Rule2024-30536
Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and Malfunction Revisions, Energy Facility Site Evaluation Council
Primary source
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Published
December 27, 2024
Effective
January 27, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving 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 the EPA's June 12, 2015 "SIP call" in which the EPA found substantially inadequate a 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's approval of the SIP revisions includes removal of the substantially inadequate provision which 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the revisions submitted that were not identified in the 2015 SSM SIP call and therefore the EPA is not approving those withdrawn portions.
Full Text
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<title>Federal Register, Volume 89 Issue 248 (Friday, December 27, 2024)</title>
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[Federal Register Volume 89, Number 248 (Friday, December 27, 2024)]
[Rules and Regulations]
[Pages 105456-105459]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30536]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2024-0372; FRL-12293-02-R10]
Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and
Malfunction Revisions, Energy Facility Site Evaluation Council
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
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
the EPA's June 12, 2015 ``SIP call'' in which the EPA found
substantially inadequate a 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's
approval of the SIP revisions includes removal of the substantially
inadequate provision which 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 approving those withdrawn portions.
DATES: This final rule is effective January 27, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R10-OAR-2024-0372. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information 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 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200
Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email
<a href="/cdn-cgi/l/email-protection#6a181f0e0e03090144180b040e0b06062a0f1a0b440d051c"><span class="__cf_email__" data-cfemail="ee9c9b8a8a878d85c09c8f808a8f8282ae8b9e8fc0898198">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' or
``our,'' is used, it refers to the EPA.
Table of Contents
I. Background
II. Public Comment and the EPA's Response
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
On October 22, 2024 (89 FR 84322), the EPA proposed to approve
State Implementation Plan (SIP) revisions to
[[Page 105457]]
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. In that proposal, we
also proposed to determine that one of the SIP revisions, the removal
of EFSEC's adoption by reference of WAC 173-400-107, corrects the
deficiency with respect to EFSEC that we identified in our June 12,
2015 action entitled ``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'' \1\ (``2015 SSM SIP call'') and our January
12, 2022, Findings of Failure to Submit \2\ (FFS). The remaining SIP
revisions submitted with the removal of EFSEC's adoption by reference
of WAC 173-400-107 on June 15, 2023, were not specified in the 2015 SSM
SIP call. The reasons for our proposed approval and determination can
be found in the proposed action and will not be fully restated here.
The public comment period closed on November 21, 2024. We received one
comment outside the scope of our proposed action; therefore, we are
finalizing our action as proposed.
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\1\ 80 FR 33839, June 12, 2015.
\2\ 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, Docket
ID No. EPA-HQ-OAR-2021-0863.
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II. Public Comment and the EPA's Response
Comment: The commenter appears to support the EPA finalizing
approval of revisions to EFSEC's regulations but voiced concern about
the amount of time it took to get to this approval from issuance of the
2015 SSM SIP call. The commenter also raised concerns about
implementation ``of the statute'' and the allowance of ``significant
pollutant emissions despite the good-faith intentions of both Federal
and state agencies.'' The commenter went on to suggest ``New rules
surrounding revision timelines could help effectively allocate agency
efforts in the exercise of its authority while retaining the necessary
period for due process and public participation.
Response: The EPA acknowledges the commenter's concerns. However,
the concerns raised by the commenter are outside the scope of this
action. Moreover, the commenter does not indicate that the EPA's
proposed approval action of the SIP submission should be changed or
should not be finalized as proposed. Rather, the comment appears to
support finalizing the proposed approval. Therefore, we are finalizing
our action as proposed.
III. Final Action
The EPA is approving and incorporating by reference in the
Washington SIP the revisions Washington submitted on June 15, 2023,
except for those withdrawn by Washington.\3\ This action includes
removal of the adoption by reference of WAC 173-400-107--the provision
identified as inconsistent with Clean Air Act (CAA) requirements in our
2015 SSM SIP call--from the EFSEC air quality regulations contained in
Chapter 463-78 Washington Administrative Code (WAC) General and
Operating Permit Regulations for Air Pollution Sources.
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\3\ 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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Once this action becomes effective, the Washington SIP will no
longer include the following regulations for EFSEC's jurisdiction:
<bullet> WAC 173-400-070, Emission Standards for Certain Source
Categories--sets forth maximum allowable standards for emissions units
within the categories listed;
<bullet> WAC 173-400-107, Excess Emissions--established a pathway
to determine excess emissions unavoidable, excuse them from penalty,
and in certain instances precluded them from being considered
violations.
This action also approves and incorporates 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:
<bullet> WAC 463-78-005(2), Adoption by Reference (State effective
August 28, 2020)--which adopts certain regulations in Chapter 173-400
WAC by reference.
The revised Chapter 173-400 WAC provisions approved for EFSEC's
jurisdiction are:
<bullet> WAC 173-400-030, Definitions (State effective September
16, 2018)--which establishes definitions used throughout Chapter 173-
400 WAC;
<bullet> WAC 173-400-081, Emission Limits during Startup and
Shutdown (State effective September 16, 2018)--which establishes
pathway for developing emissions limits that apply during startup and
shutdown;
<bullet> WAC 173-400-082, Alternative Emission Limit That Exceeds
an Emission Standard in the SIP (State effective September 16, 2018)--
which establishes pathway for an owner or operator to request an
alternative emissions limit;
<bullet> WAC 173-400-136 Use of Emission Reduction Credits (ERC)
(State effective December 29, 2012)--which identifies permissible use
and sets certain conditions of use of ERCs;
<bullet> WAC 173-400-171 Public Involvement (State effective
September 16, 2018)--which sets forth certain requirements for public
involvement.
These SIP revisions apply specifically to the jurisdiction of the
Washington State Energy Facility Site Evaluation Council.
IV. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference as
described in section III of this preamble. The EPA has made, and will
continue to make, these materials generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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). Therefore, these materials have
been approved by the EPA for inclusion in the SIP, have been
incorporated by reference by the EPA into that plan, are fully
federally enforceable under sections 110 and 113 of the Clean Air Act
as of the effective date of the final rule of the EPA's approval, and
will be incorporated by reference in the next update to the SIP
compilation.\4\
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\4\ 62 FR 27968 (May 22, 1997).
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Also in this document, the EPA is removing regulatory text from
incorporated by reference, as described in section III. of this
preamble.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
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:
[[Page 105458]]
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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.
The 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.'' The 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. The 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 Executive Order 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 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: December 17, 2024.
Daniel Opalski,
Acting Regional Administrator, Region 10.
For the reasons set forth in the preamble, 40 CFR part 52 is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart WW--Washington
0
2. In Sec. 52.2470, in paragraph (c), amend table 3 by:
0
a. Revising entries ``78-005'' and ``173-400-030'';
0
b. Removing entries ``173-400-030(30) & (36)'' and ``173-400-070'';
0
c. Revising entry ``173-400-081'';
0
d. Adding entry ``173-400-082'' in numerical order;
0
e. Removing entry ``173-400-107''; and
0
f. Revising entries ``173-400-136'' and ``173-400-171''.
The revisions and additions read as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
Table 3--Additional Regulations Approved for the Energy Facilities Site Evaluation Council (EFSEC) Jurisdiction
[See the SIP-approved provisions of WAC 463-78-020 for jurisdictional applicability]
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State
State citation Title/subject effective date EPA approval date Explanations
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Washington Administrative Code, Chapter 463-78--General and Operating Permit Regulations for Air Pollution
Sources
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78-005..................... Adoption by Reference 8/28/20 12/27/24, [INSERT Subsection (2) only.
FIRST PAGE OF See below for the
FEDERAL REGISTER updated Chapter 173-
CITATION]. 400 WAC provisions
adopted by reference
and submitted to the
EPA for approval.
[[Page 105459]]
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Washington Administrative Code, Chapter 173-400--Regulations Incorporated by Reference in WAC 463-78-005
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* * * * * * *
173-400-030................ Definitions.......... 9/16/18 12/27/24, [INSERT Except: 173-400-
FIRST PAGE OF 030(96).
FEDERAL REGISTER
CITATION].
* * * * * * *
173-400-081................ General Standards for 9/16/18 12/27/24, [INSERT
Maximum Emissions. FIRST PAGE OF
FEDERAL REGISTER
CITATION].
173-400-082................ General Standards for 9/16/18 12/27/24, [INSERT
Maximum Emissions. FIRST PAGE OF
FEDERAL REGISTER
CITATION].
* * * * * * *
173-400-136................ Use of Emission 12/29/12 12/27/24, [INSERT
Reduction Credits FIRST PAGE OF
(ERC). FEDERAL REGISTER
CITATION].
* * * * * * *
173-400-171................ Public Notice and 9/16/18 12/27/24, [INSERT Except: The part of
Opportunity for FIRST PAGE OF 173-400-171(3)(b)
Public Comment. FEDERAL REGISTER that says, <bullet>
CITATION]. ``or any increase in
emissions of a toxic
air pollutant above
the acceptable
source impact level
for that toxic air
pollutant as
regulated under
chapter 173-460
WAC''; 173-400-
171(12).
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[FR Doc. 2024-30536 Filed 12-26-24; 8:45 am]
BILLING CODE 6560-50-P
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