05-10148. Approval and Promulgation of Implementation Plans; Washington

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA invites public comment on its proposal to approve revisions to the State of Washington Implementation Plan (SIP). The Director of the Washington State Department of Ecology (Ecology) submitted a request to EPA dated March 1, 2004 to revise the Washington SIP to include revisions to WAC Ch. 173-434, Solid Waste Incinerator Facilities. The revisions were submitted in accordance with the requirements of section 110 of the Clean Air Act (hereinafter the Act). EPA proposes to approve the revisions to WAC Ch. 173-434 as part of the SIP, with the exception of a couple of submitted rule provisions which are inappropriate for EPA approval because they are unrelated to the purposes of the implementation plan.

DATES:

Written comments must be received on or before June 20, 2005.

ADDRESSES:

Submit your comments, identified by Docket ID No. R10-OAR-2005-0004, by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Agency Web site: http://www.epa.gov/​edocket. EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.

3. E-mail: [e-mail].

4. Mail: Roylene A. Cunningham, EPA, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101.

5. Hand Delivery: EPA, Region 10 Mailroom, 9th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. Attention: Roylene A. Cunningham, Office of Air, Waste, and Toxics (AWT-107). Such deliveries are only accepted during EPA's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. R10-OAR-2005-0004. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The EPA EDOCKET and the Federal http://www.regulations.gov Web site are an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET or http://www.regulations.gov,, your e-mail 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, 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 EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, 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 docket are listed in the EDOCKET index at http://www.epa.gov/​edocket. Although listed in the index, some information may not be publicly available, such as CBI or other information whose disclosure 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 EDOCKET or in hard copy at EPA, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101, from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. Please contact the individual listed in the “For Further Information Contact” section to schedule your inspection.

FOR FURTHER INFORMATION CONTACT:

Roylene A. Cunningham, EPA, Office of Air, Waste, and Toxics (AWT-107), Seattle, Washington 98101, [phone], or e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background of Submittal

II. Requested Sections to be Incorporated by Reference into the SIP

A. Description of Submittal

B. Key Changes to WAC Ch. 173-434

C. Air Quality Impact of Ecology's Changes

D. Summary of Action

1. Provisions Approved by EPA and Incorporated by Reference

2. Provisions not Approved by EPA

III. Requested Sections to be Removed from the SIP

A. Description of Submittal

B. Summary of Action

IV. Geographic Scope of SIP Approval

V. Statutory and Executive Order Reviews

I. Background of Submittal

On March 1, 2004, the Director of Ecology submitted a request to EPA to revise the Washington SIP to include revisions to WAC Ch. 173-434, Solid Waste Incinerator Facilities. These changes became effective as a matter of State law on January 22, 2004. EPA last approved WAC Ch. 173-434 into the SIP on January 15, 1993 [58 FR 4578].

II. Requested Sections To Be Incorporated by Reference Into the SIP

A. Description of Submittal

Ecology has revised the requirements of WAC Ch. 173-434 by making minor changes to the existing requirements for solid waste incineration facilities and adding two new, narrow exemptions to existing requirements for the burning of creosote treated wood and the burning of certain materials at cement plant kilns. Revised WAC Ch. 173-434 refers to this set of rules and changes as the “primary compliance scheme.” The requirements of the primary compliance scheme are contained WAC 173-434-090, -130, -160, -170, -190, and -200.

At the same time, Ecology has revised WAC Ch. 173-434 to impose more stringent requirements on newly constructed and newly modified solid waste incineration facilities by making such facilities subject to the more stringent requirements of 40 CFR part 60, subpart Eb if they burn 12 tons per day of solid waste (as opposed to 250 tons per day as provided in subpart Eb). The revisions also allow an existing solid waste incineration facility to “opt in” to the more stringent provisions of subpart Eb in lieu of the “primary compliance scheme.” Revised WAC Ch. 173-434 refers to the provisions applying the requirements of subpart Eb to new or modified facilities and facilities that opt in as an “an alternative compliance scheme.” The requirements of the alternative compliance scheme are contained in the new subsection WAC 173-434-110 and WAC 173-434-130(4)(c).

Ecology has determined that, prior to the 2004 revisions to WAC Ch. 173-434, there were five facilities subject to the requirements of that chapter (although several of the sources disputed that WAC Ch. 173-434 applied to them). Ecology's submittal includes a demonstration of the effect of these changes on those five sources. Ecology's demonstration shows that the revisions as applied to these five existing sources are not less stringent than the version of WAC Ch. 173-434 that is currently approved into the SIP, or that, to the extent the revisions are less stringent, the revisions do not interfere with any applicable requirement concerning attainment and reasonable further progress or any other requirement of the Act, as required by section 110(l) of the Act.

B. Key Changes to WAC Ch. 173-434

The docket includes a technical support document which describes in more detail the substantive changes to Ecology's rules that have been submitted by Washington as revisions to the SIP, EPA's evaluation of the changes, and the basis for EPA's action. A summary of key changes to Ecology's rules and EPA's proposed action follows:

Definition of Solid Waste

Subsection (3) of the definition of “solid waste” has been revised to, among other things, clarify that Ecology's definition of solid waste includes all materials included in EPA's definitions of “municipal solid waste” (MSW) in 40 CFR part 60, subparts Cb, Ea, Eb, AAAA, and BBBB, and “commercial and industrial solid waste” (CISW) in 40 CFR part 60, subparts CCCC and DDDD), except for the four categories of waste that are specifically excluded from Ecology's definition even if they are considered MSW or CISW under EPA's definitions. Two of these exceptions, wood waste and sludge from waste water treatment plants, were previously excluded from Ecology's definition of solid waste. Two of these exceptions are new. First, WAC 173-434-030(3)(a) now excludes certain creosote-treated wood from the definition of “solid waste.” This new exception is intended to prevent creosote-treated wood from being included in the amount of solid waste that would trigger applicability of WAC Ch. 173-434, provided the facility obtains an order of approval or Prevention of Significant Deterioration (PSD) permit issued on or after December 1, 2003, that authorizes the burning of such wood. Second, WAC 173-434-030(3)(b) also now excludes from the definition of “solid waste” tires or nonhazardous waste oil burned in cement plant kilns. The potential impact on air quality of these two new exceptions to the definition of solid waste with respect to existing sources is discussed below.

WAC 173-434-110, Standards of Performance

Ecology has revised this section in its entirety. First, Ecology repealed the previous language stating that all WAC Ch. 173-434 sources must comply with “any applicable provisions of WAC 173-400-115,” which incorporates by reference EPA's New Source Performance Standards, 40 CFR part 60. This is already required by WAC 173-400-115, which incorporates by reference as a matter of State law the New Source Performance Standards, 40 CFR part 60, including subpart Eb. Therefore, deleting the original language of subsection (1) does not change any existing requirements. Ecology has made clear in its submittal that it did not intend in any way, through the recent amendments to WAC Ch. 173-434, to trump or supersede the direct applicability of subpart Eb through WAC 173-400-115.

In lieu of the previous language in subsection (1), Ecology has made the emission control and other requirements of subpart Eb applicable to new and modified sources in Washington that burn more than 12 tons per day of solid waste, rather than only those that burn more than 250 tons per day of solid waste, as provided in subpart Eb itself. WAC 173-434-110(1)(a) and (b) incorporate subpart Eb by reference. This is done in two separate subsections to distinguish between those parts of subpart Eb that relate to criteria pollutants and are appropriate for inclusion in the SIP under section 110 of the Act and those parts of subpart Eb that relate to noncriteria pollutants and thus are not appropriate for inclusion in the SIP under section 110 of the Act.

Revised WAC 173-434-110(2) identifies the exceptions to Washington's incorporation by reference of subpart Eb as applied to sources subject to WAC Ch. 173-434. Most importantly, subsection (2)(a) contains the expanded applicability criteria, reducing the 250 tons/day threshold in subpart Eb downward to 12 tons per day, the current threshold in WAC Ch. 173-434. As discussed above, the terms “municipal solid waste,” “municipal type solid waste,” and “MSW” in subpart Eb are adjusted to include all materials that fit the definition of solid waste in chapter 434. Subsection (2)(c) eliminates the exception for 30% municipal solid waste co-fire in 40 CFR 60.50b(j). Thus, new and modified facilities that would be exempt from subpart Eb as provided in 40 CFR 60.50b(j) will be subject to the substantive requirements of subpart Eb. Finally, in subsection (2)(d) and (4), Ecology has changed the applicability dates in subpart Eb so that those sources that will be subject to the substantive requirements of subpart Eb by virtue of these amendments to WAC Ch. 173-434 will have time to transition to the new requirements. Again, the changes in the applicability dates in no way changes the applicability dates for sources that are subject to subpart Eb by its terms or as provided in WAC 173-400-115.

In subsection 3(a), Ecology has provided that, except for WAC 173-434-130(4)(c), WAC 173-434-090, -130, -160, -170, -190, and -200 do not apply to an incinerator facility that becomes subject to the federal rule in 40 CFR part 60, subpart Eb through WAC 173-434-110 (i.e., the alternate compliance scheme). Subsection(3)(b) contains an “opt in” provision that would allow a facility to choose to be subject to the alternative compliance scheme (subpart Eb as modified by WAC 173-434-110) rather than subject to most of the remaining requirements of chapter 434. In other words, even if existing facilities (such as Spokane Waste to Energy Plant or Tacoma Steam Plant) do not become subject to the expanded applicability of subpart Eb, as provided in revised WAC 173-434-110 (i.e., construct/reconstruct/modify after such applicable date), they can “opt in” to the alternative compliance scheme as provided in WAC 173-434-110(3)(b).

C. Air Quality Impact of Ecology's Changes

Section 110(l) of the Act states that EPA shall not approve a revision to the SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or with any other applicable requirement of the Clean Air Act. Ecology's submission shows that, with respect to new and modified sources, the revised rule is a strengthening of the existing SIP requirements. These amendments prospectively strengthen controls for incinerators from existing WAC Ch. 173-434 to those of the EPA's more stringent waste incinerator rules at 40 CFR part 60, subpart Eb.

Ecology's submission also includes a demonstration regarding the impact of the changes on emissions from sources currently subject to WAC Ch. 173-434. Ecology is aware of five facilities that it believes were subject to WAC Ch. 173-434 before the changes. In each case, Ecology has demonstrated that the revisions are at least as stringent as the version of WAC Ch. 173-434 currently approved as part of the SIP or that the revision will not interfere with attainment of the NAAQS and reasonable further progress or any other requirement of the Act.

Spokane Incinerator

The Spokane Incinerator has been operating as an electric utility steam generating unit subject to 40 CFR part 60, subpart Cb, which is less stringent than subpart Eb. The Spokane Incinerator has also been subject to WAC Ch. 173-434 and will continue to be subject. None of the recently adopted exemptions to the definition of solid waste would change the applicability of WAC Ch. 173-434 to the Spokane Incinerator, nor have the applicable emission limits changed. The Spokane Incinerator would be subject to the more stringent provisions of WAC 173-434-110 (which largely incorporates subpart Eb) if it “opts in” to these provisions in lieu of the substantive requirements of WAC 173-434-090, -130, -160, -170, -190, and -200.

Tacoma Steam Plant

The Tacoma Steam Plant (TSP) has been operating as an electric utility steam generating unit subject to 40 CFR part 60, subpart Da. In 2002, the Washington Pollution Control Hearings Board determined that TSP was subject to WAC Ch. 173-434. The inherent nature of the TSP combustion chambers rendered it physically impossible for TSP to burn MSW in compliance with the time and temperature requirements of WAC 173-400-160 while also meeting the emission limits. TSP therefore ceased burning MSW. With the revisions to WAC Ch. 173-434, TSP has the option of continuing to burn MSW by “opting in” to the more stringent provisions of WAC 173-434-110 (which largely incorporate subpart Eb) in lieu of the substantive requirements of WAC 173-434-090, -130, -160, -170, -190, and -200. None of the recently adopted exemptions to the definition of solid waste would change the applicability of WAC Ch. 173-434 to TSP. If TSP elects to resume combusting MSW, it will be subject to more stringent emission limits than under the current SIP.

Kimberly-Clark

Kimberly-Clark was subject to the terms of the previous version of WAC Ch. 173-434, but has been operating under a variance issued by Ecology, which allowed it to burn more than 12 tons per day of creosote-treated wood without meeting the requirements of WAC Ch. 1173-434. The variance was not submitted to EPA for approval as a SIP revision. The recently adopted exemption to the definition of solid waste for creosote-treated wood was intended to allow Kimberly-Clark to burn more than 12 tons per day of creosote-treated wood without being subject to the emission limits in WAC Ch. 173-434. As such the creosote-treated wood exemption narrows the scope of WAC Ch. 173-434 and could allow an increase in emissions from Kimberly-Clark as compared to the requirements of the existing SIP (although Kimberly-Clark would not be emitting more than it is emitting under the variance, which is not in the SIP). Ecology has submitted source test data from Kimberly-Clark showing that burning creosote-treated wood at Kimberly-Clark did not significantly increase emissions. In addition, in order for the burning of creosote-treated wood to be exempt from WAC Ch. 173-434, Kimberly-Clark must apply for and obtain an order of approval or a PSD permit (whichever, is applicable) allowing it to burn creosote-treated wood. In issuing the order of approval/PSD permit, Ecology will be required to determine the amount of creosote-treated wood that the company can burn and still assure attainment and maintenance of the NAAQS and PSD increments and include a limit at such amount. Therefore, to the extent the exemption for creosote-treated wood does allow an increase in emissions over the current SIP, Ecology has demonstrated that the SIP revision meets the requirements of section 110(l) of the Act.

Ashgrove Cement Company and Lafarge North America, Inc.

Ecology has maintained that Ashgrove Cement Company and Lafarge North America, Inc. were subject to the original version of WAC Ch. 173-434, although the companies questioned the applicability of WAC Ch. 173-434 to their industry. WAC Ch. 173-434 was not identified as a requirement in the existing permits for these companies. The revisions to WAC Ch. 173-434 specifically exempt from the definition of solid waste the combustion of tires and nonhazardous waste oil at cement plant kilns, thus clarifying the applicability of WAC Ch. 173-434 to these facilities by specifically exempting these facilities as they currently operate. Only if these facilities expand the substances they incinerate to include more than 12 tons per day of “solid waste” would these facilities be subject to WAC Ch. 173-434. To the extent that these companies were subject to WAC Ch. 173-434 prior to the adoption of the exemption for the combustion of certain waste in cement kilns, the recent amendments to this chapter constitute a relaxation. Ecology has included in its SIP submittal a demonstration, consistent with the requirements of section 110(l), showing that exempting these facilities from WAC Ch. 173-434 will not have a deleterious effect on any NAAQS, PSD increment or visibility in Class I areas and will not interfere with any other Act requirements.

D. Summary of Action

1. Provisions Approved by EPA and Incorporated by Reference

EPA has determined that the following sections are consistent with the requirements of title I of the Act and is proposing to approve them as part of the SIP and incorporate them by reference into Federal law:

WAC 173-434-020, Applicability and Compliance; -030, Definitions; -110, Standards of Performance [except (1)(a)]; -130, Emission Standards [except (2)]; -160, Design and Operation; -170, Monitoring and Reporting; -190, Changes in Operation; and -200, Emission Inventory, State effective January 22, 2004.

2. Provisions Not Approved by EPA

EPA is proposing not to approve certain provisions, which EPA believes are inconsistent with the requirements of the Act or not appropriate for inclusion in a SIP under section 110 of the Act.

WAC 173-434-110(1)(a), Standards of Performance. This subsection contains emission standards for cadmium, mercury, hydrogen chloride, and dioxin/furans. These types of provisions are inappropriate for SIP approval because they are not related to the criteria pollutants regulated under section 110 of the Act.

WAC 173-434-130(2), Emission Standards. This section contains emission standards for hydrogen chloride. These types of provisions are inappropriate for SIP approval because they are not related to the criteria pollutants regulated under section 110 of the Act.

III. Requested Sections To Be Removed From the SIP

A. Description of Submittal

Ecology has requested that EPA remove certain provisions from the SIP because they have been previously repealed by the State.

WAC 173-434-050, New Source Review (NSR); -070, Prevention of Significant Deterioration (PSD); and -100, Requirement of BACT, State effective October 18, 1990.

B. Summary of Action

EPA proposes to take the following action on the provisions which Ecology has requested be removed from the SIP.

WAC 173-434-050, New Source Review (NSR) (State Effective October 18, 1990)

This section is being repealed. It stated that WAC 173-400-110, Ecology's new source review rule, applies to each new source or emissions unit subject to WAC Ch. 173-434. Sources subject to WAC Ch. 173-434 are subject to WAC 173-400-110 even without this provision. Therefore, deleting this section does not change any requirements of the SIP.

WAC 173-434-070, Prevention of Significant Deterioration (PSD) (State Effective October 18, 1990)

This section is being repealed. It stated that WAC 173-400-141, Ecology's PSD rule, applies to each new source or emissions unit subject to WAC Ch. 173-434. Sources subject to WAC Ch. 173-434 are subject to Ecology's PSD rule (now codified at WAC 173-400-700 through 750) even without this provision. Therefore, deleting this section does not change any requirements of the SIP.

WAC 173-434-100, Requirement of BACT (State Effective October 18, 1990)

This section is being repealed. It stated that all sources required to file a notice of construction application are required to use Best Available Control Technology (BACT). This is already required by WAC 173-400-112(2)(b) and 113(2). Therefore, deleting this section does not change any requirements of the SIP.

IV. Geographic Scope of SIP Approval

This SIP approval does not extend to sources or activities located in Indian Country, as defined in 18 U.S.C. 1151. Consistent with previous Federal program approvals or delegations, EPA will continue to implement the Act in Indian Country in Washington because PS Clean Air did not adequately demonstrate authority over sources and activities located within the exterior boundaries of Indian reservations and other areas of Indian Country. The one exception is within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Therefore, EPA's SIP approval applies to sources and activities on non-trust lands within the 1873 Survey Area.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: May 11, 2005.

Julie M. Hagensen,

Acting Regional Administrator, Region 10.