[Federal Register Volume 80, Number 4 (Wednesday, January 7, 2015)]
[Proposed Rules]
[Pages 838-845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30716]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2014-0755: FRL-9921-20-Region 10]
Approval and Promulgation of Implementation Plans; Washington:
Prevention of Significant Deterioration and Visibility Protection
AGENCY: Environmental Protection Agency.
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 Department of Ecology (Ecology) on January
27, 2014. These revisions implement the preconstruction permitting
regulations for large industrial (major source) facilities in
attainment and unclassifiable areas, called the Prevention of
Significant Deterioration (PSD) program. Currently, the PSD program in
Washington is operated under a Federal Implementation Plan (FIP). If
finalized, the EPA's proposed approval of Ecology's PSD program would
narrow the current FIP to include only those few facilities, emission
categories, and geographic areas for which Ecology does not have PSD
permitting jurisdiction. The EPA is also proposing to approve Ecology's
visibility protection permitting program which overlaps significantly
with the PSD program in most cases.
DATES: Comments must be received on or before February 6, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2014-0755, by any of the following methods:
A. www.regulations.gov: Follow the on-line instructions for
submitting comments.
B. Mail: Jeff Hunt, EPA Region 10, Office of Air, Waste and Toxics
(AWT-150), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
C. Email: [email protected].
D. Hand Delivery: EPA Region 10 Mailroom, 9th Floor, 1200 Sixth
Avenue, Suite 900, Seattle, WA 98101. Attention: Jeff Hunt, Office of
Air, Waste and Toxics, AWT-150. Such deliveries are only accepted
during normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2014-0755. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through www.regulations.gov your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in
www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue,
Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt at (206) 553-0256,
[email protected], or by using the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' are used, it is intended to refer to the EPA.
Table of Contents
I. Background for Proposed Action
II. Washington SIP Revisions
A. WAC 173-400-110, New Source Review (NSR) for Sources and
Portable Sources; WAC 173-400-111, Processing Notice of Construction
Applications for Sources, Stationary Sources and Portable Sources;
WAC 173-400-112, Requirements for New Sources in Nonattainment
Areas--Review for Compliance With Regulations; and WAC 173-400-113
New Sources in Attainment or Unclassifiable Areas--Review for
Compliance With Regulations
B. WAC 173-400-700, Review of Major Stationary Sources of Air
Pollution
C. WAC 173-400-710, Definitions
D. WAC 173-400-720, Prevention of Significant Deterioration
(PSD)
E. WAC 173-400-730, Prevention of Significant Deterioration
Application Processing Procedures
F. WAC 173-400-740, PSD Permitting Public Involvement
Requirements and WAC 173-400-171, Public Notice and Opportunity for
Public Comment
G. WAC 173-400-750, Revisions to PSD Permits
H. WAC 173-400-116, Increment Protection
I. WAC 173-400-117, Special Protection Requirements for Federal
Class I Areas
J. Personnel, Funding, and Authority
III. Effect of Recent Court Decisions Vacating and Remanding Certain
Federal Rules
A. Sierra Club v. EPA
B. Utility Air Regulatory Group v. EPA
IV. The EPA's Proposed Action
A. Rules To Approve into the SIP
B. Proposed Transfer of Existing EPA-Issued PSD Permits
C. Scope of Proposed Action
D. The EPA's Oversight Role
V. 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 of the
Washington Administrative Code (WAC) that apply to sources within
Ecology's jurisdiction, including minor new source review, major source
nonattainment new source review (major NNSR), PSD, and the visibility
protection (visibility) program. On October 3, 2014, the EPA finalized
approval of provisions contained in Chapter 173-400 WAC that apply
generally to all sources under Ecology's jurisdiction, but stated that
we would act separately on the major source-specific permitting
programs in a phased approach (79 FR 59653). On November 7, 2014, the
EPA finalized the second phase in the series, approving the major NNSR
regulations contained in WAC 173-400-800 through 173-400-860, as well
as other parts of Chapter 173-400 WAC that support major NNSR (79 FR
66291).
In this proposal, the third and final phase in the series, the EPA
is proposing to approve the remainder of Ecology's January 27, 2014
submittal, covering the PSD and visibility requirements for major
stationary sources under Ecology's jurisdiction.
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Because the State of Washington does not currently have a SIP-approved
PSD program, the EPA is currently the Clean Air Act (CAA) PSD
permitting authority in the State, although Ecology has issued most CAA
PSD permits in the State since 1983 under a delegation agreement with
the EPA. See Agreement for Partial Delegation of Source Review under
the Federal Prevention of Significant Deterioration (PSD) Regulations
by the United States Environmental Protection Agency, Region 10, to the
Washington Department of Ecology, dated December 10, 2013 (2013
Delegation Agreement). Approval of Ecology's PSD rules into the SIP
will transfer CAA PSD permitting authority from the EPA to Ecology
except for those few facilities, emissions categories, and geographic
areas for which Ecology does not have permitting jurisdiction, as
described in Section IV below. The EPA is also currently the visibility
permitting authority in the State although Ecology has issued the
visibility permits to sources in attainment or unclassifiable areas
under its delegation from the EPA. However, the EPA is currently the
only visibility permitting authority for new and modified major
stationary sources in nonattainment areas pursuant to 40 CFR
52.2498(b). Approval of Ecology's visibility permitting rules into the
SIP will also transfer to Ecology CAA visibility permitting authority,
consistent with the exceptions described in Section IV below. The EPA
is also proposing to narrow the current PSD FIP contained in 40 CFR
52.2497 and the visibility permitting FIP contained in 40 CFR 52.2498
to be consistent with the scope of this SIP approval, as also described
in Section IV below. The EPA will retain an oversight role with respect
to Ecology's PSD and visibility permitting program if this SIP approval
is finalized as proposed.
II. Washington SIP Revisions
The specific requirements applicable to SIP-approved PSD programs
are set forth in 40 CFR 51.166. The EPA's FIP for implementing PSD in
areas where states do not have SIP-approved PSD programs is set forth
in 40 CFR 52.21. As explained in more detail below, Ecology has, with
limited exceptions, incorporated by reference the EPA's PSD FIP at 40
CFR 52.21 as in effect on August 13, 2012, to meet the requirements of
40 CFR 51.166.
A. WAC 173-400-110, New Source Review (NSR) for Sources and Portable
Sources; WAC 173-400-111, Processing Notice of Construction
Applications for Sources, Stationary Sources and Portable Sources; WAC
173-400-112, Requirements for New Sources in Nonattainment Areas--
Review for Compliance With Regulations; and WAC 173-400-113 New Sources
in Attainment or Unclassifiable Areas--Review for Compliance With
Regulations
As described in more detail in the EPA's July 10, 2014 proposal (79
FR 39351) and October 3, 2014 final action (79 FR 59653), WAC 173-400-
110 through WAC 173-400-113 are the starting points for any source
seeking to construct a new source or modify an existing source under
Ecology's rules, whether major or minor. Specific provisions in these
sections direct sources constructing a ``major'' source or making a
``major modification'' to a ``major'' source in an attainment or
unclassifiable area to also comply with the PSD requirements of WAC
173-400-700 through WAC 173-400-750. WAC 173-400-110 through WAC 173-
400-113 also require major sources and major modifications to comply
with the visibility permitting requirements of WAC 173-400-117 for all
areas, including nonattainment areas. See, for example, WAC 173-400-
110(1)(d) for PSD and WAC 173-400-111(1)(c) for visibility. As
discussed in the EPA's July 2014 proposal, the EPA's review of WAC 173-
400-110 through 173-400-113 expressly did not include a determination
that these revised regulations meet requirements for approval of a SIP-
approved PSD or visibility permitting program. In this action, we are
proposing to approve WAC 173-400-110 through 173-400-113 for purposes
of implementing the PSD and visibility permitting programs because
these provisions require compliance with WAC 173-400-700 through 173-
400-750 (which, as discussed below, are consistent with the CAA
requirements for a PSD permitting program) and WAC 173-400-117 (which,
as discussed below, is consistent with the CAA requirements for
visibility).\1\
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\1\ This proposed approval for PSD purposes is subject to the
exceptions and explanations described in the EPA's July 10, 2014
proposal (79 FR 39351) and October 3, 2014 final action (79 FR
59653) of WAC 173-400-110, 173-400-111, and 173-400-113.
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B. WAC 173-400-700, Review of Major Stationary Sources of Air Pollution
As described in more detail in the EPA's July 10, 2014 proposal and
October 3, 2014 final action, Ecology shares permitting jurisdiction
with seven local clean air agencies and one other state agency, the
Energy Facilities Site Evaluation Council (EFSEC). WAC 173-400-700, in
conjunction with WAC 173-400-020, describes how Ecology's regulations
apply in the local and EFSEC jurisdictions with respect to PSD. WAC
173-400-700 states that Ecology's PSD regulations contained in WAC 173-
400-700 through 173-400-750 apply statewide except where a local clean
air agency has received delegation of the Federal PSD program from the
EPA or has a SIP-approved PSD program. WAC 173-400-700 also states that
Ecology's PSD program, under WAC 173-400-700 through 173-400-750,
excludes projects under the jurisdiction of the EFSEC pursuant to
Chapter 80.50 Revised Code of Washington (RCW). At this time, no local
clean air agencies in Washington have a delegated or SIP-approved PSD
program. Therefore, the EPA proposes to approve Ecology's PSD program,
contained in WAC 173-400-700 through 173-400-750, as applying statewide
except for those facilities under EFSEC jurisdiction and other emission
categories and geographic areas for which Ecology does not have
jurisdiction, as discussed below in Section IV.C. Scope of Proposed
Action.
C. WAC 173-400-710, Definitions
WAC 173-400-710(a) states that for purposes of WAC 173-400-720
through 173-400-750 the definitions in 40 CFR 52.21(b), adopted by
reference in WAC 173-400-720(4)(a)(vi), shall apply, except for the
definition of ``secondary emissions.'' In the case of secondary
emissions, Ecology uses the general definition contained in WAC 173-
400-030, which is consistent with the court decision in Natural
Resources Defense Council v. U.S. EPA, 725 F2d 761 (D.C. Cir. 1984) and
which the EPA approved as part of the Washington SIP on October 3, 2014
(79 FR 59653). WAC 173-400-710(b) makes clear that the term ``source''
in WAC 173-400-710 through 173-400-750, and in 40 CFR 52.21 as adopted
by reference in Ecology's regulations, is to be interpreted to mean
``stationary source'' as defined in 40 CFR 52.21(b)(5). Under this
definition, a stationary source (or source) does not include emissions
resulting directly from an internal combustion engine for
transportation purposes, from a nonroad engine, or a
[[Page 840]]
nonroad vehicle as defined in CAA section 216.
There are also several important distinctions between the
applicability of Ecology's minor NSR program and its PSD program that
arise from the State's definitions of the terms ``modification'' in WAC
173-400-030(48) and ``major modification'' in WAC 173-400-710 and -720,
which adopt the federal definitions in 40 CFR 52.21(b)(2) for Ecology's
PSD program. First, the applicability test for ``modifications'' under
Ecology's minor NSR program is based on the definition of modification
in CAA section 111(a)(4) and the EPA's implementing rules at 40 CFR
60.14, specifically, that a modification is an increase in the emission
rate of an existing facility in terms of kilograms per hour. See WAC
173-400-030(48). In contrast, the applicability test for Ecology's PSD
program is based on a ``major modification'' which is, consistent with
the Federal PSD program, based on a comparison of ``baseline actual
emissions'' before the change to ``projected actual emissions'' after
the change in terms of tons per year. See WAC 173-400-710(a) and 400-
173-720(4)(a)(iv), which adopt by reference the definitions in 40 CFR
52.21(b)(2). Thus, for any physical or operational change at an
existing stationary source, regulated sources and permitting
authorities will need to calculate emission changes in terms of both
kilograms per hour and tons per year to determine whether changes are
subject to minor NSR, PSD, or both. Second, under Ecology's minor NSR
program, new source review of a modification is limited to the emission
unit or units proposed to be modified and the air contaminants whose
emissions would increase as a result of the modification. See WAC 173-
400-110(1)(d) (``New source review of a modification is limited to the
emission unit or units proposed to be modified and the air contaminants
whose emissions would increase as a result of the modification.''). In
contrast, under Ecology's PSD program, as under the Federal PSD
program, Ecology must determine whether the sum of increases in
emissions from new and modified units is ``significant'' and if so,
whether there is a net significant emissions increase from all
contemporaneous emissions increases and decreases at the major
stationary source. See WAC 173-400-110(1)(d) (``Review of a major
modification must comply with WAC 173-400-700 through 173-400-750 or
173-400-800 through 173-400-860, as applicable.'') and WAC 173-400-720
(adopting by reference 40 CFR 52.21(a)(2), 52.21(b)(2), and
52.21(b)(3)).
The EPA reviewed Ecology's submission and is proposing to approve
the definitions contained in WAC 173-400-710 as consistent with the CAA
requirements for a SIP-approved PSD program.
D. WAC 173-400-720, Prevention of Significant Deterioration (PSD)
WAC 173-400-720 generally incorporates by reference the Federal PSD
program contained in 40 CFR 52.21, in effect as of August 13, 2012.
Exceptions to the incorporation by reference are listed in WAC 173-400-
720(4)(b). First, WAC 173-400-720(4)(b)(i) clarifies when use of the
word ``Administrator'' as part of the incorporation by reference refers
to Ecology versus those specific provisions where ``Administrator''
continues to refer to the EPA Administrator. Second, WAC 173-400-
720(4)(b)(ii) excludes the PSD Class I area variance provisions
contained in 40 CFR 52.21(p)(5) through (8), making the Ecology program
more stringent than the Federal PSD program. WAC 173-400-720(4)(b)(ii)
also reflects Ecology's use of the state public participation
procedures in WAC 173-400-740, PSD Permitting Public Involvement
Requirements rather than incorporating by reference the Federal public
participation requirements in 40 CFR 52.21(q). Third, WAC 173-400-
720(4)(b)(iii)(A) reflects the size threshold in CAA section 169(1) for
municipal waste incinerators of 50 tons of refuse per day, rather than
incorporating by reference the threshold contained in 40 CFR
52.21(b)(1)(i)(a) and (b)(1)(iii)(h) of 250 tons of refuse per day,
which has not been revised in the EPA's regulations to reflect the CAA
statutory change. Fourth, WAC 173-400-720(4)(b)(iii)(B) modifies the
definition of ``significant'' contained in 40 CFR 52.21(b)(23)(i) to
include a threshold for ozone depleting substances of 100 tons per year
consistent with EPA guidance. See, e.g., Letter dated March 19, 1998
from John S. Seitz, Director of EPA's Office of Air Quality Planning
and Standards, to Mr. Kevin Tubbs, Director of Environmental
Technology, American Standard. Fifth, WAC 173-400-720(4)(b)(iii)(D) and
(E) modify the incorporation by reference of 40 CFR 52.21(r) Source
Obligation to reflect state reporting requirements which are more
stringent than the Federal PSD program. Sixth, WAC 173-400-
720(4)(b)(iii)(F) through (J) modify the incorporation by reference of
40 CFR 52.21(aa) Actuals PALs to reflect state procedures but make no
changes less stringent than the Federal PSD program. Lastly, in WAC
173-400-720(4)(b)(iv) Ecology does not incorporate by reference 40 CFR
52.21(r)(2) because state construction time limitation procedures
consistent with the Federal PSD program are contained in WAC 173-400-
730, Prevention of Significant Deterioration Application Processing
Procedures. The EPA reviewed these exceptions to the incorporation by
reference of the Federal regulations and is proposing to approve them
as consistent with the CAA.
In addition to these exceptions to Ecology's incorporation by
reference of 40 CFR 52.21, two other issues merit further discussion.
First, in response to recent court decisions, Ecology has not included
in, or has withdrawn from, its SIP submittal, incorporation by
reference of 40 CFR 52.21(i)(5)(i)(c), 52.21(k)(2), and
52.21(b)(49)(v). These provisions, therefore, are not before the EPA
for approval and would not be part of the Washington SIP if this action
is finalized. Please refer to Section III below for a detailed
discussion of the court decisions and why the exclusion of these
provisions from Ecology's SIP-approved PSD program is consistent with
CAA requirements.
Second, WAC 173-400-720(4)(b)(iii)(C) contains an inadvertent
typographical error. Ecology intended to reference the concentrations
listed in WAC 173-400-116(3) rather than WAC 173-400-116(2). To avoid
confusion, the EPA is excluding WAC 173-400-720(4)(b)(iii)(C) from our
proposed approval. However, exclusion of WAC 173-400-720(4)(b)(iii)(C)
from the SIP has no substantive effect because it was merely a pointer
to the provisions of WAC 173-400-116(3) which are consistent with the
CAA and proposed for approval into the SIP, as discussed in Section
II.H below. Ecology has advised the EPA correction of this error will
be made as soon as practicable.
In addition to incorporating by reference pertinent portions of 40
CFR 52.21, WAC 173-400-720 also contains provisions relating to
enforcement authority. Subparagraph (3) provides that both Ecology and
any local air permitting authority with jurisdiction over a source are
authorized to enforce the requirement to apply for a PSD permit if one
is required and the conditions of a PSD permit. The EPA is proposing to
approve WAC 173-400-720 as consistent with the CAA requirements for a
SIP-approved PSD program.
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E. WAC 173-400- 730, Prevention of Significant Deterioration
Application Processing Procedures
This section contains Ecology's permit application and processing
procedures. These procedures are based on the EPA requirements
contained in 40 CFR 51.166(q) and includes requirements for the
processing of permit applications, completeness determinations,
issuance of final permits, and permit appeals. This section also
includes procedures for permit extensions. As discussed above, Ecology
has excluded from adoption by reference in WAC 173-400-720 the
extension provision of 40 CFR 52.21(r)(2). That provision authorizes
the EPA to grant extensions to the 18-month construction time
limitation in 40 CFR 52.21(r)(2) ``upon a satisfactory showing that an
extension is justified,'' but that provision does not provide any
specific criteria or required process that must be satisfied before the
EPA can exercise its discretion to determine that a permit extension
should be granted. The EPA has recently issued guidance for the EPA and
states with delegated PSD programs to clarify the EPA's views on what
constitutes an adequate justification for an extension of the 18-month
timeframe under 40 CFR 52.21(r)(2) for commencing construction of a
source that has been issued a PSD permit. See Memorandum from Stephen
D. Page, Director of EPA's Office of Air Quality Planning and
Standards, to Regional Air Division Directors, Region 1-10, Guidance on
Extension of Prevention of Significant Deterioration (PSD) Permits
under 40 CFR 52.21(r)(2), dated January 31, 2014 (Extension Guidance).
Similar to the Federal PSD regulations at 40 CFR 52.21(r)(2),
Ecology's PSD regulations provide that approval to construct or modify
a major stationary source becomes invalid if construction is not
commenced within eighteen months of the effective date of the approval,
if construction is discontinued for a period of eighteen months or
more, or if construction is not completed within a reasonable time.
Ecology has also included in WAC 173-400-730(5)(b) provisions setting
forth the criteria and procedures that apply to sources requesting and
Ecology in granting extensions to the 18-month time period. These
provisions are generally consistent with, but in some respects more
stringent than, EPA's Extension Guidance. The EPA reviewed Ecology's
permit application processing procedures, including the extension
provisions, and is proposing to approve them as consistent with the
CAA.
F. WAC 173-400-740, PSD Permitting Public Involvement Requirements and
WAC 173-400-171, Public Notice and Opportunity for Public Comment
WAC 173-400-740 sets out the public participation procedures for
Ecology's PSD program based on the EPA requirements contained in 40 CFR
51.166(q). The SIP-approved provisions of WAC 173-400-171, which apply
to Ecology minor source and major NNSR permitting actions, do not apply
to permits issued under the PSD program. Instead, WAC 173-400-171(1)(a)
refers all actions regulated by WAC 173-400-700 through 173-400-750 to
the public participation procedures of WAC 173-400-740. That regulation
requires Ecology to, among other things, provide an opportunity for
public comment and hearing, make relevant information regarding a PSD
permit application and Ecology's preliminary determination on an
application available to the public, send a copy of the notice of
public comment to the applicant, the EPA, and other identified
entities, consider all timely public comments in issuing a final
determination, and provide notice of the final determination to
specified entities.
WAC 173-400-171 does apply, however, to any visibility-related
elements for permits subject to major NNSR requirements under WAC 173-
400-800 through WAC 173-400-860. The EPA is proposing to find that WAC
173-400-740 and WAC 173-400-171 meet the CAA requirements for public
participation for both the PSD and visibility permitting programs.
G. Section 173-400-750, Revisions to PSD Permits
WAC 173-400-750 contains procedures for revisions to PSD permits.
Under this regulation, except in the case of certain categories of
revisions identified as ``administrative,'' revisions to PSD permits
are subject to the same public participation requirements that apply to
initial issuance of PSD permits. In addition, prior to revising a PSD
permit, Ecology must find, among other things, that no ambient air
quality standard or PSD increment will be exceeded as a result of the
change, the change will not adversely impact the ability of Ecology to
determine compliance with an emissions standard, and the revised PSD
permit will continue to require Best Available Control Technology
(BACT) for each new or modified emission unit approved by the original
PSD permit. Revisions that qualify as ``administrative'' under
Ecology's regulation are subject to the same substantive requirements
as non-administrative revisions but are not subject to Ecology's public
involvement requirements. The changes Ecology has characterized as
administrative are similar to the changes the EPA has characterized as
administrative or minor under the Title V permit program and for which
public notice and comment is not required. See 40 CFR 70.7(d) and
(e)(2).
Neither the EPA's PSD FIP at 40 CFR 52.21, nor the EPA's
regulations for SIP-approved PSD programs at 40 CFR 51.166, has
explicit provisions for revisions to PSD permits. The authority to
revise permits, however, is a necessary function of administering a
permitting program, and Ecology's regulations contain appropriate
safeguards on such revisions. The EPA reviewed WAC 173-400-750 and is
proposing to approve it as consistent with the CAA.
H. WAC 173-400-116, Increment Protection
WAC 173-400-116 establishes Ecology's PSD increment protection
criteria. In particular, WAC 173-400-116(3) establishes the exclusions
from increment consumption allowed under 40 CFR 51.166(f). These
exclusions include concentrations of particulate matter,
PM10 or PM2.5 attributable to the increase in
emissions from construction or other temporary emission-related
activities of new or modified sources; the increase in concentrations
attributable to new sources outside the United States over the
concentrations attributable to existing sources which are included in
the baseline concentration; and concentrations attributable to the
temporary increase in emissions of sulfur dioxide, particulate matter,
or nitrogen oxides from stationary sources which are affected by a
revision to the SIP approved by the EPA, if certain criteria are met.
All three of these exclusions mirror the language contained in 40 CFR
51.166. Therefore, the EPA is proposing to approve WAC 173-400-116 as
consistent with the CAA.
I. WAC 173-400-117, Special Protection Requirements for Federal Class I
Areas
WAC 173-400-117 consolidates in one section many of the
requirements for new or modified major sources that would impact
Federal Class I areas, including the visibility permitting program.
This includes the air quality related values (including visibility)
requirements that support implementation of 40 CFR 52.21(p)(1) through
(4) for PSD actions in attainment and unclassifiable areas, as
[[Page 842]]
incorporated by reference in WAC 173-400-720. WAC 173-400-117 also
includes the new source review visibility permitting requirements of 40
CFR 51.307 that cover all areas, including attainment, unclassifiable,
and nonattainment areas. The EPA reviewed WAC 173-400-117 and has
determined that these provisions are consistent with the requirements
for state plans in 40 CFR 51.166(p) and 40 CFR 51.307. Therefore, the
EPA proposes to approve WAC 173-400-117 as applying statewide except
for those facilities under EFSEC jurisdiction and other emission
categories and geographic areas for which Ecology does not have
jurisdiction, as discussed below in Section IV.C. Scope of Proposed
Action.
J. Personnel, Funding, and Authority
Section 110(a)(2)(E)(i) of the CAA requires that states have
adequate personnel, funding, and authority under state law to carry out
a SIP. Ecology's authority under state law to carry out the PSD program
is discussed above. With respect to personnel and funding, Ecology has
been issuing CAA PSD permits under a full or partial delegation
agreement with the EPA since 1983. The staff of engineers and air
quality modelers who supported Ecology in its issuance of PSD permits
under a delegation agreement with the EPA will continue to support
Ecology's issuance of PSD permits under a SIP-approved PSD program. The
EPA therefore proposes to find that Ecology has adequate personnel,
funding, and authority to implement the PSD program in Washington.
III. Effect of Recent Court Decisions Vacating and Remanding Certain
Federal Rules
A. Sierra Club v. EPA
As discussed in Section II above, Ecology's PSD program generally
incorporates by reference the Federal PSD permitting provisions in 40
CFR 52.21, in effect as of August 13, 2012. This version of 40 CFR
52.21 includes 40 CFR 52.21(i) (relating to the significant monitoring
concentration (SMC)) and 40 CFR 52.21(k) (relating to the significant
impact level (SIL)) that added a SMC and SIL for fine particulate
matter as part of the EPA's final rule Prevention of Significant
Deterioration for Particulate Matter Less than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels and
Significant Monitoring Concentration (2010 PSD PM2.5
Implementation Rule) (75 FR 64864, October 20, 2010).
On January 22, 2013, the U.S. Court of Appeals for the District of
Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued,
with respect to the SMC, a judgment that, inter alia, vacated the
provisions adding the PM2.5 SMC to the Federal regulations
at 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). In its decision, the Court
held that the EPA did not have the authority to use SMCs to exempt
permit applicants from the statutory requirement in section 165(e)(2)
of the CAA that ambient monitoring data for PM2.5 be
included in all PSD permit applications. Thus, although the
PM2.5 SMC was not a required element of a state's PSD
program, where a state PSD program contains such a provision and allows
issuance of new permits without requiring ambient PM2.5
monitoring data, such application of the vacated SMC would be
inconsistent with the Court's decision and the requirements of section
165(e)(2) of the CAA.
At the EPA's request, the decision also vacated and remanded to the
EPA for further consideration the portions of the 2010 PSD
PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40
CFR 52.21 related to SILs for PM2.5. The EPA requested this
vacatur and remand of two of the three provisions in the EPA
regulations that contain SILs for PM2.5 because the wording
of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR
52.21(k)(2)) is inconsistent with the explanation of when and how SILs
should be used by permitting authorities that we provided in the
preamble to the Federal Register publication when we promulgated these
provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not
vacated and remains in effect. We also note that the Court's decision
does not affect the PSD increments for PM2.5 promulgated as
part of the 2010 PSD PM2.5 Implementation Rule. The EPA
recently amended its regulations to remove the vacated PM2.5
SILs and SMC provisions from the PSD regulations (78 FR 73698, December
9, 2013). The EPA will initiate a separate rulemaking in the future
regarding the PM2.5 SILs that will address the Court's
remand. In the meantime, the EPA is advising states to begin
preparations to remove the vacated provisions from state PSD
regulations.
In response to the vacatur of the EPA regulations as they relate to
the PM2.5 SMC and the PM2.5 SILs, Washington's
January 27, 2014 submittal clarified that Ecology was not including
those vacated provisions for approval into the SIP, nor will Ecology
apply either the PM2.5 SMC provisions at 40 CFR
52.21(i)(5)(i)(c) or the PM2.5 SIL provisions at 40 CFR
52.21(k)(2) in implementation of its PSD program. In addition, the
submittal states that Ecology intends to remove the vacated provisions
to ensure consistency with Federal law as soon as practicable.
Therefore, the EPA proposes to determine that Ecology's January 27,
2014 SIP submittal is consistent with CAA requirements with respect to
PM2.5 SILs and SMC.
B. Utility Air Regulatory Group v. EPA
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to greenhouse
gas (GHG) emissions. See Utility Air Regulatory Group v. Environmental
Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA
may not treat GHGs as an air pollutant for purposes of determining
whether a source is a major source (or major modification thereof)
required to obtain a PSD permit. The Court also said that the EPA could
continue to require that PSD permits, otherwise required based on
emissions of pollutants other than GHGs, contain limitations on GHG
emissions based on the application of BACT. In order to act
consistently with its understanding of the Court's decision pending
further judicial action to effectuate the decision, the EPA is not
continuing to apply the EPA regulations that would require that SIPs
include permitting requirements that the Supreme Court found
impermissible. Specifically, the EPA is not applying the requirement
that a state's SIP-approved PSD program require that sources obtain PSD
permits when GHGs are the only pollutant (i) that the source emits or
has the potential to emit above the major source thresholds, or (ii)
for which there is a significant emissions increase and a significant
net emissions increase from a modification (e.g. 40 CFR
51.166(b)(48)(v) and the analogous definition in 40 CFR 52.21(b)(49)(v)
for the Federal PSD program). The EPA anticipates a need to revise
Federal PSD rules in light of the Supreme Court's decision. In
addition, the EPA anticipates that many states will revise their
existing SIP-approved PSD programs in light of the Supreme Court's
decision. The timing and content of subsequent EPA actions with respect
to EPA regulations and state PSD program approvals are expected to be
informed by additional legal process in Federal court.
On September 5, 2014, Ecology submitted a letter withdrawing from
its January 27, 2014 submittal the portion of WAC 173-400-720(4)(a)(vi)
that incorporates 40 CFR 52.21(b)(49)(v) by reference. Ecology notes in
its letter that it was not including this provision for
[[Page 843]]
approval into the SIP to align with the Supreme Court decision and to
prevent delay in the EPA's proposed action on Ecology's SIP submittal.
Ecology's letter does not discuss the fact that, because it adopted
EPA's PSD regulations as of August 13, 2012, its rules include the
elements of the EPA's 2012 rule implementing Step 3 of the phase-in of
PSD permitting requirements for greenhouse gases described in the
Tailoring Rule, which became effective on August 13, 2012 (77 FR 41051,
July 12, 2012). The incorporation of the Step 3 rule provisions into
Washington's SIP will allow GHG-emitting sources to obtain plantwide
applicability limits (PALs) for their GHG emissions on a carbon dioxide
equivalent (CO2e) basis. The Federal GHG PAL provisions, as
currently written, include some provisions that may no longer be
appropriate in light of the Supreme Court decision. Because the Supreme
Court has determined that sources and modifications may not be defined
as ``major'' solely on the basis of the level of greenhouse gases
emitted or increased, PALs for greenhouse gases may no longer have
value in some situations where a source might have triggered PSD based
on greenhouse gas emissions alone. However, PALs for GHGs may still
have a role in determining whether a modification that triggers PSD for
a pollutant other than greenhouse gases should also be subject to BACT
for greenhouse gases. These provisions, like the other GHG provisions
discussed previously, will likely be revised pending further legal
action. However, these provisions do not add new requirements for
sources or modifications that only emit or increase greenhouse gases
above the major source threshold or the 75,000 tons per year (tpy)
greenhouse gas level in 40 CFR 52.21(b)(49)(iv). Rather, the PALs
provisions provide increased flexibility to sources that choose to
address their GHG emissions in a PAL. Because this flexibility may
still be valuable to sources in at least one context described above,
we believe that it is appropriate to approve these provisions into the
Washington SIP at this point in time. The EPA is therefore proposing to
determine that Ecology's SIP revision meets the necessary PSD
requirements at this time, consistent with the Supreme Court's
decision.
IV. The EPA's Proposed Action
Consistent with the discussion above, the EPA proposes to approve
the PSD and visibility permitting regulations submitted by Ecology on
January 27, 2014. This action is the third and final in a series acting
on all remaining elements contained in Ecology's January 27, 2014
submittal. The previous two actions consisted of the EPA's October 3,
2014 (79 FR 59653) final approval of general provisions that apply to
all air pollution sources and the EPA's November 7, 2014 (79 FR 66291)
final approval of requirements that implement major source NNSR.
A. Rules To Approve Into the SIP
The EPA proposes to approve into Washington's SIP at 40 CFR part
52, subpart WW, the Ecology regulations listed in the table below. The
EPA also proposes to determine that the general air quality regulations
contained WAC 173-400-110, WAC 173-400-111, WAC 173-400-112, WAC 173-
400-113, and WAC 173-400-171 also meet the EPA's requirements for PSD
and visibility permitting and are approved for such purposes.\2\
---------------------------------------------------------------------------
\2\ As discussed above, this proposed approval of these
regulations for PSD purposes is subject to the exceptions and
explanations described in the EPA's July 10, 2014 proposal (79 FR
39351) and October 3, 2014 final action (79 FR 59653) of these
regulations.
Washington State Department of Ecology Regulations for Proposed Approval
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date Explanation
----------------------------------------------------------------------------------------------------------------
Chapter 173-400 WAC, General Regulations for Air Pollution Sources
----------------------------------------------------------------------------------------------------------------
173-400-700......................... Review of Major Stationary 4/1/11 ............................
Sources of Air Pollution.
173-400-710......................... Definitions................. 12/29/12 ............................
173-400-720......................... Prevention of Significant 12/29/12 Except: 173-400-720(4)(a)(i-
Deterioration (PSD). iv); 173-400-
720(4)(b)(iii)(C); and 173-
400-720(4)(a)(vi) with
respect to the
incorporation by reference
of the text in 40 CFR
52.21(b)(49)(v),
52.21(i)(5)(i), and
52.21(k)(2).
173-400-730......................... Prevention of Significant 12/29/12 ............................
Deterioration Application
Processing Procedures.
173-400-740......................... PSD Permitting Public 12/29/12 ............................
Involvement Requirements.
173-400-750......................... Revisions to PSD Permits.... 12/29/12 Except: 173-400-750(2)
second sentence.
173-400-116......................... Increment Protection........ 9/10/11 ............................
173-400-117......................... Special Protection 12/29/12 ............................
Requirements for Federal
Class I Areas.
----------------------------------------------------------------------------------------------------------------
B. Transfer of Existing EPA-Issued PSD Permits
In a letter dated October 24, 2014, Ecology requested approval to
exercise its authority to fully administer the PSD program with respect
to those sources under Ecology's permitting jurisdiction that have
existing PSD permits issued by the EPA since August 7, 1977. This would
include authority to conduct general administration of these existing
permits, authority to process and issue any and all subsequent PSD
permit actions relating to such permits (e.g., modifications,
amendments, or revisions of any nature), and authority to enforce such
permits. Since October 1, 1983, Ecology has had full or partial
delegation of the PSD permitting program under the FIP. Therefore, most
of the EPA permits subject to proposed transfer were also issued under
state authority. For those permits issued solely by the EPA prior to
delegation (August 7, 1977 to October 1, 1983), Ecology has also
demonstrated adequate authority to enforce and modify these permits.
Concurrent with our approval of Ecology's PSD program into the SIP, we
are proposing that the EPA-issued
[[Page 844]]
permits would be transferred to Ecology. The EPA will retain authority
to administer any PSD permits issued by the EPA in Washington prior to
August 7, 1977.
C. Scope of Proposed Action
1. WAC 173-400-700 Through 173-400-750
Under WAC 173-400-700, Ecology's PSD regulations contained in WAC
173-400-700 through 173-400-750 apply statewide except where a local
clean air agency has received delegation of the Federal PSD program
from the EPA or has a SIP-approved PSD program. At this time, no local
clean air agencies have a delegated or SIP-approved PSD program. The
EPA is therefore approving Ecology's regulations contained in WAC 173-
400-700 through 173-400-750 to apply statewide, except for the three
situations described below. For these facilities, emission categories,
and geographic areas, the PSD FIP at 40 CFR 52.21 will continue to
apply and the EPA will retain responsibility for issuing permits
affecting such sources.
a. Sources Under EFSEC's Jurisdiction
By statute, Ecology does not have authority for sources under the
jurisdiction of EFSEC. See Chapter 80.50 RCW. Therefore, the EPA's
proposed approval of Ecology's PSD program, under WAC 173-400-700
through 173-400-750, excludes projects under the jurisdiction of EFSEC.
Such sources will continue to be subject to the PSD FIP in 40 CFR 52.21
until such time that EFSEC's PSD rules are approved into the SIP.
b. Carbon Dioxide Emissions From Industrial Combustion of Biomass
Under a provision contained in RCW 70.235.020, Greenhouse Gas
Emissions Reductions--Reporting Requirements, Ecology is statutorily
barred from regulating certain greenhouse gas emissions under PSD.
Specifically, RCW 70.235.020(3) states, ``[e]xcept for purposes of
reporting, emissions of carbon dioxide from industrial combustion of
biomass in the form of fuel wood, wood waste, wood by-products, and
wood residuals shall not be considered a greenhouse gas as long as the
region's silvicultural sequestration capacity is maintained or
increased.'' Under the restrictions of this state statute, if the
source of carbon dioxide (CO2) emissions is subject to PSD
because it is major for another regulated NSR pollutant, Ecology is
prohibited from issuing a PSD permit regulating CO2
emissions. Therefore, if the EPA takes final action on this proposal to
approve Ecology's PSD regulations into the SIP, Ecology will be
responsible for issuing PSD permits under the SIP for all pollutants
except CO2 at such sources and the EPA will retain its role
as the primary authority for issuing PSD permits for CO2
emissions from such sources under 40 CFR 52.21. PSD permitting of
CO2 emissions from such sources is also excluded from the
2013 Delegation Agreement.
c. Sources in Indian Country
The EPA is also excluding from the scope of this proposed approval
of Ecology's PSD program all Indian reservations in the State, except
for non-trust land within the exterior boundaries of the Puyallup
Indian Reservation (also known as the 1873 Survey Area), and any other
area where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. 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 and the EPA is therefore proposing to
approve Ecology's PSD regulations into the SIP with respect to such
lands.
d. Scope of PSD FIP in Washington
Consistent with the limitations on the scope of the EPA's proposed
approval of WAC 173-400-700 through 173-400-750 in the Washington SIP,
the EPA is proposing to retain, but significantly narrow, the scope of
the current PSD FIP in 40 CFR 52.2497. The EPA's Federal PSD permitting
rules will continue to apply to facilities subject to the jurisdiction
of the Energy Facilities Site Evaluation Council; carbon dioxide
emissions from facilities with industrial combustion of biomass in the
form of fuel wood, wood waste, wood by-products and wood residuals; and
facilities located within Indian reservations in Washington (except for
non-trust land within the exterior boundaries of the Puyallup Indian
Reservation) and any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In addition, the EPA's PSD
rules will continue to apply to sources subject to PSD permits issued
by the EPA prior to August 7, 1977, but only with respect to the
general administration of any such permits still in effect (e.g.,
modifications, amendments, or revisions of any nature).
2. WAC 173-400-116 and 173-400-117
With respect to the EPA's proposed approval of WAC 173-400-116 and
WAC 173-400-117, the SIP-approved provisions of WAC 173-400-020 govern
jurisdictional applicability for those sections. WAC 173-400-020
states, ``[t]he provisions of this chapter shall 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 RCW 70.94.141 and
70.94.331.'' Because Ecology will be the only authority in Washington
with a SIP-approved PSD program that would implement WAC 173-400-116,
Increment Protection, the EPA's proposed approval will apply statewide.
Similarly, the scope of the EPA's proposed approval of WAC 173-400-117,
Special Protection Requirements for Federal Class I Areas, applies
statewide for PSD permits issued by Ecology under WAC 173-400-700
through 173-400-750. However, for visibility-related elements
associated with permits issued under the major NNSR program, the
applicability of WAC 173-400-117 is more complicated because local
clean air agencies have the authority under state law to have
alternative, but no less stringent, permitting requirements. Therefore,
consistent with the EPA's November 7, 2014 approval of Ecology's major
NNSR program, the EPA's proposed approval of WAC 173-400-117, as it
relates to permits issues under WAC 173-400-800 through 173-400-860, is
limited to only those counties or sources where the Department of
Ecology has direct 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 Counties. 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 statewide, direct
jurisdiction for kraft pulp mills, sulfite pulping mills, and primary
aluminum plants. The EPA is therefore also approving WAC 173-400-117 in
all areas of the state under Ecology's jurisdiction for those source
categories.
a. Scope of Visibility FIP in Washington
Consistent with the limitations on the scope of the EPA's approval
of Ecology's major NNSR program, the EPA is proposing to retain, but
significantly narrow, the scope of the current
[[Page 845]]
visibility FIP in 40 CFR 52.2498. The EPA's Federal visibility new
source review rules will continue to apply to facilities subject to the
jurisdiction of the Energy Facilities Site Evaluation Council; sources
subject to the jurisdiction of local air authorities; and facilities
located within Indian reservations in Washington (except for non-trust
land within the exterior boundaries of the Puyallup Indian Reservation)
and any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction.
D. The EPA's Oversight Role
In approving state new source review rules into SIPs, the EPA has a
responsibility to ensure that all states properly implement their SIP-
approved preconstruction permitting programs. The EPA's approval of
Ecology's PSD rules does not divest the EPA of the responsibility to
continue appropriate oversight to ensure that permits issued by Ecology
are consistent with the requirements of the CAA, Federal regulations,
and the SIP. The EPA's authority to oversee permit program
implementation is set forth in sections 113, 167, and 505(b) of the
CAA. For example, section 167 provides that the EPA shall issue
administrative orders, initiate civil actions, or take whatever other
action may be necessary to prevent the construction or modification of
a major stationary source that does not ``conform to the requirements
of'' the PSD program. Similarly, section 113(a)(5) of the CAA provides
for administrative orders and civil actions whenever the EPA finds that
a state ``is not acting in compliance with'' any requirement or
prohibition of the CAA regarding the construction of new sources or
modification of existing sources. Likewise, section 113(a)(1) provides
for a range of enforcement remedies whenever the EPA finds that a
person is in violation of an applicable implementation plan.
In making judgments as to what constitutes compliance with the CAA
and regulations issued thereunder, the EPA looks to (among other
sources) its prior interpretations regarding those statutory and
regulatory requirements and policies for implementing them. It follows
that state actions implementing the Federal CAA that do not conform to
the CAA may lead to potential oversight action by the EPA.
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 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
proposed action merely approves the state's law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by the state's law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 the 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).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because it will not impose substantial direct costs on tribal
governments or preempt tribal law. As discussed above, the SIP is not
approved to apply in Indian country located in the state, except for
non-trust land within the exterior boundaries of the Puyallup Indian
Reservation (also known as the 1873 Survey Area), or any other area
where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. Consistent with EPA policy, the EPA provided a
consultation opportunity to the Puyallup Tribe in a letter dated
February 25, 2014. The EPA did not receive a request for consultation.
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.
Dated: December 18, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-30716 Filed 1-6-15; 8:45 am]
BILLING CODE 6560-50-P