Air Plan Approval; WA; Update to Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; administrative change.

SUMMARY:

The Environmental Protection Agency (EPA) is updating the regulatory materials incorporated by reference into the Washington State Implementation Plan (SIP). The regulations addressed in this action were previously submitted by the Washington Department of Ecology and approved by the EPA in prior rulemakings. This action is an administrative change that updates the SIP materials available for public inspection at the National Archives and Records Administration and the EPA Regional Office.

DATES:

This action is effective August 3, 2021.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Online at https://www.regulations.gov in the docket for this action, by appointment at the Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101, and by appointment at the National Archives and Records Administration (NARA). For information on the availability of this material at the EPA Regional Office, please contact the person in the FOR FURTHER INFORMATION CONTACT section of this document. For information on the availability of this material at NARA, email fedreg.legal@nara.gov, or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT:

Jeff Hunt, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (206) 553-0256, or hunt.jeff@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The SIP is a living document revised by the state to address its unique and changing air pollution problems. As such, the state submits SIP revisions to the EPA and the EPA acts on those revisions and incorporates new and revised State regulations by reference into the Code of Federal Regulations (CFR).

On May 22, 1997, the EPA and the Office of the Federal Register (OFR) streamlined the incorporation by reference (IBR) procedures for SIPs (62 FR 27968). For a detailed description of the revised IBR procedures, please see the May 22, 1997 publication (62 FR 27968).

On March 20, 2013, the EPA published a Federal Register beginning the new IBR procedure for Washington (78 FR 17108). The EPA subsequently published updates to the IBR material for Washington on December 8, 2014 (79 FR 72548), April 12, 2016 (70 FR 21470), and February 8, 2019 (84 FR 2738).

A. Approved and Incorporated by Reference Regulatory Materials

Since the last IBR update, the EPA approved and incorporated by reference the following regulatory materials into the Washington SIP:

Table 1—Regulations Approved Statewide

• Washington Administrative Code, Chapter 173-405, Kraft Pulping Mills, sections 021 (Definitions), 072 (Monitoring Requirements), 086 (New Source Review (NSR)), and 087 (Prevention of Significant Deterioration (PSD)). For more information, see 85 FR 10983 (February 26, 2020).
• Washington Administrative Code, Chapter 173-410, Sulfite Pulping Mills, sections 021 (Definitions), 062 (Monitoring Requirements), 086 (New Source Review (NSR)), and 087 (Prevention of Significant Deterioration (PSD)). For more information, see 85 FR 10983 (February 26, 2020).
• Washington Administrative Code, Chapter 173-415, Primary Aluminum Plants, sections 015 (Applicability), 020 (Definitions), and 060 (Monitoring and Reporting). For more information, see 85 FR 10983 (February 26, 2020).

Table 2—Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction

• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, sections 025 (Adoption of Federal Rules), 030 (Definitions), 040 (General Standards for Maximum Emissions), 050 (Emission Standards for Combustion and Incineration Units), 060 (Emission Standards for General Process Units), 105 (Records, Monitoring, and Reporting), 171 (Public Notice and Opportunity for Public Comment), and 740 (PSD Permitting Public Involvement Requirements). For more information, see 85 FR 10301 (February 24, 2020).

Table 3—Additional Regulations Approved for the Energy Facilities Site Evaluation Council (EFSEC) Jurisdiction

• Washington Administrative Code, Chapter 463-78, General and Operating Permit Regulations for Air Pollution Sources, section 005 (Adoption by Reference). For more information, see 85 FR 4233 (January 24, 2020).
• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, sections 025 (Adoption of Federal Rules), 030 (Definitions), 040 (General Standards for Maximum Emissions), 050 (Emission Standards for Combustion and Incineration Units), 060 (Emission Standards for General Process Units), 105 (Records, Monitoring, and Reporting), 111 (Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources), 116 (Increment Protection), 171 (Public Notice and Opportunity for Public Comment), 710 (Definitions), 720 (Prevention of Significant Deterioration (PSD), 730 (Prevention of Significant Deterioration Application Processing Procedures), 740 (PSD Permitting Public Involvement Requirements), 810 (Major Stationary Source and Major Modification Definitions), 830 (Permitting Requirements), 840 (Emission Offset Requirements), and 850 (Actual Emissions Plantwide Applicability Limitation (PAL). For more information, see 85 FR 4233 (January 24, 2020).

Table 4—Additional Regulations Approved for the Benton Clean Air Agency (BCAA) Jurisdiction

• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, sections 025 (Adoption of Federal Rules), 030 (Definitions), 040 (General Standards for Maximum Emissions), 050 (Emission Standards for Combustion and Incineration Units), 060 (Emission Standards for General Process Units), 105 (Records, Monitoring, and Reporting), and 171 (Public Notice and Opportunity for Public Comment). For more information, see 85 FR 10301 (February 24, 2020).

Table 5—Additional Regulations Approved for the Northwest Clean Air Agency (NWCAA) Jurisdiction

• Regulation of the Northwest Clean Air Agency, sections 100 (Name of Agency), 101 (Short Title), 102 (Policy), 200 (Definitions), 300 (New Source Review), 305 (Public Involvement), 320 (Registration Program), and 321 (Exemptions from Registration). For more information, see 85 FR 36154 (June 15, 2020).
• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, sections 020 (Applicability), 025 (Adoption of Federal Rules), 030 (Definitions), 050 (Emission Standards for Combustion and Incineration Units), 060 (Emission Standards for General Process Units), 091 (Voluntary Limits on Emissions), 111 (Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources), 112 (Requirements for New Sources in Nonattainment Areas—Review for Compliance with Regulations), 113 (New Sources in Attainment or Unclassifiable Areas—Review for Compliance with Regulations), 117 (Special Protection Requirements for Federal Class I Areas), 118 (Designation of Class I, II, and III Areas), 131 (Issuance of Emission Reduction Credits), 136 (Use of Emission Reduction Credits (ERC)), 151 (Retrofit Requirements for Visibility Protection), 171 (Public Notice and Opportunity for Public Comment), 200 (Creditable Stack Height and Dispersion Techniques), 800 (Major Stationary Source and Major Modification in a nonattainment Area), 810 (Major Stationary Source and Major Modification Definitions), 820 (Determining if a New Stationary Source or Modification to a Stationary Source is Subject to these Requirements), 830 (Permitting Requirements), 840 (Emission Offset Requirements), 173-400-850 (Actual Emissions Plantwide Applicability Limitation (PAL)), and 860 (Public Involvement Procedures). For more information, see 85 FR 36154 (June 15, 2020).

Table 7—Additional Regulations Approved for the Puget Sound Clean Air Agency (PSCAA) Jurisdiction

• Puget Sound Clean Air Agency Regulation I, sections 1.01 (Policy), 1.07 (Definitions), 3.03(f) (General Regulatory Orders), 3.04 (Reasonably Available Control Technology), 3.25 (Federal Regulation Reference Date), 5.03 (Applicability of Registration Program), 5.05 (Registration Requirements), 6.01 (Components of New Source Review Program), 6.03 (Notice of Construction), 6.09 (Notice of Completion), 6.10 (Work Done without an Approval), 7.09 (General Reporting Requirements for Operating Permits), 9.03 (Emission of Air Contaminant: Visual Standard), 9.04 (Opacity Standards for Equipment with Continuous Opacity Monitoring Systems), 9.07 (Sulfur Dioxide Emission Standard), 9.08 (Fuel Oil Standards), 9.09 (Particulate Matter Emission Standards), 9.11(a) (Emission of Air Contaminant: Detriment to Person or Property), 9.13 (Emission of Air Contaminant: Concealment and Masking Restricted), 9.15 (Fugitive Dust Control Measures), 9.16 (Spray-Coating Operations), 9.18 (Crushing Operations), and 12.03 (Continuous Emission Monitoring Systems). For more information, see 85 FR 22355 (April 22, 2020).
• Washington Administrative Code, Chapter 173-400 Regulations Incorporated by Reference in Regulation I, sections 030 (Definitions), 081 (Startup and Shutdown), 110 (New Source Review (NSR) for Sources and Portable Sources, 111 (Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources), 112 (Requirements for New Sources in Nonattainment Areas), 113 (Requirements for New Sources in Attainment or Unclassifiable Areas), 117 (Special Protection Requirements for Federal Class I Areas), 171 (Public Notice and Opportunity for Public Comment), 200 (Creditable Stack Height and Dispersion Techniques), 560 (General Order of Approval), 800 (Major Stationary Source and Major Modification in a Nonattainment Area), 810 (Major Stationary Source and Major Modification Definitions), 820 (Determining if a New Stationary Source or Modification to a Stationary Source is Subject to these Requirements), 830 (Permitting Requirements), 840 (Emission Offset Requirements), 850 (Actual Emissions Plantwide Applicability Limitation (PAL)), and 860 (Public Involvement Procedures). For more information, see 85 FR 22355 (April 22, 2020).
• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, sections 020 (Applicability), 040 (General Standards for Maximum Emissions), 070 (Emission Standards for Certain Source Categories), 091 (Voluntary Limits on Emissions), 105 (Records, Monitoring and Reporting), 118 (Designation of Class I, II, and III Areas), 131 (Issuance of Emission Reduction Credits), 136 (Use of Emission Reduction Credits (ERC)), 151 (Retrofit Requirements for Visibility Protection), and 175 (Public Information). For more information, see 85 FR 22355 (April 22, 2020).

Table 9—Additional Regulations Approved for the Spokane Regional Clean Air Agency (SRCAA) Jurisdiction

• Spokane Regional Clean Air Agency Regulation I, sections 1.01 (Policy), 1.02 (Name of Agency), 1.03 (Short Title), 1.04 (General Definitions), 1.05 (Acronym Index), 2.08 (Falsification of Statements or Documents, and Treatment of Documents), 2.09 (Source Tests), 2.13 (Federal and State Regulation Reference Date), 2.14 (Washington Administrative Codes (WACS)), 4.03 (Registration Exemptions), 4.04 (Stationary Sources and Source Categories Subject to Registration), 4.05 (Closure of a Stationary Source or Emissions Unit(s)), 5.02 (New Source Review—Applicability and when Required), 5.03 (NOC and PSP Fees), 5.04 (Information Required), 5.05 (Public Involvement), 5.06 (Application Completeness Determination), 5.07 (Processing NOC Applications for Stationary Sources), 5.08 (Portable Sources), 5.09 (Operating Requirements for Order of Approval and Permission to Operate), 5.10 (Changes to an Order of Approval or Permission to Operate), 5.11 (Notice of Startup of a Stationary Source or a Portable Source), 5.12 (Work Done Without an Approval), 5.13 (Order of Approval Construction Time Limits), 5.14 (Appeals), 5.15 (Obligation to Comply), 6.04 (Emission of Air Contaminant: Detriment to Person or Property), 6.05 (Particulate Matter & Preventing Particulate Matter from Becoming Airborne), 6.07 (Emission of Air Contaminant Concealment and Masking Restricted), 6.14 (Standards for Control of Particulate Matter on Paved Surfaces), and 6.15 (Standards for Control of Particulate Matter on Unpaved Roads). For more information, see 86 FR 24718 (May 10, 2021).
• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, sections 020 (Applicability), 030 (Definitions), 040 (General Standards for Maximum Emissions), 050 (Emission Standards for Combustion and Incineration Units), 060 (Emission Standards for General Process Units), 091 (Voluntary Limits on Emissions), 105 (Records, Monitoring and Reporting), 112 (Requirements for New Sources in Nonattainment Areas), 113 (Requirements for New Sources in Attainment or Unclassifiable Areas), 117 (Special Protection Requirements for Federal Class I Areas), 118 (Designation of Class I, II, and III Areas), 131 (Issuance of Emission Reduction Credits), 136 (Use of Emission Reduction Credits (ERC)), 151 (Retrofit Requirements for Visibility Protection), 175 (Public Information), 200 (Creditable Stack Height and Dispersion Techniques), 560 (General Order of Approval), 800 (Major Stationary Source and Major Modification in a Nonattainment Area), 810 (Major Stationary Source and Major Modification Definitions), 820 (Determining if a New Stationary Source or Modification to a Stationary Source is Subject to these Requirements), 830 (Permitting Requirements), 840 (Emission Offset Requirements), 850 (Actual Emissions Plantwide Applicability Limitation (PAL)), and 860 (Public Involvement Procedures). For more information, see 86 FR 24718 (May 10, 2021).

EPA-Approved State of Washington Source-Specific Requirements

• Tyson Fresh Meats, Inc, Order No. 13AQ-E526, state effective April 16, 2014. For more information, see 85 FR 25303 (May 1, 2020).
• Packaging Corporation of America (Wallula Mill), Permit No. 0003697, state effective April 1, 2018. For more information, see 85 FR 25303 (May 1, 2020).
• Simplot Feeders Limited Partnership, Fugitive Dust Control Plan, state effective March 1, 2018. For more information, see 85 FR 25303 (May 1, 2020).
• TransAlta Centralia BART—Second Revision, Order No. 6426, state effective July 29, 2020. For more information, see 86 FR 24502 (May 7, 2021).

B. Regulatory Materials Removed From Incorporation by Reference in the SIP

Table 1—Regulations Approved Statewide

• Washington Administrative Code, Chapter 173-422, Motor Vehicle Emission Inspection, sections 010 (Purpose), 020 (Definitions), 030 (Vehicle Emission Inspection Requirement), 031 (Vehicle Emission Inspection Schedules), 035 (Registration Requirements), 040 (Noncompliance Areas), 050 (Emission Contributing Areas), 060 (Gasoline Vehicle Emission Standards), 065 (Diesel Vehicle Exhaust Emission Standards), 070 (Gasoline Vehicle Exhaust Emission Testing Procedures), 075 (Diesel Vehicle Inspection Procedure), 090 (Exhaust Gas Analyzer Specifications), 095 (Exhaust Opacity Testing Equipment), 100 (Testing Equipment Maintenance and Calibration), 120 (Quality Assurance), 145 (Fraudulent Certificates of Compliance/Acceptance), 160 (Fleet and Diesel Owner Vehicle Testing Requirements), 170 (Exemptions), 175 (Fraudulent Exemptions), 190 (Emission Specialist Authorization), and 195 (Listing of Authorized Emission Specialists). For more information, see 86 FR 10026 (February 18, 2021) and 86 FR 13658 (March 10, 2021).

Table 9—Additional Regulations Approved for the Spokane Regional Clean Air Agency (SRCAA) Jurisdiction

• Spokane Regional Clean Air Agency Regulation II, sections 4.01 (Particulate Emissions—Grain Loading Restrictions). For more information, see 86 FR 24718 (May 10, 2021).
• Washington Administrative Code, Chapter 173-400, General Regulations for Air Pollution Sources, section 100 (Registration) and any formerly approved Chapter 173-400 WAC provisions which are replaced by local agency corollaries. For more information, see 86 FR 24718 (May 10, 2021).

EPA-Approved State of Washington Source-Specific Requirements

• IBP (now known as Tyson Foods, Inc.) Order, Order No. 02AQER-5074, state effective December 6, 2002. For more information, see 85 FR 25303 (May 1, 2020).
• Boise White Paper LLC Permit, Permit No. 000369-7, state effective May 2, 2005. For more information, see 85 FR 25303 (May 1, 2020).
• Fugitive Dust Control Plan for Simplot Feeders Limited Partnership, state effective December 1, 2003. For more information, see 85 FR 25303 (May 1, 2020).
• TransAlta Centralia BART, Order No. 6426, state effective December 13, 2011. For more information, see 86 FR 24502 (May 7, 2021).

II. EPA Action

In this action, the EPA is updating the regulatory materials incorporated by reference into the Washington SIP at 40 CFR 52.2470(c) and (d) as of May 31, 2021. The EPA has determined that this rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect table entries.

III. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Washington State provisions and source-specific requirements as set forth in the amendments to § 52.2470 as set forth below. 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).

IV. Statutory and Executive Order Reviews

Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this 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 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);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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).

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). 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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

The EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Washington SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, the EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for Washington.

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

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

Authority: 42 U.S.C. 7401 et seq.

Subpart WW—Washington

2. Amend § 52.2470 by revising paragraphs (b), (c), and (d) to read as follows: