[Federal Register Volume 85, Number 18 (Tuesday, January 28, 2020)]
[Proposed Rules]
[Pages 4921-4928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01465]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2019-0710; FRL-10004-71-Region 10]
Approval and Promulgation of Implementation Plans; Washington;
Puget Sound Clean Air Agency, Regulation I
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Washington State Implementation Plan (SIP)
that were submitted by the Washington Department of Ecology (Ecology)
in coordination with the Puget Sound Clean Air Agency (PSCAA). This
proposed revision would update certain PSCAA regulations currently in
the SIP, remove obsolete regulations, and approve a subset of updated
Ecology regulations to apply in PSCAA's jurisdiction.
DATES: Written comments must be received on or before February 27,
2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0710 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://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, EPA Region 10, 1200 Sixth
Avenue--Suite 155, Seattle, WA 98101, at (206) 553-0256, or
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA. This
SUPPLEMENTARY INFORMATION section is arranged as follows:
Table of Contents
I. Background for Proposed Action
II. Changes to PSCAA Regulation I
A. WSR 04-08-017--Incorporation by Reference of Chapter 173-400
WAC
B. WSR 01-16-034--``Trivial'' Emissions Source Categories
C. WSR 12-01-067--Federally Enforceable Regulatory Orders
III. Application of WAC 173-400-020
IV. The EPA's Proposed Action
A. Regulations To Approve and Incorporate by Reference Into the
SIP
B. Approved But Not Incorporated by Reference Regulations
C. Regulations To Remove From the SIP
D. Scope of Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background for Proposed Action
On January 27, 2014, Ecology submitted revisions to update the
general air quality regulations contained in Chapter 173-400 Washington
Administrative Code (WAC), which the EPA approved in three phases on
October 3, 2014 (79 FR 59653), November 7, 2014 (79 FR 66291), and
April 29, 2015 (80 FR 23721).\1\ Under the revised applicability
provisions of WAC 173-400-020 approved into the SIP on October 3, 2014,
the regulations contained in Chapter 173-400 WAC apply statewide, ``. .
. except for specific subsections where a local authority has adopted
and implemented corresponding local rules that apply only to sources
subject to local jurisdiction as provided under Revised Code of
Washington (RCW) 70.94.141 and 70.94.331.'' \2\ Therefore, the EPA's
approval of Ecology's January 2014 submittal applies only to geographic
areas and source categories under Ecology's direct jurisdiction. We
stated that we would address the revised Chapter 173-400 WAC
regulations as they apply to local clean air agency jurisdictions on a
case-by-case basis in separate, future actions. On December 20, 2019,
the Director of Ecology, as the Governor's designee for SIP revisions,
submitted a request to update the air
[[Page 4922]]
quality regulations in the SIP as they apply to PSCAA's jurisdiction in
40 CFR 52.2470(c), Table 7--Additional Regulations Approved for the
Puget Sound Clean Air Agency (PSCAA) Jurisdiction. PSCAA's jurisdiction
consists of King, Kitsap, Pierce, and Snohomish counties, excluding
certain facilities discussed in section IV.D. Scope of Proposed Action.
PSCAA's jurisdiction also excludes Indian reservation land or any other
area where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction (except non-trust land within the exterior boundaries of
the Puyallup Indian Reservation, as described in section IV.D. Scope of
Proposed Action).
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\1\ In subsequent actions on September 29, 2016 (81 FR 66823)
and October 6, 2016 (81 FR 69385) we made minor corrections to our
previous approval of Chapter 173-400 WAC and approved revised WAC
provisions that incorporated by reference the most recent changes to
the federal regulations.
\2\ For a more detailed discussion see page 39352 of the EPA's
proposed approval of WAC 173-400-020 (79 FR 39351, July 10, 2014).
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Appendix A of the SIP revision shows how the submitted regulatory
updates would apply to PSCAA's jurisdiction. These revisions can be
summarized in three general categories, which are discussed in more
detail in sections II and III. The first category consists of updates
to the PSCAA Regulation I provisions currently in the SIP. These
updated provisions apply in lieu of, or serve as a supplement to, the
statewide Chapter 173-400 WAC provisions, as shown in Table 1. The
second category consists of those parts of Chapter 173-400 WAC
incorporated by reference in Regulation I. The EPA's proposed approval
of the Chapter 173-400 WAC provisions incorporated by reference in
Regulation I would be subject to the same exceptions that apply to
Ecology's direct jurisdiction, as shown in Table 2. For example, as
part of the January 2014 submittal of Chapter 173-400 WAC, Ecology did
not submit for approval those provisions related to the regulation of
toxic air pollutants, because such provisions are outside the scope of
SIPs under Clean Air Act (CAA) section 110. The last category consists
of certain parts of Chapter 173-400 WAC which do not have a direct
corollary under PSCAA Regulation I, nor are they incorporated by
reference in Regulation I. In these cases, Ecology and PSCAA requested
that the EPA revise the SIP to include the most recently approved
updates to Chapter 173-400 WAC to apply in PSCAA's jurisdiction, as
shown in Table 3.
II. Changes to PSCAA Regulation I
The EPA last approved updates to PSCAA Regulation I on September
17, 2013 (78 FR 57073); however, many of the SIP-approved provisions
relating to pre-construction permitting of new and modified stationary
sources (called the new source review or NSR permitting program) date
back to the 1990s.\3\ PSCAA's updates to Regulation I are documented in
the Washington State Register (WSR) entries included in the docket for
this action. Each WSR gives a redline/strikeout of changes to the
regulations, with a brief summary describing the purpose of the
changes. Additional information can also be found in the proposed WSR
actions.\4\ The majority of changes over the years were routine in
nature, such as revising the regulations to account for inflation,
incorporating revised federal regulations, or generally revising the
regulatory language for clarity. The EPA's complete line by line review
of changes to the PSCAA regulations is included in the docket for this
action, and will not be described in detail here.\5\ The three most
significant changes to PSCAA Regulation I are discussed below.
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\3\ See 59 FR 44324 (August 29, 1994), 60 FR 33734 (June 29,
1995), 62 FR 42216 (August 6, 1997), and 63 FR 19658 (April 21,
1998).
\4\ http://lawfilesext.leg.wa.gov/law/wsr/agency/PugetSoundCleanAirAgency.htm.
\5\ See ``Puget Sound comparison_IBR_old vs current.pdf'' and
``Puget Sound comparison_not IBR_old vs. current.pdf'' included in
the docket.
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A. WSR 04-08-017--Incorporation by Reference of Chapter 173-400 WAC
On March 25, 2004 (WSR 04-08-017), PSCAA made a major overhaul of
Regulation I in order to rely on the statewide NSR permitting program
requirements contained in Chapter 173-400 WAC promulgated by Ecology.
PSCAA's stated purpose was, ``To create a more consistent notice of
construction process throughout the state of Washington and to
facilitate the United States Environmental Protection Agency's approval
of the state implementation plan.'' PSCAA created a new section 6.01
``Components of a New Source Review Program'' which generally
incorporates by reference the NSR permitting provisions contained in
Chapter 173-400 WAC, as shown in Table 2. PSCAA also revised or
repealed sections of Regulation I that were duplicative of the WAC and
therefore obsolete.\6\ This included deleting most of the NSR-related
definitions in Regulation I, section 1.07 in order to rely on the
definitions incorporated by reference in WAC 173-400-030. PSCAA also
repealed sections 6.06 ``Public Notice,'' 6.07 ``Order of Approval--
Order to Prevent Construction,'' and 6.08 ``Emission Reduction Credit
Banking'' to rely on the corollaries in the WAC, including WAC 173-400-
171 ``Public notice and opportunity for public comment,'' WAC 173-400-
111 ``Processing notice of construction applications for sources,
stationary sources and portable sources,'' WAC 173-400-131 ``Issuance
of emission reduction credits,'' WAC 173-400-136 ``Use of emission
reduction credits (ERC),'' and WAC 173-400-840 ``Emission offset
requirements.'' Lastly, PSCAA made minor updates to the cross
references in Regulation I, sections 3.04, 6.03, 6.09, 9.03, 9.04,
9.08, and 12.03 to reflect the revised regulatory structure.
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\6\ WAC 173-400-110(1)(c)(ii), which PSCAA has not adopted,
makes clear that the term ``new source'' includes a modification to
an existing source. However, PSCAA has adopted Ecology's definition
of ``new source'' in WAC 173-400-030(56). WAC 173-400-030(56)
specifically defines a ``new source'' as including
``modifications.'' Thus, there is no substantive difference between
PSCAA's and Ecology's NSR rules in this respect.
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WAC 173-400-700 through 173-400-750 implement the Prevention of
Significant Deterioration (PSD) new source review permitting program
for major stationary sources in attainment and unclassifiable areas.
Regulation I, section 6.01 incorporates by reference WAC 173-400-700
through 173-400-750, but clearly states that only Ecology and EFSEC
have authority to issue permits under WAC 173-400-700 through 173-400-
750 within PSCAA's geographic area. PSCAA has advised EPA that it
incorporates by reference WAC 173-400-700 through 173-400-750 for
purposes such as working on permit coordination with Ecology, enforcing
existing PSD permit conditions not yet incorporated into Title V
permits, and determining violations for inspected facilities that
failed to obtain the necessary PSD permits. Therefore, PSCAA is not
requesting, and the EPA is not proposing to approve, the authority to
issue PSD permits under WAC 173-400-700 through 173-400-750 for PSCAA's
direct permitting jurisdiction (Table 7). The EPA will retain our
current approval of WAC 173-400-700 through 173-400-750 in the SIP
under Ecology and EFSEC direct permitting jurisdiction (see 40 CFR
52.2470(c), Tables 2 and 3), which will continue to apply within
PSCAA's geographic area.
PSCAA also incorporates by reference WAC 173-400-800 through 173-
400-860, which implement the new source review permitting program for
major stationary sources in nonattainment areas (major nonattainment
NSR). The EPA approved WAC 173-400-800 through 173-400-860 for
Ecology's direct permitting jurisdiction on November 7, 2014 (79 FR
59653), with minor revisions to reflect updated federal citations on
October 6, 2016 (81 FR 69385). In connection with our November 7, 2014
approval, we reviewed WAC 173-400-800 through 173-400-860 pursuant to
the federal
[[Page 4923]]
regulatory requirements in existence at that time and discussed the
fact that the EPA's 2008 PM2.5 New Source Review Rule (73 FR
28321, May 16, 2008), had been remanded to the EPA by the U.S. Court of
Appeals for the District of Columbia Circuit. See 79 FR 43345, 43347
(July 25, 2014) (proposed action); 79 FR 59653 (final action). EPA's
2008 PM2.5 New Source Review Rule has since been replaced by
a revised implementation rule published August 24, 2016, which imposed
additional NSR requirements for PM2.5 nonattainment areas
(81 FR 58010). Because there are currently no nonattainment areas
within PSCAA's jurisdiction or Washington State for any criteria
pollutant, including PM2.5, the EPA did not review PSCAA's
incorporation by reference of WAC 173-400-800 through 173-400-860 for
consistency with the newly revised PM2.5 implementation
rule; nor does Ecology or PSCAA have an obligation to submit rule
revisions to address the 2016 PM2.5 implementation rule at
this time. However, we note that the federal major nonattainment NSR
requirements remain unchanged for all other criteria pollutants since
our review and approval of WAC 173-400-800 through 173-400-860. We are
therefore proposing to approve of PSCAA's incorporation by reference of
WAC 173-400-800 through 173-400-860 as meeting the current major
nonattainment NSR requirements for all criteria pollutants except
PM2.5.
B. WSR 01-16-034--``Trivial'' Emissions Source Categories
Effective June 6, 1996, the Washington Legislature amended the
Washington Clean Air Act (Revised Code of Washington 70.94), requiring
Ecology to establish NSR permitting exemptions based on category, size,
or emissions thresholds representing ``. . . trivial levels of
emissions that do not pose a threat to human health or the
environment.'' Ecology implemented this statutory change by
establishing emission unit and activity exemptions under WAC 173-400-
110(4), and exemptions based on emissions thresholds under WAC 173-400-
110(5). The EPA approved these changes on April 29, 2015 (80 FR
23721).\7\
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\7\ For a more detailed discussion please see page 39354 of our
July 10, 2014 proposed rulemaking (79 FR 39351).
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Unlike Ecology, PSCAA already had ``trivial'' emissions source
category exemptions for minor NSR permitting approved as part of the
SIP under Regulation I, section 6.03 (62 FR 42216, August 6, 1997).
Therefore, PSCAA opted to retain its existing minor NSR source category
exemptions rather than incorporate by reference WAC 173-400-110(4) and
(5). While there have been numerous updates to PSCAA's source category
exemptions list since the EPA's last approval, the most significant
revision occurred on July 12, 2001 (WSR 01-16-034). After a review of
approximately 485 emission units permitted during calendar year 2000,
PSCAA revised the list of source category exemptions to better focus on
the most environmentally relevant source categories. As described in
the supporting documents for PSCAA's rulemaking at that time,
approximately one third of the units permitted in 2000 were gas
stations, dry cleaners, or concrete batch plants which are already
subject to Best Available Control Technology (BACT) requirements in
other regulations approved into the SIP, such as Regulation II, section
2.07 ``Gasoline Stations,'' which significantly reduce potential
emissions from such source categories to levels expected to be
inconsequential to attainment and maintenance of the National Ambient
Air Quality Standards (NAAQS). Other minor NSR source category
exemptions were derived from exemptions approved into the SIP for the
South Coast Air Quality Management District (SCAQMD) and Bay Area Air
Quality Management District (BAAQMD). ``Engineering Notes for Exemption
List Development,'' included in the docket for this action, shows the
process used by PSCAA in 2001 to update the set of minor NSR source
category exemptions. Following 2001, PSCAA continued to update the set
of minor NSR source category exemptions based on its evaluation and
experience permitting certain source categories, including the 2012
establishment of stand-alone performance standards for rock crushing in
section 9.18 that reduce potential emissions to levels expected to be
inconsequential for attainment and maintenance of the NAAQS.\8\ For
more detail on the EPA's review of PSCAA's revised minor NSR source
category exemption list, please see ``Puget Sound comparison IBR old vs
current'' included in the docket for this action. Based on our review,
the EPA is proposing to approve PSCAA's updated minor NSR source
category exemption list based on our determination that the impact of
emissions from such sources is inconsequential to attainment and
maintenance of the NAAQS. We are also proposing to approve PSCAA's
request to apply Regulation I, section 6.03 to act in lieu of those
parts of WAC 173-400-110 for determining NSR applicability for PSCAA's
permitting jurisdiction.
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\8\ See ``January 19 2018 e-Hunt SIP Support w attachments''
included in the docket.
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We note that our prior approval of section 6.03 included a broad
director's discretion provision that allowed a minor NSR exemption for,
``Any source that has been determined through review by the Control
Officer not to warrant a `Notice of Construction and Application for
Approval', due to the minimal amount and nature of air contaminants
produced and potential to contribute to air pollution, with special
reference to effects on health, economic and social factors, and
physical effects on property.'' See 62 FR 42216, August 6, 1997. This
provision, formerly in subsection (b)(17), is now in subsection
(b)(10). It is the EPA's longstanding position that these types of
broad director discretion provisions are not appropriate for approval
into the SIP. See 69 FR 17368, 17370 (April 2, 2004); see also 80 FR
33840, 33917-33918 (June 12, 2015). PSCAA and Ecology are not seeking
approval of section 6.03(b)(10) and we are proposing to correct this
error from our August 1997 action. Section 110(k)(6) of the CAA
authorizes EPA, upon a determination that EPA's action approving,
disapproving or promulgating any SIP or plan revision (or any part
thereof) was in error, to revise such action as appropriate in the same
manner as the approval, disapproval or promulgation. In making such a
correction, EPA must provide such determination and the basis therefore
to the State and the public. EPA is by this proposal notifying the
PSCAA, Ecology and the public that EPA is removing Section 6.03(b)(17)
from the SIP and from incorporation by reference into federal law.
Lastly, we note that Article 6 in particular, but also other
sections of PSCAA's regulations, reference the Code of Federal
Regulations (CFR). For all references to the CFR in the PSCAA rules
proposed for approval, not otherwise specified with an effective date,
our proposed approval refers to the CFR with an effective date of July
1, 2019. This date corresponds to PSCAA's last incorporation by
reference of the CFR in Regulation 1, section 3.25.\9\
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\9\ As part of PSCAA's adoption by reference of the WAC in
section 6.01, PSCAA explicitly did not adopt by reference WAC 173-
400-025 Adoption of Federal Rules in order to avoid conflicting with
section 3.25. Therefore, for this proposed approval references to
``in effect on the date in WAC 173-400-025'' as part of the PSCAA's
adoption by reference of the WAC shall be July 1, 2019, consistent
with section 3.25.
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[[Page 4924]]
C. WSR 12-01-067--Federally Enforceable Regulatory Orders
On December 15, 2015 (WSR 12-01-067), PSCAA added section 3.03(f)
to Regulation I, which states, ``When an applicant requests a federally
enforceable regulatory order to limit the potential to emit any air
contaminant or contaminants pursuant to WAC 173-400-091, or requests a
modification to such an order, the Control Officer or a duly authorized
representative may issue such order consistent with the requirements of
WAC 173-400-091 and 173-400-171 and Section 3.03(e) above. Regulatory
orders issued pursuant to this section are effective the day the
Control Officer or representative approves the order and may be
appealed to the Pollution Control Hearings Board pursuant to Section
3.17 of Regulation I and RCW 43.21B.310.'' We are proposing to approve
this provision into the SIP because it implements authorities already
approved or proposed for approval in the SIP and is consistent with CAA
requirements.
III. Application of WAC 173-400-020
As previously discussed, a local clean air agency generally has the
authority under WAC 173-400-020 to establish local regulations to
supplement, or act in lieu of, the statewide Chapter 173-400 WAC
provisions for sources within its jurisdiction. This approach is
consistent with our previous SIP actions for Benton Clean Air Agency
(80 FR 71695, November 17, 2015) and Southwest Clean Air Agency (82 FR
17136, April 10, 2017). Specifically, as part of the December 20, 2019
submittal, PSCAA and Ecology requested that the EPA approve: Regulation
I, section 1.01 ``Policy'' to replace WAC 173-400-010; section 3.04
``Reasonably Available Control Technology'' to replace the
corresponding provision in WAC 173-400-040(1)(c); section 3.25
``Federal Regulations Reference Date'' to replace WAC 173-400-025;
section 9.03 ``Emission of Air Contaminant: Visual Standard'' to
replace WAC 173-400-040(2); section 9.07 ``Sulfur Dioxide Emission
Standard'' to replace WAC 173-400-040(7); section 9.09 ``Particulate
Matter Emission Standards'' to replace WAC 173-400-050 and 173-400-060;
section 9.11(a) ``Emission of Air Contaminant: Detriment to Person or
Property'' to replace WAC 173-400-040(6); section 9.13 ``Emission of
Air Contaminant: Concealment and Masking Restricted'' to replace WAC
173-400-040(8); section 9.15 ``Fugitive Dust Control Measures'' to
replace WAC 173-400-040(9)(a); and section 12.03 ``Continuous Emission
Monitoring Systems'' to replace WAC 173-400-105(7).
We have completed a side by side comparison of the respective
provisions and are proposing to approve these Regulation I provisions
to apply in lieu of the corresponding Chapter 173-400 WAC provisions in
the SIP.\10\ In addition, as discussed above regarding minor NSR source
category exemptions, we are proposing to approve section 6.03 ``Notice
of Construction'' to apply in lieu of those parts of WAC 173-400-110
``New source review (NSR) for sources and portable sources'' for
determining NSR applicability and Notice of Construction application
procedures.\11\
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\10\ See ``PSCAA v WAC cross walk'' included in the docket for
this action.
\11\ PSCAA continues to incorporate WAC 173-400-110(1)(c)(i) and
WAC 173-400-110(1)(d) by reference. All other provisions are
replaced by PSCAA Regulation I, section 6.03 provisions.
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Lastly, for those parts of Chapter 173-400 WAC not already
incorporated by reference in section 6.01, or replaced by the
corresponding Regulation I provisions discussed above, PSCAA and
Ecology requested that the EPA approve into the SIP for PSCAA's
jurisdiction the most recently updated versions of Chapter 173-400 WAC,
with certain exceptions as shown in Table 3. For example, WAC 173-400-
116 ``Increment Protection'' is part of the PSD program for permits
issued directly by Ecology or EFSEC and, as discussed above, PSCAA does
not issue such permits. PSCAA also did not request approval for WAC
173-400-036 ``Relocation of Portable Sources'' because this is an
optional State provision that a local clean air agency may adopt if it
so chooses, but is not required to adopt.
IV. The EPA's Proposed Action
A. Regulations To Approve and Incorporate by Reference Into the SIP
The EPA is proposing to approve and incorporate by reference into
the Washington SIP at 40 CFR 52.2470(c)--Table 7--Additional
Regulations Approved for the Puget Sound Clean Air Agency (PSCAA)
Jurisdiction, the PSCAA and Ecology regulations listed in Tables 1, 2,
and 3 below for sources within PSCAA's jurisdiction. We note that some
of the Regulation I provisions listed below remain unchanged since our
previous approval. We are proposing to approve them as shown in Table
1, however, to act in lieu of the corresponding Chapter 173-400 WAC
provisions.
Table 1--Puget Sound Clean Air Agency (PSCAA) Regulations for Proposed Approval and Incorporation by Reference
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State/local
State/local citation Title/subject effective date Explanation
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Regulation I
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1.01............................. Policy..................... 11/01/99 Replaces WAC 173-400-010.
1.07............................. Definitions................ 12/01/18 Except the definition ``toxic
air pollutant (TAP) or toxic
air contaminant.''
3.03(f).......................... General Regulatory Orders.. 02/01/12
3.04............................. Reasonably Available 07/01/12 Except 3.04(e). Replaces WAC 173-
Control Technology. 400-040(1)(c).
3.25............................. Federal Regulation 11/01/19 Replaces WAC 173-400-025.
Reference Date.
5.03............................. Applicability of 11/01/16 Except 5.03(a)(8)(Q) and
Registration Program. 5.03(b)(5).
5.05............................. Registration Requirements.. 02/01/17 Except 5.05(b)(1) and (2).
6.01............................. Components of New Source 05/01/13 Except the parenthetical in
Review Program. 6.01(b) which states ``as
delegated by agreement with the
US Environmental Protection
Agency, Region 10.'' See table
below for revised Chapter 173-
400 WAC provisions incorporated
by reference.
[[Page 4925]]
6.03............................. Notice of Construction..... 11/01/15 Except 6.03(b)(10). Section 6.03
replaces WAC 173-400-110,
except WAC 173-400-110(1)(c)(i)
and (1)(d) which are
incorporated by reference.
6.09............................. Notice of Completion....... 05/01/04
6.10............................. Work Done Without an 09/01/01
Approval.
7.09............................. General Reporting 02/01/17 Excluding toxic air pollutants.
Requirements for Operating
Permits.
9.03............................. Emission of Air 05/01/04 Except 9.03(e). Replaces WAC 173-
Contaminant: Visual 400-040(2).
Standard.
9.04............................. Opacity Standards for 05/01/04 Except 9.04(d)(2) and 9.04(f).
Equipment with Continuous
Opacity Monitoring Systems.
9.07............................. Sulfur Dioxide Emission 05/19/94 Replaces WAC 173-400-040(7).
Standard.
9.08............................. Fuel Oil Standards......... 05/01/04 Approved only as it applies to
the regulation of criteria
pollutants.
9.09............................. Particulate Matter Emission 06/01/98 Replaces WAC 173-400-050(1) &
Standards. (3) and 173-400-060.
9.11(a).......................... Emission of Air 04/17/99 Replaces WAC 173-400-040(6).
Contaminant: Detriment to
Person or Property.
9.13............................. Emission of Air 06/09/88 Replaces WAC 173-400-040(8).
Contaminant: Concealment
and Masking Restricted.
9.15............................. Fugitive Dust Control 04/17/99 Replaces WAC 173-400-040(9)(a).
Measures.
9.16............................. Spray-Coating Operations... 12/02/10
9.18............................. Crushing Operations........ 03/02/12
12.03............................ Continuous Emission 11/01/15 Replaces WAC 173-400-105(7).
Monitoring Systems.
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We are also proposing to approve PSCAA's incorporation by reference
of certain Chapter 173-400 WAC provisions, subject to the exceptions
listed in Table 2. We note that these exceptions, primarily relating to
the regulation of toxic air pollutants, are consistent with our prior
approvals of Chapter 173-400 WAC for Ecology's direct permitting
jurisdiction.
Table 2--Washington Department of Ecology Regulations Incorporated by Reference in PSCAA Regulation I
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State/local
State/local citation Title/subject effective date Explanation
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Chapter 173-400 WAC, General Regulations for Air Pollution Sources
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173-400-030...................... Definitions................ 12/29/12 Except: 173-400-030(91).
173-400-081...................... Startup and shutdown....... 04/01/11
173-400-110...................... New source review (NSR) for 12/29/12 173-400-110(1)(c)(i) and 173-400-
sources and portable 110(1)(d) only.
sources.
173-400-111...................... Processing notice of 07/01/16 Except: 173-400-111(3)(h);--The
construction applications part of 173-400-111(8)(a)(v)
for sources, stationary that says, ``and 173-460-
sources and portable 040,''; 173-400-111(9).
sources.
173-400-112...................... Requirements for new 12/29/12
sources in nonattainment
areas.
173-400-113...................... Requirements for new 12/29/12 Except: 173-400-113(3), second
sources in attainment or sentence.
unclassifiable areas.
173-400-117...................... Special protection 12/29/12
requirements for federal
Class I areas.
173-400-171...................... Public Notice and 07/01/16 Except:--The part of 173-400-
Opportunity for Public 171(3)(b) that says, ``or any
Comment. 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).
173-400-200...................... Creditable stack height and 02/10/05
dispersion techniques.
173-400-560...................... General order of approval.. 12/29/12 Except:--The part of 173-400-
560(1)(f) that says, ``173-460
WAC''.
173-400-800...................... Major stationary source and 4/01/11 EPA did not review WAC 173-400-
major modification in a 800 through 860 for consistency
nonattainment area. with the August 24, 2016 PM2.5
implementation rule (81 FR
58010); nor does PSCAA have an
obligation to submit rule
revisions to address the 2016
PM2.5 implementation rule at
this time.
[[Page 4926]]
173-400-810...................... Major stationary source and 07/01/16
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.... 07/01/16
173-400-840...................... Emission offset 07/01/16
requirements.
173-400-850...................... Actual emissions plantwide 07/01/16
applicability limitation
(PAL).
173-400-860...................... Public involvement 4/01/11
procedures.
----------------------------------------------------------------------------------------------------------------
Table 3 shows the updated Chapter 173-400 WAC provisions that PSCAA
and Ecology requested to apply within the SIP for PSCAA's jurisdiction.
We note that many of the exclusions are identical to the exclusions for
Ecology's direct jurisdiction; however, Table 3 also excludes those
parts of the WAC explicitly replaced by the Regulation 1 provisions in
Table 1. We also note that PSCAA and Ecology did not submit Chapter
173-400 WAC provisions that remain unchanged since our last approval
(60 FR 28726, June 2, 1995) or recently revised WAC updates that have
not yet been approved for Ecology's direct jurisdiction.
Table 3--Washington Department of Ecology Regulations for Proposed Approval and Incorporation by Reference
----------------------------------------------------------------------------------------------------------------
State/local
State/local citation Title/subject effective date Explanation
----------------------------------------------------------------------------------------------------------------
Chapter 173-400 WAC, General Regulations for Air Pollution Sources
----------------------------------------------------------------------------------------------------------------
173-400-020...................... Applicability.............. 12/29/12
173-400-040...................... General Standards for 09/16/18 173-400-040(1)(a) & (b), 173-400-
Maximum Emissions. 040(4); and 173-400-040(9)(b)
only.
173-400-091...................... Voluntary Limits on 4/1/11 9/20/93 version continues to be
Emissions. approved under the authority of
CAA Section 112(l) with respect
to Section 112 hazardous air
pollutants. See 60 FR 28726
(June 2, 1995).
173-400-105...................... Records, Monitoring and 09/16/18 Except: 173-400-105(7).
Reporting.
173-400-118...................... Designation of Class I, II, 12/29/12
and III Areas.
173-400-131...................... Issuance of Emission 04/1/11
Reduction Credits.
173-400-136...................... Use of Emission Reduction 12/29/12
Credits (ERC).
173-400-151...................... Retrofit Requirements for 2/10/05
Visibility Protection.
173-400-175...................... Public Information......... 2/10/05
----------------------------------------------------------------------------------------------------------------
B. Approved But Not Incorporated by Reference Regulations
In addition to the regulations proposed for approval and
incorporation by reference above, the EPA reviews and approves state
and local clean air agency submissions to ensure they provide adequate
enforcement authority and other general authority to implement and
enforce the SIP. However, regulations describing such agency
enforcement and other general authority are generally not incorporated
by reference so as to avoid potential conflict with the EPA's
independent authorities. On August 31, 2004, the EPA reviewed and
approved Regulation I, sections 3.01, 3.05, 3.09, 3.13, 3.15, 3.17,
3.19, and 3.21 as providing PSCAA adequate enforcement and other
general authority for purposes of implementing and enforcing its SIP
but did not incorporate these provisions by reference (69 FR 53007).
While these provisions remain unchanged since our last review and
approval, we are 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. We also note that effective May 1, 2006, PSCAA made a minor
update to section 3.07 since our last approval. A redline/strikeout of
the changes is detailed in WSR 06-08-031 included in the docket for
this action. Lastly, PSCAA updates Regulation 1, section 3.11 annually
to adjust civil penalties for inflation. We are proposing to approve,
but not incorporate by reference, the updated version of section 3.11,
effective November 1, 2019.
C. Regulations To Remove From the SIP
PSCAA and Ecology's December 20, 2019 submittal included a request
to remove several obsolete provisions from the SIP and to remove other
provisions that are not required SIP elements under CAA section 110. As
previously discussed in section II, PSCAA
[[Page 4927]]
eliminated Regulation I, sections 6.06 ``Public Notice,'' 6.07 ``Order
of Approval--Order to Prevent Construction,'' and 6.08 ``Emission
Reduction Credit Banking'' in order to rely on the statewide Chapter
173-400 WAC provisions. PSCAA also requested that the EPA remove from
the SIP section 5.02 ``Applicability and Purpose of the Registration
Program,'' which was repealed in 2004 because revised versions of
sections 5.03 and 5.05 subsumed the substantive provisions formerly in
section 5.02. The revised versions of 5.03 and 5.05 are proposed for
approval into the SIP. We are removing the former provisions of section
6.03(b)(17) [subsequently renumbered to (b)(10)] because this broad,
discretionary provision is not appropriate for approval into the SIP,
as described above.
Under section 110(a)(2)(L) of the CAA, the State, or local agencies
acting in lieu of the State, must demonstrate the ability to collect
adequate fees for permitting major sources. PSCAA is therefore
submitting section 6.04 ``Notice of Construction Fees'' to demonstrate
adequate fee authority to implement the major source nonattainment NSR
program under WAC 173-400-800 through 173-400-860, as incorporated by
reference. While the EPA reviews these submissions to confirm adequate
authority, the EPA generally does not include local or state agency
fees as part of the Washington SIP incorporated by reference in 40 CFR
52.2470(c). We are therefore proposing to correct an error from our
previous approval on April 21, 1998, when the fee provisions of section
6.04 were inadvertently incorporated by reference (63 FR 19658).
Lastly, as described above regarding the applicability of WAC 173-
400-020, we are removing outdated WAC provisions from our previous June
2, 1995 approval and replacing them with the updated versions of the
WAC shown in Table 3 or the appropriate PSCAA corollaries as shown in
Table 1.
D. Scope of Proposed Action
This proposed revision to the SIP applies specifically to the PSCAA
jurisdiction incorporated into the SIP at 40 CFR 52.2470(c)--Table 7.
As discussed in our October 3, 2014 action, local air agency
jurisdiction in Washington is generally defined on a geographic basis;
however, there are exceptions (79 FR 59653, at page 59654). By statute,
PSCAA does not have authority for sources under the jurisdiction of the
Energy Facility Site Evaluation Council (EFSEC). See Revised Code of
Washington Chapter 80.50. Under the applicability provisions of WAC
173-405-012, 173-410-012, and 173-415-012, PSCAA also does not have
jurisdiction for kraft pulp mills, sulfite pulping mills, and primary
aluminum plants. For these sources, Ecology retains statewide, direct
jurisdiction. Ecology and EFSEC also retain statewide, direct
jurisdiction for issuing PSD permits. Therefore, the EPA is not
approving into 40 CFR 52.2470(c)--Table 7 those provisions of Chapter
173-400 WAC related to the PSD program. Specifically, these provisions
are WAC 173-400-116 and WAC 173-400-700 through 173-400-750, which the
EPA has already approved as applying state-wide under 40 CFR
52.2470(c)--Tables 2 and 3.
As described in our April 29, 2015 action, jurisdiction to
implement the visibility permitting program contained in WAC 173-400-
117 varies depending on the situation. Ecology retains authority to
implement WAC 173-400-117 as it relates to PSD permits. See 80 FR
23721. However, for facilities subject to major nonattainment NSR under
the applicability provisions of WAC 173-400-800, incorporated by
reference in Regulation I, we are proposing that PSCAA would be
responsible for implementing those parts of WAC 173-400-117 as they
relate to major nonattainment NSR permits. See 80 FR 23726. If
finalized, the EPA is also proposing to modify the visibility
protection Federal Implementation Plan contained in 40 CFR 52.2498 to
reflect the approval of WAC 173-400-117 as it applies to implementation
of the major nonattainment NSR program in PSCAA's jurisdiction.
Lastly, this SIP revision 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 and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000). 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 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.
V. Incorporation by Reference
In this document, 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
incorporate by reference 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 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 Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this 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 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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
[[Page 4928]]
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because 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).
As discussed above, the SIP is not approved to apply on any Indian
reservation land in Washington, or any other area where the EPA or an
Indian tribe has demonstrated that a tribe has jurisdiction (excluding
non-trust land within the exterior boundaries of the Puyallup Indian
Reservation), as described in Section IV.D above. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000). Consistent with EPA policy, the EPA provided a consultation
opportunity to the Puyallup Tribe in a letter dated October 18, 2019.
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: January 13, 2020.
Chris Hladick,
Regional Administrator, Region 10.
[FR Doc. 2020-01465 Filed 1-27-20; 8:45 am]
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