2023-15750. Air Plan Approval; Washington; Southwest Clean Air Agency, General Air Quality Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve revisions to the Washington State Implementation Plan (SIP) that were submitted on June 22, 2023, by the Department of Ecology (Ecology) in coordination with the Southwest Clean Air Agency (SWCAA). In 2017, the EPA approved a comprehensive update to SWCAA 400 General Regulations for Air Pollution Sources in the SIP, which includes new source review permitting requirements as well as other general requirements for sources regulated under SWCAA's jurisdiction. In this action, the EPA proposes to approve minor updates to SWCAA 400 promulgated since our comprehensive approval in 2017.

DATES:

Comments must be received on or before August 30, 2023.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA–R10–OAR–2023–0342 at https://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 https://www.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Jeff Hunt, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (206) 553–0256, or [e-mail].

Table of Contents

I. Background for Proposed Action

A. WSR 17–11–078—Consolidated Fee Schedule

B. WSR 20–06–003—Adoption of Federal Rules

C. WSR 21–17–054—Revised Statutory Citation and Other Miscellaneous Revisions

II. The EPA's Proposed Action

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

B. Approved but Not Incorporated by Reference Regulations

III. Incorporation by Reference

IV. Statutory and Executive Order Reviews

I. Background for Proposed Action

On April 10, 2017, the EPA approved a comprehensive update of SWCAA 400 General Regulations for Air Pollution Sources in the SIP (82 FR 17136). Under the Washington Clean Air Act, local clean air agencies may adopt equally stringent or more stringent requirements to apply in lieu of Ecology's statewide general air quality regulations for sources regulated under the local agency's jurisdiction, if they so choose.^[1] SWCAA's jurisdiction consists of Clark, Cowlitz, Lewis, Skamania, and Wahkiakum counties, with certain exceptions. By statute, SWCAA does not have authority for sources under the jurisdiction of the Energy Facility Site Evaluation Council (EFSEC). See Revised Code of Washington Chapter 80.50. Under the applicability provisions of Washington Administrative Code (WAC) 173–405–012, 173–410–012, and 173–415–012, SWCAA does not have jurisdiction for kraft pulp mills, sulfite pulping mills, and primary aluminum plants. For these sources, Ecology retains statewide, direct jurisdiction. Ecology and EFSEC also retain statewide, direct jurisdiction for issuing permits under the Prevention of Significant Deterioration (PSD) program for major stationary sources in attainment areas. Lastly, SWCAA does not have jurisdiction on Indian reservations and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. The regulations approved and incorporated by reference into the SIP for SWCAA's specific jurisdiction can be found at 40 CFR 52.2470(c), Table 8—Additional Regulations Approved for the Southwest Clean Air Agency (SWCAA) Jurisdiction.

The version of SWCAA 400 approved in the SIP includes updates promulgated by SWCAA effective as of October 9, 2016. SWCAA subsequently promulgated updates to SWCAA 400 effective June 18, 2017, March 21, 2020, and September 10, 2021. Detailed redline/strikeout versions of the regulatory changes are included in the docket under Washington State Register (WSR) documents WSR 17–11–078, WSR 20–06–003, and WSR 21–17–054. In addition, the EPA's evaluation of each WSR document is included in the docket. A summary of the major changes is discussed below.

A. WSR 17–11–078—Consolidated Fee Schedule

Effective June 18, 2017, SWCAA made minor rule changes and consolidated all fees into a single Consolidated Fee Schedule to make it easier for affected parties to locate applicable fees. SWCAA also removed specific fees in individual sections of SWCAA 400, instead redirecting the reader to consult the Consolidated Fee Schedule. Four sections of SWCAA 400 in the currently approved SIP are affected by this change: SWCAA 400–036 Portable Sources from Other Washington Jurisdictions, SWCAA 400–072 Small Unit Notification for Selected Source Categories, SWCAA 400–074 Gasoline Transport Tanker Registration, and SWCAA 400–109 Air Discharge Permit Applications.^[2] From an EPA approval standpoint, the consolidation of fees and removal of fee amounts from individual sections is not a significant change. In our comprehensive 2017 update of the SIP, we already excluded the fee provisions of SWCAA 400–074(2) and 400–109(4) noting that while the EPA reviews these submissions to confirm adequate authority, the EPA generally does not include local or state agency fees as part of the Washington SIP incorporated by reference in 40 CFR 52.2470(c).^[3] Therefore, we are proposing to approve the minor changes to SWCAA 400–036, 400–072, 400–074, and 400–109 removing specific fee amounts and referring the reader to the Consolidated Fee Schedule.^[4]

B. WSR 20–06–003—Adoption of Federal Rules

Effective July 1, 2016, Ecology promulgated WAC 173–400–025 Adoption by Reference, establishing a single adoption by reference date for all Federal rules cited in WAC 173–400 General Regulations for Air Pollution Sources. As part of the same revision package, Ecology modified other sections of WAC 173–400 removing specific Federal rule adoption dates, instead cross-referencing WAC 173–400–025. The EPA approved these revisions on October 6, 2016 (81 FR 69385) with a subsequent update to WAC 173–400–025 approved on February 24, 2020 (85 FR 10302).

Effective March 21, 2020, SWCAA promulgated SWCAA 400–025 Adoption of Federal Rules, mirroring Ecology's approach. The revision also amends the following sections to remove specific Federal rule adoption dates and instead cross-reference the adoption date in SWCAA 400–025: SWCAA 400–050 Emission Standards for Combustion and Incineration Units, SWCAA 400–060 Emission Standards for General Process Units, SWCAA 400–072 Small Unit Notification for Selected Source Categories, SWCAA 400–105 Records, Monitoring and Reporting, SWCAA 400–106 Emission Testing and Monitoring at Air Contaminant Sources, SWCAA 400–110 Application Review Process for Stationary Sources (New Source Review), SWCAA 400–111 Requirements for New Sources in a Maintenance Plan Area, SWCAA 400–171 Public Involvement, SWCAA 400–850 Actual Emissions—Plantwide Applicability Limitation (PAL), and Appendix A SWCAA Method 9 Visual Opacity Determination Method.

We are proposing to approve SWCAA 400–025, which establishes a Federal rule adoption date for citations in SWCAA 400. We are also proposing to approve the minor revisions described above to SWCAA 400–050, 400–060, 400–072, 400–105, 400–106, 400–110, 400–111, 400–171, 400–850, and Appendix A, which refer the reader to SWCAA 400–025.^[5] Our proposed approval of these revised sections is subject to the same exclusions cited in our comprehensive 2017 approval and codified in the current approved SIP at 40 CFR 52.2470(c), Table 8, with one exception. As part of the update to SWCAA 400–050, the agency added a new subsection (7) related to hospital, medical, and infectious waste incinerators regulated under 40 CFR part 62, subpart HHH, which is outside the scope of the SIP and was not submitted for approval. Therefore, we are proposing to revise the exclusions in 40 CFR 52.2470(c), Table 8, to note that SWCAA 400–050(7) is excluded from the approved SIP.

C. WSR 21–17–054—Revised Statutory Citation and Other Miscellaneous Revisions

WSR 21–17–054, effective September 10, 2021, contains numerous revisions to SWCAA 400. Many of the revisions were to sections outside the scope of the SIP, such as SWCAA 400–075 Emission Standards for Stationary Sources Emitting Hazardous Air Pollutants. Other changes to SWCAA 400 were submitted as part of a separate SIP revision request, which we will take action on in a separate rulemaking. Sections proposed for approval in this action are SWCAA 400–025 Adoption of Federal Rules, SWCAA 400–030 Definitions, SWCAA 400–036 Portable Sources From Other Washington Jurisdictions, SWCAA 400–050 Emission Standards for Combustion and Incineration Units, SWCAA 400–072 Small Unit Notification for Selected Source Categories, SWCAA 400–091 Voluntary Limits on Emissions, SWCAA 400–105 Records, Monitoring and Reporting, SWCAA 400–106 Emission Testing and Monitoring at Air Contaminant Sources, SWCAA 400–109 Air Discharge Permit Applications, SWCAA 400–110 Application Review Process for Stationary Sources (New Source Review), SWCAA 400–111 Requirements for New Sources in a Maintenance Plan Area, SWCAA 400–112 Requirements for New Sources in Nonattainment Areas, SWCAA 400–113 Requirements for New Sources in Attainment or Nonclassifiable Areas, SWCAA 400–114 Requirements for Replacement or Substantial Alteration of Emission Control Technology at an Existing Stationary Source, SWCAA 400–136 Maintenance of Emission Reduction Credits in Bank, SWCAA 400–151 Retrofit Requirements for Visibility Protection, SWCAA 400–171 Public Involvement, SWCAA 400–230 Regulatory Actions and Civil Penalties, SWCAA 400–240 Criminal Penalties, SWCAA 400–260 Conflict of Interest, SWCAA 400–270 Confidentiality of Records and Information, SWCAA 400–280 Powers of Agency, and SWCAA 400–810 Major Stationary Source and Major Modification Definitions.

Most of the changes proposed for approval in this action are administrative or clarifying in nature. Effective June 11, 2020, the state legislature recodified the Washington Clean Air Act from Revised Code of Washington (RCW) 70.94 to RCW 70A.15. Local air agencies were encouraged to update affected rules to reflect new statutory references by July 1, 2025. This was the sole change affecting SWCAA sections 400–091, 400–112, 400–113, 400–136, 400–230, 400–240, and 400–270. In addition to the recodification, SWCAA made other generally minor changes. A comprehensive redline/strikeout version of WSR 21–17–054 is included in the docket for this action, as well as the EPA's analysis of the revisions proposed for approval in this action. Listed below is a summary of the most significant changes:

• In section 400–025, SWCAA updated the adoption by reference date for Federal regulations cited in other sections of SWCAA 400.

• In section 400–030, SWCAA added a definition for “diesel,” made clarifying edits to the definitions for “distillate oil” and “new source” and revised the definition of “volatile organic compound” to match the Federal definition in 40 CFR 51.100(s) effective at the time.^[6] We note that in our 2017 approval of section 400–030, SWCAA did not submit, and the EPA did not approve subsection (129) “Toxic air pollutant” because the regulation of toxic air pollutants is outside the scope of Clean Air Act (CAA) section 110 requirements for SIPs. With the addition of a new definition for “diesel” as subsection (33), subsection (129) is now renumbered to (130). We propose to revise the exclusions in 40 CFR 52.2470(c), Table 8, to reflect this change.

• In section 400–036, SWCAA revised requirements for relocation noticing and emission unit registration, adding a provision that portable sources must provide relocation notice upon departure from SWCAA's jurisdiction.
• In section 400–050, SWCAA made minor revisions to subsections (1), (2), and (4). Subsections (3), (5), (6), and (7) are excluded from the current SIP, and SWCAA's submittal requests the EPA retain these exclusions.

• In section 400–072, SWCAA made minor clarifying revisions to the introductory text, as well as to subsections (1), (2), (4), (5)(c), (5)(d), and (5)(e). SWCAA also revised the applicability of subsection (5)(d) from dry cleaning facilities that use petroleum to any dry cleaning facility that uses a solvent other than perchloroethylene. We are proposing to approve the minor updates to SWCAA 400–072 subject to the same exclusions as our comprehensive 2017 update, with one exception. In consultation with the EPA, Ecology and SWCAA did not submit revisions to subsection (5)(b) as part of this SIP revision package. In the interim, the EPA will retain the version of subsection (5)(b) approved as part of our comprehensive 2017 update.

• In section 400–105, SWCAA made minor clarifying edits and added a separate emission inventory submittal deadline for gasoline stations.

• In section 400–106, SWCAA made minor revisions to the source testing requirements in subsection (1).^[7]

• In section 400–109, SWCAA added an application procedure for permit extensions in subsection (2)(f) and made minor clarifying edits to other subsections.
• In section 400–110, SWCAA added a new subsection (2)(e) with presumptive application withdrawal provisions, added a new subsection (4)(d) clarifying supersession of previous permits in new permitting actions, revised subsection (6)(d) to add a reference to the portable source provisions in SWCAA 400–036, added a new subsection (12)(b) providing notification and public involvement requirements for reopening for cause actions, and made other clarifying edits.
• In section 400–111, SWCAA made minor administrative edits to update citations and add quotation marks around the defined term “emission unit” to match the formatting of other defined terms.
• In section 400–114, SWCAA added a new subsection (2)(b) providing SWCAA with authority to require the owner or operator to employ a level of emission control equivalent to the existing emission control technology when replacing or substantially altering controls, as well as minor administrative edits. SWCAA also added a cross reference to “T–RACT” for the regulation of toxic air pollutants which is outside the scope of the SIP.
• In section 400–151, SWCAA made a minor edit to define the acronym “BART,” which stands for “Best Available Retrofit Technology.”
• In section 400–171, SWCAA made minor clarifying edits to the public notice and application notice provisions.
• In section 400–260, SWCAA made clarifying edits including a cross reference to the Federal conflict of interest requirements of Clean Air Act section 128.
• In section 400–280, SWCAA updated and standardized citations for other Revised Code of Washington statutory provisions, in addition to the recodification of the Washington Clean Air Act discussed above.
• In section 400–810, SWCAA corrected internal cross-citations to the definitions.

II. The EPA's Proposed Action

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

The EPA is proposing to approve and incorporate by reference into the Washington SIP at 40 CFR 52.2470(c)— Table 8—Additional Regulations Approved for the Southwest Clean Air Agency (SWCAA) Jurisdiction, the updated SWCAA regulations listed in the table below for sources within SWCAA's jurisdiction. The EPA is also proposing a minor change to the applicability subheading in 40 CFR 52.2470(c)— Table 8 to more clearly reflect jurisdiction for issuing permits under the PSD program. Our comprehensive 2017 approval stated that Ecology retained statewide, direct jurisdiction for PSD permitting for all major stationary sources not otherwise regulated by EFSEC.^[8] However, we neglected to include this clarification to the applicability subheading consistent with other recent approvals in Washington State.^[9] Therefore, we are proposing to add this clarification.

Updated Southwest Clean Air Agency Regulations

[Applicable in Clark, Cowlitz, Lewis, Skamania and Wahkiakum counties, excluding facilities subject to Energy Facilities Site Evaluation Council (EFSEC) jurisdiction; facilities subject to the Washington Department of Ecology's direct jurisdiction under Chapters 173–405, 173–410, and 173–415 Washington Administrative Code (WAC); Indian reservations; any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction; and the Prevention of Significant Deterioration (PSD) permitting of facilities subject to the applicability sections of WAC 173–400–700.]

State/local citation	Title/subject	State/local effective date	Explanation
SWCAA 400—General Regulations for Air Pollution Sources
400–025	Adoption of Federal Rules	9/10/21
400–030	Definitions	9/10/21	Except: 400–030(21) and (130).
400–036	Portable Sources From Other Washington Jurisdictions	9/10/21
400–050	Emission Standards for Combustion and Incineration Units	9/10/21	Except: 400–050(3); 400–050(5); 400–050(6); and 400–050(7).
400–060	Emission Standards for General Process Units	3/21/20
400–072	Small Unit Notification for Selected Source Categories	9/10/21	Except: 400–072(5)(a)(ii)(B); 400–072(5)(d)(ii)(B); 400–072(5)(d)(iii)(A); 400–072(5)(d)(iii)(B); all reporting requirements related to toxic air pollutants; and 400–072(5)(b), which EPA previously approved with a state-effective date of October 9, 2016.
400–074	Gasoline Transport Tanker Registration	6/18/17	Except: 400–074(2).
400–091	Voluntary Limits on Emissions	9/10/21
400–105	Records, Monitoring and Reporting	9/10/21	Except: Reporting requirements related to toxic air pollutants.
400–106	Emission Testing and Monitoring at Air Contaminant Sources	9/10/21	Except: 400–106(1)(d) through (g); and 400–106(2).
400–109	Air Discharge Permit Applications	9/10/21	Except: The toxic air pollutant emissions thresholds contained in 400–109(3)(d); 400–109(3)(e)(ii); and 400–109(4).
400–110	Application Review Process for Stationary Sources (New Source Review)	9/10/21	Except: 400–110(1)(d).
400–111	Requirements for New Sources in a Maintenance Plan Area	9/10/21	Except: 400–111(7).
400–112	Requirements for New Sources in Nonattainment Areas	9/10/21	Except: 400–112(6).
400–113	Requirements for New Sources in Attainment or Nonclassifiable Areas	9/10/21	Except: 400–113(5).
400–114	Requirements for Replacement or Substantial Alteration of Emission Control Technology at an Existing Stationary Source	9/10/21
400–136	Maintenance of Emission Reduction Credits in Bank	9/10/21
400–151	Retrofit Requirements for Visibility Protection	9/10/21
400–171	Public Involvement	9/10/21	Except: 400–171(2)(a)(xii).
400–260	Conflict of Interest	9/10/21
400–810	Major Stationary Source and Major Modification Definitions	9/10/21
400–850	Actual Emissions—Plantwide Applicability Limitation (PAL)	3/21/20
Appendix A	SWCAA Method 9 Visual Opacity Determination Method	3/21/20

B. Approved but Not Incorporated by Reference Regulations

In addition to the regulations proposed for approval and incorporation by reference in section II.A of this document, the EPA reviews and approves state and local clean air agency submissions to ensure they provide adequate enforcement authority and other general authority to implement and enforce the SIP. However, regulations describing such agency enforcement and other general authority are generally not incorporated by reference so as to avoid potential conflict with the EPA's independent authorities. We are proposing to approve revisions, effective September 10, 2021, to SWCAA sections 400–230, 400–240, 400–270, and 400–280 in 40 CFR 52.2470(e), EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures, as approved but not incorporated by reference regulatory provisions.

III. Incorporation by Reference

In this document, the EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the updated regulations identified in the table in section II.A and discussed in Section I. of this document. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The Southwest Clean Air Agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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: July 20, 2023.

Casey Sixkiller,

Regional Administrator, Region 10.

Footnotes

1.  See proposed rulemaking 82 FR 6413 (January 19, 2017).

2.  See “wsr_17-11-078_review.pdf” included in the docket.

3.  See 82 FR 6413 (January 19, 2017) at page 6416 and 6418.

4.  SWCAA subsequently revised section 400–072, effective March 21, 2020, discussed in section I.B of this document. SWCAA also subsequently revised sections 400–036, 400–072, and 400–109, effective September 10, 2021, discussed in section I.C of this document.

5.  SWCAA subsequently revised sections 400–025, 400–050, 400–072, 400–105, 400–110, 400–111, and 400–171 as part of WSR 21–17–054, effective September 10, 2021, discussed in section I.C. of this document.

6.  On February 8, 2023 (88 FR 8226), the EPA revised the definition of Volatile Organic Compounds to exclude (2E)-1,1,1,4,4,4–hexafluorobut-2-ene (HFO1336mzz(E)). Because the revisions EPA is acting on in this action do not include exclusion of this compound, SWCAA's SIP–approved definition is more stringent than the Federal definition, which is acceptable.

7.  EPA's proposed approval of changes to sections 400–106, 400–109, 400–110, and 400–111 is subject to the same exclusions identified in our comprehensive 2017 update and codified in the current approved SIP at 40 CFR 52.2470(c), Table 8.

8.  See 82 FR 17136 (April 10, 2017) at page 17138.

9.  See 80 FR 23721 (April 29, 2015), 85 FR 22355 (April 22, 2020), 85 FR 36154 (June 15, 2020), and 86 FR 24718 (May 10, 2021).