC's jurisdiction.
WAC 173-400-082 Alternative emission limit that exceeds an emission
standard in the SIP. As described in our most recent approval of WAC
173-400-082 (88 FR 89582, December 28, 2023) which EFSEC adopts by
reference: this is an entirely new section establishing a process for
an owner or operator to request--and the State to approve via a
regulatory order--an alternative emission limit that would apply during
a specified transient mode of operation. This process was designed to
establish AELs that meet the seven criteria discussed above. Any AEL
established under this section only applies to the specified emissions
units at the facility requesting the regulatory order. Moreover, any
such AEL only goes into effect if the EPA approves the new limit into
the SIP. For these reasons, the EPA is proposing to approve the
submitted revisions to WAC 173-400-082 for EFSEC's jurisdiction.
WAC 173-400-136 Use of Emission Reduction Credits (ERC). The EPA's
May 30, 2017 (82 FR 24531) approval of EFSEC's adoption by reference
errantly listed April 1, 2011, as the state effective date. The EPA is
proposing to correct the state effective date to read December
[[Page 84326]]
29, 2012, consistent with our November 7, 2014 (79 FR 66291) approval
for Ecology's direct jurisdiction.
WAC 173-400-171 Public notice and opportunity for public comment.
As described in our most recent approval of WAC 173-400-171 (88 FR
89582, December 28, 2023) which EFSEC adopts by reference: while many
changes were made to this section, the only substantive change is the
addition of (3)(o) which requires mandatory public comment periods for
orders (permits) establishing AELs under WAC 173-400-081 or -082 that
exceed otherwise SIP applicable limits. For these reasons, the EPA is
proposing to approve the submitted revisions to WAC 173-400-171 for
EFSEC's jurisdiction.
III. Proposed Action
The EPA is proposing to approve and incorporate by reference into
the Washington SIP the revisions Washington submitted on June 15, 2023,
except for those withdrawn by Washington.\25\ This action includes
removal of WAC 173-400-107--the provision identified as inconsistent
with CAA requirements in our 2015 SSM SIP call--from the Washington SIP
for EFSEC's jurisdiction, as well as incorporate by reference at 40 CFR
52.2470(c)--Table 3--Additional Regulations Approved for the Energy
Facilities Site Evaluation Council (EFSEC) Jurisdiction, the following
revised regulations:
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\25\ See 201_state submittal supplement_EFSEC Partial Withdrawal
Request Letter - Ecology.pdf and 202_state submittal
supplement_EFSEC Partial Withdrawal Request Letter - EFSEC.pdf
included in the docket for this action.
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WAC 173-400-030, Definitions, (state effective September
16, 2018);
WAC 173-400-070, Emission standards for certain source
categories, (state effective September 16, 2018);
WAC 173-400-081 Emission limits during startup and
shutdown, (state effective September 16, 2018);
WAC 173-400-082 Alternative emission limit that exceeds an
emission standard in the SIP, (state effective September 16, 2018);
WAC 173-400-136 Use of Emission Reduction Credits (ERC),
(state effective December 29, 2012); and
WAC 173-400-171 Public Notice and Opportunity for Public
Comment, (state effective September 16, 2018).
The proposed revisions, upon finalization, will apply specifically
to the jurisdiction of the Washington State Energy Facility Site
Evaluation Council.
IV. Incorporation by Reference
In this document, EPA proposes to include in a final rule,
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA proposes to incorporate by
reference the provisions described in sections II and III of this
document. EPA is also proposing to remove regulatory text as described
in sections II and III of this document that includes incorporation by
reference. In accordance with requirements of 1 CFR 51.5, EPA proposes
to remove WAC 173-400-107 from the incorporation by reference at 40 CFR
52.2470. EPA has made, and will continue to make, these documents
generally available through https://www.regulations.gov and at the EPA
Region 10 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Orders Review
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11,
2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
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.
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.'' 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 air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
in this action. Due to the nature of the action being taken here, this
action is expected to have a neutral to positive impact on the air
quality of the affected area. 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 E.O. 12898 of achieving
environmental justice for communities with EJ concerns.
The SIP is not approved to apply on any Indian reservation land in
Washington except as specifically noted below and is also not approved
to apply in any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law. Washington's SIP is approved to apply on non-trust land within the
exterior boundaries of the Puyallup Indian Reservation, also known as
the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement
Act of 1989, 25
[[Page 84327]]
U.S.C. 1773, Congress explicitly provided state and local agencies in
Washington authority over activities on non-trust lands within the 1873
Survey Area.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 11, 2024.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2024-24211 Filed 10-21-24; 8:45 am]
BILLING CODE 6560-50-P
