838 Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2014–0755: FRL–9921–20– 

Region 10] 

Approval and Promulgation of 

Implementation Plans; Washington: 

Prevention of Significant Deterioration 

and Visibility Protection 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the Washington State 

Implementation Plan (SIP) that were 

submitted by the Department of Ecology 

(Ecology) on January 27, 2014. These 

revisions implement the 

preconstruction permitting regulations 

for large industrial (major source) 

facilities in attainment and 

unclassifiable areas, called the 

Prevention of Significant Deterioration 

(PSD) program. Currently, the PSD 

program in Washington is operated 

under a Federal Implementation Plan 

(FIP). If finalized, the EPA’s proposed 

approval of Ecology’s PSD program 

would narrow the current FIP to include 

only those few facilities, emission 

categories, and geographic areas for 

which Ecology does not have PSD 

permitting jurisdiction. The EPA is also 

proposing to approve Ecology’s 

visibility protection permitting program 

which overlaps significantly with the 

PSD program in most cases. 

DATES: Comments must be received on 

or before February 6, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2014–0755, by any of the 

following methods: 

A. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

B. Mail: Jeff Hunt, EPA Region 10, 

Office of Air, Waste and Toxics (AWT– 

150), 1200 Sixth Avenue, Suite 900, 

Seattle, WA 98101. 

C. Email: R10-Public_Comments@

epa.gov. 

D. Hand Delivery: EPA Region 10 

Mailroom, 9th Floor, 1200 Sixth 

Avenue, Suite 900, Seattle, WA 98101. 

Attention: Jeff Hunt, Office of Air, Waste 

and Toxics, AWT–150. Such deliveries 

are only accepted during normal hours 

of operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2014– 

0755. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information that 

you consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the EPA may not be able to consider 

your comment. Electronic files should 

avoid the use of special characters, any 

form of encryption, and be free of any 

defects or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information the disclosure of which is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Office of Air, Waste and 

Toxics, EPA Region 10, 1200 Sixth 

Avenue, Seattle, WA 98101. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Hunt at (206) 553–0256, hunt.jeff@

epa.gov, or by using the above EPA, 

Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, it is 

intended to refer to the EPA. 

Table of Contents 

I. Background for Proposed Action 

II. Washington SIP Revisions 

A. WAC 173–400–110, New Source Review 

(NSR) for Sources and Portable Sources; 

WAC 173–400–111, Processing Notice of 

Construction Applications for Sources, 

Stationary Sources and Portable Sources; 

WAC 173–400–112, Requirements for 

New Sources in Nonattainment Areas— 

Review for Compliance With 

Regulations; and WAC 173–400–113 

New Sources in Attainment or 

Unclassifiable Areas—Review for 

Compliance With Regulations 

B. WAC 173–400–700, Review of Major 

Stationary Sources of Air Pollution 

C. WAC 173–400–710, Definitions 

D. WAC 173–400–720, Prevention of 

Significant Deterioration (PSD) 

E. WAC 173–400–730, Prevention of 

Significant Deterioration Application 

Processing Procedures 

F. WAC 173–400–740, PSD Permitting 

Public Involvement Requirements and 

WAC 173–400–171, Public Notice and 

Opportunity for Public Comment 

G. WAC 173–400–750, Revisions to PSD 

Permits 

H. WAC 173–400–116, Increment 

Protection 

I. WAC 173–400–117, Special Protection 

Requirements for Federal Class I Areas 

J. Personnel, Funding, and Authority 

III. Effect of Recent Court Decisions Vacating 

and Remanding Certain Federal Rules 

A. Sierra Club v. EPA 

B. Utility Air Regulatory Group v. EPA 

IV. The EPA’s Proposed Action 

A. Rules To Approve into the SIP 

B. Proposed Transfer of Existing EPAIssued PSD Permits 

C. Scope of Proposed Action 

D. The EPA’s Oversight Role 

V. Statutory and Executive Order Reviews 

I. Background for Proposed Action 

On January 27, 2014, Ecology 

submitted revisions to update the 

general air quality regulations contained 

in Chapter 173–400 of the Washington 

Administrative Code (WAC) that apply 

to sources within Ecology’s jurisdiction, 

including minor new source review, 

major source nonattainment new source 

review (major NNSR), PSD, and the 

visibility protection (visibility) program. 

On October 3, 2014, the EPA finalized 

approval of provisions contained in 

Chapter 173–400 WAC that apply 

generally to all sources under Ecology’s 

jurisdiction, but stated that we would 

act separately on the major sourcespecific permitting programs in a 

phased approach (79 FR 59653). On 

November 7, 2014, the EPA finalized the 

second phase in the series, approving 

the major NNSR regulations contained 

in WAC 173–400–800 through 173–400– 

860, as well as other parts of Chapter 

173–400 WAC that support major NNSR 

(79 FR 66291). 

In this proposal, the third and final 

phase in the series, the EPA is 

proposing to approve the remainder of 

Ecology’s January 27, 2014 submittal, 

covering the PSD and visibility 

requirements for major stationary 

sources under Ecology’s jurisdiction. 


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1This proposed approval for PSD purposes is 

subject to the exceptions and explanations 

described in the EPA’s July 10, 2014 proposal (79 

FR 39351) and October 3, 2014 final action (79 FR 

59653) of WAC 173–400–110, 173–400–111, and 

173–400–113. 

Because the State of Washington does 

not currently have a SIP-approved PSD 

program, the EPA is currently the Clean 

Air Act (CAA) PSD permitting authority 

in the State, although Ecology has 

issued most CAA PSD permits in the 

State since 1983 under a delegation 

agreement with the EPA. See Agreement 

for Partial Delegation of Source Review 

under the Federal Prevention of 

Significant Deterioration (PSD) 

Regulations by the United States 

Environmental Protection Agency, 

Region 10, to the Washington 

Department of Ecology, dated December 

10, 2013 (2013 Delegation Agreement). 

Approval of Ecology’s PSD rules into 

the SIP will transfer CAA PSD 

permitting authority from the EPA to 

Ecology except for those few facilities, 

emissions categories, and geographic 

areas for which Ecology does not have 

permitting jurisdiction, as described in 

Section IV below. The EPA is also 

currently the visibility permitting 

authority in the State although Ecology 

has issued the visibility permits to 

sources in attainment or unclassifiable 

areas under its delegation from the EPA. 

However, the EPA is currently the only 

visibility permitting authority for new 

and modified major stationary sources 

in nonattainment areas pursuant to 40 

CFR 52.2498(b). Approval of Ecology’s 

visibility permitting rules into the SIP 

will also transfer to Ecology CAA 

visibility permitting authority, 

consistent with the exceptions 

described in Section IV below. The EPA 

is also proposing to narrow the current 

PSD FIP contained in 40 CFR 52.2497 

and the visibility permitting FIP 

contained in 40 CFR 52.2498 to be 

consistent with the scope of this SIP 

approval, as also described in Section IV 

below. The EPA will retain an oversight 

role with respect to Ecology’s PSD and 

visibility permitting program if this SIP 

approval is finalized as proposed. 

II. Washington SIP Revisions 

The specific requirements applicable 

to SIP-approved PSD programs are set 

forth in 40 CFR 51.166. The EPA’s FIP 

for implementing PSD in areas where 

states do not have SIP-approved PSD 

programs is set forth in 40 CFR 52.21. 

As explained in more detail below, 

Ecology has, with limited exceptions, 

incorporated by reference the EPA’s 

PSD FIP at 40 CFR 52.21 as in effect on 

August 13, 2012, to meet the 

requirements of 40 CFR 51.166. 

A. WAC 173–400–110, New Source 

Review (NSR) for Sources and Portable 

Sources; WAC 173–400–111, Processing 

Notice of Construction Applications for 

Sources, Stationary Sources and 

Portable Sources; WAC 173–400–112, 

Requirements for New Sources in 

Nonattainment Areas—Review for 

Compliance With Regulations; and WAC 

173–400–113 New Sources in 

Attainment or Unclassifiable Areas— 

Review for Compliance With 

Regulations 

As described in more detail in the 

EPA’s July 10, 2014 proposal (79 FR 

39351) and October 3, 2014 final action 

(79 FR 59653), WAC 173–400–110 

through WAC 173–400–113 are the 

starting points for any source seeking to 

construct a new source or modify an 

existing source under Ecology’s rules, 

whether major or minor. Specific 

provisions in these sections direct 

sources constructing a ‘‘major’’ source 

or making a ‘‘major modification’’ to a 

‘‘major’’ source in an attainment or 

unclassifiable area to also comply with 

the PSD requirements of WAC 173–400– 

700 through WAC 173–400–750. WAC 

173–400–110 through WAC 173–400– 

113 also require major sources and 

major modifications to comply with the 

visibility permitting requirements of 

WAC 173–400–117 for all areas, 

including nonattainment areas. See, for 

example, WAC 173–400–110(1)(d) for 

PSD and WAC 173–400–111(1)(c) for 

visibility. As discussed in the EPA’s 

July 2014 proposal, the EPA’s review of 

WAC 173–400–110 through 173–400– 

113 expressly did not include a 

determination that these revised 

regulations meet requirements for 

approval of a SIP-approved PSD or 

visibility permitting program. In this 

action, we are proposing to approve 

WAC 173–400–110 through 173–400– 

113 for purposes of implementing the 

PSD and visibility permitting programs 

because these provisions require 

compliance with WAC 173–400–700 

through 173–400–750 (which, as 

discussed below, are consistent with the 

CAA requirements for a PSD permitting 

program) and WAC 173–400–117 

(which, as discussed below, is 

consistent with the CAA requirements 

for visibility).1

B. WAC 173–400–700, Review of Major 

Stationary Sources of Air Pollution 

As described in more detail in the 

EPA’s July 10, 2014 proposal and 

October 3, 2014 final action, Ecology 

shares permitting jurisdiction with 

seven local clean air agencies and one 

other state agency, the Energy Facilities 

Site Evaluation Council (EFSEC). WAC 

173–400–700, in conjunction with WAC 

173–400–020, describes how Ecology’s 

regulations apply in the local and 

EFSEC jurisdictions with respect to 

PSD. WAC 173–400–700 states that 

Ecology’s PSD regulations contained in 

WAC 173–400–700 through 173–400– 

750 apply statewide except where a 

local clean air agency has received 

delegation of the Federal PSD program 

from the EPA or has a SIP-approved 

PSD program. WAC 173–400–700 also 

states that Ecology’s PSD program, 

under WAC 173–400–700 through 173– 

400–750, excludes projects under the 

jurisdiction of the EFSEC pursuant to 

Chapter 80.50 Revised Code of 

Washington (RCW). At this time, no 

local clean air agencies in Washington 

have a delegated or SIP-approved PSD 

program. Therefore, the EPA proposes to 

approve Ecology’s PSD program, 

contained in WAC 173–400–700 

through 173–400–750, as applying 

statewide except for those facilities 

under EFSEC jurisdiction and other 

emission categories and geographic 

areas for which Ecology does not have 

jurisdiction, as discussed below in 

Section IV.C. Scope of Proposed Action. 

C. WAC 173–400–710, Definitions 

WAC 173–400–710(a) states that for 

purposes of WAC 173–400–720 through 

173–400–750 the definitions in 40 CFR 

52.21(b), adopted by reference in WAC 

173–400–720(4)(a)(vi), shall apply, 

except for the definition of ‘‘secondary 

emissions.’’ In the case of secondary 

emissions, Ecology uses the general 

definition contained in WAC 173–400– 

030, which is consistent with the court 

decision in Natural Resources Defense 

Council v. U.S. EPA, 725 F2d 761 (D.C. 

Cir. 1984) and which the EPA approved 

as part of the Washington SIP on 

October 3, 2014 (79 FR 59653). WAC 

173–400–710(b) makes clear that the 

term ‘‘source’’ in WAC 173–400–710 

through 173–400–750, and in 40 CFR 

52.21 as adopted by reference in 

Ecology’s regulations, is to be 

interpreted to mean ‘‘stationary source’’ 

as defined in 40 CFR 52.21(b)(5). Under 

this definition, a stationary source (or 

source) does not include emissions 

resulting directly from an internal 

combustion engine for transportation 

purposes, from a nonroad engine, or a 


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840 Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules 

nonroad vehicle as defined in CAA 

section 216. 

There are also several important 

distinctions between the applicability of 

Ecology’s minor NSR program and its 

PSD program that arise from the State’s 

definitions of the terms ‘‘modification’’ 

in WAC 173–400–030(48) and ‘‘major 

modification’’ in WAC 173–400–710 

and –720, which adopt the federal 

definitions in 40 CFR 52.21(b)(2) for 

Ecology’s PSD program. First, the 

applicability test for ‘‘modifications’’ 

under Ecology’s minor NSR program is 

based on the definition of modification 

in CAA section 111(a)(4) and the EPA’s 

implementing rules at 40 CFR 60.14, 

specifically, that a modification is an 

increase in the emission rate of an 

existing facility in terms of kilograms 

per hour. See WAC 173–400–030(48). In 

contrast, the applicability test for 

Ecology’s PSD program is based on a 

‘‘major modification’’ which is, 

consistent with the Federal PSD 

program, based on a comparison of 

‘‘baseline actual emissions’’ before the 

change to ‘‘projected actual emissions’’ 

after the change in terms of tons per 

year. See WAC 173–400–710(a) and 

400–173–720(4)(a)(iv), which adopt by 

reference the definitions in 40 CFR 

52.21(b)(2). Thus, for any physical or 

operational change at an existing 

stationary source, regulated sources and 

permitting authorities will need to 

calculate emission changes in terms of 

both kilograms per hour and tons per 

year to determine whether changes are 

subject to minor NSR, PSD, or both. 

Second, under Ecology’s minor NSR 

program, new source review of a 

modification is limited to the emission 

unit or units proposed to be modified 

and the air contaminants whose 

emissions would increase as a result of 

the modification. See WAC 173–400– 

110(1)(d) (‘‘New source review of a 

modification is limited to the emission 

unit or units proposed to be modified 

and the air contaminants whose 

emissions would increase as a result of 

the modification.’’). In contrast, under 

Ecology’s PSD program, as under the 

Federal PSD program, Ecology must 

determine whether the sum of increases 

in emissions from new and modified 

units is ‘‘significant’’ and if so, whether 

there is a net significant emissions 

increase from all contemporaneous 

emissions increases and decreases at the 

major stationary source. See WAC 173– 

400–110(1)(d) (‘‘Review of a major 

modification must comply with WAC 

173–400–700 through 173–400–750 or 

173–400–800 through 173–400–860, as 

applicable.’’) and WAC 173–400–720 

(adopting by reference 40 CFR 

52.21(a)(2), 52.21(b)(2), and 52.21(b)(3)). 

The EPA reviewed Ecology’s 

submission and is proposing to approve 

the definitions contained in WAC 173– 

400–710 as consistent with the CAA 

requirements for a SIP-approved PSD 

program. 

D. WAC 173–400–720, Prevention of 

Significant Deterioration (PSD) 

WAC 173–400–720 generally 

incorporates by reference the Federal 

PSD program contained in 40 CFR 

52.21, in effect as of August 13, 2012. 

Exceptions to the incorporation by 

reference are listed in WAC 173–400– 

720(4)(b). First, WAC 173–400– 

720(4)(b)(i) clarifies when use of the 

word ‘‘Administrator’’ as part of the 

incorporation by reference refers to 

Ecology versus those specific provisions 

where ‘‘Administrator’’ continues to 

refer to the EPA Administrator. Second, 

WAC 173–400–720(4)(b)(ii) excludes the 

PSD Class I area variance provisions 

contained in 40 CFR 52.21(p)(5) through 

(8), making the Ecology program more 

stringent than the Federal PSD program. 

WAC 173–400–720(4)(b)(ii) also reflects 

Ecology’s use of the state public 

participation procedures in WAC 173– 

400–740, PSD Permitting Public 

Involvement Requirements rather than 

incorporating by reference the Federal 

public participation requirements in 40 

CFR 52.21(q). Third, WAC 173–400– 

720(4)(b)(iii)(A) reflects the size 

threshold in CAA section 169(1) for 

municipal waste incinerators of 50 tons 

of refuse per day, rather than 

incorporating by reference the threshold 

contained in 40 CFR 52.21(b)(1)(i)(a) 

and (b)(1)(iii)(h) of 250 tons of refuse 

per day, which has not been revised in 

the EPA’s regulations to reflect the CAA 

statutory change. Fourth, WAC 173– 

400–720(4)(b)(iii)(B) modifies the 

definition of ‘‘significant’’ contained in 

40 CFR 52.21(b)(23)(i) to include a 

threshold for ozone depleting 

substances of 100 tons per year 

consistent with EPA guidance. See, e.g., 

Letter dated March 19, 1998 from John 

S. Seitz, Director of EPA’s Office of Air 

Quality Planning and Standards, to Mr. 

Kevin Tubbs, Director of Environmental 

Technology, American Standard. Fifth, 

WAC 173–400–720(4)(b)(iii)(D) and (E) 

modify the incorporation by reference of 

40 CFR 52.21(r) Source Obligation to 

reflect state reporting requirements 

which are more stringent than the 

Federal PSD program. Sixth, WAC 173– 

400–720(4)(b)(iii)(F) through (J) modify 

the incorporation by reference of 40 CFR 

52.21(aa) Actuals PALs to reflect state 

procedures but make no changes less 

stringent than the Federal PSD program. 

Lastly, in WAC 173–400–720(4)(b)(iv) 

Ecology does not incorporate by 

reference 40 CFR 52.21(r)(2) because 

state construction time limitation 

procedures consistent with the Federal 

PSD program are contained in WAC 

173–400–730, Prevention of Significant 

Deterioration Application Processing 

Procedures. The EPA reviewed these 

exceptions to the incorporation by 

reference of the Federal regulations and 

is proposing to approve them as 

consistent with the CAA. 

In addition to these exceptions to 

Ecology’s incorporation by reference of 

40 CFR 52.21, two other issues merit 

further discussion. First, in response to 

recent court decisions, Ecology has not 

included in, or has withdrawn from, its 

SIP submittal, incorporation by 

reference of 40 CFR 52.21(i)(5)(i)(c), 

52.21(k)(2), and 52.21(b)(49)(v). These 

provisions, therefore, are not before the 

EPA for approval and would not be part 

of the Washington SIP if this action is 

finalized. Please refer to Section III 

below for a detailed discussion of the 

court decisions and why the exclusion 

of these provisions from Ecology’s SIPapproved PSD program is consistent 

with CAA requirements. 

Second, WAC 173–400– 

720(4)(b)(iii)(C) contains an inadvertent 

typographical error. Ecology intended to 

reference the concentrations listed in 

WAC 173–400–116(3) rather than WAC 

173–400–116(2). To avoid confusion, 

the EPA is excluding WAC 173–400– 

720(4)(b)(iii)(C) from our proposed 

approval. However, exclusion of WAC 

173–400–720(4)(b)(iii)(C) from the SIP 

has no substantive effect because it was 

merely a pointer to the provisions of 

WAC 173–400–116(3) which are 

consistent with the CAA and proposed 

for approval into the SIP, as discussed 

in Section II.H below. Ecology has 

advised the EPA correction of this error 

will be made as soon as practicable. 

In addition to incorporating by 

reference pertinent portions of 40 CFR 

52.21, WAC 173–400–720 also contains 

provisions relating to enforcement 

authority. Subparagraph (3) provides 

that both Ecology and any local air 

permitting authority with jurisdiction 

over a source are authorized to enforce 

the requirement to apply for a PSD 

permit if one is required and the 

conditions of a PSD permit. The EPA is 

proposing to approve WAC 173–400– 

720 as consistent with the CAA 

requirements for a SIP-approved PSD 

program. 


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E. WAC 173–400- 730, Prevention of 

Significant Deterioration Application 

Processing Procedures 

This section contains Ecology’s 

permit application and processing 

procedures. These procedures are based 

on the EPA requirements contained in 

40 CFR 51.166(q) and includes 

requirements for the processing of 

permit applications, completeness 

determinations, issuance of final 

permits, and permit appeals. This 

section also includes procedures for 

permit extensions. As discussed above, 

Ecology has excluded from adoption by 

reference in WAC 173–400–720 the 

extension provision of 40 CFR 

52.21(r)(2). That provision authorizes 

the EPA to grant extensions to the 18- 

month construction time limitation in 

40 CFR 52.21(r)(2) ‘‘upon a satisfactory 

showing that an extension is justified,’’ 

but that provision does not provide any 

specific criteria or required process that 

must be satisfied before the EPA can 

exercise its discretion to determine that 

a permit extension should be granted. 

The EPA has recently issued guidance 

for the EPA and states with delegated 

PSD programs to clarify the EPA’s views 

on what constitutes an adequate 

justification for an extension of the 18- 

month timeframe under 40 CFR 

52.21(r)(2) for commencing construction 

of a source that has been issued a PSD 

permit. See Memorandum from Stephen 

D. Page, Director of EPA’s Office of Air 

Quality Planning and Standards, to 

Regional Air Division Directors, Region 

1–10, Guidance on Extension of 

Prevention of Significant Deterioration 

(PSD) Permits under 40 CFR 52.21(r)(2), 

dated January 31, 2014 (Extension 

Guidance). 

Similar to the Federal PSD regulations 

at 40 CFR 52.21(r)(2), Ecology’s PSD 

regulations provide that approval to 

construct or modify a major stationary 

source becomes invalid if construction 

is not commenced within eighteen 

months of the effective date of the 

approval, if construction is 

discontinued for a period of eighteen 

months or more, or if construction is not 

completed within a reasonable time. 

Ecology has also included in WAC 173– 

400–730(5)(b) provisions setting forth 

the criteria and procedures that apply to 

sources requesting and Ecology in 

granting extensions to the 18-month 

time period. These provisions are 

generally consistent with, but in some 

respects more stringent than, EPA’s 

Extension Guidance. The EPA reviewed 

Ecology’s permit application processing 

procedures, including the extension 

provisions, and is proposing to approve 

them as consistent with the CAA. 

F. WAC 173–400–740, PSD Permitting 

Public Involvement Requirements and 

WAC 173–400–171, Public Notice and 

Opportunity for Public Comment 

WAC 173–400–740 sets out the public 

participation procedures for Ecology’s 

PSD program based on the EPA 

requirements contained in 40 CFR 

51.166(q). The SIP-approved provisions 

of WAC 173–400–171, which apply to 

Ecology minor source and major NNSR 

permitting actions, do not apply to 

permits issued under the PSD program. 

Instead, WAC 173–400–171(1)(a) refers 

all actions regulated by WAC 173–400– 

700 through 173–400–750 to the public 

participation procedures of WAC 173– 

400–740. That regulation requires 

Ecology to, among other things, provide 

an opportunity for public comment and 

hearing, make relevant information 

regarding a PSD permit application and 

Ecology’s preliminary determination on 

an application available to the public, 

send a copy of the notice of public 

comment to the applicant, the EPA, and 

other identified entities, consider all 

timely public comments in issuing a 

final determination, and provide notice 

of the final determination to specified 

entities. 

WAC 173–400–171 does apply, 

however, to any visibility-related 

elements for permits subject to major 

NNSR requirements under WAC 173– 

400–800 through WAC 173–400–860. 

The EPA is proposing to find that WAC 

173–400–740 and WAC 173–400–171 

meet the CAA requirements for public 

participation for both the PSD and 

visibility permitting programs. 

G. Section 173–400–750, Revisions to 

PSD Permits 

WAC 173–400–750 contains 

procedures for revisions to PSD permits. 

Under this regulation, except in the case 

of certain categories of revisions 

identified as ‘‘administrative,’’ revisions 

to PSD permits are subject to the same 

public participation requirements that 

apply to initial issuance of PSD permits. 

In addition, prior to revising a PSD 

permit, Ecology must find, among other 

things, that no ambient air quality 

standard or PSD increment will be 

exceeded as a result of the change, the 

change will not adversely impact the 

ability of Ecology to determine 

compliance with an emissions standard, 

and the revised PSD permit will 

continue to require Best Available 

Control Technology (BACT) for each 

new or modified emission unit 

approved by the original PSD permit. 

Revisions that qualify as 

‘‘administrative’’ under Ecology’s 

regulation are subject to the same 

substantive requirements as nonadministrative revisions but are not 

subject to Ecology’s public involvement 

requirements. The changes Ecology has 

characterized as administrative are 

similar to the changes the EPA has 

characterized as administrative or minor 

under the Title V permit program and 

for which public notice and comment is 

not required. See 40 CFR 70.7(d) and 

(e)(2). 

Neither the EPA’s PSD FIP at 40 CFR 

52.21, nor the EPA’s regulations for SIPapproved PSD programs at 40 CFR 

51.166, has explicit provisions for 

revisions to PSD permits. The authority 

to revise permits, however, is a 

necessary function of administering a 

permitting program, and Ecology’s 

regulations contain appropriate 

safeguards on such revisions. The EPA 

reviewed WAC 173–400–750 and is 

proposing to approve it as consistent 

with the CAA. 

H. WAC 173–400–116, Increment 

Protection 

WAC 173–400–116 establishes 

Ecology’s PSD increment protection 

criteria. In particular, WAC 173–400– 

116(3) establishes the exclusions from 

increment consumption allowed under 

40 CFR 51.166(f). These exclusions 

include concentrations of particulate 

matter, PM10 or PM2.5 attributable to the 

increase in emissions from construction 

or other temporary emission-related 

activities of new or modified sources; 

the increase in concentrations 

attributable to new sources outside the 

United States over the concentrations 

attributable to existing sources which 

are included in the baseline 

concentration; and concentrations 

attributable to the temporary increase in 

emissions of sulfur dioxide, particulate 

matter, or nitrogen oxides from 

stationary sources which are affected by 

a revision to the SIP approved by the 

EPA, if certain criteria are met. All three 

of these exclusions mirror the language 

contained in 40 CFR 51.166. Therefore, 

the EPA is proposing to approve WAC 

173–400–116 as consistent with the 

CAA. 

I. WAC 173–400–117, Special Protection 

Requirements for Federal Class I Areas 

WAC 173–400–117 consolidates in 

one section many of the requirements 

for new or modified major sources that 

would impact Federal Class I areas, 

including the visibility permitting 

program. This includes the air quality 

related values (including visibility) 

requirements that support 

implementation of 40 CFR 52.21(p)(1) 

through (4) for PSD actions in 

attainment and unclassifiable areas, as 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
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incorporated by reference in WAC 173– 

400–720. WAC 173–400–117 also 

includes the new source review 

visibility permitting requirements of 40 

CFR 51.307 that cover all areas, 

including attainment, unclassifiable, 

and nonattainment areas. The EPA 

reviewed WAC 173–400–117 and has 

determined that these provisions are 

consistent with the requirements for 

state plans in 40 CFR 51.166(p) and 40 

CFR 51.307. Therefore, the EPA 

proposes to approve WAC 173–400–117 

as applying statewide except for those 

facilities under EFSEC jurisdiction and 

other emission categories and 

geographic areas for which Ecology does 

not have jurisdiction, as discussed 

below in Section IV.C. Scope of 

Proposed Action. 

J. Personnel, Funding, and Authority 

Section 110(a)(2)(E)(i) of the CAA 

requires that states have adequate 

personnel, funding, and authority under 

state law to carry out a SIP. Ecology’s 

authority under state law to carry out 

the PSD program is discussed above. 

With respect to personnel and funding, 

Ecology has been issuing CAA PSD 

permits under a full or partial 

delegation agreement with the EPA 

since 1983. The staff of engineers and 

air quality modelers who supported 

Ecology in its issuance of PSD permits 

under a delegation agreement with the 

EPA will continue to support Ecology’s 

issuance of PSD permits under a SIPapproved PSD program. The EPA 

therefore proposes to find that Ecology 

has adequate personnel, funding, and 

authority to implement the PSD 

program in Washington. 

III. Effect of Recent Court Decisions 

Vacating and Remanding Certain 

Federal Rules 

A. Sierra Club v. EPA 

As discussed in Section II above, 

Ecology’s PSD program generally 

incorporates by reference the Federal 

PSD permitting provisions in 40 CFR 

52.21, in effect as of August 13, 2012. 

This version of 40 CFR 52.21 includes 

40 CFR 52.21(i) (relating to the 

significant monitoring concentration 

(SMC)) and 40 CFR 52.21(k) (relating to 

the significant impact level (SIL)) that 

added a SMC and SIL for fine 

particulate matter as part of the EPA’s 

final rule Prevention of Significant 

Deterioration for Particulate Matter Less 

than 2.5 Micrometers (PM2.5)— 

Increments, Significant Impact Levels 

and Significant Monitoring 

Concentration (2010 PSD PM2.5

Implementation Rule) (75 FR 64864, 

October 20, 2010). 

On January 22, 2013, the U.S. Court 

of Appeals for the District of Columbia, 

in Sierra Club v. EPA, 703 F.3d 458 

(D.C. Cir. 2013), issued, with respect to 

the SMC, a judgment that, inter alia, 

vacated the provisions adding the PM2.5

SMC to the Federal regulations at 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). In 

its decision, the Court held that the EPA 

did not have the authority to use SMCs 

to exempt permit applicants from the 

statutory requirement in section 

165(e)(2) of the CAA that ambient 

monitoring data for PM2.5 be included in 

all PSD permit applications. Thus, 

although the PM2.5 SMC was not a 

required element of a state’s PSD 

program, where a state PSD program 

contains such a provision and allows 

issuance of new permits without 

requiring ambient PM2.5 monitoring 

data, such application of the vacated 

SMC would be inconsistent with the 

Court’s decision and the requirements of 

section 165(e)(2) of the CAA. 

At the EPA’s request, the decision 

also vacated and remanded to the EPA 

for further consideration the portions of 

the 2010 PSD PM2.5 Implementation 

Rule that revised 40 CFR 51.166 and 40 

CFR 52.21 related to SILs for PM2.5. The 

EPA requested this vacatur and remand 

of two of the three provisions in the 

EPA regulations that contain SILs for 

PM2.5 because the wording of these two 

SIL provisions (40 CFR 51.166(k)(2) and 

40 CFR 52.21(k)(2)) is inconsistent with 

the explanation of when and how SILs 

should be used by permitting authorities 

that we provided in the preamble to the 

Federal Register publication when we 

promulgated these provisions. The third 

SIL provision (40 CFR 51.165(b)(2)) was 

not vacated and remains in effect. We 

also note that the Court’s decision does 

not affect the PSD increments for PM2.5

promulgated as part of the 2010 PSD 

PM2.5 Implementation Rule. The EPA 

recently amended its regulations to 

remove the vacated PM2.5 SILs and SMC 

provisions from the PSD regulations (78 

FR 73698, December 9, 2013). The EPA 

will initiate a separate rulemaking in the 

future regarding the PM2.5 SILs that will 

address the Court’s remand. In the 

meantime, the EPA is advising states to 

begin preparations to remove the 

vacated provisions from state PSD 

regulations. 

In response to the vacatur of the EPA 

regulations as they relate to the PM2.5

SMC and the PM2.5 SILs, Washington’s 

January 27, 2014 submittal clarified that 

Ecology was not including those vacated 

provisions for approval into the SIP, nor 

will Ecology apply either the PM2.5 SMC 

provisions at 40 CFR 52.21(i)(5)(i)(c) or 

the PM2.5 SIL provisions at 40 CFR 

52.21(k)(2) in implementation of its PSD 

program. In addition, the submittal 

states that Ecology intends to remove 

the vacated provisions to ensure 

consistency with Federal law as soon as 

practicable. Therefore, the EPA 

proposes to determine that Ecology’s 

January 27, 2014 SIP submittal is 

consistent with CAA requirements with 

respect to PM2.5 SILs and SMC. 

B. Utility Air Regulatory Group v. EPA 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to greenhouse 

gas (GHG) emissions. See Utility Air 

Regulatory Group v. Environmental 

Protection Agency, 134 S.Ct. 2427. The 

Supreme Court said that the EPA may 

not treat GHGs as an air pollutant for 

purposes of determining whether a 

source is a major source (or major 

modification thereof) required to obtain 

a PSD permit. The Court also said that 

the EPA could continue to require that 

PSD permits, otherwise required based 

on emissions of pollutants other than 

GHGs, contain limitations on GHG 

emissions based on the application of 

BACT. In order to act consistently with 

its understanding of the Court’s decision 

pending further judicial action to 

effectuate the decision, the EPA is not 

continuing to apply the EPA regulations 

that would require that SIPs include 

permitting requirements that the 

Supreme Court found impermissible. 

Specifically, the EPA is not applying the 

requirement that a state’s SIP-approved 

PSD program require that sources obtain 

PSD permits when GHGs are the only 

pollutant (i) that the source emits or has 

the potential to emit above the major 

source thresholds, or (ii) for which there 

is a significant emissions increase and a 

significant net emissions increase from 

a modification (e.g. 40 CFR 

51.166(b)(48)(v) and the analogous 

definition in 40 CFR 52.21(b)(49)(v) for 

the Federal PSD program). The EPA 

anticipates a need to revise Federal PSD 

rules in light of the Supreme Court’s 

decision. In addition, the EPA 

anticipates that many states will revise 

their existing SIP-approved PSD 

programs in light of the Supreme 

Court’s decision. The timing and 

content of subsequent EPA actions with 

respect to EPA regulations and state 

PSD program approvals are expected to 

be informed by additional legal process 

in Federal court. 

On September 5, 2014, Ecology 

submitted a letter withdrawing from its 

January 27, 2014 submittal the portion 

of WAC 173–400–720(4)(a)(vi) that 

incorporates 40 CFR 52.21(b)(49)(v) by 

reference. Ecology notes in its letter that 

it was not including this provision for 


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2As discussed above, this proposed approval of 

these regulations for PSD purposes is subject to the 

exceptions and explanations described in the EPA’s 

July 10, 2014 proposal (79 FR 39351) and October 

3, 2014 final action (79 FR 59653) of these 

regulations. 

approval into the SIP to align with the 

Supreme Court decision and to prevent 

delay in the EPA’s proposed action on 

Ecology’s SIP submittal. 

Ecology’s letter does not discuss the 

fact that, because it adopted EPA’s PSD 

regulations as of August 13, 2012, its 

rules include the elements of the EPA’s 

2012 rule implementing Step 3 of the 

phase-in of PSD permitting 

requirements for greenhouse gases 

described in the Tailoring Rule, which 

became effective on August 13, 2012 (77 

FR 41051, July 12, 2012). The 

incorporation of the Step 3 rule 

provisions into Washington’s SIP will 

allow GHG-emitting sources to obtain 

plantwide applicability limits (PALs) for 

their GHG emissions on a carbon 

dioxide equivalent (CO2e) basis. The 

Federal GHG PAL provisions, as 

currently written, include some 

provisions that may no longer be 

appropriate in light of the Supreme 

Court decision. Because the Supreme 

Court has determined that sources and 

modifications may not be defined as 

‘‘major’’ solely on the basis of the level 

of greenhouse gases emitted or 

increased, PALs for greenhouse gases 

may no longer have value in some 

situations where a source might have 

triggered PSD based on greenhouse gas 

emissions alone. However, PALs for 

GHGs may still have a role in 

determining whether a modification that 

triggers PSD for a pollutant other than 

greenhouse gases should also be subject 

to BACT for greenhouse gases. These 

provisions, like the other GHG 

provisions discussed previously, will 

likely be revised pending further legal 

action. However, these provisions do 

not add new requirements for sources or 

modifications that only emit or increase 

greenhouse gases above the major 

source threshold or the 75,000 tons per 

year (tpy) greenhouse gas level in 40 

CFR 52.21(b)(49)(iv). Rather, the PALs 

provisions provide increased flexibility 

to sources that choose to address their 

GHG emissions in a PAL. Because this 

flexibility may still be valuable to 

sources in at least one context described 

above, we believe that it is appropriate 

to approve these provisions into the 

Washington SIP at this point in time. 

The EPA is therefore proposing to 

determine that Ecology’s SIP revision 

meets the necessary PSD requirements 

at this time, consistent with the 

Supreme Court’s decision. 

IV. The EPA’s Proposed Action 

Consistent with the discussion above, 

the EPA proposes to approve the PSD 

and visibility permitting regulations 

submitted by Ecology on January 27, 

2014. This action is the third and final 

in a series acting on all remaining 

elements contained in Ecology’s January 

27, 2014 submittal. The previous two 

actions consisted of the EPA’s October 

3, 2014 (79 FR 59653) final approval of 

general provisions that apply to all air 

pollution sources and the EPA’s 

November 7, 2014 (79 FR 66291) final 

approval of requirements that 

implement major source NNSR. 

A. Rules To Approve Into the SIP 

The EPA proposes to approve into 

Washington’s SIP at 40 CFR part 52, 

subpart WW, the Ecology regulations 

listed in the table below. The EPA also 

proposes to determine that the general 

air quality regulations contained WAC 

173–400–110, WAC 173–400–111, WAC 

173–400–112, WAC 173–400–113, and 

WAC 173–400–171 also meet the EPA’s 

requirements for PSD and visibility 

permitting and are approved for such 

purposes.2

WASHINGTON STATE DEPARTMENT OF ECOLOGY REGULATIONS FOR PROPOSED APPROVAL

State citation Title/subject State effective 

date Explanation 

Chapter 173–400 WAC, General Regulations for Air Pollution Sources 

173–400–700 ................. Review of Major Stationary Sources of Air Pollution.4/1/11 

173–400–710 ................. Definitions ............................................................. 12/29/12 

173–400–720 ................. Prevention of Significant Deterioration (PSD) ...... 12/29/12 Except: 173–400–720(4)(a)(i-iv); 173–400– 

720(4)(b)(iii)(C); and 173–400–720(4)(a)(vi) 

with respect to the incorporation by reference 

of the text in 40 CFR 52.21(b)(49)(v), 

52.21(i)(5)(i), and 52.21(k)(2). 

173–400–730 ................. Prevention of Significant Deterioration Application Processing Procedures.12/29/12 

173–400–740 ................. PSD Permitting Public Involvement Requirements.12/29/12 

173–400–750 ................. Revisions to PSD Permits .................................... 12/29/12 Except: 173–400–750(2) second sentence. 

173–400–116 ................. Increment Protection ............................................ 9/10/11 

173–400–117 ................. Special Protection Requirements for Federal 

Class I Areas.

12/29/12 

B. Transfer of Existing EPA-Issued PSD 

Permits 

In a letter dated October 24, 2014, 

Ecology requested approval to exercise 

its authority to fully administer the PSD 

program with respect to those sources 

under Ecology’s permitting jurisdiction 

that have existing PSD permits issued 

by the EPA since August 7, 1977. This 

would include authority to conduct 

general administration of these existing 

permits, authority to process and issue 

any and all subsequent PSD permit 

actions relating to such permits (e.g., 

modifications, amendments, or 

revisions of any nature), and authority 

to enforce such permits. Since October 

1, 1983, Ecology has had full or partial 

delegation of the PSD permitting 

program under the FIP. Therefore, most 

of the EPA permits subject to proposed 

transfer were also issued under state 

authority. For those permits issued 

solely by the EPA prior to delegation 

(August 7, 1977 to October 1, 1983), 

Ecology has also demonstrated adequate 

authority to enforce and modify these 

permits. Concurrent with our approval 

of Ecology’s PSD program into the SIP, 

we are proposing that the EPA-issued 


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permits would be transferred to Ecology. 

The EPA will retain authority to 

administer any PSD permits issued by 

the EPA in Washington prior to August 

7, 1977. 

C. Scope of Proposed Action 

1. WAC 173–400–700 Through 173– 

400–750 

Under WAC 173–400–700, Ecology’s 

PSD regulations contained in WAC 173– 

400–700 through 173–400–750 apply 

statewide except where a local clean air 

agency has received delegation of the 

Federal PSD program from the EPA or 

has a SIP-approved PSD program. At 

this time, no local clean air agencies 

have a delegated or SIP-approved PSD 

program. The EPA is therefore 

approving Ecology’s regulations 

contained in WAC 173–400–700 

through 173–400–750 to apply 

statewide, except for the three situations 

described below. For these facilities, 

emission categories, and geographic 

areas, the PSD FIP at 40 CFR 52.21 will 

continue to apply and the EPA will 

retain responsibility for issuing permits 

affecting such sources. 

a. Sources Under EFSEC’s Jurisdiction 

By statute, Ecology does not have 

authority for sources under the 

jurisdiction of EFSEC. See Chapter 

80.50 RCW. Therefore, the EPA’s 

proposed approval of Ecology’s PSD 

program, under WAC 173–400–700 

through 173–400–750, excludes projects 

under the jurisdiction of EFSEC. Such 

sources will continue to be subject to 

the PSD FIP in 40 CFR 52.21 until such 

time that EFSEC’s PSD rules are 

approved into the SIP. 

b. Carbon Dioxide Emissions From 

Industrial Combustion of Biomass 

Under a provision contained in RCW 

70.235.020, Greenhouse Gas Emissions 

Reductions—Reporting Requirements, 

Ecology is statutorily barred from 

regulating certain greenhouse gas 

emissions under PSD. Specifically, RCW 

70.235.020(3) states, ‘‘[e]xcept for 

purposes of reporting, emissions of 

carbon dioxide from industrial 

combustion of biomass in the form of 

fuel wood, wood waste, wood byproducts, and wood residuals shall not 

be considered a greenhouse gas as long 

as the region’s silvicultural 

sequestration capacity is maintained or 

increased.’’ Under the restrictions of 

this state statute, if the source of carbon 

dioxide (CO2) emissions is subject to 

PSD because it is major for another 

regulated NSR pollutant, Ecology is 

prohibited from issuing a PSD permit 

regulating CO2 emissions. Therefore, if 

the EPA takes final action on this 

proposal to approve Ecology’s PSD 

regulations into the SIP, Ecology will be 

responsible for issuing PSD permits 

under the SIP for all pollutants except 

CO2 at such sources and the EPA will 

retain its role as the primary authority 

for issuing PSD permits for CO2

emissions from such sources under 40 

CFR 52.21. PSD permitting of CO2

emissions from such sources is also 

excluded from the 2013 Delegation 

Agreement. 

c. Sources in Indian Country 

The EPA is also excluding from the 

scope of this proposed approval of 

Ecology’s PSD program all Indian 

reservations in the State, except for nontrust land within the exterior 

boundaries of the Puyallup Indian 

Reservation (also known as the 1873 

Survey Area), and any other area where 

the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. Under the Puyallup Tribe 

of Indians Settlement Act of 1989, 25 

U.S.C. 1773, Congress explicitly 

provided state and local agencies in 

Washington authority over activities on 

non-trust lands within the 1873 Survey 

Area and the EPA is therefore proposing 

to approve Ecology’s PSD regulations 

into the SIP with respect to such lands. 

d. Scope of PSD FIP in Washington 

Consistent with the limitations on the 

scope of the EPA’s proposed approval of 

WAC 173–400–700 through 173–400– 

750 in the Washington SIP, the EPA is 

proposing to retain, but significantly 

narrow, the scope of the current PSD 

FIP in 40 CFR 52.2497. The EPA’s 

Federal PSD permitting rules will 

continue to apply to facilities subject to 

the jurisdiction of the Energy Facilities 

Site Evaluation Council; carbon dioxide 

emissions from facilities with industrial 

combustion of biomass in the form of 

fuel wood, wood waste, wood byproducts and wood residuals; and 

facilities located within Indian 

reservations in Washington (except for 

non-trust land within the exterior 

boundaries of the Puyallup Indian 

Reservation) and any other area where 

the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In addition, the EPA’s PSD 

rules will continue to apply to sources 

subject to PSD permits issued by the 

EPA prior to August 7, 1977, but only 

with respect to the general 

administration of any such permits still 

in effect (e.g., modifications, 

amendments, or revisions of any 

nature). 

2. WAC 173–400–116 and 173–400–117 

With respect to the EPA’s proposed 

approval of WAC 173–400–116 and 

WAC 173–400–117, the SIP-approved 

provisions of WAC 173–400–020 govern 

jurisdictional applicability for those 

sections. WAC 173–400–020 states, 

‘‘[t]he provisions of this chapter shall 

apply statewide, except for specific 

subsections where a local authority has 

adopted and implemented 

corresponding local rules that apply 

only to sources subject to local 

jurisdiction as provided under RCW 

70.94.141 and 70.94.331.’’ Because 

Ecology will be the only authority in 

Washington with a SIP-approved PSD 

program that would implement WAC 

173–400–116, Increment Protection, the 

EPA’s proposed approval will apply 

statewide. Similarly, the scope of the 

EPA’s proposed approval of WAC 173– 

400–117, Special Protection 

Requirements for Federal Class I Areas, 

applies statewide for PSD permits 

issued by Ecology under WAC 173–400– 

700 through 173–400–750. However, for 

visibility-related elements associated 

with permits issued under the major 

NNSR program, the applicability of 

WAC 173–400–117 is more complicated 

because local clean air agencies have the 

authority under state law to have 

alternative, but no less stringent, 

permitting requirements. Therefore, 

consistent with the EPA’s November 7, 

2014 approval of Ecology’s major NNSR 

program, the EPA’s proposed approval 

of WAC 173–400–117, as it relates to 

permits issues under WAC 173–400–800 

through 173–400–860, is limited to only 

those counties or sources where the 

Department of Ecology has direct 

jurisdiction. The counties where 

Ecology has direct jurisdiction are: 

Adams, Asotin, Chelan, Columbia, 

Douglas, Ferry, Franklin, Garfield, 

Grant, Kittitas, Klickitat, Lincoln, 

Okanogan, Pend Oreille, San Juan, 

Stevens, Walla Walla, and Whitman 

Counties. The EPA also notes that under 

the SIP-approved provisions of WAC 

173–405–012, WAC 173–410–012, and 

WAC 173–415–012, Ecology has 

statewide, direct jurisdiction for kraft 

pulp mills, sulfite pulping mills, and 

primary aluminum plants. The EPA is 

therefore also approving WAC 173–400– 

117 in all areas of the state under 

Ecology’s jurisdiction for those source 

categories. 

a. Scope of Visibility FIP in Washington 

Consistent with the limitations on the 

scope of the EPA’s approval of Ecology’s 

major NNSR program, the EPA is 

proposing to retain, but significantly 

narrow, the scope of the current 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
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visibility FIP in 40 CFR 52.2498. The 

EPA’s Federal visibility new source 

review rules will continue to apply to 

facilities subject to the jurisdiction of 

the Energy Facilities Site Evaluation 

Council; sources subject to the 

jurisdiction of local air authorities; and 

facilities located within Indian 

reservations in Washington (except for 

non-trust land within the exterior 

boundaries of the Puyallup Indian 

Reservation) and any other area where 

the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. 

D. The EPA’s Oversight Role 

In approving state new source review 

rules into SIPs, the EPA has a 

responsibility to ensure that all states 

properly implement their SIP-approved 

preconstruction permitting programs. 

The EPA’s approval of Ecology’s PSD 

rules does not divest the EPA of the 

responsibility to continue appropriate 

oversight to ensure that permits issued 

by Ecology are consistent with the 

requirements of the CAA, Federal 

regulations, and the SIP. The EPA’s 

authority to oversee permit program 

implementation is set forth in sections 

113, 167, and 505(b) of the CAA. For 

example, section 167 provides that the 

EPA shall issue administrative orders, 

initiate civil actions, or take whatever 

other action may be necessary to 

prevent the construction or modification 

of a major stationary source that does 

not ‘‘conform to the requirements of’’ 

the PSD program. Similarly, section 

113(a)(5) of the CAA provides for 

administrative orders and civil actions 

whenever the EPA finds that a state ‘‘is 

not acting in compliance with’’ any 

requirement or prohibition of the CAA 

regarding the construction of new 

sources or modification of existing 

sources. Likewise, section 113(a)(1) 

provides for a range of enforcement 

remedies whenever the EPA finds that 

a person is in violation of an applicable 

implementation plan. 

In making judgments as to what 

constitutes compliance with the CAA 

and regulations issued thereunder, the 

EPA looks to (among other sources) its 

prior interpretations regarding those 

statutory and regulatory requirements 

and policies for implementing them. It 

follows that state actions implementing 

the Federal CAA that do not conform to 

the CAA may lead to potential oversight 

action by the EPA. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves the state’s law 

as meeting Federal requirements and 

does not impose additional 

requirements beyond those imposed by 

the state’s law. For that reason, this 

proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

this action does not involve technical 

standards; and 

• does not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. As 

discussed above, the SIP is not 

approved to apply in Indian country 

located in the state, except for non-trust 

land within the exterior boundaries of 

the Puyallup Indian Reservation (also 

known as the 1873 Survey Area), or any 

other area where the EPA or an Indian 

tribe has demonstrated that a tribe has 

jurisdiction. Consistent with EPA 

policy, the EPA provided a consultation 

opportunity to the Puyallup Tribe in a 

letter dated February 25, 2014. The EPA 

did not receive a request for 

consultation. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 18, 2014. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2014–30716 Filed 1–6–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2014–0760; FRL–9919–23] 

RIN 2070–AB27 

Proposed Significant New Use Rule on 

Certain Chemical Substances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing significant 

new use rules (SNURs) under the Toxic 

Substances Control Act (TSCA) for 13 

chemical substances which were the 

subject of premanufacture notices 

(PMNs). This action would require 

persons who intend to manufacture 

(including import) or process any of the 

chemical substances for an activity that 

is designated as a significant new use by 

this proposed rule to notify EPA at least 

90 days before commencing that 

activity. The required notification 

would provide EPA with the 

opportunity to evaluate the intended 

use and, if necessary, to prohibit or limit 

the activity before it occurs. 

DATES: Comments must be received on 

or before March 9, 2015. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2014–0760, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. 


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