[Federal Register Volume 82, Number 54 (Wednesday, March 22, 2017)]
[Proposed Rules]
[Pages 14648-14654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05467]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2016-0785: FRL-9959-02-Region 10]


Air Plan Approval; Washington: General Regulations for Air 
Pollution Sources, Energy Facility Site Evaluation Council

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
revise the Washington State Implementation Plan (SIP) to approve 
updates to the Energy Facility Site Evaluation Council (EFSEC) air 
quality regulations. The EFSEC regulations primarily adopt by reference 
the Washington Department of Ecology (Ecology) general air quality 
regulations, which the EPA approved in the fall of 2014 and spring of 
2015. Consistent with our approval of the Ecology general air quality 
regulations, we are also proposing to approve revisions to implement 
the preconstruction permitting regulations for large industrial (major 
source) facilities in attainment and unclassifiable areas, called the 
Prevention of Significant Deterioration (PSD) program. The PSD program 
for major energy facilities under EFSEC's jurisdiction has historically 
been operated under a Federal Implementation Plan (FIP), in cooperation 
with the EPA and Ecology. If finalized, the EPA's proposed approval of 
the EFSEC PSD program would narrow the FIP to include only those few 
potential facilities, emission sources, geographic areas, and permits 
for which EFSEC does not have jurisdiction or authority. The EPA is 
also proposing to approve EFSEC's visibility protection permitting 
program which overlaps significantly with the PSD program in most 
cases.

DATES: Written comments must be received on or before April 21, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2016-0785 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

[[Page 14649]]


FOR FURTHER INFORMATION CONTACT: Jeff Hunt, Air Planning Unit, Office 
of Air and Waste (AWT-150), Environmental Protection Agency, Region 10, 
1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 
553-0256; email address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background for Proposed Action
II. Washington SIP Revisions
    A. Revised EFSEC Regulations
    B. 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. Regulations to Approve and Incorporate by Reference into the 
SIP
    B. Regulations to Approve but Not Incorporate by Reference
    C. Regulations to Remove from the SIP
    D. Proposed Transfer of Existing EPA-issued PSD Permits
    E. Scope of Proposed Action
    F. The EPA's Oversight Role
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background for Proposed Action

    By statute, EFSEC has jurisdiction for managing the air program 
with respect to major energy facilities in the State of Washington. See 
Chapter 80.50 of the Revised Code of Washington (RCW). The EFSEC air 
quality regulations are contained in Chapter 463-78 Washington 
Administrative Code (WAC) General and Operating Permit Regulations for 
Air Pollution Sources. These EFSEC regulations rely primarily on the 
incorporation by reference of the corresponding Ecology general air 
quality regulations contained in Chapter 173-400 WAC General 
Regulations for Air Pollution Sources. On July 27, 2015, effective 
August 27, 2015, EFSEC updated its regulations to generally adopt by 
reference the version of Chapter 173-400 WAC approved into the SIP at 
that time.\1\ On December 20, 2016, EFSEC, in cooperation with Ecology, 
requested that the EPA approve the updated EFSEC regulations consistent 
with our phased approval of Chapter 173-400 WAC. See 79 FR 59653 
(October 3, 2014, approval of general provisions), 79 FR 66291 
(November 7, 2014, approval of major source nonattainment new source 
review), and 80 FR 23721 (April 29, 2015, approval of PSD and 
visibility protection permitting programs).
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    \1\ On October 6, 2016, the EPA approved minor revisions to 
Chapter 173-400 WAC, primarily updating the adoption by reference 
date of cited Federal regulations (81 FR 69385). Because EFSEC 
already modified its regulations to include an updated adoption by 
reference date for cited Federal regulations, this minor change to 
Chapter 173-400 WAC does not substantively affect EFSEC's 
submission.
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II. Washington SIP Revisions

A. Revised EFSEC Regulations

    The EPA last approved EFSEC's air quality regulations on May 23, 
1996 (61 FR 25791). Aside from recodification from 463-39 to 463-78 
WAC, grammatical changes, and minor clarifications, the EFSEC air 
quality regulations remain substantially unchanged since the EPA's last 
approval. The more substantive changes include EFSEC's modification of 
WAC 463-78-095 Permit Issuance to clarify that new permits, and 
modifications to existing permits, shall be conditioned upon compliance 
with all provisions of the federally-approved SIP. Other changes 
include updating citations in Chapter 463-78 WAC to better align with 
the associated provisions in Chapter 173-400 WAC. A full redline/
strikeout comparison of the 1996 SIP-approved version of the EFSEC 
regulations to the submitted 2015 version is included in the docket for 
this action. We reviewed the revisions to the regulations and are 
proposing to determine that they meet the requirements of section 110 
of the Clean Air Act (CAA).
    The most substantive component of EFSEC's regulations is WAC 463-
78-005 Adoption by Reference, which generally adopts by reference 
Chapter 173-400 WAC to match the EPA's October 3, 2014, November 7, 
2014, and April 29, 2015 phased approval of Ecology's general air 
quality rules. We note that EFSEC's adoption by reference of Chapter 
173-400 WAC is modified in three ways. First, references in Chapter 
173-400 WAC regarding appeals are modified to reflect EFSEC's 
independent appeals process in WAC 463-78-140. Second, the cross 
references to fees under Chapter 173-455 WAC are modified to reflect 
EFSEC's independent fee structure set out in Chapter 80.50 RCW. Lastly, 
WAC 173-400-720 contains Ecology's adoption by reference of the federal 
PSD program regulations contained in 40 CFR 52.21, with some 
exceptions. EFSEC modified the adoption by reference of WAC 173-400-720 
to reflect the most recent version of 40 CFR 52.21 available at that 
time (May 1, 2015).
    We note two additional factors regarding EFSEC's incorporation by 
reference of Chapter 173-400 WAC. First, while EFSEC generally adopts 
most of the provisions of Chapter 173-400 WAC by reference, not all 
provisions are included. For example, consistent with the EPA's prior 
approval of the EFSEC regulations, EFSEC did not adopt by reference the 
enforcement and authority provisions contained in WAC 173-400-220 
through 260. For these provisions, EFSEC relies on its own independent 
authorities, which are currently part of Washington's federally-
approved SIP under WAC 463-39-135 through 230. In other cases, such as 
WAC 173-400-118 Designation of Class I, II, and III Areas, WAC 173-400-
151 Retrofit Requirements for Visibility Protection, and parts of WAC 
173-400-070 Emission Standards for Certain Source Categories, EFSEC did 
not adopt these Chapter 173-400 WAC provisions by reference because 
they pertain to source categories or authorities outside the scope of 
EFSEC's jurisdiction. The second factor is that many parts of Chapter 
173-400 WAC contain provisions that are not related to the criteria 
pollutants regulated under title I of the CAA, not related to the 
requirements for SIPs under section 110 of the CAA, or have not been 
revised since last approved by the EPA. For this reason, EFSEC only 
submitted for SIP approval those parts of the incorporation by 
reference of Chapter 173-400 WAC consistent with the EPA's October 3, 
2014, November 7, 2014, and April 29, 2015 phased approval. A full 
listing of the Chapter 173-400 WAC provisions submitted for approval is 
included in Section IV.

B. Personnel, Funding, and Authority

    Section 110(a)(2)(E)(i) of the CAA requires that agencies have 
adequate personnel, funding, and authority under state law to carry out 
the SIP. EFSEC's authority under state law to carry out the air program 
for major energy facilities, including the PSD and visibility 
protection permitting programs, is derived from Chapter 80.50 RCW. With 
respect to personnel and funding, EFSEC has issued CAA PSD permits, in 
coordination with Ecology, under a partial delegation agreement with 
the EPA since 1993. These PSD permits include the visibility protection 
requirements of WAC 173-400-117 Special Protection Requirements for 
Federal Class I Areas, adopted by reference in EFSEC's regulations. As 
described in our April 29, 2015 final approval of WAC 173-400-117, 
these visibility protection requirements would also apply to 
visibility-related elements associated with permits issued under the 
major nonattainment new source review program under WAC 173-400-800 
through 860, also adopted by reference in the EFSEC regulations (see 80 
FR 23721, at page 23726). The staff

[[Page 14650]]

of engineers and air quality modelers at both EFSEC and Ecology, who 
supported issuance of permits under the delegation agreement with the 
EPA, will continue to support EFSEC's issuance of permits under a SIP-
approved PSD and visibility protection program. Chapter 80.50 RCW also 
provides EFSEC the authority to charge fees for the coordinated EFSEC 
and Ecology review of any new or modified permits. The EPA therefore 
proposes to find that EFSEC has adequate personnel, funding, and 
authority to implement the PSD and visibility protection programs for 
facilities in its jurisdiction.

III. Effect of Court Decisions Vacating and Remanding Certain Federal 
Rules

A. Sierra Club v. EPA

    The EPA's January 7, 2015 proposed approval of Ecology's PSD 
program included a discussion of the Sierra Club v. EPA, 703 F.3d 458 
(D.C. Cir. 2013) decision which vacated certain provisions of the 
Federal PSD regulations related to fine particulate matter 
(PM2.5). See 80 FR 838, at page 842. As discussed in the 
proposed approval, Ecology's regulations at that time in WAC 173-400-
720(4)(a)(vi) generally incorporated by reference the Federal PSD 
permitting provisions in effect as of August 13, 2012, including the 
vacated provisions of 40 CFR 52.21(i) (relating to the significant 
monitoring concentration) and 40 CFR 52.21(k) (relating to the 
significant impact level). The EPA subsequently removed the vacated 
PM2.5 SIL and SMC provisions from the Federal PSD 
regulations effective December 9, 2013 (78 FR 73698). Ecology resolved 
this issue by revising WAC 173-400-720(4)(a)(vi) to an updated version 
of 40 CFR 52.21 that did not contain the vacated provisions (81 FR 
69385, October 6, 2016). Similarly, we are proposing to determine that 
EFSEC has resolved this issue by modifying its incorporation by 
reference of WAC 173-400-720(4)(a)(vi) to reflect the May 1, 2015 
version of 40 CFR 52.21 that does not contain the vacated 
PM2.5 SIL and SMC provisions.

B. Utility Air Regulatory Group v. EPA

    On June 23, 2014, the U.S. Supreme Court issued a decision in 
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427, addressing 
the application of stationary source permitting requirements to 
greenhouse gases (GHGs). The U.S. Supreme Court held that the EPA may 
not treat GHGs as an air pollutant for the specific purpose of 
determining whether a source is a major source (or a modification 
thereof) and thus required to obtain a PSD or title V permit. In 
response to the Supreme Court's decision, and the subsequent vacatur of 
40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v) by the Court of 
Appeals for the District of Columbia Circuit, the EPA removed these 
requirements from the federal PSD regulations (80 FR 50199, August 19, 
2015). Because the EPA's removal of the vacated provisions occurred 
after EFSEC's May 1, 2015 citation date incorporating 40 CFR 52.21, the 
EFSEC regulations adopted by reference in WAC 463-78-005 have not yet 
captured the EPA's update. In order to align with the Supreme Court 
decision and to prevent delay in the EPA's consideration of the EFSEC 
regulations, EFSEC clarified in the December 20, 2016 SIP submittal 
that it is not submitting the incorporation by reference of 40 CFR 
52.21(b)(49)(v) for approval. EFSEC intends to incorporate by reference 
a more recent version of 40 CFR 52.21 that does not contain the vacated 
provisions, as soon as practicable.
    EFSEC's SIP submittal does not discuss the fact that, because it 
adopted the EPA's PSD regulations as of May 1, 2015, its rules include 
the elements of the EPA's 2012 rule implementing Step 3 of the phase-in 
of PSD permitting requirements for GHGs 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 allows 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 GHG emissions alone. However, 
PALs for GHGs may still have a role in determining whether a 
modification that triggers PSD for a pollutant other than GHGs should 
also be subject to Best Available Control Technology (BACT) for GHGs. 
These provisions 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 GHGs above the major source 
threshold or the 75,000 tons per year (tpy) GHG threshold 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 EFSEC's SIP revision 
meets the necessary PSD requirements at this time, consistent with the 
Supreme Court's decision.

IV. The EPA's Proposed Action

A. Regulations To Approve and Incorporate by Reference Into the SIP

    The EPA proposes to approve and incorporate by reference into the 
Washington SIP at 40 CFR 52.2470(c)--Table 3--Additional Regulations 
Approved for the Energy Facilities Site Evaluation Council (EFSEC) 
Jurisdiction, the revised EFSEC regulations listed in Table 1 below.

 Table 1--Energy Facilities Site Evaluation Council (EFSEC) Regulations for Proposed Approval and Incorporation
                                                  by Reference
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                                                                      State/local
        State/local  citation                 Title/subject         effective date           Explanation
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             Chapter 463-78 WAC, General and Operating Permit Regulations for Air Pollution Sources.
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78-005..............................  Adoption by Reference.......         8/27/15  Except: (2), (3), (4), and
                                                                                     (5). See table below for
                                                                                     revised Chapter 173-400 WAC
                                                                                     provisions incorporated by
                                                                                     reference.
78-010..............................  Purpose.....................         8/27/15  ............................
78-020..............................  Applicability...............        11/11/04  ............................

[[Page 14651]]

 
78-030..............................  Additional Definitions......         8/27/15  Except references to 173-401-
                                                                                     200 and 173-406-101.
78-095..............................  Permit Issuance.............         8/27/15  ............................
78-120..............................  Monitoring and Special              11/11/04  ............................
                                       Report.
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        Table 2--Revised Chapter 173-400 WAC Regulations Incorporated by Reference in WAC 463-78-005 \2\
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                                                                         State
           State citation                     Title/subject         effective date          Explanations
----------------------------------------------------------------------------------------------------------------
         Washington Administrative Code, Chapter 173-400--General Regulations for Air Pollution Sources.
----------------------------------------------------------------------------------------------------------------
173-400-030.........................  Definitions.................        12/29/12  Except: 173-400-030(91).
173-400-036.........................  Relocation of Portable              12/29/12  ............................
                                       Sources.
173-400-040.........................  General Standards for                 4/1/11  Except: 173-400-040(2)(c);
                                       Maximum Emissions.                            173-400-040(2)(d); 173-400-
                                                                                     040(3); 173-400-040(5); 173-
                                                                                     400-040(7), second
                                                                                     paragraph.
173-400-050.........................  Emission Standards for              12/29/12  Except: 173-400-050(2); 173-
                                       Combustion and Incineration                   400-050(4); 173-400-050(5).
                                       Units.
173-400-060.........................  Emission Standards for               2/10/05  ............................
                                       General Process Units.
173-400-070.........................  Emission Standards for              12/29/12  Except: 173-400-070(1); 173-
                                       Certain Source Categories.                    400-070(2); 173-400-070(3);
                                                                                     173-400-070(4); 173-400-
                                                                                     070(6); 173-400-070(7); 173-
                                                                                     400-070(8).
173-400-081.........................  Startup and Shutdown........          4/1/11  ............................
173-400-091.........................  Voluntary Limits on                   4/1/11  ............................
                                       Emissions.
173-400-105.........................  Records, Monitoring, and            12/29/12  ............................
                                       Reporting.
173-400-110.........................  New Source Review (NSR) for         12/29/12  Except: 173-400-
                                       Sources and Portable                          110(1)(c)(ii)(C); 173-400-
                                       Sources.                                      110(1)(e); 173-400-
                                                                                     110(2)(d); The part of WAC
                                                                                     173-400-110(4)(b)(vi) that
                                                                                     says,
                                                                                     ``not for use with
                                                                                     materials containing toxic
                                                                                     air pollutants, as listed
                                                                                     in chapter 173-460 WAC,'';
                                                                                    The part of 400-110
                                                                                     (4)(e)(iii) that says,
                                                                                     ``where toxic air
                                                                                     pollutants as defined in
                                                                                     chapter 173-460 WAC are not
                                                                                     emitted'';
                                                                                    The part of 400-110(4)(f)(i)
                                                                                     that says,
                                                                                     ``that are not
                                                                                     toxic air pollutants listed
                                                                                     in chapter 173-460 WAC'';
                                                                                    The part of 400-110
                                                                                     (4)(h)(xviii) that says,
                                                                                     ``, to the extent
                                                                                     that toxic air pollutant
                                                                                     gases as defined in chapter
                                                                                     173-460 WAC are not
                                                                                     emitted'';
                                                                                    The part of 400-110
                                                                                     (4)(h)(xxxiii) that says,
                                                                                     ``where no toxic
                                                                                     air pollutants as listed
                                                                                     under chapter 173-460 WAC
                                                                                     are emitted'';
                                                                                    The part of 400-
                                                                                     110(4)(h)(xxxiv) that says,
                                                                                     ``, or <= 1% (by
                                                                                     weight) toxic air
                                                                                     pollutants as listed in
                                                                                     chapter 173-460 WAC'';
                                                                                    The part of 400-
                                                                                     110(4)(h)(xxxv) that says,
                                                                                     ``or <= 1% (by
                                                                                     weight) toxic air
                                                                                     pollutants'';
                                                                                    The part of 400-
                                                                                     110(4)(h)(xxxvi) that says,
                                                                                     ``or <= 1% (by
                                                                                     weight) toxic air
                                                                                     pollutants as listed in
                                                                                     chapter 173-460 WAC''; 400-
                                                                                     110(4)(h)(xl), second
                                                                                     sentence; The last row of
                                                                                     the table in 173-400-
                                                                                     110(5)(b) regarding
                                                                                     exemption levels for Toxic
                                                                                     Air Pollutants.
173-400-111.........................  Processing Notice of                12/29/12  Except: 173-400-111(3)(h);
                                       Construction Applications                     173-400-111 (5)(a) (last
                                       for Sources, Stationary                       six words); 173-400-111
                                       Sources and Portable                          (6);
                                       Sources.
                                                                                    The part of 173-400-
                                                                                     111(8)(a)(v) that says,
                                                                                     ``and 173-460-
                                                                                     040,''; 173-400-111(9).
173-400-112.........................  Requirements for New Sources        12/29/12  ............................
                                       in Nonattainment Areas--
                                       Review for Compliance with
                                       Regulations.
173-400-113.........................  New Sources in Attainment or        12/29/12  Except: 173-400-113(3),
                                       Unclassifiable Areas--                        second sentence.
                                       Review for Compliance with
                                       Regulations.
173-400-116.........................  Increment Protection........         9/10/11  ............................

[[Page 14652]]

 
173-400-117.........................  Special Protection                  12/29/12  ............................
                                       Requirements for.
                                      Federal Class I Areas.......
173-400-131.........................  Issuance of Emission                  4/1/11  ............................
                                       Reduction Credits.
173-400-136.........................  Use of Emission Reduction             4/1/11  ............................
                                       Credits (ERC).
173-400-171.........................  Public Notice and                   12/29/12  Except:
                                       Opportunity for Public                       The part of 173-400-
                                       Comment.                                      171(3)(b) that says,
                                                                                     ``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).
173-400-175.........................  Public Information..........         2/10/05  ............................
173-400-200.........................  Creditable Stack Height and          2/10/05  ............................
                                       Dispersion Techniques.
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).                          through 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).
                                                                                    * For the purpose of EFSEC's
                                                                                     incorporation by reference
                                                                                     of 40 CFR 52.21, the date
                                                                                     in WAC 173-400-720
                                                                                     (4)(a)(vi) is May 1, 2015.
173-400-730.........................  Prevention of Significant           12/29/12  Except 173-400-730(4)
                                       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.
173-400-800.........................  Major Stationary Source and           4/1/11  ............................
                                       Major.
                                      Modification in a
                                       Nonattainment Area.
173-400-810.........................  Major Stationary Source and         12/29/12  ............................
                                       Major Modification
                                       Definitions.
173-400-820.........................  Determining if a New                12/29/12  ............................
                                       Stationary Source or
                                       Modification to a
                                       Stationary Source is
                                       Subject to these
                                       Requirements.
173-400-830.........................  Permitting Requirements.....        12/29/12  ............................
173-400-840.........................  Emission Offset Requirements        12/29/12  ............................
173-400-850.........................  Actual Emissions Plantwide          12/29/12  ............................
                                       Applicability Limitation
                                       (PAL).
173-400-860.........................  Public Involvement                    4/1/11  ............................
                                       Procedures.
----------------------------------------------------------------------------------------------------------------

B. Regulations To Approve but Not Incorporate by Reference
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    \2\ Several of the provision of Chapter 173-400 WAC incorporated 
by reference remain unchanged since the EPA's last approval of 
EFSEC's regulations and were not resubmitted as part of the December 
20, 2016 SIP revision.
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    In addition to the regulations proposed for approval and 
incorporation by reference above, the EPA reviews and approves state 
submissions to ensure they provide adequate enforcement authority and 
other general authority to implement and enforce the SIP. However, 
regulations describing state enforcement and other general authorities 
are generally not incorporated by reference, so as to avoid potential 
conflict with the EPA's independent authorities. The EPA has reviewed 
and is proposing to approve WAC 463-78-135 Criminal Penalties, WAC 463-
78-140 Appeals Procedure (except subsections 3 and 4 which deal with 
permits outside the scope of CAA section 110), WAC 463-78-170 Conflict 
of Interest, and WAC 463-78-230 Regulatory Actions, as providing EFSEC 
with adequate enforcement and other general authority for purposes of 
implementing and enforcing its SIP, but is not incorporating these 
sections by reference into the SIP codified in 40 CFR 52.2470(c). 
Instead, the EPA is proposing to include these sections in 40 CFR 
52.2470(e), EPA Approved Nonregulatory Provisions and Quasi-Regulatory 
Measures, as approved but not incorporated by reference regulatory 
provisions.

C. Regulations To Remove From the SIP

    As discussed in our July 10, 2014 proposed approval of revisions to 
Chapter 173-400 WAC, Ecology formerly relied on the registration 
program under WAC 173-400-100 for determining the applicability of the 
new source review (NSR) permitting program (see 79 FR 39351 at page 
39354). By statutory directive, this means of determining NSR 
applicability was replaced by revisions to WAC 173-400-110 which set de 
minimis emission unit, activity, and annual emission thresholds. In our 
October 3, 2014 final action, we approved WAC 173-400-110 as the means 
of determining NSR applicability, and at Ecology's request, removed WAC 
173-400-100 from the SIP (79 FR 59653). Consistent with our proposed 
and final approval of revisions to Chapter 173-400 WAC, we are now

[[Page 14653]]

proposing to remove, at EFSEC's request, WAC 463-39-100 Registration 
(recodified to WAC 463-78-100) from the SIP because it is no longer 
used as the means of determining NSR applicability.
    As previously discussed, EFSEC adopted by reference most of the 
provisions in Chapter 173-400 WAC, but excluded certain provisions 
pertaining to authorities or source categories outside EFSEC's 
jurisdiction. WAC 173-400-151 Retrofit Requirements for Visibility 
Protection is one such provision. The EPA's May 23, 1996 approval of 
EFSEC's regulations included the incorporation by reference of WAC 173-
400-151 (61 FR 25791). These regulations establish Best Available 
Retrofit Technology (BART) as part of the visibility protection program 
for an ``existing stationary facility.'' Under WAC 173-400-151 an 
``existing stationary facility'' is defined, among other factors, as a 
facility not in operation prior to August 7, 1962, and also in 
existence on August 7, 1977. EFSEC has advised the EPA that there are 
no sources under EFSEC's jurisdiction that meet the definition of BART-
eligible sources. The EPA is therefore proposing to grant EFSEC's 
request to remove the incorporation by reference of WAC 173-400-151 
from the SIP.

D. Proposed Transfer of Existing EPA-Issued PSD Permits

    As part of the SIP submittal, EFSEC requested approval to exercise 
its authority to fully administer the PSD program with respect to those 
sources under EFSEC's permitting jurisdiction that have existing PSD 
permits issued by the EPA. This includes 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 1993, EFSEC has had 
partial delegation of the PSD permitting program under the FIP. 
Therefore, many 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, EFSEC, in coordination with Ecology, has 
demonstrated adequate authority to enforce and modify these permits. 
Concurrent with our approval of EFSEC's PSD program into the Washington 
SIP, we are proposing to transfer the EPA-issued permits to EFSEC for 
the Chehalis Generation Facility and Grays Harbor Energy Center 
facilities.

E. Scope of Proposed Action

    The EPA is excluding from the scope of this proposed approval 
certain limitations as they relate to PSD requirements for carbon 
dioxide emissions from industrial combustion of biomass. As discussed 
in our April 29, 2015 approval of Ecology's PSD program, a Washington 
State statutory provision contained in RCW 70.235.020 Greenhouse Gas 
Emissions Reductions--Reporting Requirements states, ``Except 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.'' See 80 FR 23721, at page 23722. As a result, 
consistent with our prior approval, the EPA is proposing to retain a 
FIP to issue partial PSD permits to ensure that major sources in 
Washington have a means to satisfy the CAA construction permit 
requirements for GHGs when CO2 emissions from the industrial 
combustion of biomass in Washington are not being considered or 
regulated by EFSEC under its PSD rules.
    If finalized, the EPA is proposing to revise the PSD FIP at 40 CFR 
52.2497 and the visibility protection FIP at 40 CFR 52.2498 to reflect 
the approval of EFSEC's PSD and visibility permitting programs. 
Specifically, the EPA is proposing to delete paragraph (a)(1) of 40 CFR 
52.2497 and paragraph (a)(1) of 40 CFR 52.2498, both of which address 
facilities subject to the jurisdiction of EFSEC in these FIPs.

F. The EPA's Oversight Role

    In approving state NSR rules into SIPs, the EPA has a 
responsibility to ensure that all states properly implement their SIP-
approved preconstruction permitting programs. The EPA's proposed 
approval of EFSEC's PSD rules does not divest the EPA of the 
responsibility to continue appropriate oversight to ensure that permits 
issued by EFSEC 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. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to revise our 
incorporation by reference of 40 CFR 52.2470(c)--Table 3--Additional 
Regulations Approved for the Energy Facilities Site Evaluation Council 
(EFSEC) Jurisdiction to reflect the regulations shown in the tables in 
section IV.A. Regulations to Approve and Incorporate by Reference into 
the SIP and the rules proposed for removal from the SIP in section 
IV.C. Regulations to Remove from the SIP. The EPA has made, and will 
continue to make, these materials generally available through 
www.regulations.gov and/or at the EPA Region 10 Office (please contact 
the person identified in the For Further Information Contact section of 
this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the 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 
proposed 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 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,

[[Page 14654]]

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 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 July 
1, 2016. 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.

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

    Dated: March 10, 2017.
Nancy J. Lindsay,
Acting Regional Administrator, Region 10.
[FR Doc. 2017-05467 Filed 3-21-17; 8:45 am]
 BILLING CODE 6560-50-P