[Federal Register Volume 89, Number 204 (Tuesday, October 22, 2024)]
[Proposed Rules]
[Pages 84322-84327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24211]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2024-0372; FRL-12293-01-R10]


Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and 
Malfunction Revisions, Energy Facility Site Evaluation Council

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve Washington State Implementation Plan (SIP) revisions to the 
Energy Facility Site Evaluation Council (EFSEC) air quality regulations 
submitted by the State of Washington, through the Department of Ecology 
(Ecology) on June 15, 2023. The revisions were submitted in response to 
EPA's June 12, 2015 ``SIP call'' in which the EPA found a substantially 
inadequate Washington SIP provision providing affirmative defenses that 
operate to limit the jurisdiction of the Federal court in an 
enforcement action related to excess emissions during startup, 
shutdown, and malfunction (SSM) events. The EPA is proposing approval 
of the SIP revisions and proposing to determine that removal of the 
substantially

[[Page 84323]]

inadequate provision corrects the EFSEC deficiency identified in the 
2015 SSM SIP call and the EPA's January 2022 finding of failure to 
submit. Washington withdrew some portions of the revisions submitted 
that were not identified in the 2015 SSM SIP call and therefore the EPA 
is not proposing action on those withdrawn portions.

DATES: Comments must be received on or before November 21, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2024-0372, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not electronically submit any 
information you consider to be Confidential Business Information (CBI) 
or other information the disclosure of which 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. 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: Randall Ruddick, EPA Region 10 1200 
Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email 
<a href="/cdn-cgi/l/email-protection#bac8cfdeded3d9d194c8dbd4dedbd6d6fadfcadb94ddd5cc"><span class="__cf_email__" data-cfemail="42303726262b21296c30232c26232e2e022732236c252d34">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' or 
``our,'' is used, it refers to EPA.

Table of Contents

I. Background
II. Analysis of SIP Submission
    A. The Provision Subject to the 2015 SSM SIP Call
    B. Additional SIP Revisions Submitted But Not Specified in the 
2015 SSM SIP Call
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA 
finalized ``State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction,'' (80 FR 33840, June 12, 2015), hereinafter 
referred to as the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action 
clarified, restated, and updated EPA's interpretation that SSM 
exemption and affirmative defense SIP provisions are inconsistent with 
CAA requirements. The 2015 SSM SIP Action found that certain SIP 
provisions in 36 states (including Washington State) were substantially 
inadequate to meet CAA requirements and issued a SIP call to those 
states to submit SIP revisions to address the inadequacies. EPA 
established an 18-month deadline by which the affected states had to 
submit such SIP revisions. States were required to submit corrective 
revisions to their SIPs in response to the SIP calls by November 22, 
2016.
    With regard to the Washington SIP, EPA determined that, to the 
extent that Wash. Admin. Code (WAC) 173-400-107 was intended to be an 
affirmative defense, it was not consistent with the requirements of the 
CAA. Therefore, EPA issued a SIP call with respect to this provision. 
The detailed rationale for issuing the SIP call to Washington can be 
found in the 2015 SSM SIP Action and preceding proposed 
actions.<SUP>1 2</SUP>
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    \1\ See State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
    \2\ See SNPR (``State Implementation Plans: Response to Petition 
for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown and Malfunction; Supplemental Proposal To Address 
Affirmative Defense Provisions in States Included in the Petition 
for Rulemaking and in Additional States; Supplemental notice of 
proposed rulemaking,'' 79 FR 55919, September 17, 2014).
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    On January 12, 2022, the EPA issued Findings of Failure to Submit 
(FFS) to 12 air agencies, including EFSEC, that had not submitted SIPs 
responding to the 2015 SSM SIP call by the November 22, 2016, deadline 
per the requirements of section 110(k)(5) of the Act.\3\
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    \3\ Findings of Failure To Submit State Implementation Plan 
Revisions in Response to the 2015 Findings of Substantial Inadequacy 
and SIP Calls To Amend Provisions Applying To Excess Emissions 
During Periods of Startup, Shutdown, and Malfunction, 87 FR 1680 
(January 12, 2022), available at Regulations.gov, Docket ID No. EPA-
HQ-OAR-2021-0863.
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    On March 1, 2024, the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) issued a decision in 
Environ. Comm. Fl. Elec. Power v. EPA, No. 15-1239 (``D.C. Circuit 
decision'').\4\ The case was a consolidated set of petitions for review 
of the 2015 SSM SIP Action. The Court granted the petitions in part, 
vacating the SIP call with respect to SIP provisions that EPA 
identified as automatic exemptions, director's discretion provisions, 
and affirmative defenses that are functionally exemptions; and denied 
the petitions as to other provisions that EPA identified as overbroad 
enforcement discretion provisions, or affirmative defense provisions 
that would preclude or limit a court from imposing relief in the case 
of violations, which the Court also refers to as ``specific relief.''
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    \4\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115 
(D.C. Cir. 2024).
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    With respect to affirmative defense provisions against specific 
relief, the Court reaffirmed that states cannot limit courts' 
discretion to determine and apply appropriate civil penalties for 
violations of SIPs and denied the petitions for review as to 
affirmative defenses against monetary damages.\5\ This is in keeping 
with the EPA's interpretation of the CAA in our 2015 SSM SIP Action 
that states do not have authority to create, and thus the EPA does not 
have authority to approve, SIP provisions that include an affirmative 
defense that would operate to alter the jurisdiction of Federal courts 
to assess penalties or other forms of relief authorized in sections 113 
and 304.\6\ As explained in the 2015 SSM SIP Action, WAC 173-400-107 
provides affirmative defenses that operate to limit the jurisdiction of 
the Federal court in an enforcement action to assess monetary penalties 
or impose injunctive relief under certain circumstances as contemplated 
in CAA sections 113 and 304.\7\
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    \5\ Id. at 114-15.
    \6\ As stated in our supplemental notice of proposed rulemaking 
79 FR 55920 at 55929. See also 80 FR 33840 at 33853, 33870.
    \7\ See 79 FR 55920 at 55952. See also 80 FR 33974.
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    By statute, EFSEC has jurisdiction for managing the air program 
with respect to major energy facilities in the State of Washington. See 
Chapter 80.50 of the Revised Code of Washington (RCW). EFSEC air 
quality regulations primarily adopt by reference Ecology's general air 
quality regulations, including WAC 173-400-107. Thus, in our 2015 SSM 
SIP Action, the EPA also issued a SIP call with respect to EFSEC's 
adoption by reference of WAC 173-400-107 in WAC 463-39-005.\8\
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    \8\ See 80 FR 33840, June 12, 2015.
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    In response to the EPA's 2015 SSM SIP call, Ecology removed WAC 
173-400-107 from the SIP. The EPA approved this SIP revision, along 
with

[[Page 84324]]

others, on December 28, 2023 (88 FR 89582). In its June 15, 2023 SIP 
submittal, Washington is, among other revisions, removing adoption by 
reference of WAC 173-400-107 in EFSEC's regulations.

II. Analysis of SIP Submission

A. The Provision Subject to the 2015 SSM SIP Call

    In the 2015 SSM SIP Action, the EPA identified WAC 463-39-005 as 
inconsistent with CAA requirements because it contained adoption by 
reference of WAC 173-400-107. The EPA last approved EFSEC's adoption by 
reference of WAC 173-400-107 on May 23, 1996 (61 FR 25791). In 2015, 
EFSEC recodified 463-39 as 463-78 but otherwise retained the adoption 
by reference of WAC 173-400-107. The EPA approved this ministerial 
change, among other revisions, on May 30, 2017, (82 FR 24531) and 
January 24, 2020, (85 FR 4233). Accordingly, the June 15, 2023, SIP 
submittal references EFSEC's adoptions by reference in WAC 463-78 
rather than the WAC 463-39 referenced in the 2015 SSM SIP call.
    Subsequent to the EPA's January 2022 FFS, Washington submitted a 
SIP revision on June 15, 2023, that removed the EFSEC's adoption by 
reference of WAC 173-400-107 in its entirety and included additional 
revisions to the SIP for EFSEC's jurisdiction.
    We reviewed Washington's June 15, 2023 SIP submittal and found the 
submission technically and administratively complete. We subsequently 
issued a completeness determination letter to Washington on August 8, 
2023.\9\ This completeness determination stopped the 18-month sanctions 
clock for EFSEC's jurisdiction that was started by the 2022 FFS. This 
completeness determination did not address the other SIP revisions 
included in the June 15, 2023 SIP submittal.
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    \9\ See 301_EFSEC SSM SIP Call FFS Completeness Letter.pdf, 
included in the docket for this action.
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    The EPA has assessed the impact of the D.C. Circuit decision with 
respect to the removal of the specific affirmative defense provision at 
issue in WAC 173-400-107. We have concluded that the previously stated 
reasons for the proposed removal of these provisions, as articulated in 
the 2015 SSM SIP Action, are consistent with the recent D.C. Circuit 
decision. The Court upheld the EPA's 2015 SSM SIP Action with regard to 
affirmative defenses against specific relief, finding that because CAA 
304(a) and 113(b) authorize citizens and the EPA to seek injunctive 
relief and monetary penalties against sources that violate a SIP's 
emission rules, such an affirmative defense would ``block that aspect 
of the Act's enforcement regime.'' \10\
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    \10\ See 94 F.4th at 114-15.
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    We are proposing to find that the removal of EFSEC's adoption by 
reference of WAC 173-400-107 in WAC 463-78-005 from the Washington SIP 
will satisfy the 2015 SSM SIP call as it will no longer provide an 
affirmative defense that may operate to limit the jurisdiction of the 
Federal court in an enforcement action.

B. Additional SIP Revisions Submitted But Not Specified in the 2015 SSM 
SIP Call

    Washington also included SIP revisions in the June 15, 2023 SIP 
submittal that are not subject to the 2015 SSM SIP call. On July 26, 
2024, Washington submitted a letter dated July 24, 2024, to the EPA 
withdrawing certain other SIP revisions not subject to the 2015 SSM SIP 
call.\11\ Therefore, the EPA is not proposing action on the withdrawn 
provisions and will not cover them in this analysis. The remaining SIP 
revisions for which we are proposing action: correct a typographical 
error; establish the process for defining facility-specific alternate 
emission standards; remove excess emission provisions not consistent 
with the EPA's 2015 SSM policy; revise cross-references as necessary to 
align with updates to the analogous Federal laws or the EPA's 2015 SSM 
policy; and remove some provisions in deference to equally or more 
stringent relevant Federal laws. Many of the revisions are conditioned 
to only take effect upon the effective date of the EPA's removal of WAC 
173-400-107 from the Washington SIP. The EPA approved identical 
revisions to WAC 173-400 applicable to Ecology's jurisdiction on 
December 28, 2023 (88 FR 89582). See the preamble to the EPA's June 15, 
2023, proposed rule for a full explanation of these rule revisions. 
Washington also requested the EPA correct a typographical error in the 
SIP regarding a state effective date.
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    \11\ See 201_state submittal supplement_EFSEC Partial Withdrawal 
Request Letter - Ecology.pdf and 202_state submittal 
supplement_EFSEC Partial Withdrawal Request Letter - EFSEC.pdf 
included in the docket for this action.
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    The additional revisions included in the June 15, 2023 SIP 
submittal that were not specified in the 2015 SSM SIP call or 2022 FFS 
were adopted in two different state rulemaking actions in 2018 for 
provisions in WAC 173-400, General Air Regulations for Air Pollution 
Sources.
    WAC 173-400, General Air Regulations for Air Pollution Sources. In 
its June 15, 2023, SIP submittal, Washington requested approval of 
revisions to WAC 173-030, Definitions; WAC 173-400-070, Emission 
standards for certain source categories; WAC 173-400-081, Startup and 
Shutdown; WAC 173-400-082, Alternative emission limit that exceeds an 
emission standard in the SIP; WAC 173-400-107, Excess emissions; WAC 
173-400-136, Use of Emission Reduction Credits (ERC); and WAC 173-400-
171, Public involvement. Many of the revisions are non-substantive 
changes.
    WAC 173-400-030, Definitions. As described in our most recent 
approval of WAC 173-400-030 (88 FR 89582, December 28, 2023) which 
EFSEC adopts by reference: Washington revised this section to aid in 
implementation of provisions such as those addressing transient (short-
term) modes of operation, including startup and shutdown, and to 
clarify commonly used `terms of art' (such as ``hog fuel'').\12\ Most 
definitions in WAC 173-400-030 remain unchanged since our last 
approval; \13\ however, the addition of new definitions resulted in 
changes to the numbering sequence. Even though the text of those 
definitions remains as approved, the state effective date changed to 
reflect the numbering sequence changes. Therefore, Washington requested 
the EPA approve all of WAC 173-400-030 as submitted on June 15, 2023, 
except definition (96) related to toxic air pollutants or odors, 
because it is outside the scope of CAA section 110 requirements for 
SIPs.\14\ A complete redline/strikeout analysis of the updated 
definitions in WAC 173-400-030 is included in the docket for this 
action.\15\ Updating the state effective date for those definitions in 
WAC 173-400-030 previously approved into Washington's SIP that remain 
unchanged will have no effect on emissions.
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    \12\ For more details, see Chapter 2 of Washington's November 
12, 2019, submission, included in the docket for this action as 
102_state submittal_SIP_SSM_400_405_410_415.pdf.
    \13\ EPA reviewed those definitions and approved them in a 
previous action (85 FR 4233, January 20, 2020).
    \14\ Definition (96) was excluded for the same reasons in our 
January 20, 2020 approval (88 FR 4233).
    \15\ See Appendix C in 104_state submittal_Publication 19-02-
030.pdf, included in the docket for this action.

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[[Page 84325]]

    The two revisions to existing definitions in WAC 173-400-030 were 
to:
    (32) \16\ ``Excess emissions'': to clarify that the term also 
includes emissions above limits established in permits or orders, 
including alternative emission limits. This definition comports with 
our 2015 SSM SIP Action; \17\ and
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    \16\ ``Excess Emissions'' was previously codified as WAC 173-
400-030(30), state effective December 29, 2012. EPA approved the 
December 29, 2012 versions of Washington's definitions of ``excess 
emissions'' and ``federally enforceable'' in a May 30, 2017 action 
(82 FR 24533). Since that action, EPA has approved more recent 
versions of Washington's definitions rule, but explicitly excluded 
the definitions for ``excess emissions'' and federally enforceable'' 
from those actions. This means the 2012 versions of these 
definitions are currently effective for purposes of EFSEC's 
jurisdiction in the Washington SIP, and it is those versions that 
EPA is proposing to revise in this action--the same as we did for 
Ecology's and Benton Clean Air Agency's jurisdiction in our December 
28, 2023 approval (88 FR 89582).
    \17\ See 80 FR 33840, June 12, 2015, specifically page 33842.
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    (38) \18\ ``Federally enforceable'': to include emission 
limitations during startup and shutdown.
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    \18\ ``Federally enforceable'' was previously codified as WAC 
173-400-030(36), state effective December 29, 2012.
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    Washington also adopted several new definitions which are discussed 
below:
    (6) `` `Alternative emission limit' or `limitation' '': to clarify 
implementation of the provisions for transient (short-term) modes of 
operation such as startup and shutdown provisions in WAC 173-400-
040(2), 081 and 082, 107, 108 and 109. This definition is defined 
substantively the same as in our 2015 SSM SIP Action; \19\
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    \19\ See 80 FR 33840, June 12, 2015, especially page 33912.
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    (45) ``Hog fuel'': to define what has been used as a 1term of art' 
for wood waste, especially hogged wood waste, utilized for burning and 
to clarify implementation of emissions standards for boilers in WAC 
173-400-040(2) and WAC 173-400-070(2). This definition, while narrower 
in scope, is generally in keeping with the Federal defintion for 
biomass or bio-based solid fuel for boilers and process heaters in the 
EPA's National Emission Standard for Hazardous Air Pollutants (NESHAP) 
for Major Sources: Industrial, Commercial, and Institutional Boilers 
and Process Heaters, codified at 40 CFR part 63, ``Subpart DDDDD''); 
\20\
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    \20\ See specifically 40 CFR 63.7575.
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    (83) ``Shutdown'' and (89) ``Startup'': to clarify the general 
meanings of the terms \21\ for purposes of implementation of WAC 173-
400.
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    \21\ 40 CFR 63.7575.
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    (97) ``Transient code of operation'': to include short-term 
operating periods, including periods of startup and shutdown. This term 
is used for facilitating development of alternative emission 
limitations (AELs) for startup and shutdown periods, as well as other 
short-term modes of operation such as soot blowing (also known as 
boiler lancing), grate cleaning, and refractory curing, during which a 
source is unable to meet otherwise applicable emissions limits;
    (100) ``Useful thermal energy'': to clarify the general meanings of 
the terms for purposes of implementation of WAC 173-400. The definition 
is nearly verbatim from, and is substantively the same as, the EPA's 
Boiler NESHAP.\22\
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    \22\ See specifically 40 CFR 63.7575 and 63.11237.
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    (103) ``Wigwam'' or ``silo burner'': This definition clarifies the 
types of units that are now prohibited under WAC 173-400-070(1).\23\
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    \23\ Adding these definitions to WAC 173-400-030 does not 
constitute a prohibition, rather it is for clarification purposes as 
the terms were not defined elsewhere in WAC 173-400. However, the 
terms are used in WAC 173-400-070(1) which previously allowed the 
use of these units for disposal burning of waste wood. Revisions in 
the June 15, 2023 SIP submittal prohibit their use as of January 1, 
2020.
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    (104) ``Wood-fired boiler'': to clarify implementation of 
regulations tailored specifically for this unique subset of boilers. 
This definition is similar to, but more narrowly defined than, 
``boiler'' in 40 CFR 63.7575 and in as much as it is used to regulate 
boilers, comports with the Federal CAA.
    For the reasons stated above, the EPA is proposing to approve the 
above changes to Washington's definitions under WAC 173-400-030 for 
EFSEC's jurisdiction. We approved identical revisions to WAC 173-400 
applicable to Ecology's jurisdiction on December 28, 2023 (88 FR 
89582).
    WAC 173-400-070, Emission standards for certain source categories. 
Most subsections apply to source categories not regulated by EFSEC, the 
EPA previously only approved subsection (5) Catalytic Cracking Units 
into the SIP for EFSEC's jurisdiction (82 FR 24533, May 30, 2017). 
EFSEC is now requesting removal of their adoption by reference of WAC 
173-400-070 in the SIP because subsection (5) is obsolete and to reduce 
unnecessary duplication of Federal requirements as corresponding 
Federal regulations, which the State adopts by reference, have more 
stringent requirements.\24\ For these reasons, the EPA is proposing to 
approve the removal of WAC 173-400-070 for EFSEC's jurisdiction.
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    \24\ EPA approved removal of WAC 173-400-070(5) Catalytic 
Cracking Units on December 28, 2023, (88 FR 89582) because the 
Federal rule (40 CFR 60.102a) Washingtons adopts by reference in WAC 
173-400-115 has more stringent requirements for catalytic cracking 
units than the requirements in the deleted rule. This Federal rule 
(40 CFR 60.102a) sets a particulate matter emission standard of 
0.040 grains/dscf standard, which is significantly more stringent 
than the deleted rule that sets it at 0.20 grains/dscf. Similarly, 
40 CFR 60.102a (d) provides a formula for setting site-specific 
opacity limits based on the PM emission rate measured during a 
source test. We expect this to be lower because of the more 
stringent PM standard. We deleted this subsection to simplify 
compliance by reducing duplication of the Federal requirements in 
our rule.
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    WAC 173-400-081, Emission limits during startup and shutdown. As 
described in our most recent approval of WAC 173-400-081 (88 FR 89582, 
December 28, 2023) which EFSEC adopts by reference: this section 
establishes a case-by-case technology-based permitting pathway for 
establishing startup and shutdown AELs. Numerous non-substantive 
changes were made to clarify applicability and requirements associated 
with establishing AELs. The most substantive change is the addition of 
(4)(b) which requires the permitting authority comply with the 
applicable requirements in WAC 173-400-082. Under WAC 173-400-
081(4)(a), if an emission limitation or other parameter created 
increases allowable emissions over levels already authorized in 
Washington's SIP, it will not take effect unless it is approved by the 
EPA as a SIP amendment. For these reasons, EPA is proposing to approve 
the submitted revisions to WAC 173-400-081 for EFSEC's jurisdiction.
    WAC 173-400-082 Alternative emission limit that exceeds an emission 
standard in the SIP. As described in our most recent approval of WAC 
173-400-082 (88 FR 89582, December 28, 2023) which EFSEC adopts by 
reference: this is an entirely new section establishing a process for 
an owner or operator to request--and the State to approve via a 
regulatory order--an alternative emission limit that would apply during 
a specified transient mode of operation. This process was designed to 
establish AELs that meet the seven criteria discussed above. Any AEL 
established under this section only applies to the specified emissions 
units at the facility requesting the regulatory order. Moreover, any 
such AEL only goes into effect if the EPA approves the new limit into 
the SIP. For these reasons, the EPA is proposing to approve the 
submitted revisions to WAC 173-400-082 for EFSEC's jurisdiction.
    WAC 173-400-136 Use of Emission Reduction Credits (ERC). The EPA's 
May 30, 2017 (82 FR 24531) approval of EFSEC's adoption by reference 
errantly listed April 1, 2011, as the state effective date. The EPA is 
proposing to correct the state effective date to read December

[[Page 84326]]

29, 2012, consistent with our November 7, 2014 (79 FR 66291) approval 
for Ecology's direct jurisdiction.
    WAC 173-400-171 Public notice and opportunity for public comment. 
As described in our most recent approval of WAC 173-400-171 (88 FR 
89582, December 28, 2023) which EFSEC adopts by reference: while many 
changes were made to this section, the only substantive change is the 
addition of (3)(o) which requires mandatory public comment periods for 
orders (permits) establishing AELs under WAC 173-400-081 or -082 that 
exceed otherwise SIP applicable limits. For these reasons, the EPA is 
proposing to approve the submitted revisions to WAC 173-400-171 for 
EFSEC's jurisdiction.

III. Proposed Action

    The EPA is proposing to approve and incorporate by reference into 
the Washington SIP the revisions Washington submitted on June 15, 2023, 
except for those withdrawn by Washington.\25\ This action includes 
removal of WAC 173-400-107--the provision identified as inconsistent 
with CAA requirements in our 2015 SSM SIP call--from the Washington SIP 
for EFSEC's jurisdiction, as well as incorporate by reference at 40 CFR 
52.2470(c)--Table 3--Additional Regulations Approved for the Energy 
Facilities Site Evaluation Council (EFSEC) Jurisdiction, the following 
revised regulations:
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    \25\ See 201_state submittal supplement_EFSEC Partial Withdrawal 
Request Letter - Ecology.pdf and 202_state submittal 
supplement_EFSEC Partial Withdrawal Request Letter - EFSEC.pdf 
included in the docket for this action.
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    <bullet> WAC 173-400-030, Definitions, (state effective September 
16, 2018);
    <bullet> WAC 173-400-070, Emission standards for certain source 
categories, (state effective September 16, 2018);
    <bullet> WAC 173-400-081 Emission limits during startup and 
shutdown, (state effective September 16, 2018);
    <bullet> WAC 173-400-082 Alternative emission limit that exceeds an 
emission standard in the SIP, (state effective September 16, 2018);
    <bullet> WAC 173-400-136 Use of Emission Reduction Credits (ERC), 
(state effective December 29, 2012); and
    <bullet> WAC 173-400-171 Public Notice and Opportunity for Public 
Comment, (state effective September 16, 2018).
    The proposed revisions, upon finalization, will apply specifically 
to the jurisdiction of the Washington State Energy Facility Site 
Evaluation Council.

IV. Incorporation by Reference

    In this document, EPA proposes to include in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, EPA proposes to incorporate by 
reference the provisions described in sections II and III of this 
document. EPA is also proposing to remove regulatory text as described 
in sections II and III of this document that includes incorporation by 
reference. In accordance with requirements of 1 CFR 51.5, EPA proposes 
to remove WAC 173-400-107 from the incorporation by reference at 40 CFR 
52.2470. 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).

V. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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 proposed action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
    <bullet> 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 CAA.
    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 communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
EPA defines 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 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 communities with EJ concerns.
    The SIP is not approved to apply on any Indian reservation land in 
Washington except as specifically noted below and is also not approved 
to apply in any other area where the 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 as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law. Washington's SIP is approved to apply on non-trust land 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

[[Page 84327]]

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.

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: October 11, 2024.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2024-24211 Filed 10-21-24; 8:45 am]
 BILLING CODE 6560-50-P


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