Approval and Promulgation of Implementation Plans; Washington: General Regulations for Air Pollution Sources

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving revisions to the Washington State Implementation Plan (SIP) submitted by the Department of Ecology (Ecology) on January 27, 2014. These revisions were submitted in accordance with the requirements of section 110 of the Clean Air Act, which requires states to develop a plan for the implementation, maintenance, and enforcement of the National Ambient Air Quality Standards (NAAQS). The revisions update the general air quality regulations that apply to sources within Ecology's jurisdiction, except for major source specific provisions which the EPA is addressing separately.

DATES:

This final rule is effective on November 3, 2014.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2014-0141. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Programs Unit, Office of Air Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, WA, 98101. The EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For information on the New Source Review permitting program, please contact Donna Deneen at (206) 553-6706 or deneen.donna@epa.gov. For information on the Washington SIP in general, please contact Jeff Hunt at (206) 553-0256, hunt.jeff@epa.gov, or by using the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials “Act” or “CAA” mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words “EPA”, “we”, “us” or “our” mean or refer to the United States Environmental Protection Agency.

(iii) The initials “SIP” mean or refer to State Implementation Plan.

(iv) The words “Washington” and “State” mean the State of Washington.

Table of Contents

I. Background Information

II. Response to Comments

III. Final Action

IV. Statutory and Executive Orders Review

I. Background Information

Title I of the CAA, as amended by Congress in 1990, specifies the general requirements for states to submit SIPs to attain or maintain the NAAQS and the EPA's actions regarding approval of those SIPs. On January 27, 2014, Ecology submitted updates to portions of Chapter 173-400 of the Washington Administrative Code (WAC) currently in the Federally-approved Washington SIP (40 CFR part 52, subpart WW). Ecology did not submit to the EPA those sections of Chapter 173-400 WAC that have not changed since the last SIP approval by the EPA. Ecology also did not submit certain provisions of Chapter 173-400 WAC because they are not related to the criteria pollutants regulated under title I of the CAA, not essential for meeting and maintaining the NAAQS, or not related to the requirements for SIPs under section 110 of the CAA. The SIP revisions covered by this action are explained in more detail in the proposed rulemaking, along with an evaluation of how these rules comply with the CAA requirements for SIPs (79 FR 39351, July 10, 2014). Also included in the proposed rulemaking is a discussion of how the EPA intends to act on the remainder of Ecology's submittal, covering the Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and visibility permitting programs for major sources. See also the EPA's proposed rulemaking on the NNSR-specific provisions (79 FR 43345, July 25, 2014).

II. Response to Comments

The EPA received one set of comments on its proposal.

Comment: The commenter pointed to another rulemaking action in which Ecology stated that a notice of construction (NOC) approval order issued under WAC 173-400-113(1) does not need to include conditions requiring compliance with federal New Source Performance Standards (NSPS) or National Emissions Standards for Hazardous Air Pollutants (NESHAP), but that WAC 173-400-113(1) instead only requires that Ecology determine, prior to issuance of an NOC approval order, that the new or modified source in an attainment area will comply with the NSPS and NESHAP. The commenter states that the EPA's approval of WAC 173-400-113(1) into the Washington SIP therefore would “give a green light” to a regulation that allows Ecology to omit conditions in orders that would require compliance with applicable NSPS and NESHAP. The commenter further states that, because conditions in orders issued under WAC 173-400 are applicable requirements under Ecology's title V operating permit program, Ecology's actions taken under WAC 173-400 directly impact Ecology's implementation of the CAA title V program in Washington. The commenter also raises concerns with Ecology's implementation of requirements under section 112 of the CAA, which addresses hazardous air pollutants (HAPs). The commenter states that the EPA's approval of WAC 173-400-113(1) as part of the Washington SIP would add EPA concurrence to Ecology's ability to remove a HAP (in particular, radionuclides) from section 112 of the CAA and thereby to remove all federally-enforceable requirements controlling emissions of that particular HAP from regulation under title V of the CAA in Washington. The commenter also questions whether the EPA has authority to make enforceable under federal law a provision in a state regulation giving Ecology the ability to omit applicable NSPS and NESHAPs requirements from an NOC approval order and the ability to move enforcement of federal requirements regulating a HAP from the CAA to a state regulation that is both unenforceable under federal law and unenforceable by Ecology.

Response: The EPA disagrees that Ecology's SIP is deficient if new source review permits issued under the SIP do not include NSPS or NESHAP requirements. In this action, the EPA is approving WAC 173-400-113(1) for purposes of implementing the requirements of Section 110 of the CAA, particularly, the minor new source review requirements of CAA Section 110(a)(2)(C) and 40 CFR 51.160. Neither that CAA section nor that CFR provision require minor new source review permits to contain NSPS and NESHAPs requirements. Indeed, this action does not address the WAC provisions associated with implementation of sections 111 and 112. Washington has not submitted for inclusion into the SIP and the EPA has not approved into the SIP WAC 173-400-115, in which Ecology has incorporated by reference most of the NSPS as a matter of state law, or WAC 173-400-075, in which Ecology has incorporated by reference most of the NESHAP as a matter of state law. In this action, EPA is approving a state law provision related to implementation of CAA section 110. Section 110 focuses on implementation of the NAAQS. The NSPS and NESHAP are promulgated under other sections of the CAA (CAA sections 111 and 112, respectively), and any state programs implementing the NSPS and NESHAP for CAA purposes are submitted and approved by EPA under those other statutory authorities. To the extent the comment raises questions regarding the adequacy of Ecology's title V, NSPS, or NEHSAP programs under the CAA, those issues are outside the scope of this rulemaking, which relates solely to whether the regulations submitted by Ecology meet the requirements for approval into the SIP under section 110 of the CAA. The EPA notes, with limited exceptions not relevant here, that the NSPS and NESHAP standards are federally enforceable against affected sources under the CAA independently of whether such standards have been adopted by a state as a matter of state law. In addition, they are also “applicable requirements” for purposes of the title V program, 40 CFR 70.2, and as such a title V permit must contain emission limitations and standards that assure compliance with any such applicable requirements at the time of permit issuance, 40 CFR 70.6(a).

III. Final Action

The EPA is approving into the SIP at 40 CFR part 52, subpart WW, the Ecology regulations listed in Table 1. It is important to note that Ecology did not submit for approval into the SIP certain provisions of Chapter 173-400 WAC, generally because they are not related to the criteria pollutants regulated under title I of the CAA, are not essential for meeting and maintaining the NAAQS, or are not related to the requirements for SIPs under section 110 of the CAA. These exceptions are noted in the “Explanation” column of the table. The EPA's review and approval of the revised WAC 173-400-110 through -113, 173-400-036, 173-400-171, and 173-400-560 in this action is not a determination that these revised regulations meet requirements for major sources such as a SIP-approved PSD permitting program (40 CFR 51.166), a SIP-approved major NNSR permitting program (40 CFR 51.165), or a SIP-approved visibility program (40 CFR 51.307). These regulations are marked with asterisks in Table 1. The EPA will evaluate these regulations for consistency with the requirements for major NSR permitting programs and visibility in a separate action.

As discussed in the proposed rulemaking for this action, with respect to WAC 173-400-020, Applicability, the EPA's approval for this action is limited to only those counties or sources where the Department of Ecology has direct jurisdiction. This action excludes sources subject to Energy Facilities Site Evaluation Council (EFSEC) or local clean air agency jurisdiction. The counties where Ecology has direct jurisdiction are: Adams, Asotin, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, San Juan, Stevens, Walla Walla, and Whitman. The EPA also notes that under the SIP-approved provisions of WAC 173-405-012, WAC 173-410-012, and WAC 173-415-012, Ecology has direct, statewide jurisdiction for kraft pulping mills, sulfite pulping mills, and primary aluminum plants. The EPA is updating 40 CFR part 52, subpart WW to reflect these changes.

IV. Statutory and Executive Orders Review

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 Clean Air Act. 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 Order 12866 (58 FR 51735, October 4, 1993);
• 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 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).

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 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. Consistent with EPA policy, the EPA nonetheless provided a consultation opportunity to the Puyallup Tribe in a letter dated February 25, 2014. The EPA did not receive a request for consultation.

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).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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. Section 52.2470 is amended by revising paragraph (c) to read as follows: